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Canada risks becoming a pirate nation, says Clement

By Bea Vongdouangchanh      

Industry Minister Tony Clement, pictured, who is helping to stickhandle the controversial Copyright Modernization Act through the House, says if Canada is not au courant with copyright, then it runs the risk of being a 'pirate nation.'

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Canada risks becoming a “pirate nation” if it does not modernize its copyright laws to reflect the 21st century, says federal Industry Minister Tony Clement.

“The fact is that our copyright law, as it currently exists, was written at a time of VHS, prior to iPods and tablets and all the things that are able to—with a blink of an eye—transmit copyrighted information to many, many people,” Mr. Clement (Parry Sound-Muskoka, Ont.) told The Hill Times last week in a phone interview for this week’s policy briefing on New Media and Copyright. “If Canada is not au courant with copyright then we run the risk of being a pirate nation and that will mean that people won’t have an incentive to create in our society and that will be a problem. That will be a problem economically and a problem in terms of our ability to be an innovative society.”

The Copyright Act was last updated in 1997 and Mr. Clement, along with Heritage Minister James Moore (Port Moody-Port Coquitlam, B.C.), is responsible for modernizing the act by taking into account new technologies that are making it easier for Canadians to possibly circumvent copyright laws.

But it’s arguably one of the most controversial and most lobbied bills in Parliament.

Mr. Clement introduced Bill C-32, the Copyright Modernization Act, in Parliament on June 2, 2010. It was the second bill the Conservative government has introduced in two years to make copyright reforms, and the third one since the previous Liberal government, in an attempt to implement World Intellectual Property Organization (WIPO) treaties and to bring copyright legislation up to date. With the increase in downloading from the internet and file sharing of everything from music to books to movies, Canada needs a “balanced” piece of legislation that will protect both creators and consumers in the information age, Mr. Clement said.

Bill C-32 was called for second reading in November, and is currently being studied at a legislative committee. There have been five meetings so far, and if passed, would make changes to “better address the challenges and opportunities of the internet, so as to be in line with international standards”; “clarify internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright”; “permit businesses, educators and libraries to make greater use of copyright material in digital form”; “allow educators and students to make greater use of copyright material”; “permit certain uses of copyright material by consumers”; “give photographers the same rights as other creators”; “ensure that it remains technologically neutral”; and “mandate its review by Parliament every five years.”

After months of consultations with the Canadian public and stakeholders and after 13 years in the making, the bill was expected to pass quickly with no major policy differences between the government and the opposition. The government is against an added levy for artists on digital media players, as proposed by the opposition, and especially the NDP culture and digital issues critic Charlie Angus (Timmins James Bay, Ont.). The private copying levy is currently applied to blank tapes and CDs. Mr. Clement and Mr. Moore held a press conference last month at the Rideau Centre, a downtown Ottawa mall, to highlight their opposition to the levy, showing up with young Conservatives wearing “No iPod Tax” T-shirts in the background.

Some political insiders said last week, however, that because of this public criticism and because the Conservatives are using the levy as a wedge issue, that the opposition, especially the Liberals, will drag out the committee process and make it difficult to pass.

Mr. Clement said last week that it was the opposition that was using the levy as a political wedge. “This is a way that they seek to curry favour with artists groups. I don’t think this policy that [Mr. Angus is] pursuing is going to help artists, and it certainly hurts consumers. We wanted to get it across that we’re dead set against this, and it will not form part of our bill,” he said.

Despite the political issues surrounding copyright, Mr. Clement said that he’s “optimistic” about the bill’s progress. “I feel that we’ve gone further with this bill than any other bill in recent memory. We’re at the committee stage. There are a lot of good ideas coming out of committee, which is great, so yeah, I think that we can get to a stage where a bill, probably with some amendments, is going to be before the House of Commons again,” he said.

Why do you think the copyright file is so hot?

“Well, there have been numerous attempts to try to modernize our copyright laws and each one of those has ended without success, so I think that there’s always a bunch of interests that have to be balanced in any copyright legislation. There’s the consumers, there’s the creators themselves, and there’s those who have the copyright ownership which may or may not be the creator. You’ve got all these interests that have to be balanced off. The people who represent those interests are going to be strong advocates for their positions, but at the end of the day we do have to have a modern copyright piece of legislation and it does have to be one that is accustomed to 21st century technologies. We’re quite committed to seeing its passage.”

Can you briefly describe the issues involved in modernizing Canada’s outdated Copyright Act?

“Well, I think it’s got to be first and foremost able to protect creators and go after the bad guys—that’s how I would characterize the pirates that are trying to destroy value on a massive scale through bit torrent sites and other technological means. We’ve got to increase the enforcement and the fines for that kind of activity and thereby protect the copyright holder and the artist. But it’s also got to recognize that the consumer is also a player and a party to copyright legislation and there are certain things in the current law which is consumer behaviour, like time shifting or format shifting, which does not destroy value and which should be recognized as being legal in any modern copyright law.

“The other thing I would say is that what we come up with should be to the greatest extent possible technologically neutral. In that sense, it will stand the test of time so that if in five years from now there’s a brand new technology similar to an MP3 player or tablets or other things that you and I can’t even think about yet, that come out, that there will be a way to include them in the legislation without rewriting the legislation.”

Can you describe what your responsibility is on the file, and what Heritage Minister James Moore’s is?

“We’re jointly sponsoring this bill. Obviously, Industry Canada, when one thinks of the department, it’s typically Industry Canada under the act. We did draft the bill, but we did so very much in conjunction with Heritage Canada. Obviously, Heritage Canada has a place because a lot of the stakeholders like artists and broadcasters are typically Heritage Canada stakeholders, but of course, this is about protecting an industry and creating jobs in our economy and that’s why Industry Canada should also be very much involved and has the leadership role that it has.”

I was wondering what your relationship is like with James Moore. In a column that former Heritage minister Sheila Copps wrote she said that the copyright issue pitted Industry Canada against Heritage. Do you find yourselves at odds over which direction copyright reforms should go?

“Let me say this. Obviously, James and I, I would characterize us as two tech-savvy ministers, so we actually see a lot of the issues the same way. We see why it’s important to help consumers as well as recognize that artists, in order to be creative, have to have modern copyright laws. James thinks the same way. We don’t have some of the bruising battles that Sheila Copps was mentioning during the Liberal era. At the same time, obviously our departments may not see eye to eye on every single issue, but we have a way to hash things out and come up with solutions which we think can work for the public policy which makes good and sound public policy for Canadians.”

At the House Legislative Committee on Bill C-32 that you appeared before, you said: “With this bill the Harper government is keeping its promise to introduce legislation to modernize Canadian copyright law, protect and create jobs, foster innovation and attract new investments to Canada.” How exactly is it doing that?

“In order to have innovation, in order to have jobs in the creative economy, you have to have modern copyright laws. The fact is that our copyright law, as it currently exists, was written at a time of VHS, prior to iPods and tablets and all the things that are able to—with a blink of an eye—transmit copyrighted information to many, many people. We do have to modernize it. We have to make sure it’s technology neutral. Again, we have to have the proper balance between the consumers and creators and copyright holders and that’s how we’re going to create jobs in our economy.

“We have some great industries here that are affected by poorly-written or bad copyright legislation. I think of the gaming industry for instance. There’s thousands of jobs in Canada that are related to the creation of new video games and this is an area where Canada is in the top three in the world. So, yes, we do need copyright legislation that works for the gaming industry or works for the software industry or works for the other industries that are dependent on it. It’s not just ACTRA, or the music industry, there’s all these other industries now that are dependent on copyright legislation that works and that creates jobs when it does happen.

“If Canada is not au courant with copyright then we run the risk of being a pirate nation and that will mean that people won’t have an incentive to create in our society and that will be a problem. That will be a problem economically and a problem in terms of our ability to be an innovative society.”

John Manley, the former industry minister said at the House Legislative Committee that “Canada is now seen as a bit of outlier by some, and they are anxious to see us demonstrate our commitment to international obligations and to international standards’ when it comes to copyright reforms.” What does this mean for Canada’s economy and innovation?

“There’s the WIPO [World Intellectual Property Organization] treaty and we’re a signatory to that treaty and we have to implement it. This bill upon passage will make us WIPO compliant. We’ll have the ability again to catch up to our trading partners in implementing WIPO. That’s an important aspect of this bill, I would have to say.

“As I say, in order to be innovative you have to have the right framework. That’s why I’ve been pursuing and have passed the anti-spam legislation. That’s why I’m pursuing, as Industry minister, modernization of our PIPEDA legislation, our privacy legislation. These are all what I’ve described to you three legs of the stool, anti-spam, privacy legislation, copyright legislation. Those put the building blocks in place for my wider vision which is having a world-class competitive digital economy for Canada where many things can occur online simply and effectively and safely. When that happens, when there’s more e-commerce, when businesses adopt information and communication technology, that’s how we create higher end jobs and how we’re able to compete with the world. So this is really a critical component of a broader digital economy strategy.”

Mr. Manley also said that there needs to be a balance between protecting both creators and consumers and that “you have to have the incentive to create. You also have to have the incentive to build.” Do you think Bill C-32 gives this incentive?

“Yeah, I think so because what we’re doing is we’re saying to creators, ‘Look, we know that with modern technology in the blink of an eye, a bit torrent site can massively destroy the value of your creation, we’re going to go after those people.’ We’re going to make it easier to try to shut down those kinds of sites. At the same time, we’re saying to consumers, ‘Look, we know that if you bought a CD, you want to transfer that file to an MP3 file and play it on your iPod. That’s called format shifting, and under the current law, it’s not allowable. It should be allowable.’

“We know that people TiVo shows and tape their television shows to watch at a different time. Under the current law, that’s not recognized. We should recognize it as perfectly acceptable consumer behaviour and we shouldn’t have a situation where that is in the law not rendered legal because then people say, ‘Look, the law is an ass, it clearly is not recognizing the fact that I’ve paid for my entertainment and I want to see it in a different format for instance,’ and therefore it gives people incentives to disregard other aspects of the law. So, that’s what we’re trying to avoid.”

NDP MP Charlie Angus is in favour of a levy on digital media players that you’ve dubbed an iPod tax. Can you explain your position on why you think that’s not the way to go?

“It’s bad for consumers. What you’re doing is your punishing the people who are the fans of the creation. They’re fans of music. They’re fans of movies. What you’re saying is that you’re going to be taxed more as a revenue stream. What’s worse is that you may not even be a consumer of that creation, that movie or that music and you’ll still be taxed because by the very fact of possessing a smart phone, you’re going to be taxed. We don’t think that’s fair. We don’t think it’s right.

“There are other ways to help artists, such as going after the bad guys who destroy wealth through these bit torrent sites and so forth. That’s how we’re focusing on protecting the artists, but we’re not going to create an additional revenue stream for artists by taxing the very consumers that are absolutely essential to the success of the artists themselves.”

He also said you’re using the levy as a political wedge issue. Is that true?

“I think he’s using the levy as a political wedge. This is a way that they seek to curry favour with artists’ groups. I don’t think this policy that he’s pursuing is going to help artists, and it certainly hurts consumers. We wanted to get it across that we’re dead set against this, and it will not form part of our bill.”

On digital locks, Mr. Angus said that, “we’re now in a situation where Canadian citizens would face even more restrictive limits on rights that they’re being guaranteed than under the notorious DMCA” under Bill C-32. He also said that the government’s approach on the locks is a failed approach. What’s your response to that?

“Again, I think we’re trying to seek a balance here. There are certain aspects of industry where digital locks are prevalent. They’re important to the business model and business success of the industry, video gaming for instance. It’s difficult to conceive that video gaming and the sale of new creations in video games would work if one could legally break digital locks. In other parts of the industry, it’s less prevalent, like in the music industry. There’s a social contract between the music listener and those who distribute music that digital locks are frowned upon so it’s not typical in the music industry.

“What we’re saying is in the areas where digital locks are prevalent we should recognize that they exist and that the law cannot sanction breaking of those locks, but at the same time, we of course encourage industries where digital locks are not part and parcel of the business model, to find other ways to work with the consumer and to allow them access to their product. That’s what’s happening in the movie industry. If you pay an extra couple of bucks, you can buy a DVD that you can transfer to your laptop for instance, or your iPad. There are ways for industry to work these things out, but if you allow people for whatever purpose to break a digital lock, there will be huge consequences for jobs and for creativity in our jurisdiction.”

Michael Geist, the University of Ottawa professor, argues though that the problem with the digital locks under this bill is that “they trump all other rights” and “this distorts the copyright balance.” Can you comment on that?

“I’ve heard Prof. Geist’s arguments on that, and I certainly have heard from many other people in the tech world who fear this and all I can say is take your view to the committee and let’s hear it out. We’re always looking for new ways to do things, but I would not be in favour of opening up all digital locks all the time to breaking. That I don’t think is fair or reasonable to those who wish to protect their creations. I understand their arguments, I understand why they consider their argument to be a valid argument, so that’s why we have a committee process and they can make their case.”

There’s also controversy over the bill’s fair dealing clauses. What is your position on that? Access Copyright estimates that $60-million at risk because of the education provision, and students are saying they won’t have access to books.

“Here’s the thing. I’m taking this directly from Prof. Geist’s own words. Fair dealing is not free dealing. We’re not saying everything is now free because it’s fair dealing. There’s a test, a five part test that’s found in our jurisprudence for whether something can be considered fair dealing. If you’re destroying the commercial content by sharing that’s not fair dealing. If there are other ways to get the information other than sharing it, it’s not fair dealing. Those tests are in place to make sure that fair dealing is appropriate in the circumstances that does not destroy the wealth or the value of the creation. That’s I think a fair compromise. We want to extend fair dealing to education because we think it’s important in this day and age to give our students the tools they need to succeed and to keep abreast of technological developments. That’s where we are on that one.”

Going back to how this plays a role in the economy, you said in your committee appearance that “digital media is poised to transform our economy in ways we have not yet imagined.” Can you expand on that?

“I think it’s evident. You just look at the last five years and how digital consumer products have changed the way we acquire news or change the way that we communicate with our friends or change the way we engage in business processes, like supply chain management for instance if you’re a business. All of these things have happened at lightning speed over the last five to 10 years and because we’re in the information age, that’s going to continue.

“For Canada to compete with the world, we’ve got to be able to do more of those things online. We’ve got to be better adopters of ICT, information and communication technology. We’ve got to be full adopters. Right now, our businesses are only spending 60 per cent per worker on ICT that the Americans are spending per worker. That’s not good enough. We have to do better. We have to engage in a more complete way in our society with ICT. So that’s why bills like the copyright bill are important because it gives us the tools and the framework necessary to help transform our economy to a truly 21st century information age.”

Do you think the bill will pass this time? Your government has introduced one before, and the Liberal government before that tried to pass one too. How likely do you think this one will go through?

“I’m pretty optimistic. Assuming that there’s no winter election, I feel that we’ve gone further with this bill than any other bill in recent memory. We’re at the committee stage. There are a lot of good ideas coming out of committee, which is great, so yeah, I think that we can get to a stage where a bill, probably with some amendments, is going to be before the House of Commons again.”

Our policy briefing is called “New Media and Copyright.” Since you’re an avid twitterer, I was just wondering how you’re using it, and how is it affecting your job? Is it making it more effective?

“I think so. Certainly the sources that I use to acquire news has been affected by Twitter. I’d say probably about 75 per cent of the news articles I read now are via Twitter, because people are pushing news to me rather than me having to go out and search for it. That’s an interesting change in my news consumption, for instance.

“And, of course, it’s a way I can interact with people. It’s much more direct, and people appreciate that, that I’m going to engage on Twitter on the public policy issues of the day, and also show a different side of my personality, that I’m multi-dimensional and have other interests other than politics 24/7. It’s a way to show a more accurate reflection of who I am and what drives me, what I’m passionate about. It’s also a little bit of creativity during the day that I get. At a 140 characters at a time, I get to be creative about expressing myself which is always a good thing.”

Do you think it can affect an election outcome at all, for instance, the people who use it versus the people who don’t?

“It certainly gives me a window into how people are feeling about this or that. We have to make sure that Twitter is not an echo chamber, right? So I’m very eclectic in the people I follow, so it’s not just left wing or right wing, it’s all aspects of the prism. So it’s good that way. It depends, like anything, on how you use it, right? But it is a very immediate social medium, and certainly there are hundreds in my own constituency who follow me, but there are thousands across the country and overseas and in the U.S.A. who follow me too. I’ve developed around, I guess I’m up to 7,200 followers or so. I get to interact with them, and they get to interact with me and I think that’s just another aspect of modern-day communication and immediacy of communication that politicians not only can use but should use.”


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