The process of making legislation is often compared to the manufacture of sausage. It is probably better not to see how it gets made.

Copyright law is no exception. The committee process is the point where the final ingredients are added, and the recipe can change very quickly and unpredictably, for better or worse.

In the United States, there was something of a scandal a decade ago when a congressional committee staffer inserted a “secret” amendment of “four little words” into an unrelated bill as a “technical amendment”—with the result that sound recordings would become works for hire.

The resulting change was highly prejudicial to recording musicians and to the great benefit of the record companies that control the RIAA. The amendment was later repealed under intense pressure from performing musicians such as Don Henley, Sheryl Crow and Courtney Love. The staffer in question was subsequently hired by the RIAA.

The Canadian process has never been that devious. However, in 2003 there was a nearly successful attempt, following minimal and all-but-hidden consultations, to enact copyright term extension provisions that were not only harmful to anyone interested in history but which could have eventually opened the door to a full fledged “Mickey Mouse” life-plus-70-year regime in Canada.

This was the notorious “Lucy Maud Montgomery” amendment, buried away in an otherwise mundane “machinery” bill known as Bill C-36, intended to merge the National Library and National Archives. Under a banner held by Jack Granatstein, I and others convinced enough committee members that this amendment was not only stealth legislation but bad legislation and the offensive copyright provisions were removed. In this instance, the committee process actually worked very well.

But it was a close call. Jack Granatstein said at the time, as quoted in The Hill Times: "… I don't know of many other bills in this country where someone has tried to sneak in a clause to cover something else. This is the way American Senators operate, and it is appalling to have it coming from a government bill."

One can look back to the first Bill C-32, introduced in 1996 and given royal assent a year later on April 25, 1997. Those with a good memory will recall how certain limited exceptions that were originally included, such as the ephemeral recording exception, and several exceptions for educators, were gutted at committee by the behind-the-scenes introduction of the “commercially available” exception to the exceptions.

Then there was the much-criticized Bulte Report in May 2004. This was a non-legislative initiative from the heritage committee named after its then-chair. The report endorsed the wish lists of key content industry trade associations and collectives, and essentially rejected the views and the evidence of those who disagreed. The Hon. Sarmite Bulte was defeated in the 2006 election, following significant controversy resulting from a fundraiser that featured the involvement of major entertainment industry lobbyists.

With these memories, how will the current Bill C-32 play out in committee, assuming it gets that far, given the current volatility of Canadian politics?

First, there is a choice of two existing standing committees that could be entrusted with the bill. The obvious choice would be the industry committee, because the bill was introduced by the Hon. Tony Clement, the Minister of Industry. However, the Minister of Canadian Heritage, the Hon. James Moore, has joint custody of the copyright file. His stamp is all over the controversial anti-circumvention provisions dealing with technical protection measures (TPMs). So, the bill could go to the heritage committee, although this now seems unlikely.

The third choice, which is the one most talked, is a legislative committee established for the sole purpose of dealing with Bill C-32. This was the route suggested by Heritage Minister James Moore immediately following the introduction of the bill on June 2, 2010, and confirmed in the House of Commons on June 16, 2010. 

The advantage of a legislative committee is that it could be composed of the most knowledgeable and interested MPs. It would have a high profile and no perceived institutional baggage, assuming that it has a balanced composition. This is a considerable optical and, likely, actual advantage over either of the existing standing committees. On the other hand, there is doubtless intense lobbying already going on about the makeup of such a committee.

Whichever committee gets the nod, one of the main questions that will arise is whether outside counsel should be retained. The role of committee counsel can, in principle, be very significant.

In the case of the first Bill C-32 in 1996, a practitioner was retained as counsel. An academic was retained in the case of the Bulte Report. In both cases, the results were nonetheless fraught with controversy and far from balanced. We do not know, of course, what transpired behind the scenes because the contributions of committee counsel are not on the record.

The inevitable problem with the appointment of any person as the sole outside counsel is very obvious. It may not be possible to find a single individual who would be generally perceived by all or even a significant and balanced subset of the key stakeholders as being both sufficiently expert and independent to be entrusted with this key role.

A potential solution might involve retaining at least two counsel who would bring both a content owner and user perspective to the table and who could work together. Ideally, there would be a third intermediary—perhaps a retired judge or university president or other éminence grise—who would be entirely neutral and who has no ambitions or agenda in the copyright field. These alternatives, however, have their own difficulties, which include greater expense and complications in terms of how advice will be given to and received by committee members.

In the absence of outside counsel, the committee will need to rely on the research lawyers of Parliament, who are very capable but who are not specialists in copyright law. In such a case, the committee members could become too reliant on “information” from lobbyists and government officials.

The process will need sufficient time. The first Bill C-32, which was a much more modest effort in terms of length, complexity and controversy than the current Bill C-32, involved hearings at the House Standing Committee on Canadian Heritage and later in the Senate, that lasted from September 1996 until April 1997.

The bill was proclaimed into law on April 25, 1997 and was the last deed done before the government of the day turned off the lights for a general election. This could be déjà vu all over again.

Despite the volatility of the current minority Parliament, work on a new bill must begin at some point—even if there is a good chance that it may prove to be futile. However, the worst scenario would be rushing through a bad bill just for the sake of getting it done. The current legislation is far from broken. Indeed, the strength of the current legislation is illustrated by Canada’s recent superior ranking on intellectual property, to that of its most vociferous critic, by the prestigious World Economic Forum. (Canada ranked 13th. The U.S. was 24th. By comparison, the U.K. was 17th.)

Another wild card is that the bill could be referred to committee before second reading. This would allow the committee to open up the bill to consider issues that are not currently addressed and which would otherwise be out of order by way of an amendment. Obvious examples would include opening up the private copying scheme to include iPods, etc., or to deal with the proposed universal “levy” on Internet service providers (ISPs).

However, the absolutely predictable fallout from the controversy inherent in including either of these provisions would likely kill the bill. There would be a line-up of others with their wish lists. A motion to refer the bill before second reading requires debate, which can be up to five hours. If the government really wants a bill passed before the next election, I would regard this scenario of a referral before second reading as unlikely.

There are other factors to consider:

• Whether and when either the ACTA or CETA (Canada-Europe) agreements are consummated and whether either will effectively force Parliament to do or not do certain things. The fallout could be both procedural and political.
• The possibility that the fair dealing issue will be before the Supreme Court of Canada. SOCAN is already trying to get it there. All eyes are now on the Council of Ministers of Education Canada (CMEC) to see if it will seek leave to appeal from the serious defeat it suffered at the Copyright Board on the K-12 tariff as upheld by the Federal Court of Appeal on July 23, 2010. CMEC seems to have nothing to lose by seeking leave to appeal. However, its intentions have not been announced. The deadline is presumably Sept. 29, 2010, given that the 60-day time limit doesn’t run in July.
• The possibility of full-blown political controversy that could even affect electoral politics. This was apparently the case in Sam Bulte’s defeat in 2006. Who would have thought that the highly technical, long form census issue would loom so large, so fast, and for so long? The anti-privacy implications of Bill C-32 make the long form census privacy concerns pale in comparison.

If there is one thing that everyone in the great Canadian copyright debate might agree on, it would probably be that we are living in "interesting times."

Howard Knopf is counsel with Macera & Jarzyna, LLP in Ottawa. He has been involved in copyright policy making for more than 25 years and has been litigation counsel in copyright cases at all levels, including the Supreme Court.

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