[Recorded by Electronic Apparatus]
Thursday, October 3, 1996
.1105 
[English]
The Vice-Chair (Ms Phinney): Ladies and gentlemen, I would like to call to order this meeting of the Standing Committee on Canadian Heritage. This is the first meeting of the committee to hear witnesses on Bill C-32, an act to amend the Copyright Act, pursuant to an order of reference of the House dated Tuesday, June 11, 1996.
Our first witness is the Hon. Sheila Copps, Minister of Canadian Heritage. Welcome,Ms Copps.
Hon. Sheila Copps (Deputy Prime Minister and Minister of Canadian Heritage): Thank you.
[Translation]
Thank you, Madam Chair.
[English]
I had planned to be here in May, but unfortunately I got caught up in election fever a little bit early.
It's certainly a great pleasure to be here, because Bill C-32 is a long time in coming. It's a much needed modernization of the Copyright Act, one that has been the subject of political discussion for almost a decade.
[Translation]
The bill is designed to achieve a better balance both for our creators and producers and for our book distributors, and I think it will meet the needs of public institutions and visually impaired Canadians.
First and foremost, copyright is a question of justice and equity. It is simply something owed to creators for their work.
[English]
Bill C-32 is above all a respect for property rights, a respect for creative ownership. It is also the result of a long and difficult process. More than 130 members of Parliament from all parties have spoken with me directly about the legislation, and I have tried to take those concerns into account in fashioning this bill.
There are five key aspects to Bill C-32. First, it takes unprecedented steps to protect the rights of Canada's creators to their own property. At present, a singer who is not a composer does not get paid when her song is played on the radio. For the first time this bill recognizes performers and producers in the same way that current law protects composers and lyricists. It means that all Canadian recording artists and producers - not just some - get fairly paid for their work. With this step Canada joins the world community, joins some 50 countries around the world including most of our G-7 partners, France, Great Britain and Japan.
I've certainly heard about the difficult economic situation that many small-market broadcasters in Canada face, and we know the important role they play in linking this country. That's why this bill specifically does not put financial pressures on small local stations. Those radio stations with annual advertising revenues below $1.25 million, 65% of all radio stations in Canada, will pay a minimum $100 annual fee. The larger stations, those with advertising revenues over $1.25 million, will have their fee set by the Copyright Board, and it will be phased in on a 20%, 40%, 60%, 80%, 100% basis over a very reasonable five years.
.1110
[Translation]
Second, the bill seeks to provide justice for our musicians whose works are copied without a second thought about the consequences. In 1994, 44 million blank tapes were sold in Canada. Most of them were used to copy sound recordings for personal use. The losses sustained by the artists and by the sound recording industry are significant, and this simply cannot go on.
It is utterly unfair that the only individuals who do not profit in any way from these practices are the creators. A levy should be charged when blank tapes are imported or manufactured. The sums collected in this way should be subsequently distributed to the artists.
[English]
I want to repeat that in English. In 1994, 44 million blank tapes were sold in Canada, primarily for the purpose of registering work that you don't have to pay for. It's completely unjust that the only people who do not get paid for this duplication of blank tapes are the actual creators of the works of art themselves.
Third, the bill does recognize limited exceptions for non-profit educational institutions, libraries, museums and archives. We are ensuring that copyright provisions do not impede the access these institutions need, in particular access to materials for the visually impaired. I am also aware that when exceptions are too sweeping they may be prejudicial to copyright owners, and I'm sure you will hear from some over the course of your hearings. The bill is aimed at finding the right balance.
[Translation]
Fourth, the bill will protect the exclusive distribution rights of book distributors in Canada. At the moment, some individuals are getting around our exclusive distributors in Canada by placing their orders directly with suppliers abroad.
However, such practices will end once Bill C-32 is passed. It will prevent the parallel importation of books. Once the bill is passed, booksellers, distributors and bookstores will have to sit down together and negotiate standards of performance for the industry. Once they reach an agreement, the standards will be passed in the form of a regulation.
[English]
Fifth, we are also introducing technical amendments to update the Copyright Act, to clarify legal concepts and to describe rights and remedies.
Members of the committee, with this bill, Parliament can ensure the long-term health of a job-creating sector that is extremely important to our economy, the cultural sector, a sector that has grown 300-fold in the last decade and now represents almost a million Canadian jobs.
This bill corrects a lot of wrongs. It respects property rights. It strikes a balance between the rights of the creators and the needs of the users.
[Translation]
In this age of market globalization and rapid developments in communications, reworking our copyright legislation is one of the most effective ways of strengthening our national identity and affirming our place among nations.
[English]
You cannot have a hockey game without the players, and you cannot have a cultural future without the creators. When a woman or a man dedicates a life to enriching this country, we have to play fair. We have to respect their creative property rights. We have to honour their talent and we have to pay them for their work.
[Translation]
We have no right whatsoever to use the creative genius of artists and subsequently take advantage of it. With this bill, we will put an end to the many years of injustice during which our creators lost their proprietary rights.
[English]
Today we're marking a new beginning and I believe we are striking an honourable deal, a deal between the people who create art and the people who enjoy it.
I'd be very happy to answer your questions.
.1115
The Vice-Chair (Ms Phinney): Mr. Leroux.
[Translation]
Mr. Leroux (Richmond - Wolfe): First, I think it's important to mention we are entering into an extremely important phase during which we will be hearing from the individuals and organizations with an interest in the bill.
The fact that we have received over 160 briefs indicates the importance of the bill and the interest in it among many Canadian and Quebec groups. They want to appear before us to express their views on the bill.
Ms Copps, I would like to talk about your comments regarding the main objective of the bill, which is to provide equity and justice in the form of remuneration to holders of rights.
You stressed the fundamental recognition of holders of rights. I would like to check whether this principle is actually enshrined in the bill, whether it recognizes and strengthens both existing and future rights.
You have said for at least ten years now that creators in various fields have been working very hard to try to strengthen their rights, to have them recognized and enforced. For about ten years, everyone has been trying to convince the government to proceed to phase two of the Copyright Act amendments.
During the election campaign, you yourself said that the Liberal Party was committed to reviewing the Copyright Act. So here we are.
When the bill was tabled, we were quite surprised to see that in recognizing copyright, you started by including 13 pages of exceptions. Formerly, there was one page of exceptions, and now there are 13. We now have 13 pages of exceptions covering a broad field of activities relating to education, museums and libraries.
In reading this bill and all the exceptions it contains, we have to wonder whether the bill simply sets out what copyright is and then lists all the areas to which it does not apply.
I am quite astounded to see how many exceptions are contained in the bill. There will be exceptions for large institutions which obviously have budgets in the millions of dollars. The bill seems to be saying that copyright is not something essential that must be respected in their case.
The message that institutions get is "in your case". Since you are involved in a particular activity you will not have to pay copyrights, and the Act will set out all the reasons why you do not have to do so.
Why don't we suggest that they not pay for their electricity, heating, paper and telephone as well? As far as I know, no institution in society can get around paying this type of overhead. I know of no institution in society that is exempt from paying for these services.
I fail to see why, through this legislation, copyright would suddenly become something that some groups can avoid paying. It will be possible to reproduce works for use in examinations or school exercises, if they are not on a high-quality medium, perform works in public, transmit sound recordings, television and radio programs, and so on, reproduce current events programs and transmit them to schools without paying any copyright.
.1120
There are a series of exceptions set out in clauses 29.4 to 32. They include two principles that I think are absolutely out of place. I have to wonder what they're doing there.
The first relates to libraries, museums, schools and archives, which are no longer responsible for the photocopies made on their premises. The bill takes away from these large institutions the responsibility for managing their own material.
Next, the bill adds a principle that I'm having difficulty understanding. Imagine someone appearing before a judge and saying: "I'm not guilty, because I didn't know the law". It is a well-known principle that ignorance of the law is no excuse.
Here, we're saying that we will recognize the no-fault principle in cases where copyright is not violated intentionally. This means that in the case of copyright a person could claim that he had no knowledge of the Act and this would be accepted.
I think this is a warped principle. I don't understand it, Minister, and I would like to draw to your attention to the tremendous consequences it could have in an area as fundamental as free negotiations.
At the moment, there are free negotiations between representatives of the authors and the institutions, including the government. This principle would jeopardize existing agreements, which have already been negotiated. I would like to mention a few of them.
Agreements were entered into between the Quebec Department of Education and the Union des écrivaines et écrivains québécois. Through free negotiations, an agreement was reached on the conditions in which copyright should apply.
There is one with the Fédération des cégeps, and with the Association of Universities and Colleges of Canada. There is also one with the federal government called CANCOPY, for reprography and news summaries.
There is an agreement between the Centre des auteurs dramatiques and the Department of Education on the use of works. There is also one between SODRAC and the Department of Education with respect to the reproduction of musical works in French.
There are agreements between the Ontario, Manitoba and Alberta departments of Education and rerography collectives. There are agreements with the Ontario and Alberta governments on photocopies.
You raised the matter of the blind, the visually impaired, Minister. There are agreements between the CNIB and SODRAC regarding the reproduction of works for the visually impaired. This new exception will literally endanger free negotiations between the representatives of the holders of rights and any individual or organization seeking an exemption or different recognition because of the very nature of what they do.
[English]
The Vice-Chair (Ms Phinney): Mr. Leroux, you have only three minutes left, and if you want the minister to answer your question.... I'm just letting you know.
[Translation]
Mr. Leroux: I would like to start by explaining the situation carefully, Madam Chair. That will take me 15 seconds.
You are jeopardizing an absolutely fundamental principle. I don't understand why we are putting these points into the Act, because what you said is quite adequate: namely, that we must enhance justice, equity and the recognition of fundamental rights.
I would like you to tell me why we are amending the Copyright Act and at the same time using 13 pages to state who is excluded from these rights.
Ms Copps: I think that those who were here during the first phase of the review of the Copyright Act know that we had to include some exceptions in the bill. One institution that requested this was Laval University, and other educational institutions. The reasons for this were set out in the first phase of the review of the Copyright Act.
Parliament passed a bill amending the Copyright Act in 1988. At that time, a number of organizations appeared before the committee to explain why they were seeking exceptions, and these still appear in this bill.
.1125
This is an important point, and I know that in the course of hearing from the 70 groups and individuals, you will be able to discuss the issue with groups such as the Quebec Museums Association, the Canadian Museums Association and the Association of Universities and Colleges of Canada, which represents UQAM and Laval University.
If you would like to add any clarifications, we would be prepared to reconsider certain exceptions. One of the reasons why we have been talking about the bill for ten years is that we want to be sure that we can proceed.
I remember a speech by Marcel Massé in which he spoke about the importance of proceeding with this. The reason why certain things were not put forward in the bill is that we were trying to achieve a balance.
I'm the first to admit - and I think you will hear in some of the presentations - that there should be no exceptions, except for libraries or non-profit institutions.
Given that we have to try to strike a balance, I think the bill does this by including among the exceptions those non-profit institutions that do not try to make any profit from their reproductions. If you have any comments, I would be pleased to hear them.
Mr. Leroux: I will come back later to make some comments.
Ms Copps: I would like to introduce the other people who are here to take part in the discussions. They are Mr. Victor Rabinovitch, the Assistant Deputy Minister, Cultural Development and Heritage, and Mr. Jeff Richstone, who is a lawyer. We need legal advice, because many points in this bill require clarification. We also have with us Ms Susan Katz, who is the Director General of Cultural Industries at the Department of Canadian Heritage. Mr. Richstone works for the Department of Justice on cultural matters, including copyright. We also have with us Mr. René Bouchard, who works in the area of cultural industries at the Department of Canadian Heritage.
[English]
The Vice-Chair (Ms Phinney): Mr. Abbott.
Mr. Abbott (Kootenay East): Thank you.
In just 30 seconds I will be asking for a separate meeting before our next Tuesday morning meeting to discuss the issues that have been raised relative to our legal counsel or our independent counsel here. I'm just putting you on notice.
My first question, quite bluntly, is political in asking about your ownership of this bill - in other words, how much in charge you are on this bill.
Of course I'm reflecting on what has been going on with respect to Bill C-216 with the negative option billing now being introduced to the Senate. Your position, very clearly stated by you, was that the government in no way was going to be allowing negative option billing. And yet we have the documents from your department on your letterhead saying the government position was to be opposed to Bill C-216. It struck me that there was a direct conflict between your department's position and your position.
So I'm just trying to determine how much ownership you have of this particular bill, since you didn't seem to have ownership of the other issue.
Ms Copps: The other bill was a private member's bill. This is my bill.
Mr. Abbott: So you have ownership of this bill.
One of the concerns we all must have is relative to issues such as fairness. Does it really make sense to go after churches, seminar providers or people wanting to change medium? In other words, if I go to a record store and buy a CD and I don't have a CD player in my car, you're now going to be putting a fee on that tape for me to be able to transfer medium?
What this bill basically says is I'm guilty until proven innocent. I'm guilty. I must be giving this tape to somebody else rather than using it for my own pleasure. Or is this bill simply saying that the government says if you buy a CD, you can enjoy the CD in your home, but you can't enjoy that music in your car?
.1130
Is it really fair of this bill to go after churches that make recordings of their services on a Sunday morning? And I don't doubt, without exaggeration, that there are tens of thousands of these recordings made every Sunday. When you say 44 million cassettes were purchased and then you make the unqualified statement that most were used to copy sound recordings for personal use, which implies that people are guilty for some reason, does that really make any sense?
Ms Copps: You can go into any record store across the country, and the fact is most people buy blank tapes to copy the property that belongs to somebody else.
Mr. Abbott: Do we know that? Has that been measured?
Ms Copps: Yes, it's been measured extensively.
Mr. Abbott: So because people will do that, we're saying that organizations that are making original recordings, such as churches or seminar providers, and people who want to change medium are batched into that lot and they have to pay too?
Ms Copps: Changing medium means basically you're replicating somebody else's property, and I know that with your strong position on property rights, you would not want somebody to be able to steal somebody else's work.
Mr. Abbott: So if I buy a Bryan Adams CD, I can play it at home, but because I don't have a CD in my car, you're saying I can't copy that.
Ms Copps: Bryan Adams doesn't make his work to be copied.
Mr. Abbott: Oh, well, then, I won't play him in my car, I guess.
Ms Copps: It's also not legal.
Mr. Abbott: That's interesting.
Let's take a look at another area of concern. It's all very well and good to say we have the small broadcasters covered but we can go after the big guys because they have lots of bucks. I think that's kind of the angle we're coming at this thing from. But can you understand that they are somewhat concerned about the fact that this is open-ended?
In other words, there's really no idea what they are going to be paying for neighbouring rights. Particularly with the number of zeros you get after their revenue figures and with it being open-ended, can you understand that there is some fear and concern on their part that this is going to be yet another drain to their revenue?
Ms Copps: I would look at it in a different way. I would look at this bill as an attempt to enshrine property rights for artists, and in fact the exceptions we've made for small radio broadcasters are in recognition of the financial tightrope they are currently walking.
I would argue that the right to own your own property is the same right whether you are a plumber or an artist.
In relation to the issue, for example, of copying somebody else's tapes, that is currently not legal. The legislation recognizes that it's done and it's done in a fairly uncontrolled fashion. Hence you see millions of tapes currently being sold for purposes of taking somebody else's work and copying it. This will actually make the practice legal in the future.
Mr. Abbott: Your answer, though, seems to indicate that it's only the small radio companies that are in some kind of financially tenuous position, and that the large ones that have millions of dollars of revenue can afford whatever this open-ended amount will be for neighbouring rights. Did I understand that?
Ms Copps: I would reverse the argument. Producers' and performers' rights are important property rights that should be enshrined in the law, and the exceptions we make are indeed a delicate balance. The exceptions are actually made and reduce the revenues of people whose average income is somewhere in the neighbourhood of about $13,000 a year.
Mr. Abbott: But on the other hand, the figures I have received - and I'm not sure it wasn't from some of your officials - indicate that the amount of revenue that is potentially going to be collected, for example on the blank tapes, will probably be less than $12 million a year.
Every penny counts. But if we take a look at the number of artists, at the fact that we're becoming involved with the Rome Convention countries and at the meagre dollars that are actually going to be flowing down, isn't this just a nuisance charge for churches, for seminar providers, for people who have legitimate uses for those tapes?
.1135
Ms Copps: I think you're going to hear from the artists over the course of the next several weeks, and you can pose that question to them. I think the amount of money involved for them arguably is not as much as they would like it to be. The fact is that when it comes to blank tapes in particular, it has been shown on numerous occasions that blank tapes are primarily used to illegally replicate somebody's work - and I know churches would not want to be involved with illegal activity.
Mr. Abbott: How do you feel about CANCOPY from this perspective: Unlike SOCAN, in which there's an industry standard that has creators on one side and users on the other side, CANCOPY does not represent all creators. As a consequence, many users - I'm thinking, for example, of an outfit like Algonquin College, or others like it - have a concern that when they're dealing with CANCOPY, they are basically being asked to pay a charge for all of the people represented by CANCOPY, but they still have to in fact deal with some of the creators who are not dealing with CANCOPY. Isn't that rather muddy?
Ms Copps: That's a question you can ask CANCOPY when they come. I can speak to you on the broad intention of the bill. In terms of individual commercial agreements that are entered into between producers and performers and individual licensing agencies, I think it's probably best for you to ask them directly.
Mr. Abbott: In taking a look at this, I guess part of the problem is that while I sincerely have respect for the concept of the creators' property rights, on the other side of the coin, with the current application of the copyright law and these proposed amendments, it just strikes me that there is an assumption of guilt on the part of a tremendous number of Canadians. It seems to me that there's a tremendous amount of government interference, to be very blunt.
The Vice-Chair (Ms Phinney): Mr. Abbott, your time is up, but we'll allow the minister to answer.
Ms Copps: On the contrary. Ten years ago, we didn't necessarily have CDs, we didn't have a lot of new kinds of replication procedures. Twenty years ago, we didn't have reel-to-reel tapes in people's homes and available in a very limited price range. I would argue that because of the newly emerging multimedia world, what we're doing is establishing a legal regime that respects the rights of performers in the same way that we have legal regimes to respect the rights of plumbers, of service providers. I don't think you could find a church in the country in which people would expect a plumber to come to do work for nothing. This establishes a property right for artists, which is important.
It's also a key cultural initiative, because at the moment one of the growth industries in Canada is our cultural industry. With the signature provisions to the Rome Convention, we will hopefully see, for example, the Canadian recording industry increase at an even greater pace. At the moment, because we are a non-signatory to the Rome Convention, many of our most famous artists actually seek to record offshore because they can then be subject to the kinds of royalties that are not currently available to them in a non-signatory country. So we're actually losing jobs to other countries because we are not a member of the world community in recognizing artists' property rights.
The Vice-Chair (Ms Phinney): Thank you.
Mr. O'Brien, you have ten minutes.
Mr. O'Brien (London - Middlesex): Thank you, Madam Chair. I have a number of questions. Do we have ten minutes for our side now? I'll try to leave some time for my colleagues too.
I appreciate the comments the minister has made. On the issue of tapes and copying, it's unfortunate that our colleague wasn't at the briefing, but I want to make sure that my understanding is correct.
.1140
Of some 44 million tapes sold in Canada in 1995, I'm told that 39 million of those tapes, as it was determined by the task force, were used for copying. Is that an accurate figure?
Ms Copps: Yes.
Mr. O'Brien: I think it's pretty clear that -
Ms Copps: That's for pirated copying. That's for copying political speeches and stuff like that, for which we should be paying, right?
Mr. O'Brien: I think it's important that we know there are hard numbers to verify that.
My colleague talked about respect for the concept of performers' rights, yet respect for the concept doesn't feed the artist.
I want to ask the minister this. There is, I think, a myth floating around. Certainly I've had this concern raised to me. I'd like to hear your reaction to that. It's said that all we're doing here is sending money to American artists and the United States. Could I have your feeling about that?
Ms Copps: In fact the United States is not a signatory to the Rome Convention, so there are no reciprocal rights for American artists in this legislation.
Mr. O'Brien: On the issue of the tape levy, do we know how much that levy will be on tapes?
Ms Copps: It's set by the Copyright Board.
Mr. O'Brien: Right, so I think we can't prejudge and say that there aren't going to be significant moneys raised from that -
Ms Copps: The average international levy, if you look at countries in similar circumstances, is about 37¢.
Mr. O'Brien: Thank you.
In some other preparatory work for these hearings - we've all done some - it's my understanding that the exemption for neighbouring rights, if you will, is for the first $1.25 million. Now, my colleague, Mr. Abbott, raised a concern about how we're just hitting the big radio stations here. Is it not true that this exemption applies right across the board to all stations equally?
Ms Copps: Yes.
Mr. O'Brien: So I don't really have tears welling in my eyes at this point for the big stations when they are also exempted on the same basis as the smaller stations that have expressed concerns to me and many other colleagues.
Minister, the U.S. doesn't have neighbouring rights, and they're such a big key to Canada among our trading partners, so the argument I hear sometimes is why should we bother.
Ms Copps: If you look at some of the reasons the Canadian music industry has blossomed in the last three decades, it started because we were courageous in developing Canadian content regulations. People look now at the Shania Twains, Céline Dions and Bryan Adams as a fait accompli. That came about because we developed a regulatory regime that was quite unique. Had we done 25 years ago exactly what the Americans do with their radio stations, you would have no critical mass of artists from which to build.
Second, this will create Canadian jobs. The Canadian recording industry has blossomed, in particular in the last decade, as a result in part of the regulations on Canadian content. It has also blossomed because of the home-grown talent, but it is also true that many of our most renowned world artists, Roch Voisine for example, and Céline Dion, do engage in recording in other countries that are Rome signatories because they want to be able to accrue the revenues, the royalties that are due them as artists.
So the hope is that with the legislation in place, even bearing in mind the level of exceptions that exist for all revenue productions at the radio level up to $1.25 million, they will come home to record and create Canadian jobs.
Mr. O'Brien: Thank you. I have several other questions, but I'm going to defer to my colleagues.
Mr. Peric (Cambridge): Madam Minister, you mentioned in your speech earlier that this bill is built to protect Canada's creators. As we know, the culture industry is very important to us as a nation. Then you mentioned that the bill will protect the fair royalty distribution. Has your department done any economic analysis as to how much money will be paid to the performance and record industry, especially to performers and creators both within Canada and abroad?
.1145
Ms Copps: The Copyright Board obviously will be in a position to develop the framework. The predictions are that it would probably be about one-half of the current rights payable to authors and lyricists, which would represent somewhere in the neighbourhood of $7 million.
That's a rough guess, based on what's currently in place for authors and lyricists. The Copyright Board will actually set it.
Mr. Peric: After Canada becomes a member of the Rome Convention, do you have any prediction as to how much the Canadian cultural industry will grow in the next five to ten years?
Ms Copps: We have many challenges ahead in culture, in particular because in the global world national boundaries are coming down in many areas. We have kind of a four-pronged approach, which obviously must strengthen Canadian book publishing, as the parallel importation attempts to do by way of providing guarantees for Canadian distributors. We have other initiatives
[Translation]
which go a little beyond what is in the bill.
[English]
But the copyright legislation and the other initiatives - which include the television programming fund, which include the incentives currently available for Canadian publishers, which include, I think, a limited protection for Canadian film distribution as currently in the law - are all important parts of a puzzle that, when it comes together, has created a 300% increase in the cultural industries in the last decade. We fully expect that to grow exponentially.
Right now, for example, we are the number one world exporter of children's programming on television. Partly because of our multilinguistic ability - we have television shows in many languages already - the possibility for future export growth is very strong. That's one of the reasons why, in the foreign affairs white paper, cultural industries is one of the export industries we would like to promote. But it's copyright and the other pieces that must come together.
Mr. Peric: One last question. Are you telling us that foreign artists might come here and produce their creations in Canada, and by so doing would create jobs in Canada?
Ms Copps: That could happen, yes.
Mr. Peric: Thank you.
The Vice-Chair (Ms Phinney): Mr. Leroux.
[Translation]
Mr. Leroux: I have five minutes, and I would like to complete my questions about copyright. A little later, we will discuss issues such as neighbouring rights with other witnesses. These are extremely important points in the bill.
You have acknowledged that there were many exceptions in the bill, and you said that many witnesses would point this out.
I would like to get you to agree that this bill is a weakening of copyright. It is a step backwards. I think that by increasing the number of exceptions, we are weakening the legislation.
The second danger with introducing many exceptions is that we are sending out the message that copyright is not really all that important. Consequently, many people will try to get around the Act.
I am also concerned about phase 3. If we start from this principle, don't you think that by phase 3, there could be a strong lobby which would try to expand the exceptions to other situations or to other areas?
And why would people not try to have these exceptions apply to the information highway, for example? I therefore think it is dangerous to head in this direction.
.1150
I think this bill introduces provisions that will definitely weaken the position of creators. We know that new technologies will be discovered, so everyone is working toward phase 3 in which an attempt will be made to broaden the exceptions and to see how they could be applied to the new technologies.
Personally, I am very concerned. I have read some briefs and I have listened to a lot of people. I know that we will hear from some witnesses, but I think the provisions of this bill will put us in an extremely difficult situation. This is particularly true given that we were working from the principle that we had to distinguish between copyright and the holders of rights. Some things in the legislation cannot be applied.
For example, I am wondering who will supervise the individual who sets the criteria at the library counter to determine that photocopies cannot be made and that a particular document cannot be used for individual research. Some of the provisions of this bill cannot be enforced.
Ms Copps, are you prepared to consider that free negotiations between the representatives of authors, creators and other members of society is the best solution if witnesses and the Board provide evidence that exceptions are not the right approach?
Would you be prepared to consider coming back to the existing legislation with respect to exceptions, which cover about one page, and leave it up to individuals and groups to negotiate freely on this matter? I think you would agree, Ms Copps, that no creators were scandalized when agreements were negotiated with the federal government and the provincial governments.
Ms Copps: To begin with, I think it is wrong to claim that the bill represents a weakening of copyright. Since 1988, we have had rights for composers that did not exist in law for producers and other artists.
At the moment, we are trying to establish rights for producers and artists that were never recognized in the Act before. So it is wrong to claim that the bill is a step backwards. Rather, it strengthens the legal framework of copyright for artists and composers.
Moreover, you say it would be preferable to stick with the agreements that have already been negotiated. I would point out that the bill does not take anything away from existing agreements, because they will continue to exist. There are agreements with the federal government and they will continue to be negotiated, they will not disappear. However, I think you will hear about new artists who are appearing, who cannot afford to turn to costly legal services to defend their rights. This bill will entitle such people to belong to an organization that will protect their rights.
Clearly, in an area as complex as copyright, there will always be the problem of exceptions. That is why we are here. But the exceptions contained in the bill were established in 1988 at the request of institutions such as museums and non-profit associations, who said that they should be given special treatment.
If you think that these exceptions are not valid for Laval University, UQAM and The Quebec Museums Association, put your proposals forward, and we will consider them.
Mr. Leroux: Just in closing I would like...
[English]
The Vice-Chair (Ms Phinney): Your time is up. You can come in at the next round -
[Translation]
Mr. Leroux: But the Minister will be gone.
[English]
The Vice-Chair (Ms Phinney): The next round. You're already a minute over.
Mr. Abbott.
Mr. Abbott: I found it rather interesting that the brief from Algonquin College of Applied Arts and Technology brought up the issue of indemnity. They were concerned because they wanted to be able to find out who they were actually going to be liable to for copyright. In other words, in this area we end up with a situation where it is not clear whether they should be paying money to this group or that group or this creator or that creator.
.1155
Can you point me to somewhere in this bill where this amendment overcomes that problem? It struck me in reading their brief that they had a very legitimate concern, and I need some direction in the bill.
Ms Copps: I've gotten advice from the legal people, who say that if you're not part of a collective organization that has negotiated an agreement, you get protection under proposed section 38.2. When the parties raise these issues at the table, you may get into more detail.
Mr. Abbott: It's just that in looking at the application of the entire Bill C-32, it's very clear that.... I'll go to what my father always used to say: you can't legislate human behaviour. You can attempt to influence human behaviour, but you cannot actually legislate what will be going on.
Although I'm coming from a somewhat different direction from my BQ colleague, I'm inclined to agree with him that because of the number of exemptions and because of the complexity of this legislation, this is going to be.... In the same way that the Constitution, our Canadian Bill of Rights, has given us a charter industry, I think these revisions are going to create a copyright industry. It's going to be great for lawyers.
Ms Copps: Well, I suspect you can explore that with the artists when they come. I think they would argue very vociferously that in fact you're not legislating behaviour; you are ensuring that people who own real property are respected for it.
Your own party, I think, passed a resolution in the House this week saying that in Canada there has existed and continues to exist the right of every person to the ownership, use and enjoyment of property, both real and personal, and that the right not be deprived of except by due process of law. That's exactly what this legislation is attempting to do with the property owned by artists.
Mr. Abbott: I respect that. This is a very good attempt. I just feel it's going to create a copyright industry. But time will tell, won't it?
The Vice-Chair (Ms Phinney): Before Mr. Bélanger begins, Madam Copps, you said you'd stay until noon, but this will take you a couple of minutes over. Can you stay for at least this question?
Ms Copps: Yes, and his last question too, if you want. I have to be somewhere else, but I got here five minutes late anyway.
The Vice-Chair (Ms Phinney): Okay. Mr. Bélanger.
[Translation]
Mr. Bélanger (Ottawa-Vanier): I have two questions.
The first one is about neighbouring rights and the proposal in the bill to exempt revenues up to 1.25 million dollars.
Although I haven't done any calculations, let us say that this would exempt two-thirds of all radio stations - this is a figure that has been mentioned. Some have said that this would exclude roughly 70 per cent of the potential revenue.
I would like to ask my two questions within my five-minute period, as my colleague did.
What impact might these exemptions have on reciprocity considerations with other countries who signed the Rome Convention? If, under the proposed legislation, we were to exempt 60 to 70 per cent of the potential revenue, might the countries that signed the Convention also try to do the same thing in return? What is the situation in this regard?
[English]
The second question, perhaps a little more general, is to get a sense of how quickly the government and the department wish to act on phase three. There's some significance and relevance to this in the sense that, for instance - and it's just one ``for instance'', there are quite a few more - the recording and copying industry, if you will, is evolving rapidly, and the cassette may not be, in a year or two, the prime medium of copying.
.1200
For instance, videos are now getting more and more popular. I'll now probably inadvertently admit to being a criminal if I say that I've copied movies at home.
An hon. member: No, say it isn't so.
Some hon. members: Oh, oh!
Mr. Bélanger: I haven't admitted to that yet.
Nonetheless, video copying is certainly growing, and so is now the use of computer diskettes, floppy disks, for sound recordings, for instance. As this phenomenon accelerates, I have to ask myself, if we're going to consider a levy, why aren't we considering a levy also on videocassettes and floppy disks? Ergo the importance of knowing, in terms of our deliberations at the committee, how speedily the department, or the government, wishes to proceed with phase three.
I know we're not even done with phase two and we're asking about three, but I think it's important so that we can perhaps orient our discussions during the hearings.
Ms Copps: On your first question, we believe the legislation does satisfy the requirements of the Rome Convention, and will not be challenged. Elsewhere, different regimes have different models, but we believe the regime model does respect the obligations we have as signatories.
Second, on the issue of phase three, I took on this job last January. One of the first priorities I had was this particular piece of legislation. I prefer to take things in manageable chunks. This was not an easy piece of legislation to come together on. There has been a tremendous amount of discussion and give and take, and I think we've come out with a balance that probably will see its detractors on both sides. It therefore has the kind of balance we need.
I wouldn't put a timetable on phase three, but I would like to put a timetable on completing this process as quickly as possible.
On the issue of audio-visual tapes, I'm actually going this afternoon to speak to the Information Highway Advisory Council on the whole issue of Canadian content and where we're going in the multimedia world. Even as we speak, you can pick up certain things from the information highway that aren't even touched in any of this material.
The general view was that while the case on tape reproduction for purposes of pirating works was pretty clear-cut, in fact there is significant work that has to be done on audio-visual tapes before you can come to the same conclusion. A lot of people do use tapes for home theatre and home videotapes for taping family weddings, for other kinds of things that are not an infringement of copyright. The case was certainly not as compelling on that issue.
So I'd like to see this done as quickly as possible. The next phase, au fur et à mesure.
The Vice-Chair (Ms Phinney): Were both those answers to your satisfaction?
Mr. Bélanger: No, but I'll have to satisfy myself with those.
Ms Copps: I'm just saying let's deal with this at the moment, because it is an exploding world, and there are lots of new challenges coming forward. But copyright itself is an important historical legal tool, and I think this will continue the démarche.
Mr. Bélanger: I still have time, so I will ask a further question based on my colleague's first comments.
The Vice-Chair (Ms Phinney): It had better be short.
Mr. Bélanger: Yes, indeed.
The notion of exemptions, I think you might want to agree, is not one that is new in law. Was my colleague suggesting that we abolish all exemptions, for instance, of taxes, or exemptions for churches, or that the $300 every Canadian has when they're bringing property back into Canada...? I mean, I would think that the notion of exemption in law is not new or unique to this bill.
Ms Copps: That's right.
Mr. Bélanger: I thought so.
Ms Copps: In the original phase one that was brought in there was much discussion at the time. Some of us were actually here at that time. I remember the vigorous debate on both sides of the issue.
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The Vice-Chair (Ms Phinney): Mr. Leroux, you have five minutes for questions and answers.
[Translation]
Mr. Leroux: What you said about copyright is accurate. There are some categories and some individuals who will be recognized, but I would like you to think about the principle of weakening copyright. What benefit is there for creators to read the 13 pages which explain that they have no rights, whether they are a new creator or a recognized one? That is where the problem lies.
There is a rule in the legislation that allows for a review in five years, if I am not mistaken. Is this a reference to phase 3, which you mentioned?
Ms Copps: No, but as the Member for Ottawa-Vanier said, the exceptions were not created today, but rather in 1988, at the request of non-profit organizations, among others, who wanted an exemption. I am thinking particularly of some exemptions regarding visual aids, and of other concepts that were introduced and which you will certainly be looking at closely.
Mr. Leroux: If I understand correctly, Ms Copps, there is some trouble understanding why trust should be shown to negotiating parties. They're excluded from the discussions beforehand, because the view is that it is not worth negotiating with them, since there are already many agreements in place.
We are becoming more civilized by strengthening copyright, but we know that whenever we talk about copyright, holders of rights or the ownership of creative works, it is very difficult to convince everyone that such recognition is fundamental to any society.
We have been working on the copyright legislation for a long time, and I think this bill weakens it, by sending out the signals that there are still many sectors that are being told not to be concerned about this because of what they do and to forget all about copyright.
Why would they not pay copyright, given that they pay for their telephone, their electricity, their heat, their paper and so on. I think the bill takes away certain responsibilities, rather than assign them. I think this is a problem.
Ms Copps: You are free to present your arguments. Personally, I disagree, and I don't think we can talk about a weakening of the legislation when we are providing a new right. In fact, the very people who are negotiating with the Quebec government, the Canadian government and private sector organizations at the moment are asking us to establish a legal system that protects them.
Governments don't introduce legislation for the fun of hiring lawyers. They do so because organizations such as ADISQ, among others, ask us to set up a legal framework so that they do not have to gain recognition solely through bilateral agreements.
What we are doing does not prevent them from continuing their contractual dealings with other organizations. However, it does strenghten, through legislation, the protection for creators that exists for some groups, but not for others.
As regards the exceptions, I am sure you will hear all viewpoints on this matter. We try to draft a balanced bill, but nothing is ever perfect.
[English]
The Vice-Chair (Ms Phinney): You have one more minute if you want it.
Madam Minister, would you like to leave, or...?
Ms Copps: Oh, thanks.
The Vice-Chair (Ms Phinney): We'd like you to stay if you'd like to, but....
Ms Copps: Well, good luck.
Some hon. members: Oh, oh!
The Vice-Chair (Ms Phinney): And your staff is going to stay?
Ms Copps: They're going to stay, yes.
The Vice-Chair (Ms Phinney): Thank you very much.
Ms Susan Katz (Director General, Cultural Industries, Department of Canadian Heritage): Madam Chair, if you'll permit me, I'd like to invite my colleagues from the Department of Industry to join me at the table.
The Vice-Chair (Ms Phinney): All right. Are you going to chair that end of the table?
Ms Katz: I'll be in the centre and -
The Vice-Chair (Ms Phinney): So then you can introduce whoever you're adding to the table.
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Ms Katz: Yes.
I'd like to introduce David Tobin, who is the director general of corporate governance at Industry Canada and acting assistant deputy minister of policy; and Danielle Bouvet, the director of intellectual property at the Department of Industry.
The Vice-Chair (Ms Phinney): Thank you.
Since Mr. Abbott isn't here, the next on the list is Mr. O'Brien.
Mr. O'Brien: Thank you, Madam Chair.
It seems the issue of exemptions is paramount here. I'm a little surprised with my colleague from the Bloc seeming not to support any exemptions at all. I'm wondering what the reaction of various church groups and charitable groups in Quebec would be to that. I know in my riding and in Ontario generally, that would create some very real concerns.
So I want to follow the theme of exemptions and ask about exemptions, exceptions or whatever on the whole issue of ephemeral copies and the transferring of a work from one format to another. As I'm sure all my colleagues on the committee have, I've heard various groups of people on both sides of this issue. The bill does not include those two areas. Can I have a rationale for why they're not in the bill?
Ms Katz: On the question of ephemeral recordings, you're quite right. What Bill C-32 does with regard to ephemeral recordings is essentially maintain the status quo.
Mr. O'Brien: Can I stop you there? Can you elaborate on what is the status quo? There's some debate on what exactly the status quo is in terms of ephemeral rights.
Ms Katz: In 1990 there was a Supreme Court case on this question. There had been some doubt in the minds of some as to whether or not the making of an ephemeral recording was an infringement of copyright.
The Supreme Court decision of 1990 confirmed that in fact an ephemeral recording was a reproduction and therefore a broadcaster would be required to pay for the making of that ephemeral recording.
Mr. O'Brien: That's the Bishop case.
Ms Katz: That's correct.
Mr. O'Brien: Is it not correct, however, that artists routinely allow for this to take place when they negotiate agreements, that there's no real attempt by performers to go and seek out these?
Ms Katz: The agreement that a collective would sign with a broadcasting organization would cover a variety of reproduction rights. A sum would be established to cover those reproduction rights, and amongst those would be included the making of ephemeral recordings as well as other kinds of recordings that would be made in assembling a broadcast program.
Mr. O'Brien: In one of my other lives I was in education for many years, and I have some sympathy for people in that field asking for an exemption for instructional purposes.
The bill allows for certain exemptions. Can you explain why the bill wouldn't allow a classroom teacher at whatever level to hand out to each student a copy of, say, a poem or an excerpt of a play, etc.? There's a bit of a view that the exemption for educational purposes doesn't go far enough. What is your reaction to that?
Mr. Jeff Richstone (Lawyer, Department of Canadian Heritage): There are certain exemptions in that respect. In particular, if you're talking about copies handed out to students, there is a specific examination and classroom assignment provision in proposed subsection 29.4(2) that should cover a good deal of what you asked.
Mr. O'Brien: My question relates to the fact - and correct me if I'm wrong - that the copying by a teacher of a full class set of materials is not permitted. Is that not correct?
Mr. Richstone: A copy of...?
Mr. O'Brien: In other words, if you have 30 students in a classroom, you're not allowed to provide a copy to each student. You're allowed a more limited number than that. Is that not correct?
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Mr. Richstone: What I think you're getting at is in proposed subsection 29.4(2), where you have the classroom assignment. But again, this is cut down by proposed subsection 29.4(3), which says if that particular work is commercially available, then the exception doesn't apply.
So the two are in balance, one against the other. If there is a commercial availability of the work, then there is no need to reproduce. If there isn't a commercial availability, as determined in each case, then the exception applies. But there is no set figure in the bill.
Mr. O'Brien: Thank you.
The Vice-Chair (Ms Phinney): Could I just clarify what you've just said? Commercial availability means, in other words, if there are 30 books that have that poem available to buy in Canada. Is that what this means?
Mr. Richstone: The exception on commercial availability says if the work is commercially available. Proposed subsection 29.4(3) says if it's commercially available in a form and in a quality appropriate for the purpose. That is, then there is no exception permitted.
The Vice-Chair (Ms Phinney): I'm still not clear. I also have been in education all my life, and I'm not clear about what you're saying.
If I want to use a poem in the classroom, and it's in a book, and 30 copies of that book are available somewhere in Canada, I can't copy it. But after I have found out that there aren't 30 books available in Canada, I can copy it? Or would I have to wait until the next publication of that book before I could copy it?
Mr. Richstone: The exception would suggest that if there's no.... The wording of ``commercially available'' means if that book or that work were commercially available, then you couldn't use it.
The Vice-Chair (Ms Phinney): So would I have to give it to every second student? Could I make 15 copies of it?
Mr. Richstone: In the cases where the exception wasn't available, then one would assume there would have to be a licence. If you wanted to make copies over and above, you'd have to have authorization from the right-holder. Authorization from the right-holder in terms of reproduction is often in the case of licensing arrangements with collectives.
The Vice-Chair (Ms Phinney): So would that mean no teacher could use in the classroom any material that has not been already authorized by the school board and has already gotten permission to use it? If the teacher all of a sudden said she knew a poem she'd looked at five years ago, she couldn't use it in the classroom.
Mr. Richstone: Again, you have to look at the existing agreements a lot of these institutions have with their eligible collectives, be it UNEQ, say, or CANCOPY on the other side, where a certain amount of reproduction is licensed, is authorized. Then you have to look at whether that is an authorized use.
The limited exception that is put in the act here is only for such works that are not commercially available, that you cannot find in the marketplace. If you can find them on the marketplace, then the rationale for that limited exception disappears.
The Vice-Chair (Ms Phinney): When the education groups come I'll question them a little bit more about how easy this is to manipulate.
Mr. Leroux.
[Translation]
Mr. Leroux: I would like to come back to some of the principles contained in the bill. One that surprises me greatly is the no-fault principle. It provides that I am not guilty because I was not aware that I was breaking the law. I have a hard time understanding why we would apply such a principle.
How can we anticipate the scope of such a provision? What is its effect? Does it happen very often in legal matters that the accused can tell the judge that he is not guilty because he was not aware that he was breaking the law? "I copied the work and I apologize for that, but I'm not guilty, because I didn't know I was doing anything wrong".
Ms Danielle Bouvet (Director, Intellectual Property, Industry Canada): Which clause are you referring to?
Mr. Leroux: I'm referring to clause 30.7 which exonerates individuals who photocopy a text if they did not realize that they were photocopying an author's work. If such people did not act deliberately and can demonstrate that they did not know they were doing anything wrong, then it is all right.
I have trouble understanding that. Is there any such provision in any other act, where a person could be found not guilty of speeding if they did not know they were breaking the law?
Mr. René Bouchard (Acting Director, Copyright Policy and Economic Planning, Department of Canadian Heritage): Such a provision occurs in two other acts in addition to this bill. There is a similar provision in the legislation in place in the United Kingdom and in Australia. I'm told this is also true of New Zealand, but...
Mr. Leroux: But why do we want to introduce the no-fault principle into our act?
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Ms Bouvet: In clause 30.7, the conditions where authorization is not required are quite limited. I think the bill seeks to take into account the balance between creators, on the one hand, and users, on the other hand. It sets some very specific parameters regarding situations in which authorization is not required.
Whether we like it or not, exceptions exist throughout the world. What the government is proposing here is not a precedent. We should look at all the copyright legislation throughout the world to realize that there are some exceptions with respect to specific users. This is true in all countries, so the government is certainly not establishing a precedent. It also wanted to send out some very specific parameters to cover those cases in which it felt authorization was not required.
Mr. Leroux: I'm not saying that the government is establishing any precedents. You're right, there are exceptions, but when the exceptions distort a law... At some point, we should not pass a bill just because similar legislation exists elsewhere, when the bill in question exempts whole sectors of society from doing certain things... The exceptions in this case are not minor. We're talking about whole areas of society such as museums, education, and so on. There is a very broad range of exceptions.
I never said that this was a precedent. Let's be quite clear about this: some exceptions do exist. What I said was that this bill not only contains exceptions, but, furthermore, they are unenforceable. It is impossible to manage them. Let's take the example of clause 30.2, which allows the staff of libraries, museums and archives to make copies of works for clients for personal research only on condition that the person for whom the copies are made:
a) the person for whom the copies will be made has satisfied the library, archive or museum that the person will not use the copies for a purpose other than research or private study; and
Who is going to manage this? What criteria will the clerk at the counter need to be convinced? Who will supervise the person, when he or she leaves again, to ensure that they're really doing private research or study? There are things in this bill that are extremely difficult to manage. I don't know who will be able to do so.
Ms Bouvet: As a matter of fact, what you are referring to is very interesting. Once again, I think that the government's concern with maintaining balance led it to say: by introducing an exception, we have to give creators a way of knowing how reproductions of their works are being used. Given this concern to maintain some control to allow creators to know what is being done with their works, the government placed the burden of ensuring that the requested reproduction was intended for research or private study on the shoulders of librarians or others.
Various witnesses will appear before you. They may tell us that it is possible to apply these conditions. It would be interesting to hear librarians, among others, tell us whether this can be managed or not, and if it constitutes a kind of control that will satisfy creators. In light of this testimony, I believe that the government will have to make the ultimate decision about the appropriateness of a provision like this one. I think that the intention was really to indicate that an exception was being created, but also to ensure that a creator could track was being done.
Mr. Leroux: I understand the spirit in which this was meant, but we're getting into...
[English]
The Vice-Chair (Ms Phinney): Mr. Bélanger.
[Translation]
Mr. Bélanger: I would like the representatives of either department to tell me what amount of money we're talking about. What is at stake? We're creating neighbouring rights. We're talking about imposing some kind of tariff on blank cassettes. We're going to be discussing ephemeral rights or exceptions, according to one's point of view, as well as medium transfers. Do you have information you can disclose concerning the approximate amount of money we are talking about? What is at stake here?
Mr. Bouchard: It all depends on which measures you are referring to.
Mr. Bélanger: All four.
Mr. Bouchard: If we look at them each in turn, with regard to private copies, that's a decision that comes under the jurisdiction of the Copyright Board. In a way, it's up to the Board to set the tariff after having heard each of the parties.
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I imagine that the audio equipment manufacturers will be in a position to express their views by saying that many of the cassettes will be used for purposes other than copying music and that the sound recording industry will claim, on the contrary, that they are used to copy music.
Mr. Bélanger: I want to know if there are any figures. Do any figures exist?
Mr. Bouchard: The figure I can give you is the one that Ms Copps referred to earlier, that is 37 cents, which is the average of what exists abroad.
Mr. Bélanger: What does this represent overall, for 44 million cassettes?
Mr. Bouchard: Approximately 16 million dollars. Multiply 40 cents by 44 million cassettes and that gives you 16 million dollars.
Mr. Bélanger: All right. And what about neighbouring rights?
Mr. Bouchard: Earlier, Ms Copps referred to 7 or 8 million dollars. Once again, that decision is up to the Copyright Board.
Mr. Bélanger: Thank you.
That 7 or 8 million dollars is an estimate. Nobody will be held to that. At least, I won't hold anyone to that. Is that 7 or 8 million dollars calculated after the 1.25 million dollar exemptions?
Mr. Bouchard: Yes.
Mr. Bélanger: So without these exemptions, what would be the overall figure with the same estimated tariff?
Mr. Bouchard: I think that the exemptions allow about 50% of radio stations revenues to be sheltered. If all stations were covered, you might be able to double the tariff, which would then be 14 or 15 million dollars.
Mr. Bélanger: Thank you.
Once again, has the department made any estimates of cases in which there would be ephemeral rights or exceptions?
Mr. Bouchard: It's very difficult to approximate this because a series of rights would be covered. What is ephemeral? What isn't? We're getting into a gray area, an area where the colour spectrum may cover everything. I don't know.
However, I can tell you that the agreements that are currently in force in Quebec, on the reproduction side, between SODRAC and broadcasters who signed these agreements represent 1.3 million dollars, if memory serves me. Perhaps you could check with them.
Mr. Bélanger: In Quebec?
Mr. Bouchard: In Quebec.
Mr. Bélanger: So if we approximate this...
Mr. Bouchard: If you're asking me for an immediate estimate, without having made any calculations, I would tell you about 6 million dollars in total for Canada.
Mr. Bélanger: Do we have a similar figure...
Mr. Bouchard: Again, there's something I'd like to clarify. Six million dollars is a figure that applies to all reproductions. It's not necessarily the exception for ephemeral recording.
Mr. Bélanger: I understand that. Do we also have some sort of estimate for format transfer?
Mr. Bouchard: No, I have none.
Mr. Bélanger: All right.
Ms Bouvet: The answer would be the same as for the ephemeral recording exception, because it's a reproduction that falls under the agreement, in the same way as ephemeral recording.
Mr. Bélanger: Are any other sums of money created with this bill?
Mr. Bouchard: I have the impression that in terms of parallel imports, there are sums at stake, because it's the protection of an existing right. What is the value of that right? It's pretty difficult to estimate it. I don't have a figure and I could not provide you with one.
Mr. Bélanger: Thank you.
[English]
The Vice-Chair (Ms Phinney): I have no indication that anybody else would like to speak.
Mr. Leroux.
[Translation]
Mr. Leroux: I have a question.
We're talking about a basic figure of 1.25 million dollars in advertising revenue. We're not talking about total revenue but advertising revenue. What figures did you use to come up with this total?
Mr. Bouchard: One of the main concerns when this bill was being developed was ensuring that small radio stations would be in a position to absorb these new rights in an acceptable way.
We're talking about 1.25 million dollars. Why not 1.23 or 1.24 million dollars? It's just that 1.25 million dollars seems to cover to some degree the smallest stations whose profitability was questionable. So in a way, we were able to exclude 65% of radio stations and exclude a proportion of the revenue generated by the radio industry, approximately 50%.
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Mr. Leroux: What is your basis for saying that? An analysis of the sales figures of each radio station?
Mr. Bouchard: No. The radio industry figures are available from Statistics Canada. They're very detailed and elaborate. We can construct scenarios from the figures provided by Statistics Canada. In the final analysis, it's up to the Minister to decide and determine which scenario will be used. However, we can work with the figures, create different working hypotheses and determine what exactly we're targeting, or excluding.
Mr. Leroux: I think we will have many opportunities to review many figures this month.
Mr. Bouchard: We'll provide them to you with pleasure.
Mr. Leroux: We'll get some from you and some other witnesses. I'm eager to see how figures from different sources differ.
[English]
The Vice-Chair (Ms Phinney): Are you finished?
[Translation]
Mr. Leroux: May I continue?
[English]
The Vice-Chair (Ms Phinney): Yes.
[Translation]
Mr. Leroux: There are many "no" votes here. I'd like to get back to the management of the exceptions contained in the bill. The question of management seems very complicated to me because your answer doesn't convince me at all. It demonstrates that what the bill seeks to introduce remains unmanageable in many different ways. It seeks to introduce a spirit or an attitude, but it's not manageable.
I'm looking at the exceptions. I'll go to clause 29.5 on page 30 which allows educational institutions to present live and public performances, to retransmit a sound recording or a performer's performance in public provided that this is done on the premises of an educational institution for educational or training purposes and not for profit, before an audience consisting primarily of students of the educational institution, instructors in the institution or any person directly responsible for curriculum in that institution.
Why authorize this in educational institutions, when we know that most of these institutions have facilities for performances? Many have an auditorium used for various performances. Who will define what an amphitheatre is?
Is an amphitheatre or performance venue within the premises of an educational institution truly an educational facility used for teaching purposes? Who will define that? Who will manage these situations? Who will determine whether the admission fees are really used to finance an event or whether it's a profit-making proposition in one way or another? Who will determine whether the event is properly circumscribed with pedagogical criteria rather than a performance being presented for any number of other reasons? This shows you that the management of such an enterprise... Who will establish the criteria?
Clauses 29.6 and 29.7 allow educational institutions to copy radio and television programs. Who will define what a news program is, a radio program? Who will determine whether it's really to be used for teaching purposes or not? I really can't imagine how this is going to be managed. Can you explain to me how this is going to be done?
[English]
The Vice-Chair (Ms Phinney): Madam Bouvet... Madam Katz...?
[Translation]
Mr. Leroux: There's nobody who could manage it, right?
[English]
The Vice-Chair (Ms Phinney): That will end the meeting pretty fast.
[Translation]
Mr. Bouchard: I will answer, but I'll speak very quickly.
[English]
The Vice-Chair (Ms Phinney): Don't speak as quickly as he does.
[Translation]
Mr. Bouchard: I think this is something that already exists. What we've tried to do through these exceptions is give some kind of guideline to an interest group that feared that in a particular case, there would be some exaggeration and, in fact, violation of copyright. What we gave them through these exceptions is this anchor point. We decided that there were criteria attached to this. How can we determine whether this is done in a manner respectful of the law? By creating this exception, we have given this anchor to allow people to seek redress in case of violation.
Mr. Leroux: You're telling me that management companies will add to their workload the supervision of matters that will not pay the creators a single penny, and that they will be forced to exercise some kind of supervision in all kinds of situations, spend money, in cases where they have nothing to gain. I can't understand that.
[English]
The Vice-Chair (Ms Phinney): Mr. Bélanger.
[Translation]
Mr. Bélanger: Sir, are you trying to say that the bill is an attempt to reflect Canadian reality? Is that indeed what you're trying to say?
Mr. Bouchard: That's exactly what I was trying to say.
Mr. Leroux: More than the reality of the creators?
[English]
The Vice-Chair (Ms Phinney): I'd like to thank Ms Katz and the rest of you for joining us here today, and for your patience with both us and our questions.
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We will meet again next Tuesday morning. The meeting is adjourned.
Mr. Arseneault (Restigouche - Chaleur): The meeting is not adjourned yet.
The Vice-Chair (Ms Phinney): Okay, then, the witnesses are adjourned.
Mr. O'Brien: Madam Chair, I want to raise an issue in the interests of having balanced hearings and full and fair input into the committee. This may be an oversight, but it's come to my attention that Mr. Basskin, representing the Canadian Music Publishers Association - and I understand they represent the vast majority of anglophone music publishers - applied to be a witness to the hearings and wasn't granted status.
I want to make sure that we have a good balance, that we have the francophone side covered and the anglophone side covered. This may have been an inadvertent oversight. I just want to have the committee review whether we want to have them as a witness. They represent 80% of anglophone music publishers.
The Vice-Chair (Ms Phinney): Would it be satisfactory to leave it with Madam Noël and ask her to check the balance?
Mr. O'Brien: Do you want a motion that we add them to the list?
The Vice-Chair (Ms Phinney): All right.
Mr. Arseneault: Well, I think we're pretty well in consensus.
[Translation]
There is consensus. There are no objections.
The Clerk of the Committee: My problem is finding a space for them. Could we convene them all to a round table?
Mr. Arseneault: Perhaps with SODRAC.
The Clerk: Would you be in agreement with that arrangement?
Mr. Arseneault: Give a little more time for the meeting with SODRAC and a little more to...
Mr. Leroux: You musn't take any time away from others.
Mr. Arseneault: No. That's been arranged. It's certain.
Mr. Leroux: Before making a decision, I will familiarize myself with this. I'm not closing the door to it. I just want to see who this group is and what views are expressed in the brief.
[English]
The Vice-Chair (Ms Phinney): Maybe Madam Noël could speak to us about that on Tuesday and expand on it. Okay? We'll think about it again on Tuesday. Thank you.
[Translation]
Mr. Leroux: Hadn't Mr. Abbott raised something that we wanted to...
[English]
The Vice-Chair (Ms Phinney): He has to give 48-hours' notice.
[Translation]
Mr. Leroux: All right. He has to give 48 hours' notice.
I think that Ms Hamilton has a huge task before her right now, which is to balance the witness group, and this will create a lot of complications for her. I'd like her to report to us on the status of our work and tell us where she's at. I think it's important. I don't know whether we should discuss this amongst ourselves or do it right now.
She has big problems and I want the committee to be aware of those problems. I don't want her to end up facing them alone. I also want us to attain our objectives.
Did you understand? I want Ms Hamilton to explain to us the status of our timetable. I think she's had many problems in her discussions with various groups to organize their appearance. I don't want her to end up dealing with these problems by herself and have the committee end up with another problem if people can't come. I'd like her to give us a status report.
[English]
The Vice-Chair (Ms Phinney): I think we should do this in camera if we're going to discuss what's on the agenda. Do you want to do that now? Are you all in agreement to a short discussion right now?
[Translation]
Mr. Arseneault: Right away?
Mr. Leroux: Yes, and just to evaluate Ms Hamilton's situation.
[English]
The Vice-Chair (Ms Phinney): Do we agree that we will move now to in camera?
Some hon. members: Agreed.
[Proceedings continue in camera]