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CC11 Committee Meeting

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MINUTES OF PROCEEDINGS

Meeting No. 11

Tuesday, March 13, 2012

The Legislative Committee on Bill C-11 met in a televised session at 9:00 a.m. this day, in Room 253-D, Centre Block, the Chair, Glenn Thibeault, presiding.

Members of the Committee present: Charlie Angus, Scott Armstrong, Tyrone Benskin, Peter Braid, Paul Calandra, Dean Del Mastro, Pierre Dionne Labelle, Mike Lake, Phil McColeman, Hon. Rob Moore, Pierre Nantel and Hon. Geoff Regan.

Other Members present: Andrew Cash.

In attendance: Library of Parliament: Dara Lithwick, Analyst ; Maxime-Olivier Thibodeau, Analyst . House of Commons: Mike MacPherson, Legislative Clerk ; Chloé O'Shaughnessy, Legislative Clerk ; Julie Lalande Prud'homme, Procedural Clerk.

Witnesses: Department of Industry: Anne-Marie Monteith, Director, Copyright and International Intellectual Property Policy Directorate; Gerard Peets, Acting Director General, Marketplace Framework Policy Branch, Strategic Policy Sector; Robert DuPelle, Senior Policy Analyst, Copyright and International Intellectual Property Policy Directorate. Department of Canadian Heritage: Drew Olsen, Director, Policy and Legislation, Copyright and International Trade Policy Branch.

Pursuant to the Order of Reference of Monday, February 13, 2012, the Committee resumed consideration of Bill C-11, An Act to amend the Copyright Act.

The Committee resumed its clause-by-clause study of the Bill.

Anne-Marie Monteith, Robert DuPelle, Gerard Peets and Drew Olsen answered questions.

The Committee resumed consideration of the amendment of Geoff Regan, — That Bill C-11, in Clause 35, be amended by replacing line 22 on page 35 with the following:

“copyright in that work or other subject-matter or contravene any other provision of this Act.”

After debate, the question was put on the amendment of Geoff Regan and it was negatived, by a show of hands: YEAS: 1; NAYS: 11.

Mike Lake moved, — That Bill C-11, in Clause 35, be amended by

(a) replacing lines 23 to 27 on page 35 with the following:

“(2) Subject to subsection (3), a person”

(b) replacing line 34 on page 35 with the following:

“(3) Subsection (2) does not apply unless the”

“case may be, that are specified in a manner consistent with industry practice by whoever”

(d) replacing lines 4 and 5 on page 36 with the following:

“(c) does not interfere with the use of technology that is lawful and consistent with industry practice in order to obtain data on the use of the work or other subject-matter.”

(e) replacing line 6 on page 36 with the following:

“(4) Subject to subsection (5), a person who,”

(f) replacing line 14 on page 36 with the following:

“(5) Subsection (4) does not apply in respect”

(g) adding after line 23 on page 36 the following:

“(6) Subsections (1), (2) and (4) do not apply in relation to an act that constitutes an infringement of copyright under subsection 27(2.3).”

After debate, the question was put on the amendment of Mike Lake and it was agreed to, by a show of hands: YEAS: 7; NAYS: 4.

Clause 35, as amended, carried on division.

On Clause 36,

Tyrone Benskin moved, — That Bill C-11, in Clause 36, be amended by adding after line 31 on page 36 the following:

“(2) Subsection 32(1) of the Act is amended by striking out “or” at the end of paragraph (b), by adding “or” at the end of paragraph (c) and by adding the following after paragraph (c):

(d) circumvent a technological protection measure for the sole purpose of making the work perceptible to persons with a perceptual disability.”

After debate, the question was put on the amendment of Tyrone Benskin and it was negatived, by a show of hands: YEAS: 5; NAYS: 7.

Tyrone Benskin moved, — That Bill C-11, in Clause 36, be amended by adding after line 31 on page 36 the following:

“(2) Section 32 of the Act is amended by adding the following after subsection (3):

(4) It is not an infringement of copyright for a non-profit organization acting for the benefit of persons with perceptual disabilities to import

(a) a copy or sound recording of a literary, musical, artistic or dramatic work that it would be lawfully entitled to make under paragraph (1)(a); or

(b) a translation, adaptation or reproduction in sign language of a literary or dramatic work that it would be lawfully entitled to make under paragraph (1)(b).”

After debate, the question was put on the amendment of Tyrone Benskin and it was negatived, by a show of hands: YEAS: 5; NAYS: 7.

Charlie Angus moved, — That Bill C-11, in Clause 36, be amended by adding after line 31 on page 36 the following:

“(2) Section 32 of the Act is amended by adding the following after subsection (3):

(4) It is not an infringement of copyright for a non-profit organization acting for the benefit of persons with perceptual disabilities to export to a country a copy or sound recording of a literary, musical, artistic or dramatic work made in accordance with paragraph (1)(a) or a translation, adaptation or reproduction in sign language of a literary or dramatic work made in accordance with paragraph (1)(b) if the laws of that country provide that the making of materials in formats that are accessible to persons with perceptual disabilities does not constitute an infringement of copyright.”

After debate, the question was put on the amendment of Charlie Angus and it was negatived, by a show of hands: YEAS: 5; NAYS: 7.

Clause 36 carried on division.

On Clause 37,

Mike Lake moved, — That Bill C-11, in Clause 37, be amended by adding after line 16 on page 37 the following:

“(3.1) If a non-profit organization that is relying on the exception set out in subsection (1) infringes copyright by reason only of making a mistake in good faith as to the citizenship or residency of the author of the work, an injunction is the only remedy that the owner of the copyright in the work has against the organization.”

After debate, the question was put on the amendment of Mike Lake and it was agreed to, by a show of hands: YEAS: 11; NAYS: 0.

Clause 37, as amended, carried on division.

On Clause 38,

Charlie Angus moved, — That Bill C-11, in Clause 38, be amended by replacing line 29 on page 38 with the following:

“private or non-commercial purposes and made for valuable”

After debate, the question was put on the amendment of Charlie Angus and it was negatived, by a show of hands: YEAS: 5; NAYS: 7.

Geoff Regan moved, — That Bill C-11, in Clause 38, be amended by replacing lines 29 and 30 on page 38 with the following:

“personal purposes and made for valuable consideration, if that use of the photograph or portrait does not have a substantial adverse effect, financial or otherwise, on the exploitation of the photograph or portrait or copy of them, or an existing or potential market for it, unless the individual and the”

After debate, the question was put on the amendment of Geoff Regan and it was negatived, by a show of hands: YEAS: 5; NAYS: 7.

Clause 38 carried on division.

By unanimous consent, Clauses 39 to 45 inclusive carried on division.

On Clause 46,

Mike Lake moved, — That Bill C-11, in Clause 46, be amended by

(a) replacing line 32 on page 41 with the following:

“(1.1) An infringement under subsection 27(2.3) may give rise to an award of statutory damages with respect to a work or other subject-matter only if the copyright in that work or other subject-matter was actually infringed as a result of the use of a service referred to in that subsection.

(1.11) For the purpose of subsection (1), an infringement under subsection 27(2.3) is deemed to be for a commercial purpose.

(1.12) If the copyright owner has made an”

(b) replacing lines 25 and 26 on page 42 with the following:

“(a) either

(i) there is more than one work or other subject-matter in a single medium, or

(ii) the award relates only to one or more infringements under subsection 27(2.3); and”

“paragraph (b), by adding “or” at the end of paragraph (c) and by adding the following after paragraph (c):

“(d) an educational institution that is sued in””

After debate, the question was put on the amendment of Mike Lake and it was agreed to, by a show of hands: YEAS: 8; NAYS: 4.

Clause 46, as amended, carried on division.

On Clause 47,

Charlie Angus moved, — That Bill C-11, in Clause 47, be amended by replacing line 23 on page 43 with the following:

“the technological protection measure for an infringing purpose, unless”

The question was put on the amendment of Charlie Angus and it was negatived on the following recorded division: YEAS: Charlie Angus, Tyrone Benskin, Pierre Dionne Labelle, Pierre Nantel, Geoff Regan — 5; NAYS: Scott Armstrong, Peter Braid, Paul Calandra, Dean Del Mastro, Mike Lake, Phil McColeman, Rob Moore — 7.

Charlie Angus moved, — That Bill C-11, in Clause 47, be amended by replacing line 31 on page 43 with the following:

“measure for an infringing purpose.”

Charlie Angus moved, — That Bill C-11, in Clause 47, be amended by adding after line 32 on page 45 the following:

“(5) Paragraph (1)(a) does not apply to the circumvention of a technological protection measure by a person for a lawful purpose.

(6) Paragraphs (1)(b) and (c) do not apply to a person who offers a service to a person referred to in subsection (5) or who manufactures, imports or provides a technology, device or component for the purposes of enabling anyone to circumvent a technological protection measure in accordance with this Act.”

Charlie Angus moved, — That Bill C-11, in Clause 47, be amended by replacing lines 39 to 41 on page 49 with the following:

“subsection.”

After debate, the question was put on the amendment of Charlie Angus and it was negatived, by a show of hands: YEAS: 5; NAYS: 7.

Mike Lake moved, — That Bill C-11, in Clause 47, be amended by

(a) replacing line 2 on page 55 with the following:

“31.1(4), the digital memory that is used for”

(b) replacing line 32 on page 55 with the following:

“(a) as soon as feasible forward the notice elec-”

“précisées dans l’avis et informer dès que possible le”

(d) replacing line 7 on page 57 with the following:

“specified in a manner consistent with industry practice by whoever made the work or”

(e) replacing lines 12 and 13 on page 57 with the following:

“(e) does not interfere with the use of technology that is lawful and consistent with industry practice in order to obtain data on the use of the”

(f) adding after line 30 on page 57 the following:

“(4.1) If it grants an injunction as set out in subsection (1), the court shall, among any other relevant factors, consider the following in establishing the terms of the injunction:

(a) the harm likely to be suffered by the copyright owner if steps are not taken to prevent or restrain the infringement; and

(b) the burden imposed on the provider and on the operation of the information location tool, including

(i) the aggregate effect of the injunction and any injunctions from other proceedings,

(ii) whether implementing the injunction would be technically feasible and effective in addressing the infringement,

(iii) whether implementing the injunction would interfere with the use of the information location tool for non-infringing acts, and

(iv) the availability of less burdensome and comparably effective means of preventing or restraining the infringement.

(4.2) A court is not permitted to grant an injunction under section 39.1 against a provider who is the subject of an injunction set out in subsection (1).”

After debate, the question was put on the amendment of Mike Lake and it was agreed to, by a show of hands: YEAS: 7; NAYS: 5.

Geoff Regan moved, — That Bill C-11, in Clause 47, be amended by replacing lines 18 and 19 on page 56 with the following:

“regulation, increase or decrease the maximum amount of statutory damages set”

Debate arose thereon.

At 10:40 a.m., the sitting was suspended.

At 10:40 a.m., the sitting resumed.

By unanimous consent, the amendment was withdrawn.

Clause 47, as amended, carried on division.

By unanimous consent, Clauses 48 to 63 inclusive carried on division.

The Short Title carried on division.

The Preamble carried on division.

The Title carried on division.

The Bill, as amended, carried on division.

ORDERED, — That the Chair report the Bill, as amended, to the House.

ORDERED, — That Bill C-11, as amended, be reprinted for the use of the House at report stage.

At 12:00 p.m., the Committee adjourned to the call of the Chair.

Christine Holke David
Clerk of the Committee

2012/03/14 4:50 p.m.