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EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, December 3, 1996

.0906

[Translation]

The Chairman: The meeting is open for the clause-by-clause consideration of Bill C-32.

[English]

In view of the importance of the bill to all of us, I'd like to set out what rules will guide our work so that everybody is of the same mind on all sides. I will read it in French and English so that there are no misunderstandings on all sides as to the rules.

As you know, we received 190 briefs and we have heard testimony from 65 different organizations. We have done a lot of work so far, but now it comes to the crunch, where we have to look at the clause-by-clause of the bill. These are going to be the rules that will be applied during the clause-by-clause consideration of Bill C-32.

The clerk has prepared for all of you a book containing all the various amendments received to date, along with a sheet to make your work much easier, which labels the amendments according to party. This will be an easy reference for you. They are all cross-referenced in the book itself under G, BQ or R. This also indicates the order in which the amendments should be dealt with by the committee, keeping in mind that the committee must deal with the bill clause by clause, line by line.

Even though amendments have been circulated to all members of the committee, an amendment is not officially before the committee until it has been moved by the member under whose name it has been circulated. If the member who has proposed the amendment is not present, any other member of the committee can move it. When I call a clause you have to move your amendment to the clause. Only members of the committee can move amendments or subamendments.

The Standing Orders provide that all motions shall be in writing, so we will not entertain any verbal amendments. When an amendment has been moved and during debate there appears to be a consensus developing between the various parties as to the wording for such an amendment, the amendment and the clause, by unanimous consent, can be allowed to stand to allow for negotiations to continue.

.0910

When an amendment has been moved, and during debate the member who moves it decides to withdraw the amendment, this can only be done by the unanimous consent of all the members here. When lines in a clause have been amended, earlier lines and clauses can only be amended by the unanimous consent of members of the committee.

So there are two reasons calling for unanimous consent.

Unlike report stage, where Standing Orders provide for motions to be printed in the relevant section of the Notice Paper, the Standing Orders do not provide for a Notice Paper for the clause-by-clause consideration of a bill in committee. Consequently, the chair can only rule on the procedural acceptability of an amendment after it has been moved.

In relation to report stage, I'd like to bring to the attention of members of the committee the note in Standing Order 76.1(5), which reads in part as follows:

In other words, you can say that the overwhelming number of amendments and clauses passed here are final, as far as the Speaker goes, for rulings. Members of the committee may wish to keep this note in mind when moving an amendment.

As usual, officials from the department will be available to answer any questions you may have on the various clauses. They are here, with their names indicated.

I will call the clauses one by one. Should members have questions, they should give an indication to the chair when the clause is called. In addition, should the members wish to move amendments to the clauses as they are called, they should also indicate to the chair their intention of doing so.

Say I call a clause to which you don't have an amendment but that you want to oppose. Like report stage in the House, where you may move a motion to have a clause deleted, the proper course in committee is to vote against the clause. Of course, when I call a clause and there's no disagreement with it, it will carry without discussion or debate.

You may also, for the purposes of the official record, wish to indicate that you will vote against the clause and explain your reasons for opposing the clause even though you're not amending it.

[Translation]

I'm going to repeat the rules in French. Only members of the committee may move amendments or subamendments. The Standing Orders provide that all motions shall be in writing. When an amendment has been moved and, during debate, there appears to be a consensus developing between the various parties as to the wording for such and such an amendment, the amendment and the clause, by unanimous consent, can be allowed to stand to allow for the negotiations to continue.

The next two rules are very important. When an amendment has been moved and, during debate, the Member who moved it decides to withdraw it, this can only be done by unanimous consent. When lines in a clause have been amended, earlier lines and earlier clauses can only be amended by the unanimous consent of Members of the Committee.

Unlike ``Report Stage'' where Standing Orders provide for motions to be printed in the relevant section of the Notice Paper, the Standing Orders do not provide for a notice paper for the clause-by-clause consideration of a Bill in Committee. Consequently, the Chair can only rule on the procedural acceptability of an amendment when it has been moved.

.0915

In relation to Report Stage, I would like to bring to the attention of the Members of the Committee the note in Standing Order 76.1(5) which reads in part as follows:

Members of the Committee may wish to keep this note in mind when moving an amendment. I have indicated that, as usual, Officials from the Department will be available to answer any questions you may have on the various clauses.

I will call the clauses one by one and should Members have questions, they should give an indication to the Chair when the clause is called. Should Members wish to move amendments to the clauses, as they are called, they should also indicate to the Chair their intention to do so. When I call a clause and you don't have an amendment to it, but you might oppose it, unlike Report Stage in the House where you may move a motion to have a clause deleted, in Committee the proper course is to vote against the clause.

Of course, when I call a clause and there is no disagreement with it, it will carry without discussion or debate. You may also, for the purposes of the official record, wish to indicate that you will vote against the clause and explain your reasons for opposing the clause, even though you are not amending it.

[English]

Is this clear to all the members? Are there any questions about the rules of procedure?

Mr. Abbott.

Mr. Abbott (Kootenay East): Mr. Chairman, I just want a bit of clarification. I believe you said in your instructions it was only members.

The Chairman: Only members of the committee can vote on an amendment, yes.

Mr. Abbott: Are these permanent members of the committee? If someone is signed in as - -

The Chairman: Members or their substitutes duly recorded by the clerk.

[Translation]

Mr. Leroux (Richmond - Wolfe): I would like an indication before starting, Mr. Chairman. I have already tabled an amendment that was not admissible because the clause in question was in the act, not in the new bill. That was section 13 concerning photographers. As clause 13 of the bill is open, I believe we should discuss this question. I would like to move an amendment concerning photographers.

I would not like us to come to clause 10 and it be too late to discuss it. The reason I am speaking out is this: when the photographers came together to make their representations to the Committee, we had discussed the situation and had come to an agreement that it had changed. The government's advisers were among us and they also recognized that the photographers' situation had changed.

I would like to know what we can do to insert recognition of photographers' copyright formally into the act. I would like to have an indication. If my amendment is admissible, I would like us to allow it and to be able to debate it.

The Chairman: This is the suggestion I would like to make to the Official Opposition and to the members of the committee.

[English]

Mr. Arseneault, could you pay particular attention to this?

Mr. Arseneault (Restigouche - Chaleur): I am listening, Mr. Chairman.

The Chairman: I realize that. I'm just saying this is important as far as clause 13 goes, because it is an important feature of the bill.

What I would suggest is this.

.0920

[Translation]

I would like Mr. Leroux to table his wording so that the members of the three parties may study and consider it. Then, when we come to clause 13, we will make a determination. I don't think we should take a position before determining what your wording is or decide today whether or not it is admissible.

Mr. Leroux: You will understand that it is not drafted in legal terms.

The Chairman: No, but it will at least help us to take a position.

Mr. Leroux: All right.

The Chairman: Mr. Bélanger.

Mr. Bélanger (Ottawa - Vanier): Allow me to point out that I also tabled an amendment to the same clause and it was ruled inadmissible. I would hope you would also accept the one I intended to move.

The Chairman: Mr. Bélanger, we will look at all that. When we come to clause 13, we will take a position accordingly. Yes, Mr. Arseneault.

[English]

Mr. Arseneault: Mr. Chairman, it should be taken into consideration that we should follow the regulations as closely as possible with regard to the interpretation of what amendments are acceptable and what are not. With regard to this issue, I suppose we could look at it and discuss it later, but I think it's important to note that if we start opening areas that have not been addressed in the bill, it's not fair for the witnesses who appeared in committee who dealt with certain areas that were considered in Bill C-32.

The other area that would be looked at is it may cause a precedent where another member may have another area of the bill that wasn't addressed in committee and is not addressed in the bill and would like to make an amendment. How do we pick and choose which ones we'll open and which ones we will not? This would have to be taken into some serious consideration by the chair in rendering that decision and, furthermore, whether that decision would cause a challenge by others at a later date.

I know there was some disposition to look at the photographers, and I'm sure that with some consensus we might be able to find some mutual agreement here.

The Chairman: Mr. Arseneault, I'm extremely conscious of what you say. This is why I would suggest that rather than make a hasty decision today, and in view of our previous discussions regarding photographers, I would suggest we leave it, to give us time to discuss among ourselves and also to let me consider the subject very carefully with the experts assigned to the committee. Before we get to clause 13 I'll open it for discussion and we'll make a ruling then. But I'm extremely conscious of what you say.

Mr. Arseneault: We may also decide, if we do get to clause 13 today, to stand it until the next session, to give us some time to look at the issue, unless you're ready to make a decision.

The Chairman: No, this is what I had in mind, to leave some time so that next week when we meet again I would decide.

[Translation]

Mr. Leroux.

Mr. Leroux: I fully understand what my colleague has just said about being prudent. I raised the question because it seemed to me that subclause 13(4) was affected.

Second, Mr. Bélanger, I believe that the objective in view is to make it possible for photographers to achieve their own objectives under the bill. I am prepared to consider that my colleague's amendment may also be tabled and that, to all intents and purposes, the best definition for the photographers' purposes can be allowed. The purpose of this act is to protect the copyright of photographers, not us, our party or the party in power. It's for photographers. I believe my colleague, Mr. Bélanger, and I agree on that point.

The Chairman: Ms Phinney.

[English]

Ms Phinney (Hamilton Mountain): Mr. Chairman, following my colleague's insistence that we have everything in both languages, I was wondering how soon we could have this in English.

[Translation]

Mr. Leroux: The legislative adviser will rewrite the amendment in legal terms and in both official languages since that must be done.

[English]

Ms Phinney: Is that before we make a decision on this?

The Chairman: Yes. Obviously we will get the real wording as soon as possible, and we won't consider it until we have the wording in the legal form that Mr. Leroux wants to suggest.

.0925

I think there is a consensus on two fronts. First of all, this is an important ruling to make as a precedent because the subject is not addressed in the bill itself. So this is the first question to address. We'll have to be extremely careful, and I will take advice from the experts before ruling on it. Second, there obviously is a consensus among committee members that a lot of sympathy exists with regard to the issue of photographers. Whatever can be done within the rules to look at this, we will. We will take into consideration what Mr. Bélanger and Mr. Leroux have brought up.

We'll stand clause 13, if need be, until we have time to discuss it and I've had time to look at the question of procedure and the rules. Is that agreed?

[Translation]

Mr. Leroux: Just one final word with regard to the instructions concerning the working paper. So first we have all the amendments moved by the government. Is that correct?

The Chairman: Yes, that is correct.

Mr. Leroux: Then we have the document, the amendments moved either by the Bloc Québécois or the Reform Party.

The Chairman: If you take the whole batch, the sheets are in order. As you see, you have G-1, which is a government amendment and will be indicated on your copy of the bill. You will see G-1 on the amendment itself. So you will be able to follow along by relating them to the amendments that have been tabled.

So, first, there is G-1 to G-5, which means that the first amendments are government amendments. Then there is BQ-1, 2, 3, and so on. These amendments are presented in the same order as the clauses of the bill.

[English]

The Chairman: Yes, Mr. Abbott.

Mr. Abbott: Just for clarification, from informal discussions, my understanding was that our purpose today was to consider clause-by-clause up to and including the end of clause 2, that we would not be proceeding to clause 3. Is my understanding correct? We will be proceeding to clause 3 and past once the government has tabled the amendments that I understand are currently before cabinet.

Mr. Arseneault: Mr. Chair, I don't think there was an understanding to stop with any particular clause. We said we'd table as many amendments as possible early enough. We have tabled all of the amendments considering part I and part II, which would take us approximately to clause 15. There are areas you referred to that may need further adjustment, but nothing up to clause 15. We've tabled them all early enough and those are the amendments that you have.

We've tabled another batch of amendments today, which handles most of the bill except for a number of individual clauses. If we feel we want to continue with the bill today, if we have time, with the agreement of the committee we could stand certain clauses that haven't been dealt with by the government amendments.

Basically, we're ready to move along. The understanding is that we would do at least part I and part II today because those were the amendments we had tabled - the first batch, which was due to go on Tuesday of last week, and also the technical amendments.

Mr. Abbott: That clarifies the difference between clause 2 and part II. I understand that.

The Chairman: By the way, I forgot to mention that at 11:30 a.m. we'll break for 15 minutes for lunch. I hope we'll finish in 15 minutes because we have a lot of work to do. If we need a few more minutes, then we will suspend accordingly.

[Translation]

Mr. Leroux: We have to eat, too.

[English]

Mr. Abbott: Mr. Chairman, as we are starting to consider clause 1, you will be aware of the fact that I raised an issue yesterday in Question Period about what I consider to be missing information for the committee, considering that we have the diplomatic conference on certain copyright and neighbouring rights questions going on in Geneva.

.0930

I have done a little research on this. I have documents from the World Intellectual Property Organization. I was unaware, as I suspect many people on this committee were, that this conference, which has a direct impact and direct implications on Bill C-32...that the issues we are attempting to amend under copyright law are being discussed as we speak. I was totally unaware that this conference was taking place until I saw the front page of The Financial Post on the weekend.

In my research I read:

I think it's also interesting to read, in other documents I have retrieved from the World Intellectual Property Organization, that:

Further, article 101, ``Signature of the Treaty'', says:

The concern I have for this committee -

Mr. Arseneault: I have a point of order, Mr. Chairman. Could you inform the floor as to what clause we're on, because I don't think the meeting is scheduled to discuss those issues. I think it's pretty clear that we are a sovereign country, and I think Mr. Abbott would recognize that there is no better way to put our stamp on the world treaty than to pass this bill quickly and let them know where we stand as Canadians.

With regard to world treaties and discussions, some of those take years and years. I can think of the Law of Sea, which we've ratified but not signed on to yet. It takes a number of countries before they agree -

The Chairman: It's signed but not ratified.

Mr. Arseneault: Yes, signed but not ratified.

There were indications here on numerous occasions by the government side that we would be moving very quickly for phase III amendments and to study the copyright. So it's an ongoing process. We attend these conferences on a regular basis. Many of the departments of government attend worldwide conferences, and if we had to wait until ratification or a treaty was proposed, we'd never get any legislation done, Mr. Abbott.

Mr. Chairman, I think we should move on with the clause and -

Mr. Abbott: With respect, Mr. Chairman, yesterday the Minister of Industry, in answer to my question, stated that if international agreements were entered into that required obligations on the part of Canada that were inconsistent with the provisions of copyright law, and to which we wish to subscribe, then we would present the appropriate legislation in Parliament.

I have another quote from the heritage minister as well. The point at issue is that there is a concern on the part of legislators in the United States - they being an export country of intellectual property and we being an import country of intellectual property - that what cannot be done in the Senate, or in a congressional or political process, is being done through negotiations on international treaty that take precedence over any United States domestic legislation.

The fact that this committee was not informed about the implications of the position the respective departments will be taking in Geneva - we were kept completely in the dark on this - raises a concern in my mind about whether we're dealing with all of the information we require to work on this piece of legislation. I am not suggesting that we terminate this process; I am simply suggesting that as responsible parliamentarians we give serious consideration to having the industry and heritage committees tell us what Canada is doing in Geneva relative to this legislation. I think it has a direct and severe impact on what we're doing.

.0935

I draw the members' attention to the comments by the -

The Chairman: I think you've made your point.

I'd like to make a ruling on it. I think we discussed it informally yesterday. We happen to be a sovereign country. We have every right to attend international meetings to discuss matters relating to any of the processes of government or issues relating to government. This is one of them.

When we discuss these things we don't know in advance what the evolution of the discussions will be, what final definition these discussions will take, whether Canada will be a party to any convention or treaty, or what thrust the discussions will lead to. If we were to wait every time we need to pass legislation.... This is part II of an ongoing process, as you know, which has been in the works for several years. It doesn't conflict in any way with the discussions taking place right now, what will be Canada's eventual position on signature of any potential treaty and, even more, ratification of any potential treaty....

As Mr. Arseneault pointed out, we signed the UN Convention on the Law of the Sea several years ago, but we still have to ratify it. I mentioned yesterday, for example, that the convention on desertification was signed in 1992 by countries in Rio. It was only this year that they managed to attain the necessary number of 50 countries to ratify it. That is four years later, in 1996. We happen to be a country in our own right. We have proposed legislation that is completely within our sovereign right to propose and produce. It doesn't conflict with any international obligations that Canada has undertaken to date.

If by any chance, as the Minister of Industry stated, there should be some provision of an eventual treaty that we sign and ratify that has impacts on existing legislation, whether it exists or is a previous legislation, then we modify it in consequence. This happens every day of the week. When we ratify the Law of the Sea, I'm sure we're going to have to change portions of the Oceans Act or other legislation relating to fisheries or other marine matters - so we do it.

I'm afraid it's not within the purview of this committee to discuss these issues in detail. We have an assignment here. We have a law that is perfectly valid according to the rights of our Parliament. It is before us. We have to proceed with the clause-by-clause.

I'm sorry. I allowed you time to discuss it, but I think Mr. Arseneault is quite right. The agenda of this meeting is to discuss clause-by-clause. I don't see that it is within our purview to go into matters that are not part of our agenda. It's perfectly valid for us to be discussing this bill, which is perfectly valid in itself, and that's what we are going to do.

Mr. Abbott: I have a point of order, Mr. Chairman. I think the committee rules are that when a member has the floor, they have the floor.

Out of courtesy I listened to what you just had to say, but without drawing out the process - I will abbreviate my comments here, but I would like to get them on the record.

The Minister of Heritage, when she answered my question yesterday, said:

Mr. Bélanger: Mr. Chairman, I have a point or order. Have you made a ruling that we're to proceed with the clause-by-clause study? Have you made that ruling?

.0940

The Chairman: Just hold it a minute, Mr. Bélanger.

Mr. Abbott, it is clear that we are here. The agenda of the meeting is clearly to study clause-by-clause. If there's a relevance, in the course of the work, to some clause that you know is affected by anything that is happening, then you have a right to produce a motion accordingly.

It's 9:40 a.m. and we haven't even started. My duty is to go to clause-by-clause and study that bill, and I'm going to do so. I will allow you a few minutes to finish what you have to say, but I've already ruled we're going to start clause-by-clause. Just so we don't get into this discussion later on and spend more time on something that, to my way of thinking, has no direct bearing on what we are doing in clause-by-clause today, I will allow you to finish what you have to say. I will allow you just a few minutes, but if it carries on too long I will stop it and start the clause-by-clause study.

Mr. Abbott: Thank you, Mr. Chairman.

To complete the quote from the heritage minister, she said:

I will use the background I have put together here when we get to talking about ephemeral exemptions, but there is a serious question about some of the lobbying, negotiating and discussion that has been happening in Hansard, on the record, as well as things that have been happening behind the scenes, which will be directly impacted by the current discussions in Geneva.

I will conclude my comments by saying that I think the committee has worked very hard. I've been very impressed with you and all committee members and the diligence with which you have taken on this task. However, I think we have been poorly served by the Heritage and Industry departments by not being advised of the implications of the discussions that are occurring in Geneva today. They directly impact this phase of the copyright legislation, and I want to go on record as saying that.

Thank you.

Mr. Arseneault: I have a point of order, Mr. Chairman.

In fairness, I think it should be pointed out that the officials were here and answered any and all questions put to them. They provided as much information as was requested with regard to Bill C-32. Both Industry and Canadian Heritage have been very diligent and straightforward, and I want to publicly thank them for their support in bringing forth this bill.

Mr. Bélanger: They provided information to anybody who asked about it.

The Chairman: Thank you.

We will now proceed with clause-by-clause study.

On clause 1

Mr. Arseneault: Mr. Chairman, I have government motion G-1. I move that clause 1 be amended by replacing line 27 on page 1 with the following:

.0945

Amendment agreed to

The Chairman: Mr. Arseneault.

Mr. Arseneault: Mr. Chairman, I have another amendment to make, but it is not G-2. I want it replaced by this amendment, which has some changes to it. It's basically the same type of amendment. Some technical points had to be redrafted, but it's nothing major. I think the clerk has a copy and is circulating them now.

The Chairman: Are you proposing the amendment, Mr. Arseneault?

Mr. Arseneault: Yes. I move that clause 1 of Bill C-32 be amended....

Do you want me to read the whole amendment?

The Chairman: Please allow a moment for Mr. Leroux and Mr. Abbott to read through it. Also, please point out the differences between this and the previous amendment, Mr. Arseneault.

[Translation]

Mr. Leroux: Yes.

Mr. Arseneault: That's virtually the same motion. There are only technical differences to make it more practical and accurate.

Mr. Leroux: Where are you making it?

Mr. Arseneault: At the end, in the last paragraph.

Mr. Leroux: At ``fixation of it in contravention of this Act''?

Mr. Arseneault: The clauses have been changed. There is an addition at the end.

Mr. Leroux: There's no amendment in French. We've been given exactly the same text.

Mr. Arseneault: I have two copies here.

Mr. Leroux: The last paragraph is an addition.

Mr. Arseneault: Only an addition.

Mr. Leroux: I just want to check, Mr. Chairman, because, in any case, we have withdrawn our amendment. We agreed on the government's amendment. So this is just a simple check. Can you tell us what that means?

The Chairman: Could you explain the differences exactly? Go ahead Mr. Bouchard.

Mr. René Bouchard (Director, Copyright and Economic Planning, Department of Canadian Heritage): I'm going to ask Mr. Richstone of the Department of Justice to answer that question. It's a change that is above all technical and which pertains to the wording.

The Chairman: Go ahead.

Mr. Jeff Richstone (Lawyer, Department of Canadian Heritage): Mr. Chairman, it's the definition of ``infringing''. The addition at the end includes in the definition of ``infringing'' parallel importations, but it excludes from the definition of ``infringing'' copies made with the copyright owner's consent, legitimate copies made with the consent of the copyright owner in the country where they are made. This clarifies the notion of ``infringing'' to exclude legitimate copies other than parallel importations.

The Chairman: I believe Mr. Leroux wanted to know what the difference was relative to the previous motion.

Mr. Bouchard: Mr. Leroux, it's a definition referring more precisely to the two places where parallel importations are mentioned.

The Chairman: Is that all right?

Mr. Leroux: Yes.

[English]

The Chairman: Is there any further discussion? I will call the question.

Amendment agreed to [See Minutes of Proceedings]

The Chairman: Mr. Arseneault.

Mr. Arseneault: I move that Bill C-32, in clause 2, be amended by adding after line 44 on page 6 the following:

The Chairman: Mr. Arseneault, if I could ask you to pause, I think we're a little confused here. What about amendment G-3 in your package?

Mr. Arseneault: I don't have G-3 in my package.

.0950

Mr. Chairman, I have a document missing in my information here. Would you excuse me for a moment?

The Chairman: Sure.

Mr. Arseneault: Ms Phinney is ready to move it.

Ms Phinney: I move, Mr. Chairman, that Bill C-32 in clause 1 be amended by replacing line 45 on page 3 with the following....

The Chairman: All right. Carry on.

[Translation]

Mr. Leroux: I only wanted to say that we are trading pages because they are not the same in English and in French. It's page 3 for you and page 6 for us.

[English]

Ms Phinney: We would use the word ``primary''. In the current wording it's ``whose sole activity''. In the amendment, it would be ``whose primary activity''.

[Translation]

The Chairman: In French:

[English]

Amendment agreed to

[Translation]

The Chairman: Are there any other amendments?

[English]

Mr. Bélanger: Mr. Chairman, I move to amend line 4 on page 4, replacing it with the following, essentially adding after ``right'':

[Translation]

The Chairman: In French, we are going to add in clause 1, at line...

Mr. Bélanger: The idea is to add at page 6, lines 26 and 27, after the word ``d'auteur'':

[English]

Amendment agreed to

[Translation]

The Chairman: Are there any other amendments? Mr. Bélanger.

.0955

Mr. Bélanger: Lines 5 to 10 on page 4, subclause (i) should read as follows:

The Chairman: G-4.

Mr. Bélanger: Amendment G-4, yes.

The Chairman: Amendment G-4, in fact, is done.

Mr. Bélanger: Indeed. We are on amendment G-5.

I move that lines 5 to 10 on page 4 be replaced by the following subparagraph (i):

(i) d'une part, n'est pas constitué ou administré pour réaliser des profits, ni ne fait partie d'un organisme...

The rest of the text is fine. It's the words ``pas'', ``ni ne'' and ``d'un'' that change. The change affects only the French version.

[English]

It's only the French that's in here.

The Chairman: Mr. Abbott?

Mr. Abbott: I'm just curious. Unfortunately, being unilingual, I don't understand the significance of what's happening here and why.

[Translation]

Mr. Bélanger: It's only so that the French is equivalent.

An Hon. Member: So the French text concords.

[English]

The Chairman: I think the English stays. It's a modification to the French version to make it correspond to the English, Mr. Abbott.

Mr. Abbott: Thank you.

The Chairman: That's what it is. So the English stays. The French is modified to make the translation correspond.

[Translation]

Are you ready for the question?

Mr. Bélanger: In other words, the idea is to amend the French to accommodate the English.

[English]

Amendment agreed to

[Translation]

The Chairman: Are there any other amendments?

Mr. Leroux: Yes, in clause 1 on page 3, Mr. Chairman, I move an amendment to expand the definition of ``commercially available'' so that it is consistent with the actual situation. For this purpose, to expand the proposed amendment, we would like to add after ``reasonable effort'':

The reasons are as follows. In the case of a book or record that is out of stock, it is not because someone cannot find it in the market that copyright is already exhausted. The book is out of stock. It may be in the process of being reprinted, and so on.

Furthermore, I would like to point out to my colleagues that many plays are not published in book form. They are not commercially available because they are not published in book form. They may be found, for example, at the Centre des auteurs dramatiques in Montréal in a collective society. With respect to commercial availability, if you cannot find a play, that does not mean that it is not subject to clearly identified copyright. That's simply to clarify these cases.

The Chairman: An amendment has been moved by Mr. Leroux. Do you have any questions or comments?

[English]

Mr. Abbott.

Mr. Abbott: One of the things that concerns me is that when we move from conversational English or French to legal words, very frequently the words that were very clear in conversational language become much more significant in legal language.

I respect the reasons that the Bloc has moved this, but my concern with this amendment is that there might be more legal weight to these words in terms of enhancing the position of collective societies relative to this issue.

May we ask our counsel for her opinion in terms of what possible legal implications there might be to the inclusion of this amendment, so that we understand it? As laymen, we have to understand what the legal ramifications and the possible spillover could be to this.

The Chairman: Yes, Mr. Abbott.

.1000

[Translation]

Mr. Leroux: Mr. Chairman, on a technical point, is there no interpretation system in the room? There are people who cannot hear and so forth.

The Chairman: I entirely agree with you, but this was the only room available for four hours today. We couldn't get another room.

Mr. Leroux: There are people from everywhere, from Montréal and Toronto, and they would really like to follow the discussion. This really must be rectified; it makes no sense.

The Chairman: We're going to see what we can do, Mr. Leroux.

[English]

Mr. Abbott, I take note of your comment and your question.

Do members have any comments or questions with regard to the amendment proposed byMr. Leroux?

[Translation]

Mr. Leroux: With respect to Mr. Abbott's remark, the idea is to expand commercial availability. The argument is not very complicated. There are many copyrighted works that are not published in book form, in particular many plays. Here we provide a definition. Someone can say that he went to the library and could not find it.

However, the play indeed exists, is copyrighted and is available from a collective society. In this particular case, we know that many plays are not published. Records and books may be out of stock. The idea here was to expand this notion and so that the effort produces a result.

[English]

Mr. Abbott: As indicated, I'm not questioning the motive. I think it is a totally valid motive. What I want to know is whether there are any side effects. It's like taking an aspirin and ending up with an ulcer.

The Chairman: Mr. Arseneault.

Mr. Arseneault: From my point of view, the only concern I would have is that it may have an effect on the exceptions that are in the bill. It may make them null and void in some instances, so I have some concerns about it.

The Chairman: Mr. Bélanger.

[Translation]

Mr. Bélanger: I was also wondering about the scope of this amendment, about the proposed exceptions for educational institutions, museums and so on, and I would like to ask the departmental representatives whether, in their view, passing this amendment could affect the exceptions.

The Chairman: I'm going to ask the Department's legal experts whether they have any comments because they are the ones who make the laws.

[English]

Ms Katz or Mr. Richstone, do you have any comments?

Ms Susan Katz (Director General, Cultural Industries, Department of Canadian Heritage): The comment I would like to offer is that in tabling Bill C-32, the government had followed up and responded to its commitments to provide exceptions to public sector institutions. The definition with regard to commercially available - extending that definition such that it would make reference to whether or not a work is in a repertoire administered by a collective - would bring into question whether or not the exception would in fact apply. After having considered this question, the two departments came to the conclusion that in order for the government to maintain its commitment with regard to public sector institutions, the definition of commercially available should remain as is. That was the conclusion of the officials.

[Translation]

The Chairman: Mr. Leroux.

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Mr. Leroux: That seems important to me. When you produce an index of authors, for example, that index of authors exists, but is not published. That's the case with certain plays, poems and so on. It makes no difference whether one institution or another is involved. As Parliament sees it, an effort must be made to determine whether or not there is copyright. This is not a matter of taking anything away, but rather of clarifying whether a real effort should be made based on the actual situation.

When a record or book is out of stock and cannot be found, should the effort stop there? This is too restrictive. The institution has its exceptions or its exemptions and we can't go so far as to exempt it from making a real effort to determine the situation.

The Centre des auteurs dramatiques in Montréal indexes plays and it is used by the institutions. If the Centre says it has not found the work at the library or in a book store, should we stop there? No. Something's wrong there.

I understand what Ms Katz just said, but I believe that is excessive prudence. It is refraining from saying that an effort must be made and that a reasonable way of doing so must be found. They know how to find ways. So I don't see why that would prevent anything.

It's as though someone said that copyright expired because he couldn't find the work in the book store. Something's wrong there.

[English]

The Chairman: Mr. Abbott.

Mr. Abbott: Mr. Chairman, while I fully respect the opinion of the Industry Canada and Canadian Heritage officials, I wonder whether our counsel might be able to shed some light on this for the committee.

The Chairman: Ms Noel.

Ms Wanda Noel (Consultant, Standing Committee on Canadian Heritage): Thank you, Mr. Chairman.

I do agree with the comment Ms Katz made. Not all of the exceptions - but some of them - are subject to a condition that provides that the exception does not apply where the work is commercially available. Others do not.

If the definition of commercially available is changed, that will in fact, with respect to those exceptions where that condition exists, restrict the scope and therefore the availability of the exception to the institution that benefits from it. So there are follow-through ramifications associated with the change to the definition.

[Translation]

The Chairman: Mr. Bélanger.

Mr. Bélanger: I'm having trouble with my colleague's proposal. The definition contains the words reasonable time, reasonable price and reasonable effort. In his amendment, my colleague does not include this notion of ``reasonable''. He simply says that the work may be available from a collective society.

If he had applied the same criteria of reasonability, that is to say reasonable time, reasonable price and reasonable effort, I would be inclined to support him, but I don't see that the word ``reasonable'' applies to his amendment.

Mr. Leroux: I understand from my colleague's proposal that the first part must apply to the second part that we are adding. I have no problem with that:

The first part, which contains the words ``reasonable effort'', may apply to what we are proposing.

Mr. Bélanger: That's not written.

Mr. Leroux: We can rewrite it, if you want. If I have consent, I can add the gist of my colleague's amendment. We can say that my colleague's amendment, that is to say the first part, applies to:

The Chairman: The unanimous consent of the members is required. I am asking for unanimous consent.

Mr. Leroux: This is an effort to reach an agreement. It's fairly concrete.

The Chairman: Unanimous consent is required.

[English]

Is there unanimous consent to review? No?

[Translation]

Mr. Leroux: I don't understand. We've just made an effort on both sides and it's your colleague who made the proposal so that we could achieve the objective.

Mr. Arseneault: I believe it would be better if we had the same goal, Mr. Leroux. We're not prepared to support changes to this clause at this time.

Mr. Leroux: So you oppose it as well?

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Mr. Arseneault: Yes, we oppose your amendment.

Mr. Leroux: Nice try, Mr. Bélanger.

Mr. Bélanger: Don't try to make me say something I don't mean.

Mr. Leroux: We're trying to reach an agreement and...

Mr. Arseneault: The reason is the way it is worded.

Mr. Bélanger: Not to my mind.

The Chairman: All right. I'm going to put your amendment to a vote. Mr. Leroux, go ahead.

Mr. Leroux: I find the question of commercial availability is very important, particularly when we know that a writer's works are often not available for distribution. That's a fact.

Look, I would like to try to convince you. This is a clear-cut fact. Are we limiting people when we ask them to be reasonable, to make a reasonable effort and to check all possibilities?

I would like you to explain to me what is unreasonable in asking someone to check all possibilities by expanding the notion of commercial availability.

Ms Noel: I would also like you to clarify for me the restrictions that this could give rise to and the possible negative consequences of expanding the notion of commercial availability.

[English]

Mr. Abbott: If I understand the discussion to this point, it focuses on the fact that, as I suspected, there would be the potential of some ripple effects to this. There being ripple effects to this, is it a desirable thing to put in the act? What would be involved in making the necessary amendments to the exception so that the ripples would be mitigated?

We're concerned that this will create consequences, and we're a long way away from getting to the point of having clause-by-clause discussion on the exceptions, so why could there not be minor technical amendments to the exceptions that would accommodate this amendment the Bloc is asking for?

Mr. Arseneault: I think the answer to that - and I'm not clear - is that the exceptions would become very cumbersome to incorporate and to understand for the person who is trying to fall into that exception.

The proposal that's in Bill C-32 for ``commercially available'' talks about reasonable accessibility. I think it's understood that it has to be reasonably accessible. I will read it:

If we start making very specific technical amendments to the exceptions, I think we're going to find ourselves in a situation where it's very difficult for the layperson to interpret and apply the copyright law. It's difficult enough as it is.

Mr. Abbott: It already is.

The Chairman: Ms Phinney, just a second. Mrs. Noel will answer Mr. Leroux.

Ms Noel: Mr. Leroux, proposed section 29.4 and proposed subsection 32(3) are two examples where the exception will not apply if the work is commercially available. Therefore, the definition of what constitutes commercial availability defines the scope of the exception. If you broaden that definition, you restrict the application. It has an inverse relationship. Does that answer your question?

[Translation]

Mr. Leroux: Not entirely because the first effect is that, when you can't find them, copyright no longer exists. When works are out of stock or you can't find them, there is no copyright. That is the first, somewhat untoward effect.

The second is that, because writers' works are not published in books, because they are merely indexed by collective societies, institutions, under this definition, can completely ignore this if they wish.

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Collective societies exist for a particular reason. This definition, once again, affords an opportunity not to check with the collective society.

So, to my mind, there are two very complicated effects. The issue here is copyright. This bill concerns writers who have formed collective societies which represent them. In this definition, two things are mentioned. When you cannot find the work, the book is out of stock or the text is not available, there's no longer any copyright. Furthermore, collective societies are not recognized. This definition of ``commercially available'' makes it possible simply to go around it.

In my view, there's been a major oversight in this definition. Expanding it is not a complicated matter. It wouldn't hurt anyone. It would simply make people responsible. It would force people to become more responsible regarding the existence of copyright, the existence of works, and with regard to the mechanisms and tools that exist. Do you see what I mean? This is what we are doing by not expanding the notion of commercial availability.

I haven't finished. There's a limit to this, but I don't want to waste time. I'm trying to convince committee members of something that seems to me essential. It was just said that there is no copyright if the work is not materially available. That makes no sense. That's what the definition means. The wording is not clear. My colleague was right a moment ago. For greater safety, we should mention collective societies and so on.

What kind of message are we sending? I'm talking about responsibility. The effort may be defined as being very limited. In my view, no meaning is being given to the word ``effort''. I find it somewhat unfortunate that we are saying that the writer and his rights do not exist simply because we can't see the work. There is really a problem with respect to the recognition of copyright. I would like reasonable effort to be defined by also mentioning collective societies. This effort must be made.

The Chairman: Have you finished?

Mr. Leroux: I would like to have my colleagues' opinion on this matter, which seems to me to be extremely important. Everything that exists must be checked. For weeks, we heard witnesses speak about their role, of what they do with respect to copyright, to their representations, to the tools they make available to writers, to the collective societies and to the negotiations that are held. Here we are not even recognizing them as people with whom we must check to see whether the work exists. This raises a problem in my mind, Mr. Chairman. With this definition, we are sending a message: we are saying that, if the work is not materially available, there is no writer and no copyright. It is a message that is hard to accept in a copyright statute.

[English]

The Chairman: Mr. Abbott.

Mr. Abbott: Mr. Chairman, I'm sorry, I was reading something at the time the Bloc member was proposing something that required unanimous consent to clarify this.

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It seems to me that the Bloc has a tremendously reasonable position. We must be able to find a way to accommodate this, either by whatever it was that he was proposing, or by changing the wording, technically, relative to the exceptions. It isn't rocket science. We as a committee should be able to work our way through, because I consider the position of the Bloc to be very reasonable on this.

The Chairman: Mr. Arseneault.

Mr. Arseneault: Mr. Chairman, is the member from the Reform Party indicating a change of position from his party, from here on in, that it would be against all exceptions? What happens with the proposed amendment and even some of the changes is that certain exceptions could be nullified. If the member of the Reform Party seems to want to indicate to the floor that this is what he wants to do, I have some concerns with that.

We have all along had a solid position on this that there is a need for certain exceptions. We feel that by amending ``commercially available'' it could negate some of those exceptions that we've accorded to the public sector groups.

Mr. Abbott: On the contrary, what I'm suggesting is that we should be able to find some way of crafting legal words in the exceptions to maintain the exceptions and still be able to include this important provision that the Bloc had proposed.

The Chairman: In fairness, Mr. Abbott, we're not dealing with the exceptions right now; we're dealing with definitions. What you are suggesting is that we look at it when we discuss the exceptions. When we get to the exceptions I can see your point, but I don't follow where you are at the moment. Do you want to agree to opening the amendment to define it differently or are you saying we should leave it to the exceptions? If you're saying, let's leave it to the exceptions, then that's for another day, another time.

Mr. Abbott: I'm sorry that I'm not being clear. What I'm trying to say is that the Bloc has a totally legitimate concern. I would like to support that concern. I'm suggesting there must be a way, when we do get to the exceptions, to be able to accommodate this amendment.

The Chairman: Right now we are faced with one very clear case. We have to decide. There's an amendment before us; we have not received unanimous consent to change it. It is amendment BQ-1, which is being proposed by Mr. Leroux.

[Translation]

If there are no further comments, I'm going to put the amendment to a vote.

Mr. Leroux: I would like to recall the importance of this once again because people have come to tell us that this part of the act did not contradict the exceptions. No one said that.

People came and said that, if there must be a definition of ``commercially available'' let's make it relate directly to the actual situation. The actual situation is that many works are not published and wind up in the hands of the collective societies without being published.

Given the present definition of ``commercially available'', one can simply sidestep copyright, just as one can sidestep a book or record that is out of stock, a book that suddenly no longer exists physically or is being reprinted is no longer subject to copyright. This approach is extremely dangerous. It is out of the question, to my mind, because this is a copyright statute. This does not remove the exception. It merely tells the person who is subject to the exception to make a realistic effort. That's all.

The Chairman: Mr. Bélanger.

Mr. Bélanger: I wouldn't want my colleague to lay all the blame at the government's door. I somewhat share his viewpoint, but we mustn't go to the other extreme. The pendulum shouldn't swing completely to the other side.

I'm very sorry he didn't think to insert the word ``reasonable'' because that's what it was in everything we tried to do. If this word is not included in his amendment - and as we don't have unanimous consent, we cannot do so - the scope of the exceptions that the government wants to make available for certain non-profit organizations, educational institutions and so on, is limited.

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As for me, I accept and support these exceptions.

If the word ``reasonable'' is not included, these institutions are impossibly restricted and the collective societies are given unreasonable power. This must be avoided. So both sides come up short here if we are unable to achieve what we're trying to do.

I would not want my colleague to lay all the blame at the government's door because a word is missing. We're going to try to be reasonable and that is the word that should have been inserted. Unfortunately, we don't have the consent. In light of that, I'm rallying to the government's side.

Mr. Leroux: Mr. Chairman, I would first like to correct a perception on the member's part. I wouldn't want to make the government bear an unreasonable responsibility. I am trying, in a reasonable way, to make you see the importance...

As far as I know, a collective society is not a monster that has trampled everyone since it came into existence. It is not an organization that makes everyone go and hide every time they have to negotiate. It is a simple tool that is recognized and that exists. The collective societies are not monsters.

Contrary to the suggestions of some organizations that said the societies had a monopoly, a power, everyone on this committee knows perfectly well that the Copyright Board has clearly established that, in any system, there is an assurance that the Board must be a vehicle after the collective societies. So I would not want anyone to think that the collective societies are monsters. They are legitimate representatives. They are a tool that we have and that is unfortunately not favoured.

In the case before us, I strongly believe we must reflect this situation in this notion of commercial availability, particularly since copyright exists even if the work is physically unavailable on the market at a price...

I would like the government to tell me that we are going to consult each other again to determine whether there is unanimous consent to debate the amendment that Mr. Bélanger moved earlier.Mr. Bélanger, I would like you to make an effort to see whether there is a consensus. We are moving ahead in the bill. I'm trying to work as best as I can and I don't want anyone to think we are holding up proceedings merely for the sake of holding up proceedings. That is the spirit we are trying to establish this morning.

Mr. Bélanger: You'd have to be a member of the Bloc to say that.

Mr. Leroux: The Bloc is a very progressive party. So in that sense, I'm trying to move the proceedings forward. I hope you will show me that we are moving forward. Otherwise, I will find this difficult. We are only at the start of the bill. If you wish, I can try to convince you by referring back to the briefs of each of those witnesses that came here to defend this aspect of commercial availability. I believe this was very well understood. What we are trying to do is not monstrous. It is not unreasonable. On the contrary, it is reasonable. It's one of the most reasonable amendments being moved. If we don't move forward in this frame of mind, we won't finish with this bill.

The Chairman: Mr. Leroux, we have discussed the question at length. You are entitled to discuss it as long as you wish, but, in real life, we sometimes have differing views. People from various parties can be honest and reasonable and still view a matter one way and you another. Nothing is categorical in life. There are various points of view. So at some point, we have to move forward, we have to decide whether we will move on or continue to discuss the matter at hand. It seems to me that you have made your arguments quite eloquently. People will react in one way or another.

Mr. Leroux: I would like to add another point, Mr. Chairman. Can't the experts who are here recognize that the exceptions remain, but that my amendment expands the commercial aspect to include the collective societies?

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The commercial issue, the availability issue expands the effort to include this aspect. Can't the advisers recognize that this induces the institutions to make an effort with respect to commercial availability and also to the collective societies?

The Chairman: Is that a specific question?

Mr. Leroux: Yes. Are they prepared to recognize that the exception remains valid, but that the institution will have to make an effort in the commercial area?

Ms Katz: I would like to ask my colleague from the Department of Industry to answer the question.

Mr. Patrice Lemyre (Acting Senior Project Officer, Intellectual Property Policy Directorate, Department of Industry): There is no doubt, in my mind at least, that expanding the definition of ``commercially available'', as you suggest, has a significant impact on the three exceptions relating to the notion of ``commercially available''.

I would simply like to mention that there is nevertheless a difference between saying that the work must be commercially available and extending that to the collective societies in that it is stated that, in the case of three exceptions, including one for disabled persons, that if the work is commercially available, the exception does not apply.

Allow me to clarify that. It seems to me that, if you add the ``commercial available'' aspect to include availability from a collective society, that will mean that the user will be asked to approach a collective society, which could grant permission for payment. That's the difference.

Mr. Leroux: I understood exactly the same thing and I am pleased that you raised this example of visually disabled persons since they already have an agreement with the collective societies. They came and told us that the agreements were good and that they had had good experiences in that area since there are a number of agreements with collective societies that grant licences with exceptions.

What you are saying is true and that is consistent with the logic of the reasoning that there is nothing to fear in establishing it. Some agreements are examples of reasonable and satisfactory negotiations. So I believe your logic is similar to mine.

Mr. Lemyre: Mr. Leroux, the only point I wanted to make, without discussing whether or not an amendment that could be moved is valid, is that there is nevertheless a difference between the two. It's quite simply that people must know it; that's all. I don't want to argue one side or the other.

Mr. Leroux: Ultimately, I am trying to ask the government what the difference is between a book by Michel Tremblay or Margaret Atwood that is not commercially available and a book that is available from a collective society. If it is not commercially available, there is no copyright, but if it is available from a collective society, there are rights and the provision does not tell us that we have to make an effort to go get the work from the collective society.

That is why I wanted to add what I am moving. If the book by Atwood or Tremblay is not on the shelf, people will say: ``I made an effort, but I couldn't find it on the shelf. So there's no copyright.'' There's something wrong there. From a commercial standpoint, with respect to responsibility and the message we are sending, the definition should be extended to include collective societies.

This comes back to my argument. You stated the distinction and that's very good. You raised this very important distinction, but when a work no longer exists physically, that does not mean that the author and copyright no longer exist. Either we recognize the tools and organizations that have been put in place, or we do not recognize them. This extremely important provision will indicate to us whether or not we recognize them.

We are not saying that. On the contrary, we go much further. This provision has a significant scope. Physically, the work exists or it does not exist. If it exists, copyright exists; if it does not exist, there's no more copyright. There is something in this that denies the existence of actual copyright.

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I would like us to reconsider this aspect. If we cannot manage to agree on this provision, rights holders will be hit hard. I don't believe the copyright bill currently recognizes authors and their management tools in a proper way. I would like to try to make progress in this direction.

Throughout the committee's proceedings, all my colleagues here present have paid attention, listened and recognized the efforts of the people who came to tell us to improve the bill. In this specific case, they came and told us: ``Watch out, there's something significant in this. The recognition of our rights is being limited. We are being told that, if our books no longer exist physically, we don't exist either, that the authors of all the works that have been created and that are not in book form or are not distributed commercially do not exist.''

I understand Parliament's prudence. It wants the exceptions that it wishes to have passed to have an effect and so forth. I'm aware of that, but I'm certain that Parliament - unless anyone can confirm the contrary - does not want to deprive rights holders of such simple measures.

The Chairman: Mr. Bélanger.

Mr. Bélanger: Mr. Chairman, we're going around in circles because the arguments our colleague is putting forward are essentially the same. The problem we are facing is that, in his amendment motion, he forgot to add one word, one word that has been the watchword of the bill and of the government's intentions to date, and that is the word reasonable. We do not have unanimous consent to add it. So either we finish up on this matter or we stand it for the moment and come back to it later.

[English]

The Chairman: Mr. Arseneault.

Mr. Arseneault: There seems to be some agreement between the three parties that something could be done. I can't make an undertaking to do that, but I think

[Translation]

with consent, we could perhaps set the definition aside and consider it in somewhat greater detail later. I would like to obtain legal advice in order to determine whether Mr. Leroux's information is indeed correct. I would also like to discuss the matter with the representatives of both departments in an effort perhaps to reach a reasonable compromise.

Mr. Leroux: Then, Mr. Chairman, I believe there is a willingness to verify certain matters. I accept the motion to stand the clause.

Mr. Arseneault: May we stand only a definition, carry the clause and return to the definitions?

Mr. Bélanger: I don't think so.

The Chairman: If we stand the definition, we also have to stand the clause.

[English]

If we stand the definition, we're standing the whole clause. That is the way it goes. We cannot reserve just the definition without reserving the total clause. The inverse is that if we pass the clause, then we would need unanimous consent to reopen the clause for discussion later on. These are the two options.

Mr. Abbott: Would we be agreeing to that unanimous consent to reopen the clause later on today?

The Chairman: After the clause has been passed. We can't do it while we're discussing the clause itself. It is very obvious. So the choices before you are very clear.

I think one way or another we have to proceed. Otherwise, we might just as well decide to stop here; we can't discuss this all day. The points have been made very clearly on both sides. Time has been given to this. I think one way or another we have to get on with our work.

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Mr. Abbott: What are our choices again, please?

The Chairman: The first choice is that if you stand the definition, you stand the whole clause. You can't stand the definition by itself without the clause.

The second choice is if you pass the clause, then you would need unanimous consent to revisit the clause, reopen it afterwards once the clause has been passed. At any time during the proceedings there would need to be unanimous consent of all the members to reopen the clause for discussion of this particular feature, or any other feature of the clause.

These are the two options. But if we stand this, then we stand the whole clause.

Mr. Abbott: Mr. Chairman, while I think, as the parliamentary secretary has noted, there is a lot of goodwill here and we are trying to achieve something, the difficulty I'm having is that even if we just nod to each other that we are going to permit it by unanimous consent to be opened after we pass it, that would be helpful; otherwise we have to stand it.

The Chairman: I would make one suggestion to members, because we have to proceed one way or another, and otherwise it becomes a farce. If we're going to spend one hour on every definition, we might as well say that this bill will never pass. I think there's goodwill that it's important, that we have to get on with it.

What I would suggest is that we leave this particular amendment for now, get the consent of the people to leave it for now, get onto the next one, the Bloc amendment 3, and before we adopt the clause, we'll revisit this one and then we'll decide whether we stand it or we don't stand it. Okay?

Some hon. members: Agreed.

The Chairman: Just a moment. I want unanimous consent to carry on with the other amendments, and then we'll revisit this one at the end.

Ms Phinney: At the end of what?

The Chairman: When we have finished the other amendments of clause 1.

Ms Phinney: That's in twenty minutes.

Mr. Arseneault: Mr. Chairman, the amendment as proposed by the Bloc is not acceptable and we would not support it at this point in time. If there is a vote on it, we would vote against it.

We will go to the other amendments, we will follow along, and we will vote accordingly. Then we feel we should vote on clause 1. We have spent enough time on it. We will vote on it. At that time I'd be willing to indicate to the other side that I would be open to giving consent that we would reopen for this one definition only at the next sitting of the committee, but not the whole clause, because I don't want to go back and start the arguments on all the clauses.

The Chairman: Mr. Arseneault, this is what I was suggesting myself.

Mr. Arseneault: Let's have the vote on the amendment now.

The Chairman: I've suggested we go over the other amendments and see how we proceed with them, admitting that we go through all the other amendments and there are no problems with them. Then we get to the end of clause 1. At that point, except for this one definition, members will make one of two choices. Either vote for clause 1, and then it will be up to the members to decide to reopen with consent, or stand clause 1 with the definition. That will be the choice of the members then.

Mr. Arseneault: Let's move on then.

The Chairman: Okay.

Is there unanimous consent now that we leave this particular amendment, BQ-1, for the time being and proceed to BQ-2? Do I hear it on all sides?

Some hon. members: Agreed.

The Chairman: BQ-2.

[Translation]

Mr. Leroux: We will come back to clause 5 on availability at the end.

The Chairman: Excuse me, Mr. Leroux, but we clearly cannot postpone all discussion. Ultimately, we're going to decide two matters. First, we're going to decide whether we acceptclause 1.

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If we accept it, we have to hold a vote on amendment BQ-1. However, at this point, the unanimous consent of the committee members will be required in order to reopen the clause for reconsideration of this matter. Or else you have the choice of leaving the clause and the definition open. So you have two choices.

Mr. Leroux: Personally, at this point, I will not be able to stand the clause until the end just for a vote.

I am not prepared to move on to the vote.

Mr. Arseneault: Mr. Leroux, we are not in favour of the amendment. We would like to vote. We are going to move on to the other amendments. We are going to move that clause 1 be carried. I am prepared to request unanimous consent for you to table your amendment. We should be able to carry it.

At the next meeting, we should consider that definition only. With everyone's cooperation, we could reach a compromise. I cannot guarantee that that will change anything, but we could review these definitions.

Mr. Leroux: If we stand for the moment, will you give me the assurance that the committee will give its unanimous consent to reopen it?

Mr. Arseneault: It's impossible to say that.

Mr. Leroux: I don't want to drop it either...

Mr. Arseneault: I'm the parliamentary secretary. I can't give you that...

Mr. Leroux: I can't drop it. Earlier, we moved an amendment and one of the government members immediately said it was not admissible.

I can't think that everything will work out in the end, even with possible consent. Do you understand what I was saying, Mr. Arseneault?

Mr. Arseneault: Yes, I understand.

Mr. Leroux: The same thing for the Reform Party. I want to know whether I have that guarantee, whether the committee members will make that commitment. If I don't have it, you understand that I can't do that.

The Chairman: Mr. Leroux, the parliamentary secretary has just told you that there's no problem with this on the government side. If Mr. Abbott says the same thing... We cannot give you any written guarantee of these matters. This is a committee and you have to take people's word.Mr. Arseneault told you that, as far as the government is concerned, things will be worked out if there is consent.

If Mr. Abbott agrees, there will be consent, unless you are opposed to consent. No one should be playing with this. We are in the process of becoming...

Mr. Leroux: Mr. Lincoln, I was talking with the parliamentary secretary, who told me he was going to give consent.

The Chairman: But I have already told you...

Mr. Leroux: Just one second. He's going to tell me.

You're going to put the motion.

Mr. Arseneault: I will request consent after we have carried clause 1.

Mr. Leroux: All right. You're going to put the motion, but are you telling me that you are going to carry it.

Mr. Chairman, he told me: ``I can't guarantee you unanimity.'' He can put the motion. That's what he told me. Mr. Chairman, check, because I would like this to be interpreted the right way. I don't simply want discussions. He said: ``I can put the motion, but I can't guarantee you unanimity.'' That's what he told me.

Let us stand it, Mr. Chairman. Ms Phinney, we must understand each other. He told me: ``I can put the motion, but I cannot guarantee you unanimity.''

Mr. Arseneault: I can now guarantee consent.

Mr. Leroux: Perfect. We stand, Mr. Chairman.

Mr. Arseneault: We weren't suppose to stand. We were suppose to vote.

Mr. Leroux: What? We don't understand each other. First you say that we were supposed to vote...

Mr. Arseneault: Go ahead, Mr. Chairman; you are presiding.

The Chairman: Look, we're going to move on to BQ-3. At the end of this clause, with...

Mr. Arseneault: BQ-2.

[English]

We're going to move on to BQ-2. Depending on how the amendments go, if the amendments are carried, BQ-2 and the others for clause 1, we are then going to go back to this and vote on BQ-1. We have to in order to carry out the clause. Then you will make your motion, as you suggested. I think it's quite clear.

So we now move on to BQ-2.

.1050

[Translation]

Mr. Leroux: Mr. Chairman, the amendment to clause 1 replaces line 12 on page 5 with ``tional education or training, or'' and deletes lines 13 to 16 on page 5, in that we recognize that a department or school board may, in certain instances, very widely distribute a work by a writer. For example, a department or education or a government could distribute the work of a writer or part of the work of a writer in massive numbers to the students of Secondary V in all schools for examination purposes.

In its jurisdiction as a whole, that gives a public organization or department an extremely broad definition. It has the ability to do a lot of distribution. In addition, the buildings in the definition should include remote reproduction.

So the definition of ``agency'' could be very broad. It could mean a school board that distributes works to all the classes in its jurisdiction. That gives an institution or department of education the ability to distribute documents very widely. It seems to be giving these institutions or physical organizations a right that seems to me to be very broad. This educational institution must be well defined in this clause. It reads:

(c) a department or agency of any level of government, or any non-profit body, that controls or supervises education or training referred to in paragraph (a) or (b), or...

That's extremely broad. So the purpose of my amendment is to better define educational institution, the physical place where teaching is done and so on, not to lend this authority to departments or agencies.

Mr. Chairman, that is our amendment.

[English]

The Chairman: Are there any comments or questions?

[Translation]

Mr. Arseneault: Perhaps the Department could give us an indication of the purpose...

[English]

I have a comment while they're getting ready, Mr. Chairman, and I make it as a former teacher. When we talk about exceptions, I think what we're trying to do here is recognize that in many cases, departments of education are the suppliers of a lot of the educational material. If we restrict the clause just to the classroom as such, it could have some far-reaching effects on the exceptions we are proposing. But I'll leave it to the department to answer.

Ms Katz: Mr. Chairman, Mr. Arseneault has in fact said precisely what I was going to say. There are situations in which a ministry of education or a school board would in fact be the organization providing the materials for classroom use. In that regard, the definition of ``educational institution'' was defined such as to include those situations in which a school board or in fact the ministry of education would be the one providing the materials.

So I have nothing further to add to what Mr. Arseneault has said in reply.

The Chairman: Mr. Abbott.

Mr. Abbott: It raises an interesting question. If we want to talk about something very broad, when you go to (d) - which is not covered by this amendment - it seems to me that the argument the Bloc is making relative to paragraph (c) is probably more of a problem. I would be curious as to why the Bloc didn't also propose the deletion of (d) at the same time. I'm not speaking in favour of the Bloc amendment. I'm simply saying I don't understand the thought process of the Bloc in not including (d).

.1055

[Translation]

Mr. Leroux: To answer my colleague, (d) simply refers to non-profit institutions, whereas the other subparagraph refers to departments or agencies without defining them. Business schools may be for profit or non-profit. This results in many things. What do we want? Do we want to restrict all training? I don't know. What can ``agency'' mean in the definition? It states:

(c) a department or agency of any level of government, or any non-profit body, that controls or supervises education or training...

There are all kinds of agencies that can control or supervise education or training and that have a very broad reach. A department covers a very large territory. An agency may have a very large territory and thus a very great opportunity to distribute excerpts of works and so forth.

I find we are giving many agencies the opportunity to act outside the rules that are defined very clearly by exceptions in ``educational institution''. So exceptions are being adopted and Parliament is announcing that it wants to create exceptions in the field of educational institutions. But the opportunity is being taken in this clause to extend that to include departments and agencies. This is becoming extremely broad.

The Chairman: Mr. Bélanger.

Mr. Bélanger: I'm somewhat surprised that it isn't subparagraph (d) that my colleague is trying to delete because it refers to ``any other non-profit institution prescribed by regulation''. The door is really open here.

In any case, I can't support his proposal to delete subparagraph (c) because there are groups... For example, I'm thinking of the group that is responsible for adult education in Prince Edward Island. I don't know whether it is an agency created by a statute or some kind of agreement, but it is the Educational Society of Prince Edward Island, which has a mandate from the government to oversee adult postsecondary education for all of Prince Edward Island.

I would not want us to exclude this agency, by deleting this paragraph without checking. For example, in my riding, there are agencies that work in the field of popular education, literacy and so on, and I would not want to exclude them inadvertently by deleting this paragraph. I am sorry, but I cannot support my colleague.

Mr. Leroux: To answer the first part of Mr. Bélanger's question, the Bloc Québécois intends to make a motion with respect to paragraph (d). It will better define ``premises''.

I appreciate what you are saying about certain agencies. They are in the picture. However, I don't believe we are doing them a service in wanting to expand the definition in this respect. Nor are we hitting the right target.

If the government wants to identify institutions such as educational institutions, it should do so. Perhaps it is easier to say that, instead of working hard to name them specifically, we will include them all. Using this approach, we get around the target.

[English]

The Chairman: Mr. Abbott.

Mr. Abbott: Mr. Chairman, I'm inclined to disagree with the Bloc on this motion because, as has been pointed out, there are already many kinds of arrangements coming into play in education, which of course comes under the auspices and control of the provinces. I think even the Province of Quebec, which is now facing up to the realities that many of the other provinces have already faced, is going to want to be able to maintain a flexibility in the way it delivers services in education. The squeeze on budgets is going to require innovations that probably would exceed even the innovations we have today, even if we were to collectively try to think of all of them.

.1100

I therefore simply cannot agree with the Bloc on this. If anything, I think we have to have at least as many, or even more, definitions under ``education'' so that we can deliver services to children.

The Chairman: Mr. Leroux.

[Translation]

Mr. Leroux: With this clause, an attempt is being made to encompass everything so as to strike a balance in the exception, to define this ``educational institution''. Wouldn't it be a good idea for the government to make an effort here to better define ``educational institution'' by taking into account the fact that one cannot simply say that a structure that controls or supervises...?

Mr. Bélanger: I understood the first time.

Mr. Leroux: That's because your colleague asked the question too quickly.

Mr. Arseneault: Are you expecting something?

Mr. Leroux: Indeed, I'm trying to see whether something is coming. Mr. Bélanger said it earlier: there are specific examples of agencies that concern themselves with popular education and so on.

For you, Mr. Arseneault, does including, without restriction, ``a department or agency of any level of government, or any non-profit body, that controls or supervises education or training referred to in paragraph (a) or (b)'' mean that this is being opened up to everything that exists? A department is a big organization and produces a great deal. In that sense, don't you find it excessive that, at some point, we say that we control everything? A department's field of action is extremely broad in terms of action, distribution of documents and so on.

The Chairman: Mr. Bélanger.

Mr. Bélanger: Mr. Chairman, I would like to have instructions or a little assistance from you. If the paragraph that my colleague proposes to delete is not deleted, I would like to move an amendment. However, I don't know whether that would become a subamendment because I would like to make the English concord with the French.

The Chairman: It would be a new amendment. We would have to vote on the Bloc Québécois' amendment and then you would come back to the amendment.

Mr. Bélanger: Thank you, Mr. Chairman.

Mr. Leroux: I agree with you that something can be done about concordance. What happens when a department decides to publish something very widely, to send it to a very large number of schools in a school board? A lot of documents are published in the school boards. Doesn't that become a place where large quantities could be produced fairly openly? I believe everything is clear to the extent that people are allowed to agree on clear issues, but not in a statute that states that a large department can produce documents and so on.

Do we understand that misgivings of the writers? Do we understand the misgivings of all rights holders who have always fought for recognition? Do we understand why they are concerned about this type of definition that puts everyone in the same boat, particularly structures that distribute widely in vast areas?

On this point, I would try at least to have the government admit that the bill's objective is to strike a balance between users and rights holders. This balance must not be destroyed through exceptions. This is what we are doing.

.1105

By trying to give all the rights to one group, we are forgetting the other. By extending that to structures as broad as departments, without defining ``agency'', we are not achieving the objective of balance between accessibility and rights holders. We are creating an imbalance in this regard.

Is there any clarification to be made? I would like Mr. Bouchard... Pardon me for making you jump.

Mr. Bouchard: I'm waiting for the question to jump even more.

Mr. Leroux: You're entitled. Explain to me what paragraph (c) is in Parliament's view. Is it to ensure that the exception is really iron clad?

Mr. Bouchard: The definition is related to a certain number of exceptions.

Mr. Leroux: Well, then, let's go to 29.4, for example.

Mr. Bouchard: Clause 29.4, if I remember correctly, concerns the matter of examinations, tests and photocopying. I don't know what I could add to what Mr. Arseneault and Ms Katz have said on the subject because, to the extent that tests or examinations may be governed by the department or the agency that controls the educational institutions, the exception was supposed to apply to people who are responsible for those examinations.

By limiting the definition to educational institutions, agencies such as a department or another agency responsible for education were excluded from the benefit of the exception.

Mr. Leroux: So a department may hold an examination and publish something all over its jurisdiction.

Mr. Bouchard: It is a fact that certain departments operate in that way.

Mr. Leroux: Correct.

Mr. Bouchard: To the extent that the principle of the exception is accepted, to make it valid and applicable, it must apply to those who in fact carry on that activity.

Mr. Leroux: So you come along and eliminate a responsibility with respect to copyright. You violate the right of writers to speak to each other, particularly with respect to such broad, such wide distribution as that of a department.

At that point, and you know it very well, there may be a strategy in the education community as a result of which a department or agency would become the sole owner of a publication for a large territory and that would go beyond the realm of copyright.

Mr. Bouchard: I will let you draw your own conclusion. I'm simply telling you that these are the facts to the extent that the exception could apply to an agency or department which, as part of its operations, is responsible for classroom examinations, for example.

Mr. Leroux: That is the balance of the bill?

Mr. Bouchard: That is the balance of the bill. The balance is struck between the various parts of the bill.

The Chairman: Yes, Mr. Arseneault.

Mr. Arseneault: Mr. Chairman, I believe the argument has been sufficiently stated. I believe we should put the amendment to a vote now.

Mr. Leroux: Mr. Chairman, this is fundamental.

Mr. Arseneault: We raised the same argument. It's very clear.

The Chairman: Mr. Leroux, at some point, we have to accept that there is not unanimity on all issues. Some people have different points of view. We do not all always agree on the same things. You may have a point of view that you defend with a great deal of conviction, but others think differently. Are we going to discuss the matter all day each time we think differently. We'll never be finished.

Mr. Leroux: We have thought differently a number of times. There will be other stages where we will explain views to a greater degree. I could give other explanations, but I get the impression that there is a blockage. I'll try to use other arguments later.

The Chairman: Well, then, we'll put the amendment to a vote.

Mr. Leroux: Mr. Chairman, I would like to have a recorded vote, please.

.1110

Amendment negatived: nays 6; yeas 1

The Chairman: Mr. Bélanger.

Mr. Bélanger: Mr. Chairman,

[English]

I would like to move that, on line 13 of page 5 on the English side only, we change the word ``level'' to ``order'', so the line reads ``a department or agency of any order of government''.

[Translation]

This is new and I have moved it in writing; its purpose is to make the English and French agree. In the French, it reads:

c) ministère ou organisme, quel que soit l'ordre de gouvernement...

I believe it is always better to use ``order'' than ``level''. I congratulate those who used it in French and I would like us to correct the English.

The Chairman: An amendment moved by Mr. Bélanger in the English version only

[English]

to change the word ``level'' in paragraph (c) of that definition to the word ``order''.

[Translation]

Mr. Bélanger: This is in order to make the English and French concord. It is an approach that is more respectful of the jurisdictions of the Canadian federation.

Mr. Leroux: I oppose this clause.

Amendment agreed to on division

The Chairman: We're going to move on to the next amendment, BQ-3.

Mr. Leroux: That Clause 1 be amended by

(a) replacing line 20 on page 5 with the following:

ee of the copyright in the book, cinematographic work or sound recording, as the case may be, in Canada,

(c) replacing line 26 on page 5 with the following:

[English]

(i) the only distributor of the book, cinematographic work or sound recording, as the case may be, in

[Translation]

(d) replacing line 28 on page 5 with the following:

[English]

(ii) the only distributor of the book, cinematographic work or sound recording, as the case may be, in

[Translation]

This is to strengthen the Canadian cultural industry. It more accurately reflects the situation.

The Chairman: Are there any comments or questions?

Mr. Arseneault.

[English]

Mr. Arseneault: Mr. Chairman, looking at the position of the government, we felt that parallel importation was very important to look at with regard to books, and it was very particular to the industry. As such, we were not ready to apply that brush to other areas of the cultural industry. Each one of those sectors has their own specific needs. That is why we did not go in the same direction the Bloc suggested. We would not favour this proposition.

The Chairman: Monsieur Bélanger.

Mr. Bélanger: Mr. Chairman, I don't recall any of the witnesses mentioning that the notion of these exclusive distributorships should be extended, for instance, to the cinematography domain, because essentially there may not be a problem there in terms of exclusive distributorship.

.1115

I think some people might believe the government was trying to be too restrictive, but here the intent perhaps is just too wide. Where there is no problem, or at least none that's been brought to the attention of this committee, why should we introduce this notion? Again we're probably going to be caught in a situation of unanimity for amendments to a proposal - for some amendment here - because the notion has been mentioned by a couple of groups that came before us for music production in the past.

I would have to go with what Mr. Arseneault said, that there may not be the need to the same degree. But it wasn't mentioned to us for cinematography, and I think this is perhaps reaching beyond what is required at this time.

[Translation]

Mr. Leroux: Mr. Chairman, I don't think we have worked in a void for nothing.

I told my colleague that one group did indeed come to apprise us of this question and that was the Canadian Motion Picture Distributors Association. It pointed out to us that, in the dimension and definition, it would be important to include the question of cinematographic work or sound recording, as the case may be, because it was completely absent.

This group came and made us realize this was missing. We simply found it logical that this should be in the picture.

So, yes, someone came. As cinematographic work and sound recording were completely absent from this picture, we added them. It wasn't because I bought everything, but because this absence was real.

The Chairman: Are there any other comments?

Mr. Leroux: I request a recorded vote, Mr. Chairman.

Amendment negatived: nays 6; yeas 1

The Chairman: We are now going to move on to amendment G-6.

[English]

Ms Phinney: Mr. Chairman, I would move that Bill C-32 in clause 1 be amended by first replacing line 14 on page 6 with the following:

In the current bill, the word ``disability'' means a disability that prevents a person from reading a literary, musical or dramatic work. The amendment would modify the definition of perceptual disability to include persons with hearing loss.

Amendment agreed to

[Translation]

The Chairman: We now have BQ-4.

Mr. Leroux: The amendment I am moving here is to clause 1, page 6. Earlier you raised the question of paragraph (b). We simply want to make a clarification with respect to ``premises'' by characterizing those premises as ``buildings''.

So I move that clause 1 be amended by replacing line 25 on page 6 with the following:

The idea here is to determine that there has been a new reality in education for a number of years and that is remote education.

This is a market that very clearly and distinctly exists and by adding ``buildings'' we would like the definition to indicate that this must really be done on site.

.1120

The Chairman: Are there any questions or comments?

[English]

Mr. Abbott.

Mr. Abbott: I'm having a little difficulty understanding the fine-tuning on this thing.

It seems to me that in the education process there are going to be times where these events could very well take place outside of the building. Yet they are still the same events that would happen in a building. I don't understand. Maybe Mr. Leroux could help me understand why it's so important that education take place in a building. I don't understand this at all.

I guess what I'm saying is that there are a lot of classes out in fields or on mountain tops or wherever. I don't understand the significance of ``building''.

[Translation]

Mr. Leroux: This does not prevent courses from being given in the field, Mr. Abbott. If the teacher wishes to take his students into the field, there's no problem. The idea is this. With respect to the exceptions, it is not limiting; the idea is really to define the building because the whole field of correspondence courses, home study courses, is developing. In this field of home study courses, the idea is not to permit the material to be reproduced without really defining the physical place. We know that there are all kinds of schools that work using the mail. Documents can be sent by mail that are never checked, controlled and so on.

Thus, in our view, it is important to put ``buildings'' in the definition of ``premises''. That is what we're saying here.

What are premises? What is a place? We are saying that this must be the ``buildings where education or training... is provided'' because this institution may provide remote teaching, by mail, by television, via cable and so on. Here we are talking about buildings.

The Chairman: Are there any other questions or comments?

Mr. Bélanger.

Mr. Bélanger: Mr. Chairman, in the proposed amendment, on the English side, another word is being added to another line. At line 27 on page 26 in the English, the word ``normally'' is being added, but not in French.

Mr. Leroux: The translator has taken liberties.

The Chairman: Mr. Leroux, should that also be added in the French version?

Mr. Leroux: Have I correctly understood the English definition? What page is it on? We are talking about the English version of BQ-4. It could be added in French.

Mr. Bélanger: Yes, that is what I'm asking.

Mr. Leroux: That is what I'm telling you. The translator took the liberty of not putting it in the French.

Mr. Bélanger: I thought he had taken the liberty of adding it in the English.

Mr. Leroux: He didn't translate it in the direction...

The Chairman: If I understand correctly, the amendment would replace line 27, page 6, with the following... What is the exact word?

Mr. Bélanger: Line 40.

Mr. Leroux: Line 40, page 5.

Mr. Bélanger: ``Dispense habituellement''.

The Chairman: ``Dispense habituellement''?

Mr. Bélanger: ``Dispense habituellement'' or ``normalement''. I'm not a translator.

Mr. Leroux: Yes, ``dispense habituellement''. So:

There the two versions concord.

[English]

The Chairman: Mr. Abbott.

Mr. Abbott: Mr. Chairman, if I understand the implications of this proposed amendment, it would have tremendous implications for home schooling. You would have a situation where the building is not normally under the control of the board of education. The building in fact is the home of people who are choosing to do home schooling. So this is just not on.

.1125

[Translation]

Mr. Leroux: Mr. Chairman, Mr. Abbott is telling us that it ultimately opens the objective to all sorts of possibilities without any control. The objective is to strike a balance and to define things properly. So, at that point, anyone will be able to give a course on his premises, in his living room, on anything whatever. Technologically, things must be clearly defined. This definition seems normal to me. It is simple, not restrictive and forces a clarification of things, particularly since, as a result of the nature of home study courses and technological means, premises can mean anything.

The Chairman: Mr. Bélanger.

Mr. Bélanger: Whether or not we agree with Mr. Leroux, we should not forget what the government told us when it introduced this bill. There is a Phase III that will be started as soon as the House has disposed of the bill that is before us. In my view, this kind of amendment belongs more to Phase III because we are getting into the question of remote education, the Internet, the electronic transmission of information and data and so on. I would rather be inclined to be prudent at this point. Instead of immediately defining and restricting, in other words immediately taking a position on this Phase III issue, we should, I believe, leave this work of deciphering and identifying where we want to head in this field to Phase III.

That's perhaps where we will wind up, but we should do this in the context of a much more thorough exercise.

Mr. Leroux: With respect to what my colleague has just said about Phase III, there are a number of things. However, at present, the bill is already out of date in many respects regarding modern technologies.

The concern of authors, which is very legitimate, is that the government has taken an exceptions approach in its bill.

The purpose of this is to attempt a reconciliation by clearly defining the exceptions and ensuring that this is not an open field. The word ``buildings'' more clearly defines this so as to make it possible at least to say that the exception is circumscribed and well defined. We must not provide an open field because the groups said at the outset that the exception made no sense, that they were being denied their copyright. They tried to work to improve the bill, knowing that the act would be revised in five years.

I would have much preferred that the natural forces play out between writers, collective societies and people, that they discuss matters together in order to reach agreements. The Official Opposition's approach has always been an accountability approach. I'm trying to work with things as they are. We do not accept a simple definition that poorly represents the situation. I have some difficulty with that.

I agree with you that this will be revised, but if this is the case, why not agree to insert ``buildings'' in the definition, even if it means reviewing it later?

You talk to me about modern technology. You are right: we are already out of date. We did not want to make the bill technologically neutral. We are already way out of date.

Mr. Bélanger: I would not want my colleague to insinuate that Phase III will not take place for five years. Quite the contrary. It will begin immediately after Phase II is completed. The officers of both departments have confirmed that they will attack Phase III the very next day. This should be done then, and not in a random way. We must go about it in a complete and thorough way, not as we are doing it today.

Mr. Leroux: It's not being done in a random way, but there are two differences. It is true that the deputy minister and the minister came and told us that the revision of the act in five years will not necessarily coincide with Phase III, but the act will not be revised for five years.

Mr. Bélanger: It may be revised sooner than five years from now. It must be revised in five years.

.1130

Mr. Leroux: It must be revised in five years. That is the mandate of the act. We may reopen the act before five years have elapsed, but you know very well that we will not reopen it. I would like to insert this amendment so that this exception is defined and put in context during the five years in which the act is in effect. I'm simply trying to put the exception in its context.

[English]

The Chairman: Mr. Hanrahan.

Mr. Hanrahan (Edmonton - Strathcona): I would prefer to look at this in terms of the situation we have at present. When we put in the word ``building'' as opposed to ``institution''...I'm thinking of distance learning in particular. All those people in rural and northern areas are going to be blocked by this because they do not happen to belong to a particular building per se.

This has been a phenomenal benefit to Canadians for years, and I would hate to see this being interpreted in that fashion.

Thank you, sir.

The Chairman: Mr. Abbott.

Mr. Abbott: Just further to what Mr. Hanrahan was saying, it also has implications for the long-standing practice of correspondence courses, let alone phase III, where we're talking about transferring information by Internet. I just can't see this at all.

The Chairman: Mr. Arseneault, do you have any comments before we move on?

[Translation]

Mr. Arseneault: Yes, we are prepared for the vote.

Mr. Leroux: I request a recorded vote.

Amendment negatived: nays 7; yeas 1

Mr. Leroux: May we request a recount of the votes, Mr. Chairman?

[English]

Some hon. members: Oh, oh!

[Translation]

The Chairman: You have a good sense of humour.

[English]

I'm going to make a suggestion to members. I said we were going to have lunch at 11:30 a.m. I think there are two more motions before we finish clause 1. I suggest we do these and then break.

[Translation]

Is everyone in agreement?

[English]

Mr. Bélanger: Including the one we might be coming back to?

The Chairman: Yes.

An hon. member: We won't come back tonight?

The Chairman: No, we won't come back. We don't come back today.

So let's proceed to the next amendment.

Mr. O'Brien (London - Middlesex): The amendment would replace lines 37 and 38 on page 6 with the following:

It would also replace lines 41 and 42 on page 6 with the following:

[Translation]

The Chairman: There is an amendment by Mr. O'Brien, amendment G-7 that you have in your binders at page 16 in English and page 17 in French. Are there any comments or questions? I was talking about your binder, sir.

Mr. Leroux: Yes, it's 17, but it's on page 5.

The Chairman: It's on page 5 in French and page 6 in English.

Mr. Leroux: Yes, I was afraid ``qui fait partie intégrante'' would be replaced by ``lorsqu'elle accompagne celle-ci''.

The Chairman: Yes, that's it.

[English]

Mr. Abbott: I wonder if we could just have an explanation of the significance of the addition of the word ``fixed'', so we can understand why....

The Chairman: I'd just like to pause, because in the French version the first part is not there. Is it...?

Ms Katz, please.

.1135

Ms Katz: Yes, Mr. Chairman, the word ``fixed'' has been introduced in order to be in accord with the French text. So it's a technical amendment. It's to ensure that the French and the English text accord with each other.

Mr. Abbott: Is that also true of ``where it accompanies''?

Ms Katz: No, ``where it accompanies'' is in fact a different issue. It's to ensure that in the producers' and performers' rights regime, soundtracks that are available on the market as a separate work would be included and eligible within the performers' and producers' rights regime.

Otherwise, the way the bill is currently drafted, a soundtrack to a film, which was available on the market as a CD, would not be eligible for inclusion within the performers' and producers' rights regime. This amendment ensures that a soundtrack of a film that is available on the market as a separate CD or cassette would indeed be included within the performers' and producers' rights regime.

Mr. O'Brien: Mr. Chairman, we also know that some popular CDs and tapes on sale are soundtracks, so....

The Chairman: Mr. Abbott, are you satisfied with the -

Mr. Abbott: I'm getting there.

I'd like to restate my understanding of what you said. As it stands at present, a soundtrack that is now available on a CD would not qualify for rights. Is that what you said?

Mr. Bouchard: As it is now.

Mr. Abbott: However, the addition of the words ``where it accompanies'' would then qualify it for neighbouring rights. Is that correct?

Ms Katz: Yes, that's correct.

Mr. Abbott: Okay. This is a classic example of conversational versus legal English.

Ms Katz: I'll ask the Ministry of Justice to answer that.

Mr. Richstone: I'd just like to point out that, as you see in the bill, you have the words ``integral part''. That raises a lot of concern on a technical level with a lot of people. What is the integral part? Is that integral part...? Are you going to apply a conceptual test, or are you going to apply a physical test?

Often the soundtrack of a film is not physically an integral part of the film if it's played at the same time. So the word that is chosen is ``accompanies''. You find that word in U.S. legislation and in other Commonwealth legislation.

When the soundtrack accompanies a cinematographic work, it is part of the cinematographic work. When it doesn't accompany a cinematographic work - i.e., it is separately marketed, sold, exploited, performed, whatever, as a sound recording - then it's protected as a sound recording.

That word is used in different legislation, and we proposed the adoption here because it accords with other countries where the two different soundtracks are used differently.

Mr. Abbott: Thank you.

Amendment agreed to

The Chairman: We've now reached the end of clause 1

[Translation]

We have come to the end of clause 1, except for the Bloc's amendment, BQ-1, have we not?

In accordance with our preliminary agreement,

[English]

as agreed before, I'm going to call BQ-1 for a vote.

[Translation]

I'm going to put amendment BQ-1 to a vote, then I will move on to the vote on the clause. We agreed that Mr. Arseneault would introduce a motion of consent to reopen the clause, subject to amendment BQ-1.

Is everyone in agreement? Mr. Leroux, do you agree?

Mr. Leroux: It's according to the rules.

The Chairman: Then I'm going to call a vote.

.1140

[English]

I'm going to call the vote on the first amendment presented by the Bloc Québécois, BQ-1.

[Translation]

Mr. Leroux: I request a recorded vote.

[English]

Amendment negatived: nays 5; yeas 3 [See Minutes of Proceedings]

The Chairman: I will now call for the adoption of clause 1 as amended.

[Translation]

Mr. Leroux: I request a recorded vote.

[English]

Clause 1 as amended agreed to: yeas 5; nays 3

The Chairman: Is there any further business before we break for lunch?

Mr. Arseneault: Yes, Mr. Chairman.

In compliance with the agreement we made, I would ask that you seek unanimous consent to deal with the definition as presented by Mr. Leroux at our next meeting.

The Chairman: You are referring to amendment BQ-1?

Mr. Arseneault: Yes, but to that definition only, not any other part of the clause.

The Chairman: There's a motion before us from Mr. Arseneault to seek unanimous consent from the members to reopen clause 1 in relation only to amendment BQ-1 for further examination and discussion and decision.

[Translation]

Is everyone in agreement?

[English]

Motion agreed to

The Chairman: This will be done at the next meeting, as soon as possible.

We will now break for lunch.

[Translation]

I would like to tell the members of the public that our committee's budget enables us to order sandwiches for committee members only. We have only 15 minutes. We apologize for this, but this is the way it was planned.

[English]

The meeting is suspended for 15 minutes.

.1143

.1203

The Chairman: I'm going to start the meeting again with clause 2.

On clause 2

Mr. Arseneault: Mr. Chairman, I would like to move amendment G-8, as circulated to the members. I move that clause 2 of Bill C-32 be amended by adding after line 44 on page 6 the following:

As circulated, basically it clarifies the wording a little bit. It would strengthen the definition of ``maker'', and it would ensure that a maker of sound recordings is the one who actually makes and records the recordings. The broadcasters were a little worried with regard to having to pay U.S. performers performance rights for the air play of U.S. music. This would nullify that, so it would satisfy their needs.

The Chairman: Mr. Abbott.

Mr. Abbott: Our witnesses may recall that I've raised this at just about every meeting we've had relative to this issue. I am concerned about the challenges under NAFTA. Am I correct, on the basis of the explanation just provided by Mr. Arseneault, that this has to do specifically with the issue of whether the broadcasters would have to pay neighbouring rights to the U.S., assuming that neighbouring rights are passed in this legislation?

.1205

In this proposed section 2.11, is it my understanding from the testimony of Mr. Arseneault that the intention of this proposed section is to close that door so that the broadcasters will in fact not have to pay to the U.S. artist? Is that correct? If so, the question really is whether this will stand the test of a challenge by the U.S. under NAFTA rules, particularly with respect to our cultural industries and the exceptions we've written into NAFTA. What assurance can you give us of that?

Mr. Arseneault: Before the officials answer, I should mention that the way the bill was drafted it could allow for countries that do not have the neighbouring rights regime to easily qualify their music as being part of the Canadian repertoire. So this would clarify that and would not make it that easy. As such, they would have to comply with our regulations. Perhaps the officials could also indicate their point of view.

Ms Katz: There are three separate questions I'd like to address. The first is that the amendment ensures that a sound recording must be indeed fixed in Canada. Simple contractual arrangements are not sufficient to make a sound recording eligible for performers' and producers' rights. So what the amendment does is bring a greater clarity to the bill. It ensures that the definition of what an eligible sound recording is for the purposes of performers' and producers' rights is a sound recording that is fixed in Canada.

With regard to your second question and the eligibility of artists outside Canada to gain access to our performers' and producers' rights...because they are indeed linked.

First of all, as you know, if an artist is a member of a Rome Convention country, those recordings are eligible. On the specific question of U.S. artists, if a U.S. artist has their sound recording fixed in the United States, then they are not eligible for performers' and producers' rights in Canada. If that artist, however, fixes the sound recording in Canada and doesn't just simply enter into a contractual arrangement, then that recording would be eligible. So the determinant here is where the recording is made or fixed.

Mr. Abbott: I believe we're seeing a fairly aggressive stance on the part of the U.S., not infrequently acting in bad faith with respect to NAFTA and other agreements such as softwood, where they, for example, are going after us on the Sports Illustrated legislation as an example, which is a cultural issue. I'm still looking for assurance from the departments that this proposed section will stand the kind of attack that I'm predicting will actually happen from recording interests in the United States.

If we're talking about a situation where U.S. artists for the sake of being able to plug into neighbouring rights in Canada, but more importantly into neighbouring rights by countries that are members of the Rome Convention...perhaps it's just words. But I really think we are walking into a situation by trying to do this. By putting this clause in, it becomes a target for whatever their litigation may be.

.1210

Mr. Richstone, you're shaking your head.

Mr. Richstone: I'm sorry, I shouldn't have done that.

Mr. Abbott: I should indicate that you were shaking your head in the negative.

Mr. Richstone: All I wanted to say is that, as Ms Katz said, the clause covers a technical loophole in a definition to ensure that certain producers will qualify. That's it. It doesn't have the effect you're suggesting.

Mr. Abbott: Thank you.

The Chairman: Are there any other questions?

Mr. O'Brien: I just wanted to say that the U.S. challenges us on a lot of things, and normally our track record at fending off those challenges is excellent. I'll leave it there. I think it's been explained.

The Chairman: Mr. Arseneault has called the question.

Amendment agreed to [See Minutes of Proceedings]

The Chairman: Are there any further amendments to clause 2?

Mr. O'Brien: Yes, Mr. Chairman. I would move to replace lines 14 and 15 on page 7 with the following:

The Chairman: That's pretty clear.

[Translation]

Are there any questions or comments?

[English]

Amendment agreed to

[Translation]

Mr. Leroux: Mr. Chairman, I would like your opinion. For concordance purposes, we should adopt amendment BQ-7, which amends clause 3 on page 10 with the words:

i) de louer l'oeuvre.

In clause 2, this right is very clearly defined with respect to computers, musical works, performer and makers, but we don't have the same right for writers. There is no concordance. The rental right is not mentioned for writers.

So for authors or creators, painters, sculptors and possibly photographers, there is no concordance. This rental right is granted for everything relating to a musical work or to performers, but not for writers. This is a question of concordance.

Consequently, paragraph 3(i) should be replaced at lines 15 and 16 by the following:

i) de louer l'oeuvre.

Then the two versions would concord.

[English]

Mr. Abbott: Where are we?

[Translation]

The Chairman: You're talking about page...

Mr. Leroux: No, clause 2.

The Chairman: Clause 2, page 9.

Mr. Leroux: Yes. Clause 2, page 9, lines 1 and 2.

It states here:

2.5 (1) Pour l'application des alinéas 3(1)h) et i), 15(1)c) et 18(1)c), équivaut à une location l'accord - quelle qu'en soit la forme et compte tenu des circonstances - ...

.1215

Paragraphs 3(1)(h) and 3(1)(i) concern computers; when we go to 15(1)(c), these concern performers; (3)(i) concerns musical works and 18(1)(c) makers.

The rental right for all that is a new feature, but writers, creators and painters don't have the same recognition under the bill. This is a question of balancing the rental right.

The Chairman: So that we properly understand each other, Mr. Leroux, what you want to do would be to apply paragraph 3(1)(h). Then, 15(1)(c) and 18(1)(c) would be deleted. Is that correct?

Mr. Leroux: Yes, we would come back just for the paragraph; we are talking about clause 2.5: ``Pour l'application de l'alinéa 3(1)i), équivaut à une...''.

That would be one amendment.

[English]

The Chairman: Do you follow that, Mr. Abbott? The new clause would begin: ``For the purposes of paragraph 3(1)(i), an arrangement''. In other words, you would delete ``15(1)(c)''' and ``18(1)(c)''. This is at the top of proposed section 2.5.

[Translation]

Mr. Leroux: For concordance purposes, we should first go to subclause (3) on page 10.Mr. Bouchard.

Mr. Bouchard: It's a decision with respect to...

The Chairman: Excuse me. Only one person at a time. Mr. Bouchard.

Mr. Bouchard: I apologize.

The Chairman: No, go ahead.

Mr. Bouchard: I would just like to have some clarification as to your intention, Mr. Leroux. At first, I thought I understood that you wanted to extend the rental right to types of works other than sound recordings. Then I thought you perhaps wanted to make amendments to rental right in the case of sound recordings.

Mr. Leroux: No. The idea is to extend the rental right to writers of literary works, painters and so on. It's simply to extend the rental right to writers, as the bill recognizes the rental right in the case of computers, musical works and performers. People came and told us that, in some places, it is possible to rent bestsellers, records and so on, but the bill does not recognize this rental right. The idea here is simply to extend it for concordance purposes and to give the same rights to everyone everywhere in the bill. Do you have any questions?

Mr. Arseneault: Explain to me the implications for libraries in that case. In listening to the witnesses, I did not really understand that there was a problem in this area.

Mr. Leroux: That's correct. There are rentals and writers do not have access under an agreement to the rental because these are new phenomena. In the bill, the rental right is not recognized for writers. It is recognized for performers and so on, but writers are not recognized. There are people who rent their works, but they have no way of having this rental right recognized.

It's a question of balance in the bill. It's being granted to one, but not to another. The copyright bill is already here. I don't think this poses a major problem, Mr. Bouchard. Does it pose a big problem, in you view?

Mr. Bouchard: These may be different situations because the rental right has been granted in the area of sound recording from the moment it is shown that, from the point of view of the exploitation of the product, the fact that people could open stores and rent records posed a problem. There was a certain link with private copying and this link meant that this could affect the sales of records in Canada.

I don't know whether this has been proved in the case of other works. There is also the international aspect. The rental right is recognized in a number of international statutes for sound recordings and for computer programs. However, I don't believe that this is done in the same way or as broadly, that is to say in a manner that would include other types of works.

.1220

Mr. Leroux: We would like to broaden it and perhaps Ms Katz could enlighten us.

Ms Katz: I would like to clarify one point. The Canada Council manages a program called the Public Lending Right Program and pays subsidies to Canadian authors whose books appear in public libraries. This is a clarification with respect to the point you raised that no consideration is given to the fact that books are lent by people who are members of the general public. It's only to specify that there is a program that recognizes this practice and that subsidizes writers for books of theirs that are in public libraries.

Mr. Leroux: That doesn't cover everything, Ms Katz. You know that a practice has developed over the years. It is now possible to rent visual works. It is possible to rent pictures. You know that we can rent sculptures. This practice has been introduced and works are sometimes very accessible, at least in terms of price. The idea is simply to broaden this protection. I would not necessarily want to do so in reference to its absence in other countries, but this results in a recognition of everyone's rights in the act, both copyright and neighbouring rights.

The Chairman: Mr. Bélanger.

Mr. Bélanger: Mr. Chairman, I wonder whether we're not trying to introduce a much broader notion in a way that is not all that obvious. For example, we heard from a group that would have liked the bill to focus on the question of painters' copyright. Are we saying that when a picture, a sculpture or a collection greatly increases in value, the author or sculptor can always expect to receive a portion of the rental cost as royalties? Is that what we're saying? If that is the case, this should be made clear because it may not be what we want to do.

Mr. Leroux: The question of rental rights is a commercial practice. I think that recognizing a rental right for literary works also means granting their authors right of review over the trade...

Mr. Bélanger: We're not talking about literary works. We're talking about pictures and sculptures.

Mr. Leroux: Yes, that too. This is a fundamental right in the new commercial practices. I was saying earlier that the bill was out of date. So the idea is to examine the actual situation regarding this commercial practice which exists and is developing and of which there are a few fairly concrete examples involving literary works. There are many in the field of the visual arts. We should try to grant the same rights to everyone in this bill.

Mr. Bélanger: This will have consequences. And we haven't debated them.

Mr. Leroux: We have debated them in that the rights appear in the bill for those persons I have just named, the authors of musical works, performers and makers. As to the authors of literary works or in the visual arts, we should establish the same justice for them, fairness for all.

When you say that we have not debated the consequences of this, all I'm saying is that we have already established rights. That is the real consequence. Why then should they not be established for authors as well, since we're talking about copyright?

Mr. Bélanger: If we address the question this way, when we have created a fund to compensate the authors of literary works for books that appear in libraries, does that imply that we must ipso facto create a fund to compensate sculptors, painters and so on? I'm saying that there would be repercussions if we did so. We are using the definition to insert things in the bill that no one contemplated including.

Mr. Leroux: You advanced an argument this morning when you said that the bill would be reviewed in five years, that certain aspects would be reviewed. It is possible that, with experience, we will have to review all of what I am proposing in five years.

.1225

All I am trying to say this morning is: why not give the same right to everyone? Since we are introducing this rental right, why not give it to authors who do not have it? It's simply a matter of concordance and practice will determine how it is managed. I can't tell you all the future implications and you wouldn't be able to do so either. However, there is a right that appears in the act, but which is strictly oriented toward the definitions such as those of computer, musical work, performer and maker. However, the act covers copyright as well, but this rental right is not given them. This is simply for the sake of concordance throughout the bill.

The Chairman: May I ask the members not to conduct discussions among themselves in future and to address the Chair?

Mr. Leroux: You are the extension of the Speaker of the House.

[English]

The Chairman: Mr. Abbott.

Mr. Abbott: Mr. Chairman, I will confess to a higher level of confusion than my mind normally has with respect to this particular one.

It seems to me that while a library does not rent books, nonetheless I suppose an argument could be made that a library has purchased books, thereby paying the copyright, and that people are using them. I'm having a lot of difficulty understanding where Mr. Leroux is coming from. From an artist's perspective, it seems to me that this amendment in fact would go in the opposite direction. Therein lies my confusion.

I don't really understand how the artist's interests are going to be served by deleting this. As a matter of fact, I'm inclined to agree with the department that in fact the artists, no matter what medium they're involved in, will be better protected with the legislation as it presently is. MaybeMr. Leroux could help me out of this little confusion I have.

[Translation]

Mr. Leroux: I would like to clarify one point, Mr. Abbott. Ms Katz referred earlier to an existing loans program for libraries. That exists and it hasn't changed anything.

Clause 2.5 is very clear. It states:

So it is specifically stated: ``with motive of gain''. The bill clearly states it. If concordance were achieved, it would entitle authors to this as well in cases where works are rented, be they literary works, visual arts works or sculptures where there is a transaction with motive of gain. That's all. That's simply all it is. This provision does not affect the libraries or the Canada Council's program or anything like that. It is simply very specific.

[English]

Mr. Abbott: I'm having difficulty understanding when an author would rent his work. I can understand renting a sculpture; I can understand renting any number of things, but I can't understand renting -

[Translation]

Mr. Leroux: For example, there are... Excuse me, Mr. Chairman.

[English]

The Chairman: Are there any precisions you would like to bring, Mr. Richstone?

[Translation]

Mr. Richstone: As I listen to Mr. Leroux, certain questions come to mind. When we talk about rental rights, we are talking precisely about rental rights in all areas and at all levels, commercial and non-commercial. The act of borrowing in a library is a rental like borrowing an artistic work. The text of the motion and the remarks you have just made do not coincide. If you want to restrict a certain number of things, that is not at all what is written in the motion. It is exactly the contrary.

Mr. Leroux: No, sir, we are talking about gains. It's indicated in clause 2.5:

It's in that sense. Do you see clause 2.5?

Mr. Richstone: Yes.

Mr. Leroux: It specifically states ``with motive of gain''. I'm not talking about loans that are granted. We know that art galleries sometimes make loans. There are people who circulate works. However, some do so for profit, in order to make a gain or an exchange. For example, we know that there is a business that rents Pellan's works at certain prices to banks or large institutions that hang them in their foyers for a certain length of time. There is a turnover, but it's for gain.

.1230

In this sense, Mr. Pellan's copyright is not recognized. He cannot collect royalties from the funds. He is not recognized. Here, when we talk about rental for gain, we are referring to musical works or performers, not to the creators of literary works or visual arts works. It's just that.

Mr. Bélanger: Mr. Leroux, would the intention of the motion also apply, for example, to a non-profit institution or a library that rents books? My question is for Mr. Leroux, Mr. Chairman.

Mr. Leroux: Mr. Chairman, my answer is for Mr. Bélanger. Ms Katz referred to a fairly specific program involving literary works. In my mind, the word ``gain'' has more of a commercial connotation. There are loan agreements. As Mr. Richstone said, there are indeed loans that may act as contracts, but not necessarily for the purpose of commercial gains. In that case, obviously, this does not apply.

The bill clearly states ``with motive of gain''. There's therefore a commercial aspect which does not restrict the other, which does not prevent anyone from making loans, which does not prevent visual works from being lent. I know that there are, among other things, agreements with the Fédération des caisses populaires to circulate works among the caisses. The banks and large institutions do the same thing; they have agreements with renters.

In some instances, in some places, this is strictly commercial. It is done for gain. However, the creator does not have access to this agreement. The act does not provide for this recognition of the rental right. It could be decided that a bestseller is too popular and it could be rented for $3 each time it is borrowed, and borrowers could be asked to put their names on a list instead of it being lent to them. There is a gain involved in such commercial practices. I do not want to prevent anything else. That is not my intention. We simply want to extend the same right to authors.

Mr. Bélanger: The answer I've been given leads me to believe that a non-profit institution such as a library that rents bestsellers for $3 each or a non-profit art bank that rents works of art for gain in order to survive would be subject to the provision you are proposing.

I believe we are entering an entirely different world and I can no longer do so; we are creating too many openings. What happens, for example, in the audiovisual field if I rent videos or whatever or if a school wants to rent videos at the corner store? There are a host of unclear circumstances.

Mr. Leroux: I am surprised that everyone has agreed since 1925 that, if there is a commercial practice, authors are rights holders who authorize the reproduction and use of their works. This is the fundamental principle of the right holder: he may say whether or not he grants the right to use his works.

Here we are simply recognizing this continuity. When there is a commercial practice with respect to the creators, we also recognize their rights. If there is a commercial practice, if rights are obtained for them in the commercial practice and individuals realize gains and profits, that's not serious. Let us at least recognize their right to negotiate those rights.

There's nothing new here on the philosophical or ideological level, since Parliament itself has brought it into the picture. This has brought about a new practice. This is not new; this is fundamentally a procedure.

Mr. Bélanger: I'm sorry, but if this were not new, Mr. Leroux perhaps might not be relying in this way on the notion of gain in order to justify his position. There is a subtle distinction here.

Mr. Leroux: I'm explaining to you why we have raised this aspect in order to establish a concordance between the rights granted to some and the rights that have not been granted to others, a situation that has long existed. It's just that. I'm explaining in order to prevent anyone from saying that the libraries will be forced to pay. No, this will not be case. We are talking about situations where there is a gain, where there is a commercial practice. The idea is simply to grant rights to both groups. There is already a copyright bill and we are inserting neighbouring rights in it. Do you understand?

Mr. Bélanger: I understand, Mr. Leroux.

.1235

[English]

The Chairman: I'm sorry. I didn't see you raise your hand.

Mr. Peric (Cambridge): I'm concerned about time. How long are we going to discuss one clause? There should be a time limit. Otherwise, we'll be here until March.

The Chairman: I appreciate that, Mr. Peric. That is the way the rules are set up, and I have no authority to change them. But I get your point.

[Translation]

Mr. Leroux: Mr. Chairman, that is the reason why I asked you to indicate whether we should not first consider subclause 3(3), which appears on page 10, and the amendment relating thereto, then return to the concordance question in clause 2, page 9.

The Chairman: I believe the members have been able to examine clause 3. I was referring to the other clauses that you cited in order to determine where they are. I believe the members may conduct this exercise on their own.

Mr. Leroux: We are proposing to replace paragraph 3(3)(i), which reads as follows:

i) s'il s'agit d'une oeuvre musicale, d'en louer tout enregistrement sonore.

with the words:

i) de louer l'oeuvre.

In this way we are covering all creations.

Mr. Arseneault: Knowing that Mr. Leroux wants to gain a little time so that we can vote on motion BQ-5, I would suggest that, in order to speed up the process, we apply the vote to the other Bloc motion to ensure concordance. If it's negative, it's negative; if it's positive, it's positive.

The Chairman: Are you talking about clause 3?

[English]

Mr. Arseneault: Since one motion is tied to the other, rather than have two different votes, we could vote on one, and that vote would apply to the other as well.

Mr. Abbott: I see.

Mr. Arseneault: He wants to do one in reverse order, and I don't think we should.

The Chairman: I think we should just take the vote in the order in which it's set up. Members who want to refer to clause 3 will do so. I think we should just proceed in the order in which it's carried through.

[Translation]

Mr. Leroux: I am prepared to agree that the two amendments are linked and therefore that a single vote can cover them both. I wanted to make it clear that the rental right already exists from musical works. I simply wanted to make you aware that the rental right does not appear in the part on authors and I suggest that we simply put it there. I believe this is merely recognition of a right that exists for neighbouring rights, but not in the other case.

[English]

Mr. Arseneault: Mr. Chair, rather than cause some technical problems with the bill, I think we should go in the order they're presented. We're ready to vote.

The Chairman: Okay.

[Translation]

On that, I put amendment BQ-5 which we have just discussed to a vote.

Amendment negatived: nays 6; yeas 1

The Chairman: We are going to move on to...

[English]

Ms Phinney: Mr. Chairman, I would move that Bill C-32 in clause 2 be amended by replacing line 20 on page 9 with the following:

This is a technical amendment. Maybe it would be best explained by the department.

The Chairman: Mr. Richstone.

Mr. Richstone: It's just to make it clear that the regulations deal with distribution - how the exclusive distributor is going to carry on business. It was thought that, in order to make those regulations have a proper legal foundation, we should add the word ``distribution'' to clarify exactly what kind of criteria we're dealing with. It's a technical one.

[Translation]

The Chairman: Are there any questions or comments?

[English]

I'll call the question. All in favour of the amendment as presented?

[Translation]

Mr. Leroux: No, Mr. Chairman. I find that the government's amendments that have been tabled were tabled in order to advance the bill. I recognize that fact; that's good. I am therefore voting in favour.

I hope the government will realize that the amendments I am tabling are fundamental. I am very disappointed that we have missed a few fundamental amendments for authors. I don't think this augurs well for the future.

The Chairman: Mr. Leroux, if I understood correctly, motion G-10 is agreed to.

.1240

[English]

Amendment agreed to

[Translation]

The Chairman: We are now going to move on to the next motion. Mr. Leroux.

Mr. Leroux: Mr. Chairman, I move that clause 2 be amended by

(a) replacing line 23 on page 9 with the following:

2.7 (1) For the purposes of this Act, an

(b) adding the following after line 28, on page 9:

(2) Notwithstanding an assignment of a copyright owner's right in respect of a work, the copyright owner, as well as the assignee, may

(a) prevent...

(b) prevent...

This right exists for authors and we would simply like to balance the act, as in the previous case, and grant everyone both a neighbouring right and copyright. This is the same request which concerns the balance of the act. I immediately put the motion on the table, Mr. Chairman. I will not discuss it any further. If it is agreed to, so much the better; if it's not agreed to, that's too bad. In my view, the rights of some should be extended to everyone. If we don't want to do that, we don't want to do that.

The Chairman: Are there any questions or comments?

[English]

Are there any questions or comments on amendment BQ-6? Mr. Abbott.

Mr. Abbott: I would be interested in having the opinion of our witnesses on this.

Mr. Richstone: I'm just reading it for the first time. If I understand, it's based on a provision that we have later on in the neighbouring rights portion of the bill, Mr. Abbott. It's already in the act right now as part of our WTO amendments. The wording is based on that.

The WTO amendment that we did in 1994 dealt with a very specific issue. It dealt with bootlegging. In that very specific case, the government proposed and Parliament enacted a measure that would enable the performer, or any assignee, to stop the bootlegging practice and to recover the bootlegged goods. It was a very specific kind of provision in that very isolated instance because of the nature of bootlegged goods being pirated totally without the consent of the performer in the first place.

I understand this provision would make a larger, much greater right in every case. Any time there would be an assignment or a licence, the original author or the original owner would still have this kind of right. That would very much change the nature of contractual arrangements, because despite any assignment you did or licence you accorded, you would still have some kind of statutory right to enforce, and that goes way beyond the scope of what was considered in the WTO amendments.

Mr. Abbott: It seems to me that, on the basis of that, this again is a classic example of something that probably is well intended. I assume it's well intended, but it has a lot of ripple effects. When we have legislation that, no matter how well intended, ends up interfering with ordinary contractual arrangements between two consenting parties.... On the basis of this testimony, I would be inclined to say that this really shouldn't go forward.

The Chairman: Are there any comments or questions? Are you ready for the question?

[Translation]

Mr. Leroux: I request a recorded vote, Mr. Chairman.

Amendment negatived: nays 6; yeas 1 [See Minutes of Proceedings]

The Chairman: Let us move on to the next amendment.

[English]

Are there any further amendments to clause 2? Mr. Peric.

Mr. Peric: Mr. Chairman, I want to move that clause 2 of Bill C-32 be amended by replacing lines 24 to 28 on page 9 with the following:

.1245

The Chairman: Could we get an explanation of this amendment from the ministry's experts, please?

Mr. Richstone: Mr. Chairman, this is a technical amendment. It responds to some comments made by a number of organizations, particularly the PTIC/CBA, that in the definition of ``exclusive licensee'' or ``exclusive licence'', we cover the case of exclusive sub-licences and sub-licensees. The wording has been adjusted to accommodate the concern that we should not only protect or cover exclusive licensees in the bill, but also exclusive sub-licensees and sub-sub-licensees and so on down the line. As long as they're exclusive, they're in the same legal category as the exclusive licensee in relation to the copyright.

The Chairman: Mr. Abbott.

Mr. Abbott: For clarity, could you give us a for instance?

Mr. Richstone: Exclusive licences or sub-licences are used in the film industry or the sound recording industry, where there are territorial exclusive licences or sub-licences given to certain persons or individuals to carry on the exclusive licence for a particular territory. So I'm giving you two examples - there might be others, and I'm sure there are - of industries where the contractual device of an exclusive sub-licence is used. This amendment would clarify that and protect those exclusive sub-licence agreements as well.

Mr. Abbott: I'm sorry, I'm still not clear on this.

Mr. Richstone: With an exclusive licence or an exclusive sub-licence, you start first with the owner of the copyright, who accords an exclusive licence to someone else. That person can have a worldwide exclusive licence, part of North America or South America, or could have all of Europe as an exclusive licence. In order to market that particular work in that particular territory, that person may decide to give an exclusive sub-licence arrangement to a particular individual in a certain number of countries. With this motion, those arrangements would be covered and would be protected in the copyright, as would the original exclusive licence proceeding from the owner of the copyright to the exclusive licensee.

Mr. Abbott: But isn't this again getting to what we were talking about before with the Bloc's motion? Doesn't this have the potential of legislative interference, of being a law that interferes with ordinary contractual arrangements?

Mr. Richstone: It would go the other way, sir. It would protect those arrangements.

With the amendment that's proposed, the status of exclusive sub-licences was a cause for concern. Were they to be accorded the same weight and status as exclusive licensees or not? It's to ensure that those contractual arrangements would be protected that the amendment is proposed, not the other way around. It wouldn't interfere with it; it would protect it.

Mr. Abbott: So if I repeat to you my understanding - let's see if this is it - the individual who holds the rights to this work contracts with party A, who is protected by the legislation. In this case, this does not so much involve the person who holds the original rights to this. What happens in this case is that this would then extend the protection of this legislation to whatever may happen with party B, who enters into contract with party A - once removed from the original owner of this - and party A would have this protection extended in his or her arrangements. In other words, if penalties were to accrue from misappropriation or misuse of the copyrighted material, the person holding the first contract - party A - would have the same rights as they would if it was their work.

Mr. Richstone: That's quite right. Party A would have those rights, and with this amendment party B would have similar rights as long as party B and party A entered into an exclusive arrangement. It's always on a level of exclusivity that the protection is accorded. That's part of the existing act, which recognizes in some way - we've clarified it for the first time here - that the exclusive licensee has an interest in copyright according to some case law and some academic commentary. We're clarifying the status for the first time, and in clarifying that status the question is again open. What about people who are exclusive sub-licensees? They have the same status, but they have sub-licensee arrangements. The idea was that once you went that step, you would go a further step as long as they have all shared the same exclusive arrangement, because that exclusive arrangement is in the nature of an interest in the copyright.

Mr. Abbott: I see. Thank you.

Mr. Bélanger: I'm not sure that I quite agree that it's a technical amendment. It's introducing perhaps another definition, and that was the nub of my question. Wouldn't we be better off having two parts under proposed section 2.7, one for exclusive licence and one addressing the sub-licence, so that it's clear? Trying to deal with the two concepts in the same definition

[Translation]

is confusing.

[English]

Mr. Richstone: If I can answer Mr. Bélanger part of the way, I could just say to him that the wording ``exclusive licensee claiming under the owner'' has been judicially interpreted, in relation to the Patent Act, as including sub-licensees. So it is clear for people -

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Mr. Bélanger: With all due respect, sir, it may be clear to you, because you're a lawyer who deals with this day in and day out, but it may not be clear to everybody who is recording a song for the first time.

Mr. Richstone: Mr. Bélanger, that comment could be made with other provisions in the bill.

Mr. Bélanger: I'm aware of that, too. I've had to read this ten times now to really try to grasp it.

If you had two separate sections, as I have suggested, it might be a little bit simpler.

The Chairman: Mr. Bélanger, as you know, we would have to get unanimous consent to reopen this amendment as presented, so -

Mr. Abbott: Well, I'll agree.

The Chairman: The question has now been called. We'll now look at amendment G-11.

Amendment agree to

The Chairman: I will now call for the adoption or otherwise of clause 2, as amended.

[Translation]

Do you want a recorded vote, Mr. Leroux?

Mr. Leroux: Yes, Mr. Chairman.

[English]

Clause 2 as amended agreed to: yeas 6; nays 1

The Chairman: Lady and gentlemen, we've now reached the end of clause 2 and it's nearly 12:55 p.m. We have to decide on our work schedule for next week. I would suggest that we stop the clause-by-clause here. If you are agreeable, at the next meeting we will start to review amendment BQ-1, which was left over from clause 1 - as we all agreed - and we will then proceed from there to look at clause 3 and following clauses.

[Translation]

I suggest we decide on our work schedule. I would like to suggest we reserve two long days, next Tuesday and Wednesday, in order to start.

[English]

We'll deal with next Tuesday and next Wednesday.

[Translation]

Ah! yes, that's true. We could start...

[English]

Could we start with Tuesday? Are members agreeable to work from 9 a.m. to 1 p.m. and then from 3:15 p.m. to 6 p.m.?

Mr. Abbott: I'm really not trying to be a fly in the ointment, but it is -

The Chairman: But you are going to be.

Mr. Abbott: Yes, I am going to be anyway.

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I have the difficulty.... I was very pleased to have my colleague Mr. Hanrahan here for a short time today, but as anyone who is here would have seen, my colleague is extremely ill. With myself carrying the full load, plus the fact that we have so few people who would be up to speed on this, it would be a real problem for me to devote the entire day.

I'm really not trying to be problematic, but for a person in my position to take even four consecutive hours out is something that has to be planned for. To take a full day out would be extremely difficult.

[Translation]

Mr. Leroux: Mr. Chairman, I think we can set aside the time. I'm also taking into consideration Mr. Abbott's observations, that we are indeed not as numerous as you. I share Mr. Abbott's concerns and understand the constraints that are imposed on him. We must be realistic and set aside the time in a realistic way.

The Chairman: Are the members prepared to work from 8:00 a.m. to 1:00 p.m.?

[English]

Are members prepared to start at 8 a.m. on Tuesday and go until 1 p.m.?

[Translation]

Mr. Leroux: I will be prevented from being here before 9:00 a.m. I can never get here before 9:00 a.m. I have constraints.

Mr. Bélanger: Could we sit Monday afternoon?

The Chairman: I am entirely prepared to do so.

[English]

What about Monday afternoon?

Mr. Abbott: Yes, except won't we be getting very substantive amendments over the weekend?

The Chairman: Mr. Abbott, we've got enough now to carry on until at least part II, and we haven't even started part I. So we've got lots of work to do to get to part II. We could tackle parts I and II on Monday.

Mr. Abbott: Could we do a two-hour meeting on Monday afternoon?

[Translation]

Mr. Leroux: Mr. Chairman, that would suit me. It's no problem for me. However, I would need the government's amendments.

An Hon. Member: We'll get back to that.

Mr. Leroux: You have tabled them? All right.

The Chairman: [Inaudible - Editor]

Mr. Leroux: There will be another series of amendments later?

Mr. Arseneault: I believe so, but not many. A few.

Mr. Leroux: I would like to see them before next week in order to determine the concordances.

Mr. Arseneault: You will have everything before Friday at the latest.

Mr. Leroux: So we are going to work on that next weekend.

An Hon. Member: Christmas is coming soon.

The Chairman: To sum up,

[English]

on Monday we will start at 3:30 p.m. and go until 5:30 p.m. On Tuesday we'll go from 9 a.m. to 1 p.m., and we'll decide on Tuesday where we will go from there.

Mr. Bélanger.

Mr. Bélanger: I wonder why we wouldn't chair on Thursday morning this week.

[Translation]

From 11:00 a.m. to 1:00 p.m Thursday. Is that all right?

Mr. Leroux: Not this week. We have to work on the amendments we have received. We have to see them, evaluate them and determine how we are going to move forward.

[English]

The Chairman: Our meeting is adjourned until Monday of next week at 3:30 p.m.

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