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37th PARLIAMENT, 1st SESSION

Standing Committee on Canadian Heritage

EVIDENCE

CONTENTS

Thursday, May 23, 2002

0905

The Chair (Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.))

Ms. Valerie Smith (Individual Presentation)

The Chair

Ms. Valerie Smith

0910

0915

Ms. Christiane Gagnon (Québec, BQ)

The Chair

Ms. Valerie Smith

Mr. Scott Newark (Special Counsel, Office for Victims of Crime)

Ms. Valerie Smith

0920

Mr. John Harvard (Charleswood St. James—Assiniboia, Lib.)

Ms. Valerie Smith

Mr. John Harvard

Ms. Valerie Smith

Mr. Scott Newark

The Chair

Mr. Scott Newark

Ms. Priscilla de Villiers (Special Advisor, Office for Victims of Crime)

0925

0930

0935

The Chair

Ms. Priscilla de Villiers

The Chair

Mr. Scott Newark

0940

The Chair

Mr. Chuck Strahl (Fraser Valley, Canadian Alliance)

Mr. Scott Newark

0945

Mr. Chuck Strahl

Ms. Priscilla de Villiers

Mr. Scott Newark

Mr. Chuck Strahl

0950

Ms. Valerie Smith

The Chair

Ms. Christiane Gagnon

0955

Ms. Priscilla de Villiers

Ms. Valerie Smith

Mr. Scott Newark

1000

The Chair

Mr. John Harvard

Mr. Scott Newark

Mr. John Harvard

Mr. Scott Newark

Ms. Priscilla de Villiers

1005

Mr. John Harvard

Mr. Scott Newark

Mr. John Harvard

Mr. Scott Newark

Mr. John Harvard

Mr. Scott Newark

The Chair

Ms. Sarmite Bulte (Parkdale—High Park, Lib.)

Mr. Scott Newark

Ms. Sarmite Bulte

Mr. Scott Newark

The Chair

Ms. Wendy Lill (Dartmouth, NDP)

Ms. Valerie Smith

Ms. Wendy Lill

1010

Mr. Scott Newark

The Chair

Mr. Luc Dionne (President, Société civile des auteurs multimédia (SCAM); Representative, Société ds auteurs et compositeurs dramatiques (SACD))

The Chair

Mr. Luc Dionne

1015

1020

1025

The Chair

Mr. Chuck Strahl

Mr. Luc Dionne

1030

The Chair

Mr. Benoit Clermont (Lawyer, Société civile des auteurs multimédia (SCAM), Société des auteurs et compositeurs dramatiques (SACD))

Mrs. Elisabeth Schlittler (Delegate General for Canada, Société civile des auteurs multimédia (SCAM), Société des auteurs et compositeurs dramatiques (SACD))

The Chair

Ms. Christiane Gagnon

Mr. Luc Dionne

Ms. Christiane Gagnon

Mr. Luc Dionne

Mr. Benoit Clermont

1035

Mr. Luc Dionne

Ms. Christiane Gagnon

Mr. Luc Dionne

The Chair

Ms. Sarmite Bulte

1040

Mr. Luc Dionne

Ms. Sarmite Bulte

Mr. Luc Dionne

Ms. Elisabeth Schlittler

Ms. Sarmite Bulte

The Chair

Ms. Wendy Lill

1045

Mr. Luc Dionne

Ms. Wendy Lill

Mr. Luc Dionne

The Chair

1050

Mr. Luc Dionne

The Chair

Mr. Chuck Strahl

1055

Mr. Luc Dionne

Mr. Chuck Strahl

Mr. Luc Dionne

The Chair

CANADA

Standing Committee on Canadian Heritage

NUMBER 066

1st SESSION

37th PARLIAMENT

EVIDENCE

Thursday, May 23, 2002

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

The Chair (Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.)): I'd like to call to order this meeting of the Standing Committee on Canadian Heritage, which meets today to continue its study on the state of the Canadian broadcasting system.

We are very pleased today to welcome Ms. Valerie Smith, a community activist, who will speak in her own name; and on behalf of the Office for Victims of Crime, Mr. Scott Newark, special counsel; and Ms. Priscilla de Villiers, special advisor.

We'll start with you, Ms. Smith. I understand you have an appointment and have to leave early.

Ms. Valerie Smith (Individual Presentation): No, that was just the order we agreed on.

The Chair: All right. Go ahead, Ms. Smith.

Ms. Valerie Smith: Thank you for the opportunity to address the committee. I wish to highlight a few of the issues covered in a brief I filed with the committee last September, the focus of which was broadcasting policy, one of the key themes identified in the terms of reference.

While there are many positive and pro-social aspects to the broadcasting system, there are, unfortunately, many harmful and antisocial aspects as well. These include escalating levels of brutal and gratuitous violence; the degradation and demeaning of women; and exposing children and youth to age-inappropriate and deviant sexual activities through daytime broadcasts, such as the Howard Stern Show, the Jerry Springer Show, and the World Wrestling Federation.

The Broadcast Act mandates broadcasters to safeguard, enrich, and strengthen the cultural, political, social, and economic fabric of Canada. By engaging in such blatantly antisocial activities, broadcasters are undermining, not safeguarding and strengthening, the social fabric of Canada. This cannot be viewed as anything other than a direct contravention of the act.

I've been involved in the issue of media violence since 1990, and over the past decade have done volunteer work with the Coalition for the Safety of our Daughters, the Coalition for Responsible Television, and Canadians Concerned About Violence in Entertainment. For the past two years, I've assisted both the Ontario Office for Victims of Crime and CAVEAT on media violence issues.

In the course of these activities, I wrote or co-authored briefs and interventions to the CRTC, appeared at CRTC licence-renewal and violence hearings, and filed many complaints with the Canadian Broadcast Standards Council. As such, I learned more than I ever wanted to about the various public regulatory schemes supposedly enacted to protect and promote public interest, in relation to the media industry in Canada. Put bluntly, the current safeguards do not work.

The concern about media violence has been consistent over decades in both Canada and the United States. In the past ten years, the federal government and the CRTC have examined the problem extensively. The CRTC held hearings and commissioned research into TV violence, while the federal government identified media violence as a major issue requiring national action, in 1991.

In 1993, a national conference on TV violence was hosted in Toronto by the C.M. Hincks Institute for Children's Mental Health, in conjunction with the CRTC. Writing in the Globe and Mail following the conference, Keith Spicer, then chairman of the CRTC, noted that research overwhelmingly proves that excessive TV violence hurts children by contributing to desensitization, aggression, impaired learning abilities, increased bullying, and weapons use.

The same year, the House of Commons Standing Committee on Communications and Culture released their report, Television Violence: Fraying Our Social Fabric. Among other things, the report said, “What is needed is for government, the federal regulator and broadcasters to act”, and, “We have come to the conclusion that an amendment to the Criminal Code is needed to control extremely violent forms of entertainment, such as slasher and snuff films and videos.”

As a follow-up to the recommendation about slasher films, the federal Standing Committee on Justice and Legal Affairs recommended that the obscenity provisions of the Criminal Code and customs tariff be amended to prohibit media that have, as a dominant characteristic, the undue exploitation of horror, cruelty, or violence.

More recently, in 2000, the Attorney General of British Columbia convinced Canadian justice ministers to form a federal-territorial-provincial working group on media violence, at their meeting that year. In October 2000, Ontario Attorney General Jim Flaherty took the unprecedented step of attempting to have the violent rap performer, Marshall Mathers, barred from entering Canada because of his misogynous lyrics. Mr. Flaherty was responding to a complaint I filed with the Toronto Police hate crimes unit.

It is important to note that the Attorney General was unsuccessful in this attempt because the government has failed to amend the Criminal Code hate propaganda to include women.

None of the government concern on either side of the border has resulted in any reduction in the level of violence. The American Academy of Pediatrics, in 1997, summed up the situation this way:

The level of violence to which [children] are exposed through the media has reached such horrific proportions, health professionals, parents, legislators and educators agree that something has to be done.

Something has been done by broadcasters, but unfortunately it hasn't been anything good. A study on Canadian television carried out by Laval University in 1999 stated that between 1995 and 1998, the quantity of violence shown went up by almost 50%. The quantity of violence accessible to children on programs broadcast before 9 p.m. also went up; 92% of violent acts were shown before 9 p.m.

This information was distributed in March 2000 by Bloc MP Bernard Bigras, who drafted a private member's bill, an act to amend the Broadcasting Act, in an attempt to reduce violence on television. The CRTC, tasked with regulating broadcast in the public interest, has failed abysmally, as indicated by Laval's study and the following two situations.

First is the CRTC's granting of a licence to Corus Entertainment Inc., from Alliance Atlantis Broadcasting, for an all-horror channel, Scream TV, that will broadcast slasher films. Second is the discovery that Bell ExpressVu has broadcast criminally obscene material on its pay-for-view channels, as revealed by The Fifth Estate.

Clearly, the wishes of federal politicians, as expressed through the Broadcast Act, Television Violence: Fraying Our Social Fabric, and various other initiatives directed at reducing televised violence are at direct odds with the philosophy and actions of the federal regulator.

In a 1999 position paper, Children and the Media, the Canadian Pediatric Society stated that the influence of the media on the psychosocial development of children is profound. In the United States, the American Medical Association, American Psychiatric Association, American Academy of Pediatrics, American Academy of Child and Adolescent Psychiatry, the American Psychological Association, the U.S. Department of Health and Human Services, and the U.S. Surgeon General have all made definitive statements over the years about the relationship between childhood exposure to visual violent images and later manifestations of real-world aggression and violence.

There isn't time to go into detail on the research, but I brought the committee a policy statement on media violence, released by the American Academy of Pediatrics last November, which provides a useful summary.

¿ (0910)

The CRTC has permitted this powerful industry to self-regulate through supposed adherence to voluntary codes. However, the purchase by Global Television, CHUM Limited, Western International Communications, and the Sports Network of Mighty Morphin Power Rangers, the Jerry Springer and Howard Stern shows, and the World Wrestling Federation show, all programs that were found by the CBSC to be in gross violation of CAB codes on violence and sex role portrayal, indicates a serious lack of commitment to code adherence by major broadcast conglomerates. Furthermore, the misogynous comments that distinguish both the WWF and Howard Stern shows put those broadcasters in contravention of not only the voluntary CAB codes but also the broadcast regulation, subsection 5(1), that prohibits abusive comment based on sex.

In the absence of meaningful sanctions for contravening the CAB sex role portrayal code, as illustrated by the Stern situation, Corus Entertainment Inc. launched MOJO Radio in Toronto, a format that is not only sexist and exploitive, but was also described as misogynous by Toronto Star columnist Rosie DiManno. A ruling by Advertising Standards Canada on the MOJO billboard campaign, a sample of which was provided to the committee, called it demeaning and degrading to women. Corus owns 52 radio stations and has indicated their wish to spread the MOJO format across Canada.

The failure of self-regulation should surprise no one, and was in fact anticipated by the Standing Committee on Communications and Culture, as reflected in recommendations 22 and 23 of Television Violence: Fraying Our Social Fabric.

Some broadcasters also appear to have been contravening the Criminal Code by providing access to obscene websites—CILQ in Toronto—challenging people to commit criminal acts like vandalism, theft, and public nudity to win contest prizes—CFNY Toronto, CJKR Winnipeg, CHRK Calgary—and the broadcasting of obscene material by Bell ExpressVu.

¿ (0915)

[Translation]

Ms. Christiane Gagnon (Québec, BQ): The witness is speaking too fast. The interpreter does not have the text.

[English]

The Chair: It is very hard for us to follow, because we don't have a text of what you're saying. You're going too fast for the translators.

Can you tell me, first of all, how long you have before you conclude your testimony?

Ms. Valerie Smith: I have one page.

The Chair: Fine. If you can just slow down a bit, it would really help.

Mr. Scott Newark (Special Counsel, Office for Victims of Crime): We also have copies of the presentation. We'll make sure the translators get it as well.

The Chair: Yes, all right.

Ms. Valerie Smith: I'm sorry; I'm new at this.

The Chair: No, no, that's fine.

Ms. Valerie Smith: Freedom of expression is an important right, but so too is the right to life, liberty, and security of the person. The 2000 crime figures released by Statistics Canada indicate that violent crime is 54% higher than it was 20 years ago and more than double the rate of 30 years ago. There are, of course, many factors contributing to violence, with media violence being just one. But both the pervasive nature of the media and extraordinary advances in technology make it one we cannot ignore.

Self-regulation is a failure and must be abandoned. The CRTC has been grossly ineffective in ensuring compliance with the most basic tenets of the Broadcast Act and must be revamped.

I will close with two things. The first is a quote from David Puttnam, former president of Columbia Pictures, as it appeared in Television Violence: Fraying Our Social Fabric.

Someone has to say, “Enough”—because this is disaster, we are destroying ourselves. Successive societies have destroyed themselves by the failure of their leadership to say, “I know in many respects that's what you'd like to see, but you know what? It's bad for us, we're damaging ourselves. We are untying the fabric of our society.”

Several years later we are even further down the road to damaging ourselves. As an example of that, I'd like to show you what Bell ExpressVu was broadcasting on their pay-per-view channels. I would just warn you that it's very graphic. It was broadcast on CBC at 8 o'clock, but still, it's disturbing footage.

[Video presentation]

Ms. Valerie Smith: The person being interviewed was Robert Warren. He's the chair of the Ontario Film Review Board. Bell ExpressVu had said—and it was a condition of their licence—that all films they broadcast should be reviewed and classified by the Ontario Film Review Board. He was interviewed by Hana Gartner, and clearly had no idea that those films.... He certainly would not have approved those films.

¿ (0920)

Mr. John Harvard (Charleswood St. James—Assiniboia, Lib.): Mr. Chairman, I just want to know if this was on The Fifth Estate.

Ms. Valerie Smith: Yes.

Mr. John Harvard: So this is part of a documentary?

Ms. Valerie Smith: Yes.

Mr. John Harvard: But the scenes depicted in The Fifth Estate documentary are lifted from a show appearing on a digital channel?

Ms. Valerie Smith: Yes, Bell ExpressVu. They were running two channels that they were picking up from Colorado. I think they were called Extasy and True Blue.

Mr. John Harvard: As a result of that, didn't Bell ExpressVu take some action?

Ms. Valerie Smith: It took both the channels off the air.

Mr. Scott Newark: Actually, I'm going to get into the details of that, sir, in my presentation. I have the documentation from the CRTC and Bell ExpressVu as well. It's an important point, one we too want to discuss as well.

The Chair: Mr. Newark.

Mr. Scott Newark: If it's acceptable, sir, I'd like to ask that Ms. de Villiers of my office go first; she has some preliminary remarks. Then I'm going to focus on exactly the stuff Mr. Harvard was talking about.

Ms. Priscilla de Villiers (Special Advisor, Office for Victims of Crime): I, like so many others in this country, had never paid much attention to pornography. I'd always made sure of what my children were watching, reading, and listening to, and that quite frankly was the extent of my interest. On August 9, 1991, my daughter, Nina, was abducted and murdered by a serial predator while she was out jogging. That man went on to kill another young woman, another stranger.

During the inquest into her death, it emerged that Jonathon Yeo—that was his name—was a user of pornography. He had a bag of it in his locker at work at the Dofasco steel company. He had a bag of it at home. He had videotapes. His wife had objected strenuously and kept throwing it out, but he kept bringing it back into the home and hiding it. She had brought to his attention the fact that they had four young children and she wouldn't tolerate that material on the premises. He had a trunk of it in his car, the same car he put my daughter's body in when he drove to throw her in a marsh 400 miles away.

He had a habit of stripping his victims. Both Karen Marquis and my daughter were found naked. In fact, Nina's clothes were never found. It emerged in the inquest that he was out on bail for a very violent sexual assault on another young woman, a stranger and a jogger. He'd stripped her, he'd held a gun to her throat and a knife to her head, and he'd made her assume pornographic poses, poses he got from his pictures.

She survived, and she gave extremely compelling evidence in the inquest as to the way he treated his victims. He had been a sexual predator for 11 years. Eight living victims were at the inquest, although there were many more.

As this information emerged, I was bombarded by phone calls and letters from people from all across the country on many topics. Some were to express condolences and some to tell me about their terrible tragedies, but I kept hearing the word “pornography” over and over again. I thought at the time it was just simplistic. I couldn't learn a lesson from just one case.

Round about that time, in fact three months earlier than my daughter's death, Leslie Mahaffy's body had been found encased in concrete. She had disappeared three kilometres from where my daughter had disappeared. Eight or nine months later, Kristen French disappeared. I became embroiled in that, as it was all within the same neighbourhood. At that time we didn't know there were two sexual predators running around. We had no idea who had killed my daughter.

During that terrible time of the Bernardo trials, I began to see what role violent and particularly visual pornography had played in Paul Bernardo's life. He used to go across to the States; they think he was dealing in it. When he made the videotapes of Kristen French and Leslie Mahaffy's terrible trials, he crafted them to be like the best pornographic films. There's a series, there's a way they're done, and you saw a little bit of it here. I couldn't watch too much of it because that was reality for me.

In opposing the release of the videotapes, we had to bring expert testimony before the judge, Justice Gravely in the beginning, in the St. Catherines trial, because four major media chains, three newspapers and the CBC, were all trying to get their hands on those videos to broadcast.

¿ (0925)

It was then, in assisting the families, in raising money to pay for a lawyer, in raising money to assist expert witnesses to come to court and to give their expertise on why these video tapes should not be exposed, that I unfortunately became much more cognizant of the problems of pornography within lifestyle. I also became extremely aware, by my talking to victims and by members of the community coming to me, of the dreadful residual effects there were, not only with respect to the homicide but because of the notion that these images should be made public.

Subsequently, in many other cases it's been brought to my attention that pornography was a tool. In the recent Sharpe case we saw and heard how pornography is used as a tool to seduce children, to lower inhibitions in perpetrators, and to try to normalize that behaviour. This is actually true too of sexual violence against adults.

I've heard too often people scoffing, talking about boys being boys and asking how I could possibly feel that pornography could cause this behaviour when we all know there are so many other behavioural factors. In fact, there are several factors that go into the makeup of not only violent rapists and sexual predators but of people who enact violent sexual fantasies, people who rape. Those are biological factors, childhood experiences of sexual abuse, male sex role socialization—these are all the social science terms—exposure to mass media that encourages rape, and exposure to pornography.

Another way of deriding this sort of information is to denigrate the research that has gone into this, but there has been too much compelling research for too many years for us to ignore it. I have a few references for the researchers if they care to look.

Ted Bundy, probably one of the worst serial killers in history, talked too about the role pornography had played in exercising his fantasies. There was Jonathon Yeo, the man who killed Nina de Villiers. His brother Jim was in the court, and he said under oath that there had been a lot of pornography in their house; their father had it, and from an early age they were both exposed to it. Jim had looked at it and been interested to a point; Jonathon became obsessed by it. There was an obsessive use of pornography and masturbation, etc.

I began to feel that this is a very important area, one we can no longer ignore. In the Butler case, the Supreme Court of Canada noted that the portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex that is degrading or dehumanizing may be undue if the risk of harm is substantial. The substantial risk of harm is to the person being photographed, videotaped, or filmed as well as—and this is what's important—to the consumers of the material, the target group members or society at large.

Degrading and dehumanizing but non-violent material has been shown to lower inhibitions for aggression by men against women, increase acceptance of women's sexual servitude, increase reported willingness to rape, and increase the belief in male dominance in intimate relationships. For high-frequency consumers such as Bernardo and Yeo, such materials also self-reportedly increased sexually aggressive behaviour.

¿ (0930)

We also know that the risk of violence against women is known as well by this sort of exposure. Despite a well-financed public campaign of disinformation to the contrary, there has been no controversy in the research community internationally over 30 years that exposure to such materials increases aggression against women.

Public exposure to such materials undermines the criminal justice system by making it far less likely that rapists will be held accountable for sexual assault. We all know of the horror stories of cases where the victim ends up being victimized, and why there really is a compelling reason why so few women feel justified or validated in coming forward and reporting rape.

Exposure to graphic violence against women has been found to reduce women's willingness to convict for such conduct, and increases their willingness to excuse it—to place responsibility on the victim. It impeaches the victim's attempts at resistance and her credibility. We've all heard it. It makes nonsense of the “no means no” law.

For a substantial segment of the viewing population, aggression enhances sexual arousal. This has been proven many, many times. When rape is portrayed as pleasurably positive for a woman, it is well established that the risk of violence against women will increase dramatically. This leads to the rape myths that permeate our society.

Viewing materials have major detrimental effects on many women. Some re-experienced abuse. One remembered being sexually abused as a child for the first time. Some of the consequences were long-term. I have to say that this is borne out anecdotally by many, many people, by many victims in shelters, and so on.

¿ (0935)

The Chair: Ms. de Villiers, I don't want to interrupt you, except to say we must move to another group at 11 o'clock.

Ms. Priscilla de Villiers: No, no. I'll come to the end.

The Chair: That would be really important if you want members to ask questions.

Ms. Priscilla de Villiers: Certainly. I will be handing this research material in.

What I've attempted to show is there's a real and compelling harm to our society, to our social fabric, to our social behaviour, and to the upholding of our laws, which are so important if we are to have equality in this country, if we are to live in safety and peace, and not to live in a pervasive atmosphere of fear.

What distresses me so deeply is that a regulatory body of the federal government, whose mandate specifically gives them the ability and, I believe, the duty to act as a watchdog on our behalf, on behalf of victims and prospective victims, can in fact be in such dereliction of duty in cases like these. I believe this speaks extremely ill of the way our societal values and societal needs--and the protection of our people--are being supported.

So I ask you, please, to look very carefully at this and try to address this extremely compelling need that we feel, particularly, as advocates for victims.

Thank you.

The Chair: Thank you very much, Ms. de Villiers.

Mr. Newark, make it very brief, because we have many questioners.

Mr. Scott Newark: I don't profess any particular expertise in relation to the subject of media violence. My background is really more in relation to how regulatory bodies work or don't work.

For example, when this material you saw was originally shown on The Fifth Estate, Ms. Smith, who our office had done some work with, and I talked about it. Although I wasn't familiar with the Broadcasting Act, I said there would definitely be the CRTC. There would be regulatory authority. There would be, I was quite sure, standards. I'd have been willing to bet that there were all sorts of great statements of principles that would prohibit that kind of stuff. There would be a licence, conditions of the licence, and everything else. We helped her put together what was in effect a complaint to the CRTC.

I hope that in the round of questions I can get into some of the specifics about what I would call the absolute absence of pulse response from the CRTC in relation to what you saw. And make no mistake; what you saw is what got on the air in the context of the current system. I was about to say “permitted”—I don't think it actually permitted it—but that made it onto the air.

When we get into the discussion, I think what you're going to find out is that without any question whatsoever the licensee was in clear violation of the terms of its licence and could only be described as completely dysfunctional. In its original comment, it first of all gave false information on The Fifth Estate in saying that it had met the terms of its licence in that the material had been screened. That was wrong. The response literally became that they did not know the content of what they were broadcasting and that secondly they were unaware of the fact that they were not complying with the terms of their licence.

There's been a reference to the fact that the material constituted criminal obscenity. In fact, that was the opinion of the prosecutor's office in Ontario after the complaint was made through the Toronto Police Service, and Bell ExpressVu was notified of that.

I have to tell you, as a former prosecutor, I can understand to a certain extent why the Crown might look at that and say there's a difficulty in us prosecuting criminally because of the requirement of proving the informed intent to broadcast. One would think that this is really a regulatory matter, that if somebody isn't sufficiently competent or paying attention enough to know what it is they're broadcasting, or to know whether they're in compliance with the terms of their licence, then maybe they shouldn't have a licence.

You will find, I hope, when we get into the questions about this, that the response of the CRTC to this was to not bother calling any hearings. I've heard estimates that this company made anywhere from $5 million to $7 million on broadcasting material that was illegal. It was in violation of the terms of their licence. What happened to the money? My suggestion would be, if the CRTC had bothered to do anything about it, perhaps we could have at least taken the money that was illegally obtained by this company.

Generally, just in summary before we get to questions, I would suggest a couple of things. Number one, it's logical to assume that if broadcast content can cause positive change, it can also equally cause negative change as well. I agree with the research that's identified.... I'm not an expert in it, but with respect, if you have any doubts about that whatsoever, I urge you to settle that question for yourselves. Don't leave it lingering as something that's unsure. From what I have seen, although I'm not an expert, it's overwhelming.

The second thing is, I think you need to explore the regulatory environment that's in place right now. I strongly suggest you call the Bell ExpressVu executives and the CRTC regulators back before your committee. Hopefully, with some of what we go through in questioning here and what we supply you, you will be able to ask some rather pointed questions.

Third, there are some issues you want to be very concerned about in relation to what's generally known now as convergence, not just in the general sense about there being fewer views in the news but as to who owns what. I think it's rather unlikely that some of our comments today about Bell ExpressVu are going to be on CTV tonight. Part of the reason for that is the issue of who owns what in this country and the shrinking share of who owns what. That is also relevant in relation to one of the other features in here about Scream TV, owned by Corus Entertainment.

Our brief also urges you to take a look at issues of funding. Priscilla mentioned the French and Mahaffy families. There was an issue in Ontario about a movie being produced based on the Bernardo story. People said we should stop the production of the movie; we have criminal law, and if it violated that, we could do it that way. We couldn't actually do that, but it's quite another thing for the French and Mahaffy families to have to pay for it. We should be taking a very close look at what subsidies are granted to what kinds of films. We have some material in our brief on that as well.

Finally, at the back of the brief there is a series of very specific recommendations we urge you to take a look at in relation not so much to the content itself but to the regulatory environment that supposedly exists in this country.

¿ (0940)

In conclusion, there are really three presumptions I would suggest that you need to apply here.The first, as I said earlier, is that the capacity exists in broadcast content to have both positive and negative impacts. The second is that these are public airwaves. If they're not, let's admit it and just go to an “anything goes” environment. I would suggest that's not the case. In the past, Parliament has recognized this in the Broadcast Act. Third, if we're going to have a regulatory environment, it should actually mean something. There is nothing worse or more hypocritical than to have great statements in legislation that don't mean anything because they're not enforced.

I think if you follow these three presumptions, you'll be able to improve the regulatory environment and broadcast content significantly.

Thank you, sir.

The Chair: Thank you very much, Mr. Newark.

Mr. Strahl.

Mr. Chuck Strahl (Fraser Valley, Canadian Alliance): Thank you all for coming today and for your testimony. I must say, I'm always unsure whether it should be here or before the justice committee. But we're dealing with broadcast stuff, so that's what we have to deal with here. Your stories were very moving. Thank you for sharing them.

I have a couple of questions. Any of you could take them up, if you like. First of all, in your opinion, is the Sharpe decision that came down earlier this year going to have any effect on the willingness or ability of regulatory bodies to stop pornography?

I believe this committee, and probably another one as well, has to review the Sharpe decision. It basically says that if you can prove there's some artistic merit, and almost any artistic merit.... In fact, it's so bad, it seems to me you can put a film together and call it artistic because it's a film. It's pretty carte blanche as to what you can produce. In other words, prosecuting something for a criminal behaviour is going to be increasingly difficult.

Have any of you examined this decision in light of how it will affect public distribution or availability of pornographic material?

Mr. Scott Newark: Yes, I have. Actually, in this room about a month ago, I spoke to a group of about 35 MPs from all parties on this very subject.

By the way, we've only seen the beginning in the Sharpe case. Sharpe was actually acquitted on those counts, and not because it had artistic merit. The judge had already ruled the material in question didn't advocate or counsel sex with children, and therefore wasn't captured by the definition. He went on to share his insights into what constituted artistic merit. Suffice it to say, the bar's rather low in relation to that.

However, 18 months ago the Supreme Court of Canada created two other exceptions to what constitutes child pornography, which we haven't got yet. One of them, sir, is exactly what you're talking about. It's expressive material that's created. We haven't even gotten to that yet, to determine how it is going to be interpreted by the courts.

There are restrictions in relation to personal possession. So these would be different than somebody broadcasting them. But there's no question that, as you move the bar along as to what is acceptable, a concurrent concern is how the material is distributed. For example, the material that Sharpe had, although in written form, could be distributed over the Internet, because it didn't constitute child pornography.

¿ (0945)

Mr. Chuck Strahl: That leads to my second question. I saw an article or TV program the other day that said adult males browsing on the Internet apparently spend 30% of their time on pornographic sites. I don't know what the number would be for adolescent males. Who knows? If they're unsupervised, I'm sure it's a lot more than this. But if they spend 30% of their time on pornographic sites on the Internet, and there is nothing I know of that you can do to stop this on the Internet, then what impact...?

Are we just whistling in the wind here with the CRTC? I've never seen stuff like this. I don't watch pornography. I've never seen it. But I take it that this is a small drop in the bucket of what is probably much worse stuff out there. I don't know.

Is it just hopeless? I mean, if they're going to get it anyway, maybe the CRTC and trying to stop it is a hopeless deal. It's out there, and can't be stopped. I don't know. Most of these guys who thrive on this stuff don't get it off CBC. They get it off much more hardcore sources than that.

Ms. Priscilla de Villiers: I'm glad you raised that, because this is the dilemma. It's the question of whether you just give up, go home, and allow whatever we want in the country, or do we withhold our blessing, as it were, that this is deemed to be suitable? If it continues to be something that's subterranean, furtive, and all the rest of it, at least as a country, as a government of our people, we are saying we do not agree with this. We need to validate the fact that this is unacceptable behaviour. The only way we can do it, I believe--your question was about Sharpe and other decisions--is through regulation, through the parliamentary process, and through consistently speaking against this, in the same way we've taken a very strong stand against hate crime, hate literature. There's no artistic merit there, and yet I see very little difference.

So I'd urge you to make it quite clear that this unacceptable.

Mr. Scott Newark: I actually object to the hypocrisy more than anything else. We have it in the legislation, and yet it seems to be anything goes. I mentioned the point earlier. In the subsequent follow-up program on The Fifth Estate, the interviewer, Hana Gartner, asked the people from the CRTC why they weren't aware of this. The response was that they certainly couldn't watch every channel in Canada to monitor this.

I was on the program, and was watching it with my daughter. She looked at me and said, “Well, why don't they just look in the TV Times, Dad?” The point of it is, of course, that no one is suggesting you have to watch every TV channel. I'd be willing to bet you don't have to watch Golf TV or Gardening TV. These channels are very clear in what they say is there. By the way, my daughter is 10.

I think the point I would really make here is that if we're not going to be in a regulatory business, if we're not going to live up to the principles set out in the act and all the regulations, then let's get rid of the hypocrisy.

Frankly, I don't think we should give up on that. I think we should be capable of stopping that from being on the air. I assure you that one of the ways you will encourage that stuff not to be on the air—because make no mistake, broadcasters are in the business of making money—is to enforce the regulations. I respectfully suggest that you need to look very long and hard at the regulatory provisions, because they are deficient, in this act, to allow that to get on the air with no sanction.

Mr. Chuck Strahl: I just want to add my voice to yours, to say that I don't believe we should give up. I'm not suggesting that. I threw that out in a rhetorical way.

We've seen over the years in television advertising, and even in government advertising, how we have changed societal attitudes toward drinking and driving, as an example, through a sustained long-term campaign, government-funded. It changed society's acceptance of what used to be normal behaviour--try to get home, how are you going to get home, how are you going to get by the roadblocks. It has now become unacceptable societal behaviour.

I agree with you folks that we need to find ways, and at least give our best efforts here as parliamentarians and as a country, to try to stop the garbage you showed a small sample of here in any way we can, to send a message that this is not what we expect from adults--from anyone.

I would even point out that we have heard sustained arguments in the House of Commons recently about how violence against animals is sometimes a precursor and a sign that someone will, in turn, be violent against vulnerable people--the elderly, women, children, and so on. A strong argument can be made that people who are violent against anything that is vulnerable will use that as an opportunity later on to either justify or desensitize themselves toward violence against other weak people or weak groups.

So I agree with you. I don't know what I can say, other than to agree it's a very bad sign. I would lend my voice to your own, I guess. I asked that question earlier only in a rhetorical way. We must do what we can to try to stop it.

¿ (0950)

Ms. Valerie Smith: I just want to say we're trying to--

The Chair: Ms. Smith, can we just let Madam Gagnon speak, and then you can pick it up after? Time is running on.

Madam Gagnon.

[Translation]

Ms. Christiane Gagnon: Ms. de Villiers, thank you for your testimony.

It is not easy for you to talk about such tragic events. Since I myself have a 30-year-old daughter, I know what it is like to be fearful for one's daughters. You can rest assured that the Bloc Québécois has considered the issue of violence on television and the equation between violence and behaviour. Not everyone has been made aware of this equation. As my colleague from the Canadian Alliance was saying, we have to raise public awareness in this regard. We do so for alcohol and we are now realizing that our young people have different attitudes towards driving and consuming alcohol. For my part, I will support your initiative.

When my colleague Mr. Bigras tabled his bill, certain people were not in favour of it and said that this was an attack on freedom of expression and of action. One can disagree with this position. Some say that it is their responsibility to tell their children what the limits are between what is right and wrong with regard to violence against women or pornography and children, for example. But there is also the violence contained in programs where the use of weapons is portrayed. We know that in Germany, after the crime that was perpetrated against young students and teachers, certain audio-visual documents were found that established a link between the violent behaviour of this individual and the viewing of certain films. That was just a comment to support what you were saying, but I also have two questions.

You say that there is a lack of transparency with regard to the use of public funds to finance certain productions of a violent nature. Wouldn't the Access to Information Act give you the right to obtain the information you would like to see?

You say that the CRTC does not follow up on the type of content that is broadcast. Since we know that the CRTC issues licences, but that it does not do the necessary follow-up in other sectors of activity, would it not be appropriate to implement control measures for all the products that are broadcast through our broadcasting system?

¿ (0955)

[English]

Ms. Priscilla de Villiers: Thank you so much. I think what you said is quite correct; there should be a control. I believe there is a machine now, called a TiVo, that can scan the whole system and look for certain keywords and key subjects.

I believe there should be scanning. We should know what's on our airwaves. We should know what we're regulating and we should enforce it. If we don't, let's make it quite clear to the people of Canada that we are not prepared to do that, and then maybe we can move from there.

But I quite agree with you that there has to be a consistent approach and an adequate response. I don't think there's any excuse, in this day and age, for not knowing what's on our own airwaves, particularly if we are purporting to regulate them.

I don't know if that helps you. Val knows more about it than I do.

Ms. Valerie Smith: A partial solution might be random checks run on the various networks by the CRTC or some independent body, possibly Laval University. If the networks were aware that they were being randomly monitored, I think they might clean up their act. The CAB codes are actually fairly good, but they are not adhered to. So spot checks might provide that sort of check and balance.

You mentioned transparency and freedom of information. I'm not sure whether a freedom of information request would work, but I know with the CINAR case, the RCMP even had trouble getting information on their tax records. I'm not sure if they eventually got them, but if the RCMP can't get access to their records, it's going to be much more difficult for the general public.

As well, why wouldn't it just be on the website? You have the Canadian Television Fund--it should be there. These productions receive tax credits, funding, or whatever. They're getting our money, so why can't we know that?

Mr. Scott Newark: Can I add a couple of points?

The CRTC does have the capacity to do checks on content. I'm aware of at least one instance where they took some action against a radio station that was supposed to devote 50% of its time to hits. I think it was CKBY in Ottawa. The CRTC determined that 51.4% of its time was devoted to playing hits. This resulted in some kind of sanction and a reduction in licence-renewal time periods. It was a story in the National Post, which I can forward to you, if you'd like.

I tend to think in terms of criminal justice analogies. I always remember how, at one time, when we were looking at immigration enforcement issues, we learned that, although there were orders to deport people, no distinction was made between people—for instance, between cleaning ladies, at one point, who were overstaying, and people convicted of serious criminal offences. When we were meeting with the immigration enforcement officers, they explained this to us. I said it must be an awful lot easier to get the overstaying cleaning lady. The guy said, “Yes, and it's an awful lot safer, too.” The point is, there was no managerial priority being set that this was an awful lot more important than whether 1.4% of the songs being played were hits or not.

There are an awful lot of things we could do right within the legislation itself. Just to give you a couple of quick examples, there's an awful lot of discretionary authority within the CRTC and very little obligatory authority. When this material was brought to their attention, for example, it was entirely within their discretion as to whether or not they were going to hold any public hearings. Guess what? They didn't.

We could easily craft legislation, if it's in particular kinds of programming, where you could require these hearings be held. There is nothing by way of....

And these people were found to be in violation of the terms of their licence. Anybody who is operating without a licence is subject, if I remember, to a fine of $200,000 per day while that goes on. From the transcripts of the program—which we have here for you—my understanding is this channel was in operation for probably about a year. For doing that, for violating the terms of your licence, it's a summary conviction offence. There are no automatic licence suspensions or cancellations. There are no automatic fines. There are no automatic forfeitures of illegally made profits.

There is a ton of things we could do in a procedural sense to properly focus on this and ensure that the people issued these licences complied with the terms of the licences.

À (1000)

The Chair: Mr. Harvard.

I should remind the witnesses that we have to surrender this room at 11 o'clock, and it's 10 o'clock now. In fairness to the other group coming, we've really got to move on. It's not fair to the other people who are appearing.

Mr. Harvard.

Mr. John Harvard: Thanks, Mr. Chairman.

I want to say off the top that I share, I think with all my colleagues on either side of the desk, and certainly with the witnesses, the concern about pornography. I find it reprehensible and repugnant. I agree with Ms. de Villiers that it's extremely harmful to society.

That said, I guess we have to be a bit more practical-minded and ask ourselves what in the world we can do about it. We're talking about the Broadcasting Act. As much as I agree with Mr. Strahl on the perniciousness of pornography, I don't think it is very helpful inserting the Robin Sharpe case into this particular discussion, because we're talking about what we can do under the Broadcasting Act. As far as I know, the Robin Sharpe case has nothing to do with the Broadcasting Act.

So I guess I want to ask you, does anyone really know how much pornography there is that would come under the rubric of the Broadcasting Act? Does anyone have an audit? And has anyone reached a definition of pornography with respect to the Broadcasting Act?

If we know these things, how many cases, how many shows, how many incidents within shows would be clearly pornographic versus cases that come close to the line--whatever the line is--which would cause us to get into all kinds of argument as to, “Yes, that's pornography, and no, that's not pornography”?

Do you follow what I'm trying to say? Speaking personally, I'm both a capital-L Liberal and a small-L liberal. I'm a father and a grandfather. I have no time for pornography. In my dream world, I would like to think that our airwaves would be absolutely clean of pornography. Unfortunately, that's not the case. But on the kind of television that I watch, which is mostly news and some sports, I don't see it.

So please tell me, how much is actually there?

Mr. Scott Newark: Mr. Harvard, the first thing I would suggest is that the people you quite properly ask that question of should be the body we've created theoretically to regulate airwaves in this country, which is the CRTC. It's a very good question.

I think the real issue, however, is not what is or isn't pornography or the volume of it or anything else. We don't really have to debate the niceties of what constitutes pornography, sir. Frankly, what you saw this morning was in violation of the terms of the public licence granted to them, which, by the way, set up a specific system--

Mr. John Harvard: Sorry to interrupt, Mr. Newark, but obviously that's one of the more incendiary-like examples, right?

Mr. Scott Newark: We did nothing about it. Don't you think that is perhaps an illustration of why we have a bit of a problem here, and should that not be at least a place where we begin?

Perhaps my ambitions are less lofty than yours. I'd be satisfied with removing criminally obscene material from the public airwaves pursuant to a public licence than letting the company make $7 million a year while my tax dollars have to go to pay for the CRTC. If we're not going to do anything, shut it down. Give the money to The Fifth Estate.

Ms. Priscilla de Villiers: The other thing is, I did read the Supreme Court decision on Butler, and it still stands: explicit sex with violence, explicit sex without violence but which subjects people to treatment that is degrading and dehumanizing, and explicit sex without violence that's neither degrading nor dehumanizing. Violence in this context was defined as including actual physical violence and threats of physical violence. If we follow the Supreme Court in Butler, there is a definition, and I believe that--

À (1005)

Mr. John Harvard: But to the witnesses, I know that in today's jargon a word like “censor” is a bad thing. People say, “Oh, God, censoring.” Do you want the CRTC to act as a censor?

Mr. Scott Newark: Personally, I'd be satisfied if they enforced the law.

Mr. John Harvard: In other words, you're saying that the law is there.

Mr. Scott Newark: Yes. I think it could be improved on, and I think the experience out of Bell ExpressVu shows us ways that could be done.

But I'm really not kidding; my suggestions are not that lofty: enforce the law we actually have in place, use the experiences of cases like this to learn where we can do better in crafting the law itself, and make sure that the groups we are empowering and obliging to enforce the law do their job.

With respect, I would think that is exactly the role for a committee like this.

Mr. John Harvard: Why aren't they doing their job?

Mr. Scott Newark: I think the lady to my far left is probably better qualified to answer that than I am.

One of the things I suggest you take a look at is the success of the notion of self-regulation. If it were me, I would also be taking a look at the constituency membership of the CRTC. Personally, I think the two ladies to my left would make great members of the CRTC precisely because they don't happen to have any great industry background, but they have some very real subject matter. My sense is that it is a very industry-dominated regulatory body.

So that's one area I would urge you to take a look at as well.

The Chair: Ms. Bulte.

Ms. Sarmite Bulte (Parkdale—High Park, Lib.): I have one quick question. Are you representing the Ontario government?

Mr. Scott Newark: No. It's an agency of the Ontario government. It's called the Office for Victims of Crime. It's an independent, arm's-length body.

Ms. Sarmite Bulte: I read that. But my question to you is, are you representing the position of the Ontario government?

Mr. Scott Newark: No.

Ms. Sarmite Bulte: Thank you.

The Chair: Ms. Lill.

Ms. Wendy Lill (Dartmouth, NDP): Thanks very much.

A month ago we had Media Watch and several other groups before us talking about the increase in what they called the cult of hatred, bullying, and intimidation. That is also a theme that runs through a great deal of material that young people are watching on TV and getting through the Internet.

I don't think anybody around this table disagrees with anything we've heard from you today. I have in front of me a long list of recommendations from you, and I'm thinking, if we do all these things, is the problem solved? You've put forward some very clear recommendations. I keep hearing over and over that the self-regulating authorities have not worked and that we need to have the regulator use the authority it has to police the licensees. But there really is quite a complete list of recommendations. If we do this, will everything then be fine? Will we look after all the problems that are out there now? I'd like to know that. It would be wonderful if it were that simple.

Ms. Valerie Smith: No, it's not that simple.

My recommendations were specifically directed at the federal government as it relates to broadcasting. A whole lot of other things need to be done under different jurisdictions, provincially and municipally.

If you want to talk about justice issues, they need to change the Criminal Code. Allan Rock released a discussion paper. We all submitted briefs. Nothing happened. This stems from the 1993 recommendation about the undue exploitation of violence. There is no Criminal Code prohibition against material that just features violence. If it doesn't have a sexual context, anything goes. There is no control over it.

Then, provincially, we need legislated a video game rating system. So there's a whole range of other things we need done. Even then, obviously, we are not going to entirely fix the problem. There are no perfect solutions; there are only partial solutions. I'm not prepared to give up and go home. What we're trying to do is limit distribution. Child pornography is available on the Internet, as well, but it's not at the Quickie Mart. So it's matter of limiting distribution.

Ms. Wendy Lill: I agree completely with that.

The issue around the Bell ExpressVu case is an interesting one. You make the point that nothing happened there. They took it off the air. But that doesn't mean they won't bring it back two months from now, if nobody's watching. Am I correct on this? No real gain was made there. Was the CRTC just embarrassed for a little while? How can we make these flashpoints have some significance? Politically, how can we drive these things into important changes in legislation?

À (1010)

Mr. Scott Newark: At the outset, I mentioned my background was more in the regulatory area, particularly in things like corrections and parole. My sense is that the best use that can be made of these individuals cases is to learn from them. I am quite serious when I suggested that as a committee you should call the Bell ExpressVu officials back here.

I must admit, I'd give my eye teeth to ask them whether they really didn't know what they were broadcasting, and how much money they actually made. I'd like to ask the CRTC officials why they didn't hold public hearings into this; why they chose, for example, not to follow the act and charge them with violating the terms of their licence; and why they didn't order a fine, at least to take back the illegal profits.

Legislation is just a tool. When you don't use the tools you have, people understand that they're never going to be used, or that there's less likelihood they will be used.

The Chair: Thank you very much, Ms. Smith, Mr. Newark, and Ms. de Villiers. We appreciate your appearance here.

[Translation]

I would like to welcome the Société civile des auteurs multimédia, the SCAM, as well as the Société des auteurs et compositeurs dramatiques, the SACD. Are you the only two witnesses? Ms. Schlittler is not here?

Mr. Luc Dionne (President, Société civile des auteurs multimédia (SCAM); Representative, Société ds auteurs et compositeurs dramatiques (SACD)): Ms. Schlittler should be back in a few seconds.

The Chair: We will therefore hear Mr. Luc Dionne, President of the Comité canadien des auteurs, Mr. Benoît Clermont, lawyer for the SACD and the SCAM, and Ms. Elisabeth Schlittler, Delegate General for Canada.

Go ahead, Mr. Dionne.

Mr. Luc Dionne: Mr. Chairman, ladies and gentlemen, honourable members of the committee, during a dinner he organized on July 3, 1977, Beaumarchais with some 30 other writers organized a common front to deal with the outrageous exploitation of their works and thereby laid the foundations of what later became the Société des auteurs et compositeurs dramatiques. This was the birth of the collective administration of copyrights as we know it today. Currently, the SACD has more than 28,000 writers as members, 750 of whom are Canadians.

The Société civile des auteurs multimédia, or SCAM, has a membership of more than 14,000 writers, at least 300 of whom are Canadian. Both associations are committed to defending the material and moral interests of professional playwrights and directors who create works of drama as well as documentaries. They are in charge of a repertory containing more than a million works by awarding licences for the use of these works to broadcasters. They also promote copyright in general.

In Canada, these associations are represented by a committee of writers comprised of the pioneers in our industry, like Gilles Carle, Jean-Louis Roux, Denys Arcand, Micheline Lanctôt, André Melançon and Guy A. Lepage, to name only a few, who consider that defending copyright is not merely a mission, but an acquired right that must constantly be defended against those who, for obvious financial reasons, would rather have us go away.

By reason of the role played by the SACD and the SCAM in the audiovisual sector in Quebec and Canada, their intervention before this committee will have to be limited to issues concerning the importance of copyright in the Canadian Broadcasting system. Every question put by the committee in its study of the Canadian Broadcasting system is of interest to writers, and the witnesses from the SACD and the SCAM all have personal positions on these matters.

As in the rest of the system, SACD and SCAM members are represented by unions or professional associations that deal with their working conditions, and by a collective that deals with their rights. The SCAM and the SACD are leading stakeholders in the Quebec and Canadian audiovisual sector, and they want to emphasize their solidarity with these unions and associations, especially with regard to the concerns raised before the standing committee last April 16.

The SACD and the SCAM, on the other hand, wish to present to the standing committee a brief that deals almost exclusively with copyright, so as to emphasize its importance within the Canadian Broadcasting system and also to warn the committee against those who would pretend that the development of the Canadian Broadcasting system must come about at the creators' expense, especially by decreasing the royalties due to authors for the use of their work on the broadcasting system, or by reducing the control authors have over the use of their works through the intermediary of their copyright society.

In this respect, we are seriously concerned about the frontal attack led by the Canadian Association of Broadcasters on the rate of royalties that Canadian broadcasters must pay to creators, during the hearing held on March 21 by this committee. Mr. Glenn O'Farrell, president and chief executive officer of the Canadian Association of Broadcasters, said to you:

To ensure fair competition, we must avoid overburdening Canadian broadcasters with copyright obligations.

The SACD and the SCAM both deplore the growing tendency to consider royalties paid to authors for the use of their work as taxes. Copyright fees are, in fact, remuneration to authors for the use of the fruits of their creative work. They are not taxes, anymore than the remuneration paid by broadcasters to their moderators or technicians for their work.

This morning, the SACD and the SCAM have a simple message. Creators provide the raw materials to the Canadian broadcasting system. It must not be developed at the creators' expense. Canada's broadcasting policies have traditionally included copyright protection, and this must be maintained.

À (1015)

The Canadian copyright system is deeply rooted in the two legal systems that exist in Canada. It is based on the civil code and also on the common law code. The SACD and the SCAM are promoting a concept based on the civil code tradition. The role of the civil code in the Canadian Broadcasting System must be maintained and developed, because it provides ways of using material more effectively, especially, in terms of new media.

The coexistence of the two legal codes is particularly evident in the area of copyright, where copyright concepts used in the English speaking world exist side by side with those based on the continental European model. This is particularly true in the audiovisual world.

Indeed, copyright is in reality a type of buyout, whereby a producer becomes the sole owner of the rights to the particular material, on the grounds that they are the main investors. The continental European copyright system, as is advocated by the SACD, enables the author of audiovisual material to award licences to producers for the production and use of the author's work. This enables authors to remain involved in the potential use of their work.

Given that Heritage Canada is working on the issue of cultural diversity at an international level, the SACD and the SCAM would like to point out to the department that cultural diversity should also be a priority at the national level. The new broadcasting policy should take account of the existence of two copyright systems in Canada and should be designed in such a way as not to hamper the natural development of the copyright system in the audiovisual industry. Here, we are talking about the system which is most widely used in Quebec.

I would like to draw a simple comparison here. A person could very well acquire a Riopelle painting, but the fact remains that Riopelle will always be the author of that work.

Consequently, we are recommending that the committee ensure that any potential overhaul of the Canadian Broadcasting system take account of the two copyright systems that exist in Canada and take pains to avoid any hindrance of the natural development of the copyright system, which in Quebec, is recognized as being a source of meaningful solutions in terms of the organization of new communications-based markets.

The SACD and the SCAM would like to stress also the many opportunities provided for Canadian creators by the copyright system. The copyright system enables authors of audiovisual material to remain involved in the uses made of their particular material throughout the life of that particular work. Consequently, for example, the creator of a piece of audiovisual material, given that he or she is merely awarding a licence to the producer and is not giving up all rights to the work, will receive royalties on his or her particular audiovisual material when it is broadcast on TV. It's a bit like the user fee system. The rights for the subsequent use of the material are not ceded by the author. This system enables producers to produce material more cheaply and also enables authors to benefit from the potential success of their work.

This model is particularly useful in the area of new media, where the producer might find it difficult to obtain funding for some projects and where a particular production is not guaranteed immediate success. Nevertheless, the author remains in a good position in terms of being able to benefit from the future use of his or her particular work. Based on the potential success of the development of new media, authors could benefit greatly.

Mr. Jay Thomson from the Canadian Association of Internet Providers testified before your committee on January 31 and he said that creators should be compensated when their creations are broadcast on the Internet. The SACD and the SCAM were pleased to see that Mr. Thomson had addressed this issue and our organizations would like to stress that the model that they are promoting could be beneficial to both producers and creators, especially in light of the new media.

Indeed the civil code copyright model is being promoted by the SACD and the SCAM. It enables Canadian authors of audiovisual material to obtain substantial payments when their material is used in other countries, which also have an audiovisual copyright model based on the civil code. This is the case in France, Belgium, Switzerland and Luxembourg. Indeed, you need only go and talk to producers and authors whose material has been broadcast in Europe and they will back up what I have just said.

The SACD and the SCAM would also like to urge that any potential funding policies for material to be broadcast in Canada, such as Téléfilm Canada and the Canadian Television Fund policies, must consider both copyright systems that exist in Canada. Consequently, the CAVCO policies provide that, in order to be eligible for the tax credit program, a Canadian producer must hold copyright to their production. This is what Mr. Robert Soucy from CAVCO told you when he testified before this committee on November 29, 2001.

This type of policy would encourage producers to strike buyout-type deals with writers and directors. This type of deal is commonplace in the common law-based copyright system. Indeed, CAVCO agrees, in more general terms, that producers should hold all the rights and have the necessary authority to produce and to use any particular audiovisual material.

À (1020)

The SACD and the SCAM believe that the policies of these bodies should be designed to explicitly recognize the duality of the copyright systems that exist in Canada and also the possibility for the authors of audiovisual material to have copyright over any potential use of that material.

Broadcasting policies implemented over the past few years, as well as CRTC decisions, have traditionally had an impact on Canadian authors. A case in point, the regulations governing the broadcasting of Canadian content have had an impact on the use, by broadcasting bodies, of material by Canadian authors. Consequently, this has had an effect on author income, since the more widely their work is used by broadcasters, the more copyright royalties they receive.

The SACD brief also refers to CRTC policy on foreign feeds picked up in Canada. It also mentions compensation as it relates to copyright prior to the implementation of the rebroadcasting system in Canada in 1988. These examples indicate that broadcasting policies can have a very positive impact in terms of compliance with creator copyright.

The SACD and SCAM would like to stress to the committee how important it is to ensure that broadcasting policy continues to take account—against the backdrop of modern broadcasting techniques—of the need to respect creator copyright. Our organizations would also like to urge that policies do not hinder the development of the diverse legal systems that we have in Canada in terms of copyright protection.

We are recommending therefore that the standing committee call for new broadcasting policies in Canada which respect copyright, since authors are the very base on which the Canadian broadcasting system is built. We would urge the committee to recommend that the development of new communication technology or the globalization of markets should not be allowed to inhibit this process.

Mr. Chair, I would like to conclude on a more personal note. I will never forget your moving testimony before the members of the National Assembly, during the highly publicized debate on the use of the notwithstanding clause and signage. I was present in my capacity as policy assistant. At that time you said that you were proud of your culture and your language. At that time, you took a very brave decision based on your deep convictions. You said the following.

The most sacred, most legitimate and most sacrosanct and even, if I may say, the most personal property, is the fruit of a writer's mind...

I am also proud of my language and my culture. I am especially proud of all those authors who, over the centuries, have carried the torch in the struggle begun by Beaumarchais. To deny their rights is to deny their very existence.

À (1025)

The Chair: Thank you very much, Mr. Dionne.

We will now go on to questions.

[English]

Mr. Strahl.

Mr. Chuck Strahl: Thank you.

Thank you for your presentation. I agree we have to maintain a strong copyright system, not just for authors but certainly also for intellectual property rights. Authors are part of that. They have nothing more to offer than their product. They need to receive remuneration or be paid for it. So we must find ways to make sure we respect that, and strengthen it if necessary.

One of the issues we're dealing with on this committee, which you mentioned in your brief, is the problem with the Internet. It is a great tool. But once something gets on the Internet, it's impossible to control it. At times it just mushrooms out. It becomes broadly available. The author doesn't get anything for it sometimes. It's not just an author's problem. Sometimes it's a film producer's. Sometimes it's a whole broadcasting system that is put at risk.

One of the issues we're dealing with is the idea of an Internet carve-out, where we make it illegal....we strengthen the provisions to protect against that, and we make sure people cannot take a signal or a broadcast and rebroadcast it on an Internet site without penalty.

Is this the kind of thing you're concerned about? Is this what we need to strengthen, or is this really of concern?

Mr. Luc Dionne: It's a concern, but it's not going to work. The best example is probably Napster. They shut it down and there was a new one the next day. I think regarding the Internet and the use of material that has been created, we have to go with the worst-case scenario, which is that everything will eventually be available.

I saw something on the news, I guess it was last week. We just learned that now you can order a movie on the Internet for $3.95. It's played on QuickTime or RealPlayer or what have you. The quality is not there, but I can imagine it will be in about five years. That's basically one of our main concerns. Next year or in two years or maybe five years, we'll be able to download the entire movies of Denys Arcand or Egoyan for that reason, and do so illegally.

There was a meeting in San Diego, I think last year, with all the representatives of the Société de gestion des droits d'auteur. I guess basically what we're saying is give these societies time to organize themselves and arrive at some proper solutions.

À (1030)

[Translation]

The Chair: Mr. Clermont.

Mr. Benoit Clermont (Lawyer, Société civile des auteurs multimédia (SCAM), Société des auteurs et compositeurs dramatiques (SACD)): I would just like to add to what Mr. Dionne said in answer to Mr. Strahl's question.

The SACD in a brief on the overhaulof the Copyright Act set out its concerns in relation to the rebroadcasting of feeds on the Internet. Our organization pointed out to the government that the current rebroadcasting system should not for the time being, authorize the rebroadcasting of feeds over the Internet.

Consequently, the bill setting out the criteria for the implementation of the Internet rebroadcasting system is, in the view of the SACD, a positive step forward. The regulations, which will undoubtedly be published in the near future, will probably show that the Canadian government does indeed consider that the rebroadcasting of feeds over the Internet is not covered by the exception stipulated in the Broadcasting Act. For the time being, the SACD is very pleased to see that.

As Mr. Dionne said earlier, we have to give the various collectives the time to get organized. For, until these corporations have found a way of dealing with the issue of the rebroadcasting of feeds over the Internet, the compulsory licensing system should not be extended to cover this matter.

Mrs. Elisabeth Schlittler (Delegate General for Canada, Société civile des auteurs multimédia (SCAM), Société des auteurs et compositeurs dramatiques (SACD)): My comments will be in the same vein as those of Mr. Clermont and Mr. Dionne. As far as any possible carve-out is concerned, I will be somewhat more direct. This is something we would challenge. Therefore, until we have the technical means to allow us to work under a licence or anything else, we are completely opposed to any carve-out. We feel that the government has done everything necessary to establish collectives. As a result, everything has to focus on the collectives, irrespective of the progress they have to make towards finding a satisfactory solution.

That is all I wish to add.

[English]

The Chair: We'll come back to you, Mr. Strahl.

Ms. Gagnon.

[Translation]

Ms. Christiane Gagnon: Thank you, Mr. Chairman.

In your brief, you state the committee did not ask detailed questions regarding copyright, and that perhaps this indicates that they do not fully grasp all the aspects of copyright. We do not understand all the workings and consequences thereof, but we can state that copyright is essential to the survival of creators and that users must pay, as you have so clearly stated.

There is one thing I would like to understand. I asked this question of other witnesses yesterday, but I am going to try and be clearer today.

How can the situation I am about to describe limit royalties? For example, a radio station uses a cassette in order to broadcast and this same radio station transfers the contents of the cassette onto the hard drive of a computer for materials-handling purposes, still for broadcast purposes. What harm do authors suffer as far as royalties are concerned in such a scenario? The Alliance had tabled a bill under which no second royalties would be paid if a transfer was made for broadcast purposes.

Mr. Luc Dionne: You are no doubt referring to the private copying of sound recordings.

Ms. Christiane Gagnon: By radio stations.

Mr. Luc Dionne: I will let my colleagues answer this, because this mainly comes under SOCAN, which is another collective.

Mr. Benoit Clermont: On the one hand, I think I should mention here that this is completely out of SACD's jurisdiction. SACD administers audio-visual work. When we talk about the transfer of musical work from a compact disk to the hard drive of a computer by a radio station, 99% of the time we are referring to sound recordings. Therefore, it is not in the context of the management of the SACD's repertory of works.

On the other hand, I think we have to bear in mind that in this context, there are two distinct rights. Copyright has several components that are set out in section 3 of the Copyright Act. One of these is the right to communicate to the public. This right is administered by SOCAN. There is also the right to reproduce. This right is not administered by SOCAN. We are talking about another statute here.

You ask what an author loses if a work is transferred from one support to the hard drive of a computer. I think that we have to be careful. I think we have to look at this from a broader perspective. For the broadcaster, his copy has a certain value. It no doubt reduces production costs. We therefore have to ask why this copy is being made. For example, is it acceptable that the broadcaster's profit margin be bigger when he is using new technology? In the end, he is using a right that belongs exclusively to the author. The author has the right to authorize or forbid the reproduction of his own work. He benefits from anyone making a copy. Should some of this benefit not come back to the author, as one of his rights is being exercised without having asked for his authorization beforehand? The question is certainly worth asking, and I think we have to see it from that perspective.

Because these works are not really part of the SACD repertory, we may be somewhat off the point, but I think that we have to look at the issue from this point of view. One of the author's exclusive rights is being exercised. Only the author has the right to authorize or forbid the reproduction of his work. The making of this copy generates higher revenues. Is it fair that the author not benefit from this? I feel the issue has to be examined from that angle.

À (1035)

Mr. Luc Dionne: If I may, I would like to add something.

We're also talking about private copy, namely, providing some type of compensation to authors or creators. This exists for sound recording but not for audiovisual products. The authors of audiovisual works have been asking for such compensation for years, but people have been turning a deaf ear to their requests for years. We are not being listened to and people just don't want to hear about it. I must confess that this is somewhat annoying. If today it is relatively easy to reproduce a CD from, let's say, Céline Dion, it is just as easy to reproduce the works of Denys Arcand, Egoyan and Melançon, and to sell them on the black market. But at the end of the road, who is penalized? Often, it is the author. And now it's coming to the Internet. As far as sound recordings are concerned, we have exhaustive catalogues for composers and singers. In one or two years' time, we will have exhaustive catalogues for producers, screenwriters, scripts and all that.

Ms. Christiane Gagnon: I asked you this question because I wanted to see what type of a link there was between that and the audiovisual field. Ultimately, it's all about support. We are entering the digital age, which will ensure that we have access to other markets.

Mr. Luc Dionne: Exactly, but we have a long way to go, Ms. Gagnon. In the sound recording sector, private copy is at least recognized. However, as far as audiovisual works are concerned, there is zero recognition.

[English]

The Chair: Ms. Bulte.

Ms. Sarmite Bulte: If I could, I'll just follow up on what Madame Gagnon was saying.

Why is there no recognition of the audiovisual? Is it because there's a problem that it's not in the Copyright Act? To me, it doesn't make any sense. I'm listening and I'm thinking, what am I missing here? Is there something that's missing out of the Copyright Act that should be there--that's my first question--and if so, how would we change it?

I was quite interested about the distinction you made between the continental...in your brief when you were speaking about the Anglo-Saxon concept of copyright and the continental European concept of droit d'auteur. How does that work now?

My understanding is that the copyright legislation is federal legislation. I know with respect to the collection of royalties that the exemption for royalties in Quebec is different than it is in the rest of the country. Explain to me...I'm fascinated as to how the two laws do work, because it would seem, from my legal training, that the federal act would have paramountcy. I'm not saying it should, but if there are lessons to be learned from the droit d'auteur principle, by all means....

Can you be specific about them, perhaps? If not now, if you could forward something. Again, is this something we should be looking at, the root of the Copyright Act? As you know, there's a discussion paper out on copyright. Or is this really a broadcasting issue?

My last question is, are any of the royalties you collect on behalf of your members collected or set by the Copyright Board?

À (1040)

Mr. Luc Dionne: The answer to your first question is, I don't know why; I just don't know. You were referring to the private copy; they have it with the music, but we don't have it, and I don't know why. We've asked for it since Adam and Eve. We wrote several letters to the government, and we have never gotten any answer. It's not in their planning; it's not something they want to talk about. I think they gave it to people working in the music industry with some regret, so I'm not sure they want to open that door with the people working in movies and television.

Now, as far as your second question is concerned, it's quite complicated, but I'll try to make it simple. The biggest difference is, if I sign on there under the Copyright Act, as a creator, as a screenwriter or a director, I will usually in a contract sign a buyout. In other words, I'm going to give or transfer all my rights to the producer against a certain amount of money. This is the copyright system, the Canadian and American system, with le droit d'auteur continental. The only thing I'm doing is, I'm giving a licence to the producer to produce what I wrote or what I directed, and then the broadcaster himself has to pay the creator for certain rights.

In other words, the producer has nothing to do with it; the burden is on the broadcaster. The main difference is that if a producer goes bankrupt, I lose everything. I can fight for my rights in court, but it's a long process and it's very costly. With the other system, if you use it, you pay.

[Translation]

This is part of the comprehensive compensation provided.

[English]

As for your third question, perhaps you could you repeat that.

Ms. Sarmite Bulte: It was about the Copyright Board.

Mr. Luc Dionne: Right.

No, these are negotiations that happen. It's a deal between the broadcaster and the SACD. Basically, when you have a repertoire that includes over one million drama works, it gives you a certain power to negotiate.

[Translation]

Ms. Elisabeth Schlittler: I would simply like to add that we have set up this system in Quebec, not because of the language issue but because Quebec was open to such a system. However, the SACD does have agreements with English-Canadian authors' societies such as the Writers Guild and the DGC. We pay royalties to these authors for the use of their works, notably in Europe.

We have an international company established in Montreal. We succeeded in setting up shop in Quebec and we are asking the same thing be done in anglophone territory, because this is a system that the authors, regardless of whether they are anglophone or European, appreciate in that they are constantly associated with the use of their works. Following their death, it is their estates that will benefit. It's brilliant.

[English]

Ms. Sarmite Bulte: I agree with you. That's as it should be.

The Chair: Ms. Lill.

Ms. Wendy Lill: Thanks very much.

I had a meeting recently with some writers who were very concerned about the fact that editors are now being considered co-writers in a certain definition under the new copyright regulations. I don't know; I guess I raise that because it seems that there are all sorts of definitions sliding around that can have really negative implications for the creators, the people who actually put the work together.

I know the issue of neighbouring rights is a really central one. I personally believe that actors who are in a play.... If we start seeing a whole lot of stage plays being broadcast on TV as Canadian content, surely the actors and the people involved in that script should have some neighbouring rights. I believe that, but maybe you don't.

Mr. Luc Dionne: I'm not saying I don't.

Ms. Wendy Lill: I guess I just want to ask you about what the copyright implications are of having.... You could address this issue around the editors being considered co-writers, if you're running into that yourself, but also the issue of neighbouring rights. If you start having plays being produced in large quantities on TV, what are the copyright implications?

À (1045)

Mr. Luc Dionne: If it's being played on TV, that's probably the best scenario. There's some regulation and there are some deals between writers and producers and broadcasters. My only concern is that all of this will end up on the Internet. Who's going to control what? Who's going to pay?

You make a reference to me disagreeing about who should be the owner. That's not what I'm saying. Creators, whether they are screenwriters, directors, actors, whoever.... We can all discuss these matters between ourselves. The only thing I know is that before I create, everything is white. If I write some things, there are millions and millions of dollars all over the place. That's my job. That's what I do. The only thing I'm asking is to have my fair share of that business, period.

Ms. Wendy Lill: In your estimation, the best place for that to be worked out is through copyright collectives?

Mr. Luc Dionne: I think so.

Ms. Wendy Lill: That's where we can get the best impact for creators in this country and work our way through the technologies, which are hitting us fast and furious.

Mr. Luc Dionne: Yes, a true collective, an agreement between les Sociétés de gestion collective. I think it's insane to think that you can limit something on the Internet. The people just before us were arguing about what was going on in television, and the control that we or the government or the CRTC can have on television. Can you imagine the Internet? The Internet will be unbelievable in five years. You'll be able to get anything on the Internet--movies, screenplays. Who's going to control what?

This is a very complicated situation. So instead of basing everything on the regulation of the Internet....

[Translation]

The copyright collectives are getting organized and I would imagine that, in a few years' time, they will have some relatively concrete proposals. We will be making subsequent proposals at that point.

The Chair: Mr. Dionne, before I determine whether committee members would like to ask other questions, I would like to discuss the following point. In your brief and in the comments you made, you were asking whether or not our committee paid enough attention to the whole issue of copyright and what is coming down the road, particularly as far as the Internet is concerned. I would like to tell you that we are very aware of this matter. For example, in Vancouver, we visited the CBC Radio 3 channel, which is merging Internet and radio. We also visited Bande à part, in Montreal, and the Z television channel, which is a blend of internet and television.

Yesterday, we held a long in-camera meeting in order to meet with an expert who explained how, in the future, Internet and the whole audiovisual system will merge. In reality, we are trying to get as much information as possible on what the future holds for us. As you said, it is easy to say that we are going to control all of that, but in practical terms, it is very difficult. Indeed, some people have recommended that we monitor what people receive, but that is almost impossible. However, the way that the process is handled amongst the distributors is an entirely different story. We are staying in contact with the Department of Canadian Heritage so that we can monitor the evolution of what they are referring to as the third phase of the Copyright Act, which deals with copyright. Obviously, we will not be able to resolve all of these problems through the Broadcasting Act; that is not our mandate whatsoever. Nevertheless, we are aware that we need to build some type of relationship between the two. So we are paying very close attention to what is taking place in the department with respect to the evolution of the Copyright Act.

À (1050)

Mr. Luc Dionne: I fully agree with you. In fact, the third phase of the review of the Copyright Act is one of our priorities. We were and we still are expecting a great deal. It might be an opportunity for us to defend copyright fees for private copies, which is an important issue for us. Of course, once again, we are talking about a form of remuneration widely practiced in Europe; some Canadian authors and creators are also benefiting from it. Unfortunately, we cannot offer the same to European authors and creators. It is almost embarrassing.

This morning, we especially want to advise the committee members that Canada has two rights systems. In our case, we use the continental copyright system, and we hope that the broadcasting regulations that are about to be adopted will take these two realities into account. This is a basic issue for us.

You talked about server control. As far as I am concerned, I have no illusions about it. I work on the Internet extensively, because I write for television and I need to do research. Now I have made unplanned visits to almost every virtual casino on this planet, because I am being bombarded by virtual casinos every 30 seconds. Some hyperlinks connect to others, and I unexpectedly find myself on these sites. If we cannot control this today, what will we be able to control tomorrow or in five years?

Finally, I am also a bit worried about how the works of our local creators will be used. With the vast conglomerates we have today, if I simply sign a contract to develop a script for a large production house, am I not at risk of having my work tampered with on the Internet, so that a copy of my scenario gets posted on the Internet because I have conceded certain rights to a producer? Other Internet conglomerates could appropriate part of my work to adapt it and turn it into some kind of virtual TV serial. Anything might happen. I keep telling myself that we must always be ready for the worst case scenario.

[English]

The Chair: Mr. Strahl, you have an additional question.

Mr. Chuck Strahl: You mentioned in the brief, and I'm going to go over it again later in detail, the importance of the Canadian content rules that currently exist.

We had testimony by the president of VisionTV, who had a new proposal on Canadian content. He thought that we should ask broadcasters to carry what he called the “foundation level” of programming--that's all-Canadian content, and involves not-for-profit and non-profit organizations, heavily emphasizing Canadian content in trying to enhance the Canadian picture of Canada for Canadians--and that we should free up the commercial broadcasters.

Because of globalization, they're just not going to be able to compete if we ask them to broadcast a high portion of Canadian content in prime time. When you're up against Friends, you're just not going to be able to make it, so he suggested that we just accept that and emphasize the Canadian content in a different way, carry channels that are more exclusively Canadian.

À (1055)

Mr. Luc Dionne: In your example, who will be more exclusively Canadian? Which one?

Mr. Chuck Strahl: For example, I guess he would like to think his channel is exclusively Canadian. I did ask the question, who gets to choose this stuff? The point is, he says you can't fight globalization. It's a million-channel universe. If we're going to ask Global TV to go up against CBS, and everybody has access to everything because of grey market, black market, ExpressVu stuff, it's hopeless. You just can't get Canadian content in prime time the same way on a commercial network, and we should change our thinking on that.

What is your organization's thinking on Canadian content? Should it stay the same? Should it be strengthened, or changed, or...?

Mr. Luc Dionne: Le comité canadien des auteurs has never taken a position on that. If you're asking me personally what I think about it, I completely disagree with you, or not with you, but the man you were talking about. I can't remember his name.

I don't know why we can't compete with American content. Are they more brilliant, more sophisticated than we are?

I understand the difficulties of competing against CBC, ABC, NBC, or even English television, as far as I'm concerned, but I don't think it has anything to do with Canadian content. I think it has to do with the way the television industry is financed in Canada. That's something else.

I don't think the solution is to say, well, let's keep some kind of TV for Canadian viewers only and another kind of TV that could compete worldwide with ABC. I just don't believe in it. It's not a question of Canadian content or not; it's a question of Canadian talent or not.

[Translation]

The Chair: Thank you very much, Mr. Dionne, Mr. Clermont and Ms. Schlittler. We thank you for having spoken to us and having enlightened us on your position with such passion.

[English]

The meeting is adjourned.