Canada’s string of minority Parliaments has prevented MPs from tackling copyright reforms seriously, says Heritage Minister James Moore, and it’s time now to update intellectual property rights to reflect new technologies.
Mr. Moore (Port Moody-Westwood-Port Coquitlam, B.C.), along with Industry Minister Tony Clement (Parry Sound-Muskoka, Ont.), is responsible for reforming Canada’s outdated Copyright Act, which was last updated in 1997. He said last week that Bill C-32, the Copyright Modernization Act, currently before a House legislative committee, “moves the ball forward” on balanced copyright reform for both creators and consumers.
He told The Hill Times that copyright is a shared responsibility between the departments of Heritage Canada and Industry because the government is committed to having balanced legislation “with clear wins” for both creators and consumers.
Mr. Moore has been criticized for not supporting artists, however, because of his government’s refusal to support an extra private copying levy on digital media players, as is currently the case with blank tapes and CDs.
It’s been 10 years since the Copyright Act has been reformed. Why has it taken so long?
“It’s complicated legislation. It’s complicated law. Intellectual property law is always a challenge. I think it’s important as well to keep in mind that Canada has not elected a majority Parliament since Nov. 27, 2000. I think in the past a lot of people have realized that this is politically very tricky, legislatively very difficult and it takes time.
“I think the way we’ve approached it, it speaks to that. With our consultations that we’ve done, introducing legislation, having it before a legislative committee, all this takes a good deal of time if you’re going to do it right. I think minority Parliaments last on average about 18 months. I think the nature of minority Parliaments makes this seem like too large of a task to tackle, and I think that’s hurt Canada with us, as a country, not willing to tackle this challenging issue.
“I think with Bill C-32, we’ve put forward a sincere, good faith effort to try and get a balanced piece of legislation before Parliament that should have the support of the majority of Members of Parliament.”
Why has it been so controversial?
“It’s been estimated that up to a million jobs are associated with copyright and intellectual property law. With that, everybody has a lot at stake, every one from the software industry to the video game industry, to the book publishing industry, academia, music, the film and television industries. There’s a lot at stake in making sure we get this right and just the nature of the high stakes associated with getting effective legislation in place makes it a hot topic.”
Can you describe what the issues involved are in modernizing Canada’s outdated Copyright Act?
“First and foremost is the need to have legislation that is in the best interest of Canada. There are no two countries in the world that have identical intellectual property law. Every country is sort of a science of single instances. In Canada, we had tens of thousands of Canadians come forward either through our website, through our town halls, the roundtables that we did and we got incredible feedback that set into our legislation, Bill C-32.
“A number of the issues that are at stake are of course the international WIPO treaty and making sure Canada implements those, making piracy illegal in Canada. The question of fair dealing—to what degree should we extend fair dealing? How ought we do that? What are the safeguards associated with it? The question of technological protection measures, digital locks—how ought we approach that? The question of education—should there be exemptions for education or not? We decided that there should be. There are a number of things that are at stake in this legislation.”
How do you want to see the Copyright Act updated then?
“Our legislation, as I said, is balanced. We advanced critical reforms that will protect Canada’s creative industries. For example, we make piracy illegal in Canada. We have limited fair dealing expansion. We respect the rights of creators to protect whatever they’ve created with whatever they want to use for themselves without it being hacked by people who want to destroy their creative endeavours and investments.
“On the other side, we support consumers by saying no to a notice and take down regime which is what they have in the United States—we believe in the notice to notice regime. We say no to increasing fees on consumers by imposing a new tax or new levy on iPods, cellphones, BlackBerrys and computer and other devices that the opposition has called for. We think we have what is a balanced piece of legislation. It has clear wins for the creative community and it has clear wins for consumers as well.”
What are your responsibilities on the copyright issue, and what are Industry Minister Tony Clement’s?
“It’s a shared responsibility. The legislation is actually put forward by the minister of industry—legislatively this is one of the bills that he’s responsible for—but we both take on the responsibility of managing it and pushing forward this portfolio.
“You’ve heard me say a couple times the issue of balance. We want to make sure that Canadians have the sense and understand that this legislation is a sincere effort to have a balance in effective copyright legislation that is in the interests of creators and consumers, effectively represented so that there are wins on both sides of the equation.
“If you have just the industry minister or just the heritage minister responsible for this legislation, it may send the signal that the government isn’t taking seriously its responsibility to have legislation that is broad-based enough and takes into account the responsibility of all the balance needed in effective legislation. Also, it’s a big task. This is a massive piece of legislation with a lot of parts that are very much intertwined in terms of their cause and effect and it’s a job certainly for more than one minister if you want to do it right, and that’s what we decided to do.”
Do you have a good working relationship? You must spend a lot of time outside of Cabinet together with all the consultations.
“Yes of course. When we did our consultations, we did some consultations together. We did Vancouver, Ottawa together. I did roundtables and town hall meetings in Québec City, Montreal. I was in Toronto. We had town halls and roundtables all across the country and went out and the feedback was really incredibly helpful. If you remember when Jim Prentice was Industry Minister, Josée Verner was the Minister of Heritage, they tabled bill C-61 prior to the last election campaign and that actually worked as a very good template. A lot of people who came to the consultations said, well, we like this about C-61, we don’t like this about C-61, here’s how you can fix it, here’s how you might want to make it better, what have you. It served as a good starting point for a lot of people to enter the conversation. It went really well, and the consultations were really constructive.”
At the legislative committee hearing that you appeared before, you said, “I think what’s important is that the political pressures of Parliament and the possibility of an election campaign cannot arrest our responsibility as a country to maintain our intellectual property rights regime.” Why is it important to pass this bill?
“That speaks to what I was just saying. We haven’t elected a majority Parliament in over 10 years now and as a consequence of successive minority Parliaments, we haven’t had the ability to sit down and seriously tackle this important legislation. That’s what I was referring to, and it’s true.
“Canada can’t suffer internationally or domestically. We can’t allow artists to continue to be stolen from. We can’t allow there to be continued uncertainty on the international stage about Canada’s commitment to a robust intellectual property rights regime. We can’t allow that to not be taken and addressed effectively by Parliament because we’re scared of the politics of copyright reform. That’s what I was referring to and unfortunately that’s what has happened too often.
“This legislation, as I said, moves the ball forward. There will be some agreements and disagreements—that’s the nature of any legislative discussion, but I think anybody who objectively looks at this legislation can see that we put serious effort into this legislation and we tried to get an honest balance between what’s in the best interests of creators and interests of consumers.”
At the committee you also said, “Digital technologies are fuelling the Canadian economy and enabling job creation.” I know you already said there’s about a million jobs at stake, but how important is this industry to Canada’s economy and cultural heritage?
“It’s critical. Never before have we had more opportunities for Canada’s creative economy. We’re talking well over 600,000 jobs, just in the creative community itself, so never has there been a greater opportunity for us to promote and sell Canadian excellence in the arts to an international audience than we have right now. That requires modern, streamlined, effective intellectual property rights law and that’s what Bill C-32 does.
“I would say also, to answer an earlier question, part of a sign that shows we’re trying to get this right, that we’re trying to include voices and listen, is that we’ve established the legislative committee to deal with copyright reform. We didn’t have it go to Heritage Committee, we didn’t have it go to Industry Committee where they have other agenda items and concerns and other preoccupations as standing committees.
“We’ve set up and established an independent legislative committee to deal specifically just with this legislation because we wanted to hear from witnesses, we wanted to hear from as many different points of view as possible. We heard from witnesses, and we heard from Canadians feeding into the legislation, now we’ve tabled our legislation, now we have an independent legislative committee to listen to the Canadians who are interested in this legislation and want to come forward and have the bill amended and tweaked in certain ways.
“We’ve done this as a clear effort and signal to the opposition parties that we want to get this done. We don’t want the dynamics of politics in a minority Parliament to hold up good work that needs to be done to modernize Canada’s intellectual property laws.”
I read some of the transcripts of the committee meetings, and there seems to be a lot of criticism coming from creators that Bill C-32 is balanced toward consumers rather than creators, and they won’t be compensated properly for their innovations. Do you think Bill C-32 properly protects the jobs you mentioned and the industry and the creators?
“I don’t agree. If you look at the testimony at the committee and the diversity of people who are supporting and endorsing this legislation from the creative community, it’s broad and extensive. The Canadian Media Production Association, formerly the Canadian Film and Television Production Association, they’re wholeheartedly entirely supporting the legislation. The Entertainment and Software Industry Association, which is to say the video game industry, which is to say 15,000 jobs across the country, 15,000 high paying cutting edge jobs across this country, are full on entirely supporting this legislation. The music industry, absolutely, we have people in the music industry who are supporting this legislation. Graham Henderson came before the committee and supported it, spoke in favour of the legislation, he’s with CRIA, the recording industry association. There’s broad-based support from the cultural sector.”
Bloc Québécois MP Carole Lavallée accused you of not defending artists. She said, “There’s a complete imbalance. Mr. Moore, you have failed in your duty to defend artists.” How do you respond to that?
“Well, it’s ridiculous. Making piracy illegal in Canada is defending artists. Protecting artists’ rights to protect their own creations with digital protection measures, is supporting arts and creativity. Enacting the WIPO treaties is protecting artists in this country. She’s out to lunch. She’s very hard to take seriously because this legislation is an effective balance. If this bill didn’t serve the interests of artists, why are so many artists coming forward and supporting this bill? She doesn’t know what she’s talking about. But that speaks more to what the Bloc Québécois is about, than whether this legislation is good.”
There’s another criticism from former Heritage Minister Sheila Copps. In a column for The Hill Times, she wrote that “governments should defend copyright, not dismantle it. By refusing to extend the reproduction levy, the culture minister is promoting a free ride for consumers at the expense of the artists they enjoy.” How do you respond to that as well in terms of not being in favour of the opposition’s suggestion there needs to be a levy on digital media players?
“Well, Liberals and Conservatives don’t agree. I think it’s funny when we said that the opposition was in favour of an iPod tax, and the Liberals jumped up and down and said no, no, we’re not. Well, look at Sheila Copps. Sheila Copps is the last heritage minister from the Liberal Party to address the copyright issue, and she is in favour of an iPod tax clearly. She wants to change the private copying levy, to extend it to digital devices, including iPods. So they’re trying to have it both ways. Sheila Copps and I don’t agree on this. Liberals and Conservatives don’t agree on a lot of things. I don’t believe in raising taxes on consumers. I don’t think it’s the right way to go, and neither does our government.
“We’ve heard those representations in our copyright consultations, but we also heard from a lot of people who don’t believe that the private copying levy is the right way to go. Loreena McKennett, a Juno award-winning artist, she came forward and said the private copying levy, extending it to MP3s and iPods is a bad idea. It would hurt artists. We agree with her. I don’t think raising taxes on consumers, making it more expensive for Canadians to enjoy Canadian artists makes any sense either from the creative context or the consumer context.”
Just going back to your committee appearance, you spoke about how we need to strike the right balance and stay up to date in terms of new technologies changing everyday. You said, “Parliament must be forced to make sure that Canada’s intellectual property rights regime stays up to date.” How will you ensure that the law stays up to date, if you recognize that technologies are changing constantly?
“That’s a very good question because with technology changing the way it is, even with court decisions, international pressures, consumer pressures, creative pressures, there’s going to be a need to change our intellectual property law on an ongoing basis. That’s one of the most important elements of the copyright reform in Bill C-32 that we have. The legislation mandates that every five years Parliament must review its intellectual property rights laws, and our copyright laws. We must every five years review them in order to make sure that they’re staying up to date with what’s in the best interest of Canada. That’s one of the biggest things.
“What I’ve said to people, even people who believe in an iPod tax or want to have a different approach to fair dealing, or want to have a different approach to digital locks is this is an ongoing debate. It’s not going to be settled by Bill C-32, but what’s needed right now is Bill C-32. What’s also needed on an ongoing basis is an approach to intellectual property law that has an ongoing mechanism to ensure that we don’t lag like we have been lagging in our responsibility to have effective laws. This is what Bill C-32 does.
“Bill C-32 does more than just address the needs of Canada in terms of establishing an effective intellectual property law, it sets up a permanent ongoing mechanism to make sure that we stay on the cutting edge. That’s what the big win is of Bill C-32. I’ve said this to people, even people who disagree with Bill C-32 and people who agree with it but want to see some changes, the big win for Canada is that we’re permanently setting up a process whereby Canada will be always mandated and forced to modernize our intellectual property law regardless of what the political circumstance is, regardless of whether or not there’s a majority or minority government, regardless of who the players are, that Canada will have to by law address the need to have modernized intellectual property law.”
You also noted that your government is trying to “stop the theft, stop the piracy, and stop the bleeding that’s happening with all of Canada’s creative industries.” How big of a problem is this?
“I think it’s clearly a big problem. We heard in our consultations from creative group after creative group. I mean, because of Napster, it’s the music industry that’s seen as the most obvious example of people who’ve had their business model smashed by piracy, but it’s much more than that. The video game industry has had it as well, the film and television industry have had it as well, the software industry has had it as well, so it’s across the board. The exact monetary value of this, it’s obviously very hard to get it precisely, but it’s clearly devastated industries and has cost Canada thousands of jobs, there’s no question about that.”
Will you accept amendments on Bill C-32?
“It depends on what the amendments are. We’re in a minority Parliament so the legislation that comes out of the committee will be what it will be. We’ll see. The only amendment that’s been talked of, the only specific amendment is the issue of an iPod tax, or a tax on MP3 players. That’s the only thing that was put forward by the NDP. Charlie Angus has actual legislation on this. He believes in this, and the Bloc and the Liberals and the NDP have all spoken in favour of it.
“That’s the only proposal that we’ve seen so far. I think the rubber will hit the road very quickly in the legislative committee when we come back from this winter break. We’ll see where people are. A lot of people are saying a lot of different things in the media back in their ridings, but we actually have legislation before the committee, and when push comes to shove, let’s see what people have in mind in terms of changing our legislation. We think Bill C-32 gets it right. If they have amendments, let’s see them.”
Given the history of copyright and the controversy surrounding it, do you think it will get passed this time?
“We’ll see. We’re not interested in raising taxes on consumers, but we have an absolute responsibility to ensure that the WIPO treaties are enacted, that piracy is illegal, that Canada has an intellectual property regime that is modern, effective and responsible. We’ll see. I’m hopeful that it will. We’ve put in place the process, which is to say the legislative committee, that is designed to have the legislation pass. And we want to see the legislation passed. Time will tell.”
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