C-11 committee moves into clause-by-clause, maintains exception for radio broadcasters

OTTAWA—The Bill C-11 copyright committee breezed through the first day of clause-by-clause considerations Monday without making any significant changes to the Conservative government's omnibus copyright reform bill. The committee approved, without amendment, clause 34 of the bill, which repeals section 30.9(6) of the Copyright Act and exempts radio stations from compensating collective societies for mechanical reproduction rights paid for transferring and reformatting music files. The Liberals and NDP members of the committee, which disagreed with the proposal, put forward amendments to clause 34 of the bill. The Conservative government, with its majority voting power, struck down the amendments and agreed to the clause without amendment. Radio industry and music groups watched final witness presentations before the committee carefully last week as discussions focused on the bill's exemption for radio stations. Conservative MP Dean Del Mastro, a member of the committee and the parliamentary secretary to the Prime Minister, told The Wire Report following the committee meeting Monday that those final hearings were intended to ensure that everyone was heard. “We needed to hear their story,” Del Mastro said, adding that radio stations have paid rising royalty rates over the years, including reproduction and performance licence fees and Canadian content contributions under the Broadcasting Act. “We wanted to hear from them. We certainly considered their argument,” he said. Broadcasters cannot purchase music in the format they need it in, he said. “The mechanical exists only because they want to be able to put the music in a format that they play it in,” Del Mastro said. Broadcasters launched a national lobbying and advocacy campaign last year as they faced the possibility that the opposition parties in the former minority Parliament could collectively reverse the provision in the bill. At the time, the NDP, Liberals and Bloc Québécois were opposed to the provision. The opposition parties and collective rights societies said the private radio sector's profits are increasing at a time when the music industry is suffering. If the change in C-11 is maintained, radio broadcasters collectively will save about $21 million in annual royalties currently paid to collective rights societies for the right to transfer and format digital tracks, according to the Canadian Association of Broadcasters. The Conservative government proposed small, mostly technical, committee-stage amendments to Bill C-11, according to a list of amendments obtained by The Wire Report. Some industry insiders had questioned whether the bill's “enabler provision”—intended to help rights holders sue Internet services like BitTorrent trackers and peer-to-peer search engines for copyright infringement—would be expanded or broadened. The Conservatives on the C-11 committee on Monday passed a technical amendment to the provision. The enabler provision, in clause 18 of the bill, had said it is infringement for someone to operate a so-called enabler service if they know or should have known that the service was “designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs.” Rights holders had said the provision was too narrow and could exempt services that effectively serve as enablers of infringement but may not have been designed to do so. A website “designed primarily” for selling smartphones could also enable the illegal downloading of music, the Canadian Independent Music Association told the committee in February. Following a committee vote Monday, the provision was changed to say that it is an infringement of copyright if a person runs an Internet or digital network service “primarily for the purpose of enabling acts of copyright infringement.” It was the only amendment to clause 18 of the bill. The NDP and Liberals also proposed amendments to the provision, as happened frequently during the meeting Monday, which were voted down by the government. Del Mastro said at the committee meeting that the changes to the enabler provision will help rights holders catch sites that may have attempted to “disguise” themselves as being not “designed primarily” to enable copyright infringement. Only government-sponsored amendments are expected to pass at the clause-by-clause stage of the C-11 committee study. Del Mastro told The Wire Report there are no opposition amendments that the government will support. “We said the amendments would be technical in nature, and that's what we're doing,” he said. The clause-by-clause stage is expected to finish this week, after which the committee can pass the bill and report it back to the House of Commons. The committee on Monday agreed with clauses one to 34 of the bill's roughly 60 clauses, most of them without amendment. The MPs stopped for the day at clause 35, with the clause-by-clause study continuing Tuesday morning. The Conservative government has prioritized Bill C-11, having wanted to pass an omnibus copyright reform bill for a number of years. C-11 is the same as the former Bill C-32 that died at committee stage when the 40th Parliament dissolved for a federal election last year. A similar bill, C-61, died on the order paper in 2009 due to a prorogation. C-11 implements two Internet treaties of the World Intellectual Property Organization. In an analysis of the proposed C-11 committee amendments posted on his blog Monday, Michael Geist, the Canada research chair in Internet and e-commerce law at the University of Ottawa, noted that the bill's strict legal protection for digital locks will “remain largely unchanged as the government is not proposing to link circumvention to copyright infringement (both the NDP and Liberals have put forward such amendments).” Geist wrote that the Conservatives have also proposed amendments for a new limitation on the bill's computer interoperability exception “that restricts the use or disclosure of the information reproduced for the purposes of making the programs interoperable”; “a change to the network provider safe harbour that allows for extraction of meta-data”; and “a limitation on the injunction power against information location tool providers.” Geist wrote that, “given the heavy lobbying by many groups demanding changes to fair dealing (all parties rejected calls for a new fair dealing test or limitations on education), user generated content (there were multiple calls for its removal), statutory damages (there were calls for unlimited damages), and Internet liability (there were calls for notice-and-takedown and subscriber disclosure requirements), the government's proposed amendments are relatively modest.” sdoyle@thewirereport.ca

C-11 committee moves into clause-by-clause, maintains exception for radio broadcasters

Broadcast | March 13, 2012

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