‘The perfect is the enemy of the good,’ Manley advises copyright committee

OTTAWA—Former industry minister John Manley, who served under prime minister Jean Chrétien when the former Liberal government passed omnibus copyright reform legislation in 1997, offered some advice to members of the House legislative committee on Bill C-32 Wednesday. “I bear the scars of the last time Canada’s Copyright Act was amended, and I’m the first to admit that mediating among so many competing interests requires a great deal of care and effort,” Manley, who appeared as president and CEO of the Canadian Council of Chief Executives (CCCE), told the committee. The copyright reform legislation that passed under Manley’s watch, also called Bill C-32, received royal assent shortly before Parliament dissolved for the 1997 election. Manley urged committee members to work quickly on the bill in an effort to avoid losing today’s Bill C-32 to a possible spring election. “The perfect is the enemy of the good,” Manley said in a brief interview following the meeting, when asked to offer his advice to the committee. “This is one of those areas of policy where there is no possibility of satisfying everyone or giving everyone a win. Whatever you give is at somebody else’s expense. So, do the best you can, and get it done.” Manley told the committee that members of the CCCE, one of the most influential lobby groups in the country, support the bill on the whole, but have concerns about competitors’ ability to reverse engineer software and other products under the legislation. He said many Canadian companies need to release innovative products quickly and establish an adequate market share before competitors reverse engineer them. “Important concerns have been raised with respect to the impact on Canada’s software industry, on provisions dealing with encryption research, network security, reverse engineering and copying for interoperability purposes,” Manley told the committee. He said the provision could be amended with “fairly modest, fairly technical amendments,” but did not provide details. Bill C-32’s protection for digital locks, or technological protection measures (TPMs), provides exceptions for the purposes of developing interoperable programs, network security testing and encryption research. But NDP MP Charlie Angus disagreed with Manley, saying companies need the bill’s exceptions to innovate. “I’ve heard from many people that it’s key for startup businesses, for research, for innovation, and for bringing new entrants into the market,” Angus said. “Why is it that we should apply the TPM provisions on reverse engineering and interoperability?” Danielle Parr, executive director of the Entertainment Software Association of Canada (ESAC), and Jason Kee, its director of policy and legal affairs, also appeared Wednesday. Bill C-32 provides strict legal protection for digital locks, but there is some discussion of loosening the provision so that it is not an infringement of copyright to break a digital lock for non-infringing purposes like consumer uses. Kee told the committee that such an approach could be exploited in the video game industry because people could legally modify the access controls on their gaming consoles for non-infringing purposes. Under such a provision it would be difficult to prove knowledge of the intent to infringe, he said. The ESAC added that it opposes Bill C-32’s reduction of the statutory damages provision in the Copyright Act for non-commercial infringements to a range of $100 to $5,000 (from $100 to $20,000). Kee said there should not be a distinction between non-commercial and commercial infringements. “There is plenty of significant, massive, economic harm that parties are doing for non-commercial purposes,” he said. ESAC said statutory damages should also apply to the enabling provision in the bill, which is intended to provide a legal remedy to catch copyright infringement “facilitators” like BitTorrent trackers. The ESAC also argued that the bill’s exception for user-generated content is too broad and should be narrowed. Kee suggested limiting the provision so that user-generated works must be “transformative” new works that do not affect rights owners. ESAC said is not against the user-generated content exception, but when Bloc Québécois MP and heritage critic Carole Lavalléé asked whether removing it entirely from the bill would address its concerns, Kee said that “would resolve the issue.” Zachary Dayler, national director of the Canadian Alliance of Student Associations (CASA), and Spencer Keys, the group’s government relations officer, also appeared before the committee Wednesday. Dayler and Keys said they support the education exception in the bill to stop copyright collectives from expanding students’ copying fees to cover digital copies in emails, electronic storage, or posted on secure networks. “They want to be paid for posting links to digital copies, regardless of whether they’re freely available on the Internet,” Keys said. “We think that this education exception protects us from a highly unreasonable future.” But Carolyn Wood, executive director of the Association of Canadian Publishers, told the committee Wednesday that collective licensing has worked well to “provide, very, very broad access to a huge range of copyright-protected material.” Keys also told the committee that it is important to link the legal protection for digital locks to the intent to infringe copyright. The approach, expressed in the former Liberal government’s Bill C-60 in 2005 but which died on the order paper, is the best way to strike a balance between the interests of industry and consumers, he said. Manley said following the meeting that the lobbying on Bill C-32 in 1996 was “huge.” He referred to the bill’s neighbouring rights provision, which would permit rights holders to charge radio stations new copyright fees to compensate music composers, producers, and performers. Broadcasters lobbied heavily on the provision, saying it would result in local layoffs and the closure of stations. But Manley said committee members should not worry too much about the warnings from pressure groups. “We came down on the side of allowing neighbouring rights. I was of the view that you negotiate the price but you don’t negotiate the concept. I don’t think some of the really horrendous fears were realized,” he said. “Take all the, ‘If you do that it’s going to be the end of civilization as we know it,’ with a grain of salt. The impacts often are not as drastic as some people say.” sdoyle@thewirereport.ca

‘The perfect is the enemy of the good,’ Manley advises copyright committee

Broadcast | December 9, 2010

Unlock all the Canadian telecom, broadcasting and digital media news you need.

FREE TRIAL

SUBSCRIBE

Inside The Wire Report

Information

Hill Times Publishing

Get in Touch With Us