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37th PARLIAMENT, 2nd SESSION

Standing Committee on Canadian Heritage

EVIDENCE

CONTENTS

Tuesday, June 10, 2003

0910

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

Hon. John Reid (Information Commissioner of Canada, Office of the Information Commissioner of Canada)

0915

0920

The Chair

Mr. Chuck Strahl (Fraser Valley, Canadian Alliance)

0925

Hon. John Reid

Mr. Chuck Strahl

Hon. John Reid

The Chair

Mr. Chuck Strahl

Mr. J. Alan Leadbeater (Deputy Information Commissioner, Office of the Information Commissioner of Canada)

The Chair

Ms. Jocelyne Girard-Bujold (Jonquière, BQ)

0930

Hon. John Reid

Ms. Jocelyne Girard-Bujold

Hon. John Reid

The Chair

Ms. Jocelyne Girard-Bujold

Hon. John Reid

0935

The Chair

Mr. Paul Bonwick (Simcoe—Grey, Lib.)

Hon. John Reid

Mr. Paul Bonwick

0940

Hon. John Reid

Mr. Paul Bonwick

Hon. John Reid

Mr. Paul Bonwick

The Chair

Mr. Alex Shepherd (Durham, Lib.)

Hon. John Reid

Mr. Alex Shepherd

Hon. John Reid

0945

Mr. Alex Shepherd

The Chair

Ms. Carole-Marie Allard (Laval East, Lib.)

Hon. John Reid

Mr. J. Alan Leadbeater

0950

Hon. John Reid

Ms. Carole-Marie Allard

Hon. John Reid

The Chair

Mr. Chuck Strahl

0955

Hon. John Reid

Mr. Chuck Strahl

Hon. John Reid

Mr. J. Alan Leadbeater

Mr. Chuck Strahl

Hon. John Reid

The Chair

Ms. Jocelyne Girard-Bujold

1000

Hon. John Reid

The Chair

Hon. John Reid

The Chair

Hon. John Reid

The Chair

1010

Ms. Andrée Delagrave (Assistant Deputy Minister, Transformation, National Library of Canada/National Archives of Canada, Department of Canadian Heritage)

Mr. Chuck Strahl

Ms. Andrée Delagrave

1015

1020

The Chair

Ms. Andrée Delagrave

1025

1030

The Chair

Mr. Bruce Stockfish (Director General, Copyright Policy, Department of Canadian Heritage)

1035

1040

The Chair

Mr. Chuck Strahl

The Chair

1045

Mr. Chuck Strahl

The Chair

Ms. Jocelyne Girard-Bujold

The Chair

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

Ms. Andrée Delagrave

Ms. Sarmite Bulte

Ms. Andrée Delagrave

Ms. Sarmite Bulte

Ms. Andrée Delagrave

1050

The Chair

Ms. Carole-Marie Allard

Ms. Andrée Delagrave

Ms. Carole-Marie Allard

Ms. Andrée Delagrave

Ms. Carole-Marie Allard

Ms. Andrée Delagrave

The Chair

Ms. Carole-Marie Allard

Ms. Andrée Delagrave

Ms. Carole-Marie Allard

Ms. Andrée Delagrave

Mme Carole-Marie Allard

The Chair

Mr. Paul Bonwick

The Chair

Mr. Paul Bonwick

Ms. Andrée Delagrave

Mr. Paul Bonwick

1055

Ms. Andrée Delagrave

Mr. Paul Bonwick

The Chair

Mr. Jeff Richstone (General Counsel, Department of Canadian Heritage)

Mr. Paul Bonwick

The Chair

CANADA

Standing Committee on Canadian Heritage

NUMBER 044

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, June 10, 2003

[Recorded by Electronic Apparatus]

¿ (0910)

[English]

The Chair (Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.)): I would like to call to order the meeting of the Standing Committee on Canadian Heritage. We meet today to consider Bill C-36, an act to establish the Library and Archives of Canada, to amend the Copyright Act and to amend certain acts in consequence.

We are especially pleased today to welcome the Information Commissioner of Canada, Hon. John Reid. He has certainly been a most effective watchdog on access to information on behalf of the public and Canadians at large. We are very happy that he will give us his insight on how he sees the clauses of Bill C-36 as applying to access to information.

Mr. Reid, maybe you could introduce your colleagues. The floor is yours.

[Translation]

Hon. John Reid (Information Commissioner of Canada, Office of the Information Commissioner of Canada): Thank you, Mr. Chairman and members of the committee.

[English]

With me is Alan Leadbeater, the deputy commissioner, and Daniel Brunet, the general counsel for the Information Commissioner.

I am delighted to be here. I am grateful for the opportunity to make a presentation to you.

The bill was introduced in the House on the 8th of May; it came to the committee on the 27th. I know you will recognize the vital importance this bill has for the documentary heritage of our country and I hope you will recognize its complexities.

I would hope, for example, that the committee would hear from the minister who sponsors this bill and who will preside over the newly created libraries and archives of Canada. Such evidence is important because the current design of this new institution leaves open an unacceptably high possibility of political interference in decisions concerning, for example, what records should be considered the private property of ministers and what records should be considered as the property of Canada.

I would also hope that you would hear from the President of the Treasury Board, who holds statutory responsibilities for the good management of government records.

What do the sponsoring minister and the President of the Treasury Board envisage as being their respective responsibilities and obligations for ensuring the good management of government records? I note, for example, that the only mention in Bill C-36 of the Library and National Archives role in this regard is found in paragraph 7(d) of the bill. It states as one of the objects of the new institution “to facilitate the management of information by government institutions”. What does that term “facilitate” mean in terms of clarifying where the primary responsibility lies in government for ensuring good records management?

All my concerns about Bill C-36 arise from the fear that the five objects set out in clause 7 risk being undermined by a number of weaknesses, omissions, and inconsistencies in other provisions of Bill C-36. All members and all Canadians have a profound stake in seeing these objects achieved because of the spinoff benefits for improving in Canada the quality and accountability of government. This grand design is expressed in paragraph (c) of the bill's preamble.

As I said earlier, the heart of my concern is the fact that this bill does not afford the librarian and archivist of Canada the kind of independence from government necessary to ensure that one of Canada's most impartial national institutions is adequately insulated from political meddling.

Clauses 4 and 5 of Bill C-36 create an institution simply as another government department presided over by a minister and administered by a librarian and archivist appointed by cabinet to serve, as any other deputy minister, at the pleasure of government. This structure, in my view, is not acceptable for an organization that must be above partisanship and the influences of sitting ministers and governments.

My first recommendation thus is that clauses 4 and 5 be rewritten to provide Parliament with a role in approving nominations for the position of the librarian and archivist, and to provide a fixed term of appointment during good behaviour, removable only after approval by Parliament.

To further strengthen the independence of this new institution, there should be no minister to preside over the Library and Archives of Canada. Rather, the act should require the librarian and archivist of Canada to report annually and directly to Parliament on the activities of the Library and Archives of Canada.

In my view, the absence of a statutory obligation regarding the librarian and archivist to report to Parliament and the public on its successes and failures in meeting the act's objects is a striking and unacceptable omission.

I'm also deeply concerned that the bill's definitions of “record”, “government record”, “ministerial record”, and “government institution”, if allowed to remain as proposed, will operate to undermine the achievement of the objects set out in clause 7. The definitions are designed to give ministers an unacceptable degree of control in decision-making with respect to records that pertain to the portfolio duties of ministers and thus should be treated as the property of Canada rather than the private property of ministers.

As a matter of principle, ministers should have no say in the preservation and disposition of records other than their personal and political records. I speak on this point as one who has held ministerial office. I believe that all other records held by ministers should be clearly defined as government records and treated as such.

My recommendation in this regard is that the definition and all references to ministerial records be dropped and instead a definition of “records of a personal or political nature” be included to clarify exactly the types of records ministers may treat as their private property for archival purposes. Records such as constituency, party, electoral, caucus, and other records not relating to a minister's portfolio, duties, and functions would fall into this category.

I also wish to alert the committee to the troubling implications of the proposed definition of “government record”. In court actions now in progress by the Crown seeking to prevent investigations by my office into refusals to disclose certain records held by ministers and the Prime Minister, the government has put forward its view of the meaning of the phrase “record that is under the control of a government institution”. The Crown's view is that every record held exclusively in the office of a minister falls outside the control of the government institution over which the minister or Prime Minister presides.

It is entirely unacceptable to permit Bill C-36 to pass with a definition that may mean that all records held by ministers become their own private property, even when the records are not of a personal or political nature. My recommendation is to amend the definition of “government record” to mean “a record that is under the control of a government institution, including a record of a minister of the Queen's Privy Council for Canada who holds the office of minister and that pertains to that office”.

One of the most glaring weaknesses in the Bill C-36 definitions relates to the definition of “government institution”. Government institutions that are subject to the obligation of Bill C-36 are defined to be those that are subject to the Access to Information Act and the Privacy Act.

A great deal of concern has been expressed by members of Parliament, journalists, academics, and citizens about the inadequate scope of coverage of the access and privacy laws. Many important public functions have been devolved to foundations, Crown corporations, and private firms. Records of these entities will also escape becoming part of the recorded heritage of Canada by virtue of the restricted definition of “government institution” contained in Bill C-36. Even the government's own task force, which reviewed the Access to Information Act and reported on it last year, recommended that more institutions be made subject to the right of access and thus also subject to the Archives Act.

The better approach, in my view, would be to define as a government institution any entity meeting any one or more of the following conditions: one, that entity is funded in whole or in part from parliamentary appropriations; two, it or its parent is owned by the Government of Canada; three, it is listed in schedule I, I.1, II, or III of the Financial Administration Act; four, it or its parent is directed or managed by a person or persons appointed pursuant to a federal statute; five, it performs functions or provides services pursuant to a federal statute or regulation; six, it performs functions or provides services in an area of federal jurisdiction that is essential in the public interest as it relates to health, safety, protection of the environment, or economic security.

I'm puzzled, too, as to why Bill C-36 offers a definition of “record” that differs from the definition that now exists in the Archives Act. The existing definitions of records contained in the Archives Act and the Access to Information Act are identical. That uniformity would end with the definition proposed in Bill C-36, and there has been to date no explanation for the change.

¿ (0915)

My strong belief that the definitions must be changed to narrow the types of records that are the personal property of ministers arises from the link between the definitions and the requirements relating to disposition and transfer of records to the Library and Archives under clauses 12 and 13 of Bill C-36.

First, neither the restrictions and unauthorized destruction nor the requirements to transfer records to the Library and Archives apply to the personal and political records of ministers. This is precisely why the act provides clear guidance as to what records fall into these categories and why clauses 12 and 13 should give the librarian and archivist the right to review records that ministers claim to be personal and political to verify that they are of such a character. Otherwise, ministers will have a complete, unreviewable discretion to decide what records are personal and political and to treat them as personal property.

Of particular concern is the wording of clause 13, which appears to make it mandatory to transfer government and ministerial records to the Library and Archives of Canada. However, the apparent mandatory nature of the provision is undermined by the addition of the phrase:

in accordance with any agreements for the transfer of records that may be made between the Librarian and Archivist and the government institution or person responsible for the records.

Surely when it comes to the transfer of government and ministerial records, the transfer of records having archival or historical value should be mandatory, with no opportunity for government officials or ministers to dictate terms under which the records are to be transferred.

Surely too these provisions, clauses 12 and 13, should be referenced in the penalty section, clause 20. How can it be argued that publishers need to be punished for failing to meet their obligations but ministers and public officials need not face sanctions for an unauthorized disposition or failure to transfer records?

In closing, Mr. Chair, I wish to raise a matter that most of you know to be dear to my heart as Information Commissioner. The most glaring omission in this bill, an omission that could be a fatal flaw, is the omission of a positive obligation to create records documenting the decisions, activities, and considerations of public officials. The National Archivist, the Auditor General, and I have raised alarms over several years about the troubling trend toward an oral culture in government as a means of avoiding the accountability rigours of oversight and access to information laws.

The Library and Archives of Canada cannot be “the continuing memory of the government of Canada”, as envisaged by paragraph (d) of the preamble to Bill C-36, unless public officials are placed under a legal obligation to create the records in the first place. The U.S. archives act includes an obligation to create records, and we should do the same in Canada.

Let me close with an expression of regret that these sweeping concerns are coming at such a late hour. I was not consulted by the government during the drafting of this bill. It only came to my attention when I was recently approached by a member of this committee and subsequently invited to appear last Thursday evening.

Thanks are due to the committee for your indulgence in the circumstances of allowing me to offer only an English version of my remarks. We will have a French translation in your hands tomorrow morning.

Thank you, Mr. Chair.

¿ (0920)

The Chair: Mr. Reid, according to our rules, of course, it is unfortunate, but we cannot distribute your text in English right now. So we will have to wait for the translation before it can be circulated.

Therefore, I will open the meeting with questions from Mr. Abbott or Mr. Strahl.

Mr. Chuck Strahl (Fraser Valley, Canadian Alliance): Thank you, Mr. Chair, and thank you, Mr. Reid and your co-workers for coming here today to appear before us. You've red-flagged several important issues for us, I think, and you have particularly highlighted for me that feeling I had in questioning officials that the clauses you mentioned, specifically clauses 12 and 13, have loopholes big enough to drive a truck through, which is basically what you're saying.

I have real concerns--and maybe I share your concerns--that the records, first of all, may never be kept because there are no sanctions in this bill that would prohibit the ongoing tendency to use oral briefings and not keep records, and secondly, to really task the archivist to try to wrestle the whole government bureaucracy into being more faithful about producing the records.

I tried to get information from the officials the other day, and maybe I needed to be more aggressive on this. Maybe you can answer this. Should it be an archivist's role to try to instruct government departments in this? It's a huge effort, a huge project, and yet it says that's part of the obligations. The archivist is to basically teach the government, from one end to the other, how to keep records and get it to him or her in a proper manner. I think an archivist is ideally suited to keep the records, to know what is worth keeping and to make those decisions. That's an archivist's training.

But maybe you could comment on whether it's a reasonable expectation for archivists to fulfill the expectations in this bill, which is really to bring the government to heel on what you and others have highlighted as a real problem of record management in the whole federal government.

¿ (0925)

Hon. John Reid: That's why I suggest you hear from the minister and the President of the Treasury Board, because the way government is constituted at the present time, Treasury Board has the responsibility for document management throughout the whole governmental structure. One of my concerns is that I don't like to see a division in authority. I like to be able to go and say, “Who is responsible, and if you're responsible, how have you discharged those responsibilities?” Any time you start dividing the responsibility up into smaller pieces, it becomes more difficult for you to find out who is accountable in that issue.

Therefore, I think there has to be a discussion between Treasury Board and the minister responsible for this legislation as to who is going to have the authority or how is it going to be divided, who will take what responsibilities and who will be accountable for what. So it's important, I think, that that discussion take place.

Mr. Chuck Strahl: You've been on the record, of course, before the government operations committee suggesting that there needs to be a whole separate bill that addresses this issue, an act of Parliament that prescribes with more clarity and with probably more sanctions, I would suppose, what needs to be saved, recorded, and archived and what isn't. You said today that other than personal or political records, the rest of it really belongs to Canada. The rest of it should be archivable, if that's the right word. The archivist may not pick it all, but at least he or she should have the opportunity to do so.

If the bill was strengthened along the lines that you suggested, proper definitions, statutory obligation to report to Parliament, clearer lines of responsibility, and so on, would the bill that you had proposed earlier be necessary, or would this in essence say that this then could complete the job of identifying and properly tasking someone with making sure it was all available and recorded properly?

Hon. John Reid: I would be delighted to see this bill improved along the lines I have suggested, but it would not answer the question you raise. There does have to be, at some point, in some place, legislation that creates an obligation for the creation and storage and life cycle management of documents created in the Government of Canada. I have suggested that it could be done in this bill because it was done in the United States, but my preference probably would be for a stand-alone bill in which these questions would be dealt with in some detail. But if it were to be done in this bill, that would be appropriate too, because we already have a model on that.

The Chair: One brief question.

Mr. Chuck Strahl: One last one. You mentioned the U.S. example, and I'm not familiar with that, I must say, other than what I've heard you and some others just mention in passing. Has it been in place long enough to see whether that legislative obligation stateside has proven effective, or is it still in its infancy?

Mr. J. Alan Leadbeater (Deputy Information Commissioner, Office of the Information Commissioner of Canada): I can't give you a specific date, but it's not something of recent vintage. The requirement that records be created in the American archives legislation is a long-term requirement, but I certainly will find out and provide that to you.

The Chair: Madame Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): Thank you, Mr. Chairman.

Mr. Reid, I listened to you very closely. You said that you had not been consulted. As Information Commissioner you should have played a pivotal role in reviewing this bill. You were left out of the loop and not consulted.

You also talked about the librarian and archivist, who has an extremely important role to play. You are saying that this individual should be appointed by Parliament. Why do you want him or her to be appointed by Parliament? As you know, under this bill the minister has the authority to establish a council and select people for it whose role it would be to advise the librarian and archivist. Do you think the council members should be appointed by an independent committee or by the minister?

¿ (0930)

[English]

Hon. John Reid: We have given considerable thought to that and we have decided that when you are dealing with the historical background of Canada and you're dealing with records that are very interesting and personal, it is far better to put them in the hands of an independent organization.

The technique we use is to have the archivist and librarian or the information commissioner appointed by Parliament. We think that's a very useful technique that should be applied to protect this kind of very important material. The technique is relatively straightforward, it's relatively simple, and I think it's effective. We think this is a big step forward.

We're concerned that at the present time there is almost no way for the librarian and archivist to come before Parliament in the future because there's no obligation to produce an annual report, and if there is a report, presumably it would be part of the minister's report. So when you start looking at the structure that has been put in place, I assume the archivist will produce an annual report. But what will its status be before the House of Commons, because it has no status in the law?

[Translation]

Ms. Jocelyne Girard-Bujold: I also want to talk about the advisory council. You made no mention of it in your speech. How do you suggest members be appointed to this advisory council? You would like the librarian and archivist to be independent and appointed by Parliament and to report to Parliament, not to the minister or the President of the Treasury Board. As Information Commissioner how would you like this to be done and how transparent would you like the advisory council to be?

[English]

Hon. John Reid: I think that's a very good question, and I confess to you it's not one that I thought about very deeply in preparing these remarks. But my view is that the consultative committee, which can be very important, should have a certain amount of transparency.

I would think that a committee like this, to which the librarian and archivist would report hopefully in the future, should have some role in looking at the people who are appointed. I think there should be consultations among the parties and the committee and the minister to find the right balance of individuals to sit on this committee.

I agree with you that it will be important, and I agree with you that there has to be more transparency in what is envisaged here. I prefer, because of my background as a member of Parliament, to work through parliamentary committees, and that's why I would suggest that the appropriate committee be involved.

[Translation]

The Chair: One last question, Ms. Girard-Bujold.

Ms. Jocelyne Girard-Bujold: I get the sense that you are saying this bill will have to be completely redrafted based on what you have told us this morning. I hope that the parliamentarians at this table will be prepared to see this through. This bill would combine two very distinct institutions with distinct roles. Do you think this will be productive? Will merging them be a plus for archives and everything going on in Canada or is this just window dressing to be able to say that something was done, when in reality these two distinct institutions with their entirely different areas of expertise will not really be merged?

[English]

Hon. John Reid: I think the idea of merging the two institutions makes a lot of sense. I support that.

By and large, I support 90% of what is in the legislation. My concerns are in the way in which the definitions exist and the implications of those definitions for other legislation, other than the Archives Act, and for the independence of the institution given the responsibilities it has to undertake.

I support the aims of the bill. I am very concerned about the definitions as I have outlined. I would like to see something done overall about document management. I am concerned about the potential for conflict between the Archives and Treasury Board, or the inability of the archivist or librarian to do what he is supposed to do here to ensure that documentation processes in the Government of Canada are acceptable and up to date.

¿ (0935)

The Chair: I have a request from Mr. Bonwick and Mr. Shepherd in the first round. In the second round, Madame Allard.

Mr. Bonwick.

Mr. Paul Bonwick (Simcoe—Grey, Lib.): Thank you very much for an informative presentation. I am pleased you had the opportunity to attend because you have pointed out some potential inadequacies that have not been expressed at this point in time.

We are being asked to deal with this bill in a fairly expeditious manner. By that, the talk I have heard is that ideally they would like to go to clause-by-clause as early as this week, if I understand properly.

I am wondering what harm would be done, what potential impact there would be from a costing standpoint, if in fact we were not able to--and this may not be a question you can answer, I don't know. What would the implications be if we were to defer this until the fall? As Madame Girard-Bujold pointed out, there are some serious inadequacies within the legislation, according to her. I am not convinced of that, but I think the responsibility for this certainly lies in the hands of the committee, and rushing through it may not necessarily be the wisest thing. If you would comment on that in just a moment....

I am curious, by way of you getting here and presenting at the invitation of one member of this committee, is it typical for a department or a minister not to consult your office when they are dealing with something that deals with the records of the nation? That would be my first question.

I am wondering if you very briefly could expand on your comments. I maybe missed something or didn't quite understand it. Could you expand briefly on your desire to see the appointment process changed? If you could answer that in a timely fashion, I would then have a supplementary question.

Hon. John Reid: In terms of the costing, there are two sets of costs. There are certainly the costs where you slow down a process, and those are probably real. But there is also the other cost, that if you get it wrong you will pay heavily later on.

I think it is important when you are doing legislation that is going to last a long time, because legislation doesn't get changed very often, that you try to make sure the long term is going to work out. That would be where I would say the greatest costs could be if you get it wrong.

My desire to see the archivist appointed through a parliamentary resolution comes from the fact that you have a very important cultural organization. What is the best way of ensuring the independence of cultural organizations? The technique within the Government of Canada has been to create all kinds of separate organizations throughout the system to make sure there is independence in the cultural and arts area. I think this is one of those institutions that should be put into that same category.

If you take a look at what I used to call the satellite organizations belonging to our cultural industries, funded by the Government of Canada, I think you will find that is the way in which we have organized an awful lot of our cultural activity.

This is one of those things. I think it should fit that pattern.

Mr. Paul Bonwick: I can understand perhaps creating a higher level of transparency by having Parliament involved in the appointment process by way of resolution, but is it not semantics to have the Prime Minister nominating somebody when the Prime Minister really has a majority government? Are we in effect not creating the same situation?

I have confidence in the system to a certain extent. You are an example of that. You are sitting there as a past Liberal minister. You were appointed by our Prime Minister and, as the chairperson has mentioned, doing a wonderful job. I am wondering how this resolution would create some greater sense of independence than what's in place right now.

¿ (0940)

Hon. John Reid: Well, maybe I should correct your history.

Mr. Paul Bonwick: Okay.

Hon. John Reid: The government has the right to nominate, and, generally speaking, the procedure it follows is that it takes the name of the person it would like to nominate and checks with all the political parties. If the parties object, the government will drop the nomination.

In my case, Madam will remember, this was the first time in which a parliamentary officer was interviewed by parliamentary committees before the House of Commons voted, and the same procedure was followed in the Senate. So the process now, as it has been defined, gives far more power to Parliament than it used to have in the days when the Prime Minister simply came down with a nomination and everybody bought into it. There's much more transparency, many more negotiations between parties, and much more openness, and it's a much better system.

I think it's appropriate at this stage for the government to provide a nomination, but it's equally appropriate for members of Parliament to examine that person and it's equally important for parties to have the ability, informally, to discuss the possible nominations with the Prime Minister.

There are indications, for example, where information and privacy commissioners are nominated and appointed by committees. That is the process followed, for example, in British Columbia.

So there's any number of techniques. The one we have, I think, is a new technique that only started five years ago. However, the importance of this particular cultural, historical institution is such that it demands, it cries out for, a special way of going about it.

Mr. Paul Bonwick: Thank you for expanding on that.

The Chair: At this point I will go to Mr. Shepherd.

Mr. Alex Shepherd (Durham, Lib.): We've often heard from the Auditor General in a similar vein--an officer of Parliament, but she gets her funding from the Treasury Board. She often makes discourse on how she can be independent when every year she has to get her budget approved.

I wonder if you have thought your proposal one step further. If the archivist is an officer of Parliament, does the budgetary allotment still come under a department of government?

Hon. John Reid: I confess to having the same problem as the Auditor General, and in point of fact, all the parliamentary officers have the same difficulty. I think, in all justice, it must be said that it's difficult for Treasury Board as well to find the appropriate balance.

As a group we have been discussing other ways of going about dealing with this in a way that would be appropriate for us, appropriate for members of Parliament, and appropriate for Treasury Board. We are in the process of formulating some proposals that we will be moving forward on to try to get us all out of the difficulty we are in.

If you were to proceed and say that the archivist should be a parliamentary officer, they too would fall under this proposal we're working on. It's not a rocket scientist kind of thing. What we are really looking at is the way in which we can involve members of Parliament more directly in terms of our financing and to look at whether or not we can bring in outside blue panel experts to look at our financing and then have these kinds of reports available for discussion by Treasury Board.

Mr. Alex Shepherd: They newly constituted government operations committee currently has a degree of power that it did not have before, but that power is simply to reduce votes, budgetary allotments within departments.

Is there some way the government operations committee could play a role in approving or constituting the budget of the archivists?

Hon. John Reid: There have been some informal discussions as to what role members of Parliament might play. The suggestion has been that this is not really an appropriate role for committees to play because their job is really to do the scrutiny and to pass judgment. It's very difficult to do that kind of scrutiny and pass judgment if you've been part of the decision-making process.

We've sort of moved away from that model. The original model I played with was to take this problem to the internal economy committee, which is sort of one step removed. We had discussions about that as well, so we are now looking at this other route to go, because again, you don't want to put members who are making the final judgments in a position of judging their own decisions.

¿ (0945)

Mr. Alex Shepherd: You have made some very useful comments, Mr. Reid. I think having an independent archivist and an officer of Parliament is a good thing because it actually strengthens the role of Parliament, which a lot of us are concerned about these days.

The Chair: Thank you, Mr. Shepherd.

At this point I would like to welcome a colleague, newly elected to the committee, on behalf of the Progressive Conservatives, Mr. Schellenberger. All the very best to you. You are welcome here, of course.

We will start the second round of questions. I have Madame Allard, Mr. Strahl, and Madame Girard-Bujold.

Madame Allard.

[Translation]

Ms. Carole-Marie Allard (Laval East, Lib.): Good morning, Mr. Reid and Mr. Brunet.

Mr. Reid, thank you for your presentation. Thank you also for defending our documentary heritage and, indirectly, the public's right to information. Your intentions are highly commendable.

I heard you say you were 90% in favour of the content of this bill, which will essentially merge the National Archives and the National Library of Canada. Is that correct?

Let us talk about the 10% that interests you. I have before me the two pieces of legislation that govern the National Archives and the National Library of Canada. They clearly indicate that currently the National Librarian and the National Archivist are appointed by the process being proposed under the new legislation. What you are proposing is a change in what is being done now and has always been done.

Have you received complaints about either institution? Do the complaints that have been directed to you and that you are aware of indicate anything specific that could make us fear the worst about the process for appointing the librarian and archivist proposed in the current bill? I would like to know whether you have anything specific to tell us.

[English]

Hon. John Reid: I have no complaints with the librarian or the archivist. We work very closely with the archivist. He has the authority to set the schedules for the disposition of documents that are surplus to the requirements, both the archival requirements and the departmental requirements, and that is a very, very important function.

Our complaint would be--and this would go to Mr. Shepherd's point--does he have enough money to get the message out to all the departments in the way in which we feel he should?

The second point is that he is the repository of an enormous amount of material that Canadians like to access through the Access to Information Act, and he is the repository of the censuses that are available. We work closely with him, and we have no complaints.

What I am concerned about is the future. What I would like to see is the continuation of the policy in the cultural organizations of making them arm's length, because I think cultural organizations work better that way than coming under the direct authority of a minister. I think it is one of those things that is above partisanship, because it is about our common history, and anything we can do to take any hint of partisanship out of those kinds of very important things is an advancement for Canadian society.

Mr. J. Alan Leadbeater: I would add a point, Mr. Chairman, just in terms of a practical example.

As you know, at the time of a change in portfolio for a minister or at the time of a change in government, there is obviously a lot of boxing up of records and ministers taking away their records. Public officials often will call either our office or the archivist and say, “Look, the minister is taking everything. You know, we have a departmental records room in the minister's office, a registry, and they're taking everything that's in the registry.”

Well, as it now stands, because the archivist doesn't have the authority to go and sample the minister's records to say, “Look, you're really not just taking your personal and political, you're taking departmental”, and because ministers have a direct control over archivists--and I do not mean to question the integrity of any archivist, but it is the reality of the situation--that's a situation of direct possibility for influence and improper decision-making under the act, which could be helped by an independent archivist who would be empowered to go in and look at the records if there's a complaint and to speak up and speak their mind without any fear of reprisal.

¿ (0950)

Hon. John Reid: This is why I am so concerned about the definition of documents in here, where a document becomes private property of the minister by virtue of its geographic location. The Access to Information Act says a government document is a government document wherever it may be, but this bill says that a government document is by virtue of geography not a government document. It belongs to the minister.

I think this is a very important concern.

[Translation]

Ms. Carole-Marie Allard: Mr. Reid, do you think it would be a good idea to postpone the merger of the National Archives and the National Library of Canada by two years to ensure that these provisions are in the legislation? You said earlier that you were in favour of this merger. Is it worth putting it off? Should there not be a response to your concerns and a new bill drafted and passed? The main objective of the bill is to merge the two institutions.

This week we heard from the National Librarian and the National Archivist, Mr. Carrier and Mr. Wilson, who explained how this project took shape and how the decision to merge the two institutions was arrived at. Mr. Carrier told us that he looked after photographs and that his colleague looked after newspapers. They eloquently explained how they arrived at their decision. I think this merger probably stems from two individuals who decided to work together for the good of Canada. That is what I got out of their testimonies.

I think what you are proposing is commendable. I am not saying otherwise, but by wanting to add things to this bill, might we not unduly delay a process that would benefit the future of documentary heritage in Canada?

[English]

Hon. John Reid: I think what's at stake here is not only the merger but also the effect of the definitions and the other things on government operations throughout the system. It has an effect on management of government information, of government documents. It has an effect on who owns government documents in particular circumstances. It has an effect on what materials can be made available for historical and archival purposes.

I think the point you make is well taken, that there is a momentum for merger. At the same time, there's also a momentum in other directions that is not quite as helpful and in fact actually works against some of the benefits of the merger in the way in which documents are to be handled in the future.

I think you have to take the time to get it right, because there are costs, as I told Mr. Bonwick, both ways. There are costs when you don't proceed and there are costs if you proceed with something that is not well thought out. I would urge you to take the time to make sure you have it right.

The Chair: Mr. Strahl.

Mr. Chuck Strahl: We did have witnesses previously who suggested that the preamble, the reason why this bill is coming into being, is not consistent...or at least the objects and powers under clause 7 are not necessarily consistent with the preamble. In other words, the preamble sounds good, to preserve the documentary heritage of Canada, that we want to make an institution strong enough to do that properly and effectively and efficiently, but the objects and powers under clause 7 are not necessarily consistent or at least don't follow through.

I don't think you commented on that specifically during your remarks.

¿ (0955)

Hon. John Reid: I did in part. To give you an example, if you take (a), which says “the documentary heritage of Canada be preserved for the benefit of present and future generations”, and look at the definition of “government institution”, which eliminates a large range of government institutions from being subject to the act, you have there an inherent contradiction between the objects of the act and the reality that is included in the way the definitions are worked through.

It's those kinds of things that I think you have to be very careful about. You may be saying if you pass the bill without making those changes that only maybe 60% to 70% of the documentary heritage has to be turned over to the archives--not 100%, but a smaller percentage.

Mr. Chuck Strahl: Just to play the devil's advocate--not that the government would be the devil, but just to play an advocate of some sort--the definition of “ministerial record” says it “means a record of a member of the Queen's Privy Council for Canada who holds the office of a minister and that pertains to that office, other than a record that is of a personal or political nature or that is a government record”.

Doesn't that address your concern? You suggest it should be everything except personal or political in nature. If we have the minister before us, maybe she'll say it is covered off under that definition. What would you say?

Hon. John Reid: I'll ask Mr. Leadbeater to speak to that.

Mr. J. Alan Leadbeater: You put your finger on our problem, Mr. Strahl. Why is there a category for ministerial record? Personal and political, I think we all agree, could be the private property of a minister. Everything else should belong to the people of Canada. What is this category of ministerial record? You'll see it repeated throughout. I think it is repeated throughout because it gives ministers the ability through agreements with the archivist to control when the public gets to see these, what are the terms of the transfer to the archives, and so forth. If it is clearly not their personal and political paper, then why is that degree of control by law being given to ministers?

Mr. Chuck Strahl: I thought I would just ask, to be polite. I agree with you, and it is why I'm glad you are here today.

I was going to ask some questions about, in your opinion, Mr. Reid, what kinds of resources need to be committed, not siphoned off from the archivist but need to be committed from the archivist, to do the tasks asked of him or her under these clauses, including, as I say, educating, browbeating, somehow getting an entire government organization to jump through the necessary hoops.

It seems to me the resources necessary are going to be considerable. This won't be archiving as we understand archiving, where you take the box and go through the stuff and save this and shred that and get to the bottom of it. It seems to me there is going to be an enormous amount of energy required to fulfill the obligation. The obligation is quite clear, that they have to basically instruct the government on how to keep records.

Hon. John Reid: That's why I am concerned. There is a conflict between the responsibilities that Treasury Board has and the responsibilities that are given to the archivist here. There is no question that when it comes to the allocation of resources, Treasury Board is in the driver's seat. Also, it is a significantly larger organization and is much more attuned to that kind of activity.

It's one of the questions that has to be resolved. I prefer to have the responsibility located in one place rather than divided. I don't think it's appropriate that it be divided between an institution that is inherently stronger and one that is inherently weaker.

[Translation]

The Chair: Ms. Girard-Bujold.

Ms. Jocelyne Girard-Bujold: Mr. Commissioner, you were not consulted at the outset. What should your role be in terms of this bill? What could you do to ensure that this bill is more suitable given that many things have not been done?

Give me a specific example. If these two institutions are not merged will this be detrimental to the Access to Information Act? Is it important that this merger go through? It may be complicated but that is the way it is. I attach a great deal of importance to the Access to Information Act and I would like you to give me some reassurance.

À (1000)

[English]

Hon. John Reid: The merging of the two institutions does not affect the Access to Information Act or the Privacy Act. What does affect the Privacy Act and the Access to Information Act are the definitions that we have discussed. Those definitions will have an impact throughout the whole governmental structure because the archives draws its material throughout the whole governmental structure.

My concern is the way in which the definitions are crafted. I am concerned about the creation of public documents or the transformation of public documents into private documents in the hands of a minister because the documents are geographically located in a particular area.

The Access to Information Act says that a government document is a government document no matter where it is. Now, under this bill a government document in the hands of a minister is not a government document. It seems to me that is wrong.

Also, I am concerned about the fact that it eliminates about one-third of the government institutions from coming under the Archives Act. It means there is one-third of our heritage that will not be picked up unless we have goodwill in certain circumstances.

When you start looking at the definitions and you start applying them throughout the structure, you can see the changes we would like to have made are not for the good of the Access to Information Act but are for the good of the archives, for the good of the historical background of our country.

The Chair: Mr. Reid, before we close, I have one question for you. You said you hadn't been consulted in regard to the act. At the same time, you told us your relationship with the archivist is very close and you are in constant contact.

Have you made your reservations known to Mr. Wilson and Mr. Carrier? Are they sensitive to what you bring forward to us? Have you had a chance to discuss it with them informally so that at least they realize there is a problem from your standpoint in regard to access to information?

Hon. John Reid: When we were informed of the progress of this bill going through and we did our examination...yesterday we were in touch with them when we had finally set our text. We have had an informal discussion just with Mr. Wilson, not with Mr. Carrier. That has been done.

The Chair: What I meant was throughout the constitutional creation of this bill, it must have taken many, many months of work to arrive at this point. There was no opportunity one way or another from their standpoint or your standpoint to get together and look at the very important issues you have brought forward today.

Hon. John Reid: I do not think Mr. Wilson, because of where he stands in the hierarchy, could have done that if he had chosen to do that. That would have had to have been done by the people who are writing the legislation and the ones who are dealing with the policy. We were not invited into those discussions.

The Chair: Thank you very much, Mr. Reid. This was a very important session for us, and we appreciate your presence here and that of your colleagues. Thank you very much for appearing.

[Proceedings continue in camera]

[Public proceedings resume]

À (1010)

[Translation]

Ms. Andrée Delagrave (Assistant Deputy Minister, Transformation, National Library of Canada/National Archives of Canada, Department of Canadian Heritage): Thank you, Mr. Chairman.

To answer the questions raised by the members over several meetings, we thought it would be easier to take those that were asked repeatedly, including this morning, and to give short and systematic responses to them.

I propose that we begin with clause 8(2) of the bill, sampling of the Internet, the issue of the advisory council and finally, the role of the Library and Archives of Canada in government information management.

For each of these issues we simply complied your questions and prepared a small document that I propose be handed out to the members of the committee so that we may address the questions that were asked. Then my colleague, Bruce Stockfish, can talk about the supplementary amendments to the Copyright Act.

[English]

Mr. Chuck Strahl: Is that document for circulation? It is coming? Thank you. The government always gets it before us.

[Translation]

Ms. Andrée Delagrave: There have been many questions about this clause. Its purpose is to broaden the powers of the National Library and the National Archives. The mandate of the new librarian and archivist will be to collect all forms of documentary material of interest to Canada and preserve it in the holdings of the Archives of Canada. This is necessary because the institution's mandate is to acquire and preserve the documentary heritage of Canada, and Web sites are an increasingly important form of our documentary heritage.

Will the Library and Archives of Canada preserve all Internet sites? No. Under the legislation, there are two conditions. First, the material must be accessible to the public without restriction on access. Let me stress that the words “without restriction” apply to the phrase “accessible to the public”. This means the material must be accessible to the general public without any fee, password or subscription requirement. The material must be accessible to the general public without restriction. Only this type of material can be used for sampling and only for the purpose of preservation.

Second, the clause indicates that collection is to be limited to a representative sample of material of interest to Canada, which should be defined in internal policies and according to usual archival standards.

For instance, there might be an interest in collecting sites, which, on a certain day, refer to a specific event such as D-Day. Collection would be done broadly from thousands of sites that, on a certain day, feature something specific or something that might be of particular interest to Canada.

How often is it the intention of the Library and Archives of Canada to sample the Internet? It will do so periodically. The intention is to preserve a snapshot of what is on sites of interest to Canada at a certain point in time.

For instance, we might take a snapshot on July 1 each year or following a major national event on a specific topic. Why is a consequential amendment to section 30.5 of the Copyright Act necessary? The two go hand in hand. The amendment to section 30.5 of the Copyright Act is a consequential amendment to clause 8(2) of the bill.

In order to preserve a sampling, the information needs to be copied to a more suitable medium. That is precisely what section 30.5 of the Copyright Act allows. It allows broadcast material to be committed to a stable medium.

How will the Library and Archives of Canada protect the copyright interest of a person whose Web site has been sampled? The authority to archive Web sites in clause 8(2) is limited to the Library and Archives of Canada and only for the purposes of preservation. Current access to records at the National Library and the National Archives complies with the current definition in the Copyright Act, in other words for private study and research. There are millions of items in our collections. They are all subject to the Copyright Act and access is given to them in strict compliance with the Copyright Act. There is no reason why sampling Web sites should be approached any differently.

À (1015)

Will the Library and Archives of Canada redistribute songs and images downloaded from the Internet? No. As stated in the proposed legislation, it is a question of collecting a representative sample, not a specific site or item. The intention is solely to collect an aggregate of sites of interest to Canada in order to create an archive of these issues. It will be preserved but neither the items or the sites will be distributed.

Should the Library and Archives of Canada ever want to disseminate items thus collected, on its own Web site or in the context of an exhibition, it would have to obtain the permission of the copyright holder as both institutions currently do for all items they use in their exhibitions or on their Web site. It is the exact same system.

Finally, we were asked what would happen if material was illegally posted on a site that was part of the Library and Archives of Canada collection. The sampling would be done automatically and not one by one. Therefore, we will not be reviewing the samples. However, this may actually provide the legitimate rights holder with the ability to prove any possible copyright infringement.

A chart, which is by no means exhaustive, can be found at the end of this document. All these issues involve small details that are very complex. The chart lists what is in the Library and Archives of Canada's current collections: books, recordings, films, taped films and recorded broadcasts. It shows the type of access provided and to what extent the reproduction of these items is limited by the Copyright Act. Archiving samples from Web sites and reproducing them would be subject to the same, very strict rules of the Copyright Act, in other words limited to private study and research.

I believe that covers all the questions that were asked on clause 8(2). Do you have any other questions?

À (1020)

The Chair: Ms. Delagrave, you and your colleagues could perhaps comment on the entire document since we are running out of time.

Ms. Andrée Delagrave: I would like to add a few words on clause 6, which talks about the advisory council, because this question was raised several times.

Why is there a provision for the creation of an advisory council? This is a council to provide advice to the librarian and archivist to ensure that the holdings of the Library and Archives of Canada reflect the richness and diversity of Canadian society. The advisory council will provide independent advice and bring a broader and more varied perspective to the institution.

Why have an advisory council and not a board of directors? I think we have to understand the difference between the two. If there is a board of directors, then the institution is under the authority of the board of directors. The responsibility for human and financial resources rests with the board or its chairperson under the legislation. Bill C-36 proposes maintaining the status quo as to the role and governance of the institution within the government. The proposal is for the Library and Archives of Canada to conserve their current status. They are under the authority of the minister and directed by the librarian and the archivist. This departmental agency status is incompatible with the board of directors concept. An advisory council provides advice only as directed by its mandate, which in this case—and I emphasize this—concerns the public programming of the institution. It does not address other aspects of the institution's mandate, including its role within government, such as coordinating libraries in federal institutions or supporting good management of information within the government. The council would not give advice on these matters because this is not part of its mandate.

Why is the Act not specific as to what types of person will be appointed to the advisory council? Given that this is an advisory council that will give advice on public programming, there are very few advantages in determining in legislation the exact profile of its membership. This is not a board of directors. Specifics would limit the selection of candidates and may not allow the council to evolve and thereby reflect the changing patterns of Canadian society. This may not be in the best long-term interests of the institution. It is envisaged that the Council would be composed of qualified Canadians selected primarily from communities involved in the acquisition, preservation and diffusion of knowledge of Canada's heritage. However, it must be recognized that many eminent Canadians, who are not necessarily archivists, historians or librarians, could be suited to provide very important advice on how to reflect the richness and diversity of Canada's heritage in public programming, and that it would be a good idea to include them.

The bill provides a certain flexibility in the membership of the council, thereby ensuring a council that is representative of our society and of regions, which is able to bring a broad and varied perspective in order to improve the internal institutional perspective. A quick review of federal statutes that provide for advisory councils generally did not give more detail on their composition or types of people who are appointed to them.

Finally, let us talk about the role of support for information management.

À (1025)

[English]

As Mr. Reid has stated, the responsibility to ensure information management across government is vested in the President of the Treasury Board. It is also the individual accountability of each deputy minister or deputy head to ensure proper management of information created or used in his or her organization. That's how this system is set up.

What the National Archives is doing right now and what the future Library and Archives would do is act as a centre of expertise for the management of government information through its life cycle, determine the schedule for disposal of information, and ensure that records of archival historical value would be properly transferred and preserved. I understand you were told that this was about 1% to 2% of the business records of government.

The Library and Archives will be playing this role by putting together a strong plan for the improvement of government information by increasing awareness and understanding the importance of information management and helping build information management capacity in departmental agencies. It has led a number of pilots in cooperation with departments. It has organized a major symposium this year. The national archivist is now the IM co-champion in the Government of Canada, and we've just issued a number of tools, including directives on the management of electronic information.

Strengthening the role of expertise and support for information management in government is part of our transformation process, and I know it is very dear to the heart of both heads.

Why is subclause 13(3) necessary? Well, it's necessary because records of historical value can be lost or damaged through improper storage. What it provides is a tool for the librarian and archivist to either request a transfer or to ensure that the deputy head who is responsible for the management of those records remedies the problems.

This power may become quite important in the future with electronic documents. The support is changing very fast. The technology is changing very fast. The specific hardware and software configurations may require transfer to the Library and Archives sooner than the current schedule is providing for paper documentation.

I know there was a question raised whether there should be a “shall” to replace the “may”, where the archivist may request a transfer of documents. In fact the “shall” would not give greater power to the librarian and archivist. It would impose an obligation on the librarian and archivist and would probably shift accountability for deputy ministers and departments to the librarian and archivist, which is probably not a good thing because the responsibility should be with each deputy head. It could also potentially create a huge backlog and storage problem for the Library and Archives if there were not the capacity for the deputy head to remedy the situation.

There were a number of other issues that were raised by Mr. Reid.

Bruce, you may want to go to the copyright.

Just one word about the purpose of the act.

[Translation]

The purpose of the act is to amalgamate the National Library and the National Archives and their collections, expertise, resources and facilities in order to provide better service to Canadians.

As mentioned during our very first session with you, the bill is based on the current mandates of the National Library and the National Archives, with the necessary harmonization to combine the two pieces of legislation and ensure modernization so as to reflect the evolution of information technology.

It is not a fundamental reform of the activities of both institutions. It does not call into question legal deposit and the archivist's authority. It is an amalgamation of the current mandates. I think that many of Mr. Reid's comments, which might have a lot of merit in other regards, had to do with a fundamental reform of the entire system, including very important issues related to the government apparatus.

In the bill we have tried to stick very closely to the definitions in the Access to Information Act. Furthermore, most of the definitions and powers in the bill are already in the National Archives of Canada Act.

I can answer more specific questions.

À (1030)

[English]

The Chair: Mr. Stockfish, could you give us a sort of capsule commentary on your part of it so we can have time for some questions from members, please?

Mr. Bruce Stockfish (Director General, Copyright Policy, Department of Canadian Heritage): Thank you, Mr. Chairman.

Yes, indeed, there are a series of questions we've prepared regarding the copyright-related issues too. I'm aware that copyright came up during the previous sessions with this committee.

The first point I want to make is to emphasize what Madame Delagrave has already mentioned, in that there are consequential amendments to the Copyright Act that are linked to the new powers for the new institution dealing with legal deposit and the harvesting of the Internet. Clearly these are related to the new bill. They are narrow amendments to the Copyright Act. They are narrow exceptions for the institution only and for purposes of preservation only. That point was made by Madame Delagrave, and I just wanted to emphasize that.

What I want to talk about is a copyright-related matter, but entirely separate from section 30.5, the exceptions in the Copyright Act necessary for those new powers under the institution, and that is to do with clauses 21 and 22 dealing with sections 7 and 30.21. This deals with the question of unpublished works, which you've heard about.

There's a question that I know has been raised. Mr. Strahl in particular had concerns with regard to whether these particular amendments to the Copyright Act were appropriate for this bill. That is the first question.

I would emphasize again that this is about section 7, dealing with unpublished works, which are a matter of concern to archivists generally, including the new Library and Archives of Canada. But also section 30.21 deals with an exception for archivists. In fact, we're talking about an amendment to section 30.21 to make it easier for archivists to access and copy works, unpublished works more generally. In fact, that is a matter of concern to the Library and Archives of Canada as well. The two provisions were included in a package as a matter of balance. Certainly it's our view that they're appropriate for this bill.

Why were they included in this bill? This is the second question. Because in fact we had identified--members may be aware of that as part of the section 92 report--section 7 as one of the issues to be dealt with in the short-term package of issues for copyright reform. Of course, we're working on that package of issues now. This particular issue was included. It's not a digital issue, but it was included in that first package of issues because it was time sensitive.

The period of protection, the transitional period of protection, is only five years. That period expires at the end of this year, as you've heard. If we do nothing before the end of the year, it's going to be very difficult to do something after that. Because of the relationship to the Library and Archives of Canada and because of the time sensitivity of this issue, we're taking advantage of the opportunity that Bill C-36 presents to deal with that issue. That's why section 7 and section 30.21 are found in this bill now.

You heard from various stakeholders as to what they thought of section 7. There were concerns raised. It's important to keep in mind--a third question now--that key stakeholders had come together and formed a consensus. They formed a working group that delivered a consensus to the government. The government had undertaken to act on any consensus that stakeholders could give us. They in fact did that.

Yes, some individual users continue to object, but the key point to make here is that given the fact that we have a consensus with regard to both issues of concern to both rights holders and users, and given the time sensitivity of the issue, it was thought important to act now. We have that consensus, and for that reason we wanted to act sooner rather than later.

Question four is, what is the purpose of extending the term of protection, the transitional term of protection? Just one quick point here, and certainly we can elaborate on it in questions, is that it must be remembered that before 1997, before the amendments in Bill C-32 with regard to unpublished works, the authors of those works had perpetual protection, forever, hundreds of years in fact. Archivists, researchers, and other users would not have access to those works for the purpose of publication.

The term of protection was changed in 1997 to be consistent with other published works, life plus 50 years--and we won't go into why there's an additional 50 years beyond the life of the author. That in fact is the international standard under the Berne Convention for protection of published works.

À (1035)

Now, because of the threat, as you have heard, of these works of certain authors who died 50 years ago or more falling into the public domain very soon, or even immediately, there was concern that there had to be a transitional period. That transitional period was agreed to very hastily toward the end of Bill C-32.

Of course, as you all know now, for authors who died more than 50 years previous, it's five years, expiring at the end of this year. For authors who died up to 50 years ago, it's 50 years of protection. So the dividing line, 1949, between authors who died immediately before 1949 and those after, is quite stark in terms of the level of transitional protection--five years for those who died in 1948 and 50 years for those who died in 1950.

The working group came together to provide for additional transitional period protection that would be fair all around. This is not unusual. The United States dealt with this issue in 1978. It addressed limited terms of protection for unpublished works. In fact, it provided for a 24-year term of transitional protection, subject to an extension of 25 years upon publication. As I mentioned, all we have is five years, and this is for authors who died more than 50 years ago. As I mentioned, we only have five years of protection under the current act.

What the proposed amendments in Bill C-36 will provide is 19 years of protection and an additional 14 years, plus 20 upon publication. So you can see that is not inconsistent with what other countries have done, in this case the United States.

There was some suggestion, as you heard--question number 5--that this was a signal that Canada was on track for an extended period of protection along the lines of what the United States and European countries have done as well, the so-called Mickey Mouse amendments to extend the general terms of copyright protection by 20 years. Well, I can state quite bluntly, Mr. Chairman, that that is not the case. We have identified an extended term of protection as an issue for copyright reform, but for the mid-term, once we get through the short-term package of amendments, including this amendment for transitional protection for unpublished works. This is a special case that required special attention as a matter of fairness to authors, and it has no indication or impact on how we might come out with regard to a term of protection extension for copyright works more generally.

Last--question number 6--there were some concerns with regard to the question of access on the part of academics, archivists, and researchers generally to unpublished works and whether in fact these works would be tied up and off limits to academics for those purposes. In fact, academics, researchers, and users generally continue to have access to unpublished works. Section 30.21 of the Copyright Act already gives archivists an exception to access and copy works for research and study purposes. This was made clear by some of the witnesses who appeared before you. They can in fact copy works for private study and research.

There is no question that academics will not be able to access unpublished works even during the extended term of protection. It is true that they will not be able to publish or commercially exploit those works, but that of course is something they can negotiate with the owners of the copyright.

The fact is that as a matter of fair dealing, users, pursuant to the Copyright Act, are able and will continue to be able to access and copy works, and even publish, based on fair dealing provisions, excerpts of those works for their own academic research and study purposes.

That is a quick overview, Mr. Chairman, of some of the copyright concerns we heard. There may be others. We will be happy to take questions.

À (1040)

The Chair: I would suggest in the interest of time that we confine ourselves to one question each in the first round.

Mr. Strahl.

Mr. Chuck Strahl: I do thank you for your efforts in addressing it in the manner you did, which is useful for us to do in clauses like that.

I have to tell you though, frankly, that you were losing your crowd, at least with this crowd anyway. I'll just tell you that what started out as a general agreement that everyone was in agreement on, which is to blend the two organizations, will get lost in the details, and this bill is in danger of miring. I can just tell you that right now. This bill will be in serious trouble unless we can find a way to do what we all kind of thought this was all about, which was to bring together two organizations in a manner that would make it more efficient and would allow them to get on with the job of both the revamping of their own buildings and organizational requirements and make it better.

I just don't agree with what you've already said here again this morning, which is that you hammered out a consensus. There is no consensus. We had four witnesses and we had no consensus by the time they came through here. There's no consensus. You hammered out a consensus between the people who wanted to come to a consensus, but you didn't include anybody who disagreed. It's just not a consensus. This is turning into, as we go through it, an omnibus bill, with stuff just tossed in here in order to satisfy a bunch of requirements from a bunch of people, but it is not the objective of the bill, which is to establish the Library and Archives of Canada. It's turning into an omnibus nightmare. It's going to be a real problem for us here now to approve this stuff.

I don't agree with you that there is consensus on it. The provisions of the Copyright Act have raised red flags. I just went through my summary. Many people have said this should not be included, that the clauses should be deleted--including the Quebec composers, the copyright people, and the experts. They are all saying that provision in section 21 should be deleted, that it's not necessary.

I'm going to warn you--in my opinion, Mr. Chairman, and to the witnesses--that what is happening is that rather than an effort to bring things together, there's enough stuff in here that this will now be a real problem.

I don't know if there's a way to separate out the amalgamation of the institutions, with which everyone is in agreement, with the rest of it. From what I heard from Mr. Reid, which was my suspicion all along and this has just confirmed it, and from what we heard from fully half of the witnesses who don't approve of the sampling of the Internet and the way that's done, the ad hoc way the copyright provisions are being amended to satisfy a very select group of people, the definitions and the inability to match the objectives of the bill with the objects and powers in it, it's.... It's not that this will seize the nation,but it will seize yours personally.

I'm not happy with the way this has been put together. I just think you've created a nightmare here, which is that we want to support it because we want to bring the institutions together, but instead we're going to have to oppose it vigorously because of things that, frankly, there is no consensus on.

I don't even have a question, really, other than to say that I am some put out over it because of the way it has evolved. And your explanations here are not adequate. There is not consensus. In fact, there is anything but consensus. In fact, we're hearing more disunity on this as we move along.

I'm not blaming anyone here. I'm just saying that the objective will get lost here. You will not get this bill through in a hurry because of the problems you have in the way this has been put together. I'm not blaming anyone, but there are too many interests in here in an omnibus bill that has changed far too much to make it breeze through committee or through the House when it comes back.

This thing will not go through in a hurry, and that's why I'm worried. I wish the institutions could, but the rest of it is so problematic that you will not get this bill in a hurry, and that's too bad, because the first objective should have been easy.

The Chair: I think you've made your point loud and clear.

À (1045)

Mr. Chuck Strahl: I hope so. Thank you.

The Chair: Madame Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold: Thank you, Mr. Chairman.

I must generally agree with what my colleague has just said. I also think that you began at the end. You did not consult the Information Commissioner. You have ended up with provisions that no longer include copyright protection. You said earlier that this bill combines what is in the two current acts, but you say you want to innovate by merging. Where innovation is needed is for the appointments to the advisory council. You still want them to be political appointments. You say that this is new, but you want to maintain the status quo. You say you want to improve the process. Allow me to totally disagree with the principle of this bill.

The heads of both institutions testified last week and said that the process had already begun. If the process has already begun, then they began at the end. The bill has not been passed yet, but the process has already begun. There is a lot of money and people involved, many of whom feel threatened by this new entity. I do not see the need for this.

On the copyright issue, I find it worrisome that entire chapters of the 19th and 20th centuries will be in the hands of the private sector. I find that very worrisome. I think we will have to take a very serious look at this bill and that the Bloc Quebecois will put forward numerous amendments. It will take some time before this bill is acceptable and accepted by all stakeholders.

The Chair: Thank you, Ms. Girard-Bujold.

Ms. Bulte.

[English]

Ms. Sarmite Bulte (Parkdale—High Park, Lib.): I have a question. I have a problem with the sampling in subclause 8(2). I know you tried to address that in some of your comments here, but maybe you could explain to me what a representative sample is versus a non-specific site or item. How do you do that? That was one of my questions.

You talked about it being the intention that any sample would be achieved by automatic means. What does that mean?

Third, you said a representative sample of material that is of interest to Canada would be defined in internal policy and in accordance with archival standards. What does that mean? Are we leaving it to the bureaucrats to decide? Why isn't it dealt with in the act? We're using a definition.... I have concerns about the whole Internet section.

Ms. Andrée Delagrave: Well, let me try to address them. What is a representative sample? This is a decision that's made on an ongoing fashion by the Library and the National Archives right now when they decide to collect. We do not collect all the films. We do not collect all the broadcasts. We try to collect something that is of interest to Canada and is a representative sample. So it's exactly defined by internal policy, and we're trying to apply what is archival sense.

What needs to be collected for the future? Everything? Certainly not. That's the kind of standard that we suggest would apply to this as well. We would not collect all sites, of course. We'd have to make a selection, but a selection based on something. Basically, the criteria would be, what needs to be preserved for the future to give a sense of what was the Internet at that point in time? That's it. And it will be defined, I'm sure, in quite a lot of detail in departmental policy, just as it is for film, broadcast, and any other number of issues we collect.

Ms. Sarmite Bulte: But you said broadcast. Mr. Wilson was here and he said they had some kind of special agreement with the broadcasters. Is that correct?

Ms. Andrée Delagrave: Mr. Wilson was confused, as he admitted when he was leaving. We do collect broadcast, not on specific agreements. Section 30.5 allows us to collect broadcast.

Ms. Sarmite Bulte: So there's no special agreement?

Ms. Andrée Delagrave: Not about that.

As to how it will be done mechanically, it will be done by a robot. For example, you could say that every site on a certain date mentions those words. That's how it would be done. And that's how it's done in countries where they have such legislation.

À (1050)

The Chair: Madame Allard.

[Translation]

Ms. Carole-Marie Allard: Ms. Delagrave, if I understand correctly, the Library and Archives currently does not collect anything from the Internet. Is that right? You currently do not have the right to do so, correct?

Ms. Andrée Delagrave: No.

Ms. Carole-Marie Allard: At present, given the popularity of the Internet, there could be many very interesting things that are eluding Canada's documentary heritage because you do not have the means under the law to collect them. Do I understand you correctly?

Ms. Andrée Delagrave: That is precisely the purpose of this provision. Any material currently being collected falls into the category of government documents or comes under various arrangements, but we do not have the explicit authority to collect this information under the current legislation.

Ms. Carole-Marie Allard: Are there people within your institution who are saying it is important to be able to do so?

Ms. Andrée Delagrave: Not only within the institution, but outside as well. I think there are many people who said this in their testimony. They have said that it is an important and growing part of our documentary heritage and that if we do not acquire it and save things now, they will be lost forever. I am sure you have all had the experience of going to a Web site only to find that it has disappeared or that the page is no longer available. This is something that happens very quickly. It has to be collected and saved if we want to keep it.

The Chair: Pardon me a moment, Ms. Delagrave.

[English]

Just to advise members, this is a 30-minute bell so the vote will be taken at 11:25 approximately.

We will finish the questioning with one question each and then we will go in camera for 15 or 20 minutes.

[Translation]

Ms. Carole-Marie Allard: I would like to repeat my question because I have the feeling that everyone was thinking about something else.

Ms. Delagrave, currently no one from your organization has the right to go on the Internet and record anything for Canadian documentary heritage. I understand that with this bill you are giving yourself the right to do so to preserve the documents. Is that correct? But currently you are not doing so.

Ms. Andrée Delagrave: Except if it concerns a government document or if special arrangements have been made.

Ms. Carole-Marie Allard: That means there are currently a lot of documents that could be part of Canadian heritage that are not being saved because you are not entitled to do so under the Copyright Act. Is that correct?

Ms. Andrée Delagrave: To all intents and purposes they are lost.

Mme Carole-Marie Allard: To all intents and purposes they are lost.

[English]

The Chair: I have a request from Mr. Bonwick for one question. Then, if members agree, we'll close this session and we will go in camera.

Mr. Paul Bonwick: In some regards I agree with Mr. Strahl on his assessment of the process to date. The purpose is valid. It makes sense. But I'm getting the sense that I'm being asked to sacrifice the rights and privileges of Canadians in order to accomplish this end. I'm going to have incredible difficulty with that.

I'd like to go specifically to the point Mr. Reid brought forward this morning. It is surrounding the use and definition of the word “ministerial”. Andrée, where did this come from? Why is it there? Expand on that for me, please.

The Chair: You're talking about ministerial record?

Mr. Paul Bonwick: Yes, ministerial record has this inclusion. Why would the minister of the day, whomever that may be, have the right to deem that on a sensitive file? There's lots of them where they have inner workings with the department. On these types of sensitive files, I believe Canadians have the right to access through freedom of information and not simply by way of the minister deeming this is a ministerial one so he or she gets to shred it.

Ms. Andrée Delagrave: The provision of that, as proposed in Bill C-36, is exactly the current provision in the National Archives Act. There are no changes. Moreover, it's the exact parallel of the current Access to Information Act. What Mr. Reid proposes is a reform, basically. He may have valid reasons for that. This reflects exactly the status quo; there's not one iota of change.

Mr. Paul Bonwick: I'm not arguing the fact that it has changed. The parliamentary secretary has provided some information on that. What I'm speaking about is the fact that there were laws in place in 1900 and 1867 that are no longer acceptable today. I'm suggesting that if we have proper consultation, we would make those changes because it's for the betterment of Canadians.

À (1055)

Ms. Andrée Delagrave: I think what you are suggesting is a broad reform of government information laws in general. That would go through, in my view, a reform of the Access to Information Act first and foremost, possibly with consequential amendments to the Library and Archives Act. A number of other pieces of legislation would also have to be amended. It's a broad reform.

Mr. Reid is also suggesting a new piece of legislation around government information. What he's talking about, I think, is a very broad reform that may have merit, but I don't think it should be done through an act to establish the Library and Archives of Canada.

Mr. Paul Bonwick: I do.

The Chair: Mr. Richstone.

Mr. Jeff Richstone (General Counsel, Department of Canadian Heritage): I just want to add one point. You don't make a legal change to a fundamental issue piecemeal. If you make a legal change, make it consistently throughout government legislation. As a government lawyer, I would want to express before the committee that concern without giving a legal view, and if you're going to make a legal change to one aspect of an edifice, you don't leave the rest of the edifice unattended.

Mr. Paul Bonwick: I couldn't agree with you more, Mr. Richstone. What I'm suggesting is if this committee or Parliament has a serious concern about this broader issue, and if we're going to address this broader issue at some point in time, it seems irresponsible that we would sanction it on an individual or a piecemeal process.

The Chair: I've got two requests for questions, but we can't have it both ways. We've got to go and vote at 11:25.

Some members have come specifically for copyright, and fairly so. I would suggest, if you agree, that we close this session. We've heard enough now that you can make up your minds as to what you want to accept and not accept, and we'll go on from there in regard to Bill C-36.

I would suggest we suspend now and move on to an in camera meeting.

Thank you very much, Madame Delagrave, Mr. Stockfish, Mr. Guérette, Mr. Richstone, and Mr. O'Reilly.

[Proceedings continue in camera]