Visitors in the Gallery

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Louise Gillis, National President of the Canadian Council of the Blind; and Diane Bergeron, Executive Director, Strategic Relations and Engagement of the Canadian National Institute of the Blind. They are the guests of the Honourable Senator Enverga.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

Hon. Senators: Hear, hear!



Copyright Act

Bill to Amend—Third Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Harder, P.C., seconded by the Honourable Senator Bellemare, for the third reading of Bill C-11, An Act to amend the Copyright Act (access to copyrighted works or other subject-matter for persons with perceptual disabilities).

Hon. Tobias C. Enverga, Jr.: Honourable senators, I rise today to speak to Bill C-11, An Act to amend the Copyright Right (access to copyrighted works or other subject-matter for persons with perceptual disabilities).

I want to congratulate our previous government for all the efforts that it put into negotiating the Marrakesh Treaty and for doing the legislative work during its term to allow for our current government to introduce a bill much like the one introduced in the other place during the last session.

Honourable senators, this bill received little attention in the other place, and because of that I raised some concerns that have come to my attention during the second reading debate on the bill. This clearly made some stakeholders, including the government, a little uneasy, and much effort has since been put into explaining the background to the issues related to such concerns.

This was indeed my purpose in my role as the opposition critic to the bill. With a lack of proper study in the other place, we had to ensure that the Senate did its legislative job and was provided some answers to questions that had been raised.

Honourable senators, I want to start out by reminding you of the concerns we have heard. As we heard from the bill’s sponsor yesterday, this is the legislative initiative that will ratify the Marrakesh Treaty, which aims to make printed materials available by allowing for a non-profit organization to reproduce the materials without needing the copyright holder’s permission.

Bill C-11 limits this exemption should the work already be commercially available. This limit has been criticized by some. However, the Minister of Innovation, Science and Economic Development competently explained to our Banking, Trade and Commerce Committee that such a limitation is in fact desirable from the non-profit sector’s point of view. It will assist organizations and recipients in making works available through usual means and avoid them having to create a copy in a different format with the associated costs. It could be an incentive for publishers to make more of their products commercially available in different formats.

Honourable senators, should the publishers and copyright holders not find it commercially viable to produce formats that are accessible to those who are print disabled, then the limitation does not apply and the non-profit organization will be able to create a copy in a different format without interference from the copyright holder. That said, should there be a dispute over commercial availability, the copyright holder is limited in terms of options.

It is worth noting, from a user’s perspective, that the onus to prove the case lies on the copyright holder. If it is demonstrated that a product is indeed commercially available, the only recourse is an injunction. I do not see why a publisher, after having invested in creating products suited for those with perceptual disabilities, should not be protected against anyone copying their work. If they do not have such a product available, the point is moot, and a non-profit organization has the right to make it available to a person with a perceptual disability in a country that is signatory to the Marrakesh Treaty.

Honourable senators, related to this concern is the wording used in dealing with commercial availability in another country, specifically the use of “reasonable.” The limitation states that a product cannot be reproduced if it is:

… available in the other country within a reasonable time and for a reasonable price and may be located in that country with reasonable effort.

One witness representing the Canadian Library Association raised the concern that this was not specific enough and would cause ambiguity. A department official was satisfied with the term being left undefined because a competent court would be able to determine this. I tend to agree. Our courts are very competent when it comes to determining what is reasonable and what is not reasonable.

Honourable senators, the second concern raised was that of royalties being imposed on a non-profit organization as set in regulations by the minister. Minister Bains explained that this section is in place to allow for flexibility to adapt to future circumstances. He continued by reminding the committee that regulatory processes require public consultations and that a minister would have to take into account the impact of such regulations on the non-profit organizations and, more importantly to me, the end-users.

The minister assured the committee that the government has no intent to impose royalties, and one of his officials explained the section as a consequential amendment, which was a result of another amendment to the Copyright Act made prior to the finalization of the Marrakesh Treaty.

Another point in support of my decision is that the Government of Canada bears much of the cost that will be incurred by non- profit organizations to do the work of converting the material into accessible formats. The Canadian National Institute for the Blind, or CNIB, is an example of a non-profit organization that is currently reproducing works in accessible formats. They rely on and receive public funds to carry on this work.

Honourable senators, during the committee study, other concerns were raised. One such concern was that publishers and authors should be protected and still be allowed to make a profit on their investments and work. This was clearly taken into consideration by department officials when drafting the legislation and would be another moot point due to the commercial availability limitation.

Honourable senators, our committee — and let me remind honourable senators that our members on the Standing Senate Committee on Banking, Trade and Commerce are still as sharp as nails and do not let much go unnoticed — was not quite satisfied with the bill’s generally swift and hasty passage through the other place, nor were its members comfortable with the speed at which it was expected to move through this house. However, at the end of the deliberations it was decided that we should support the community of users — those suffering from perception disabilities or otherwise not able to use regularly printed materials, and the non-profit organizations that provide the reproduction and distribution services.

Honourable senators, the CNIB’s Diane Bergeron, who is blind, gave an impassioned testimony. She provided the committee with the staggering unemployment rate of blind persons, being 70 per cent — in part due to lacking education and training opportunities often associated with printed material. She also gave her personal story of how she used books with Braille writing on one page and regular text and pictures on the other page to teach her sighted daughter how to read and appreciate literature. In addition, she gave a brief outline of the potential positive impact of international cooperation in creating and sharing copies of material in accessible formats like Braille, DAISY or audio books.

I should remind honourable senators, as Ms. Bergeron told the committee, that when we speak of audio books for visually impaired persons, it is not the same as an audio book available to the general public. It takes special equipment specifically designed for persons with vision impairments to use such audio formats.

Ms. Bergeron also stated that the due diligence that her organization undertakes includes making sure that a product they receive a request for, in Canada or from another signatory country to the Marrakesh Treaty, is not commercially available in the destination country. Once the alternate format has been created, which could take six months, CNIB will ensure that the work has not been made commercially available during that period.

In short, honourable senators, the end-users are overwhelmingly in support of the bill. The committee decided that since there will be a review of the Copyright Act in 2017, the chair should write a letter to the minister to state the committee’s concerns and urge the community of recipients to be mindful of any unintended consequences or difficulties due to the amendments to the act as a result of Bill C-11, and to keep the committee abreast of any challenges they face regarding cost and access.

Honourable senators, as the critic of Bill C-11, I want to congratulate Senator Harder for bringing us this bill, and I want to thank all those who contacted senators with their concerns. I want to end by reiterating that the Standing Senate Committee on Banking, Trade and Commerce will keep an eye on the implications that this bill will have and that we will do our part to ensure that the legislative intent and spirit of the Marrakesh Treaty are upheld by the current and future governments.

Honourable senators, I believe that everyone with visual challenges or perceptual disabilities has the right to be able to read or hear all the books and articles that are available to everyone. Therefore, I strongly recommend all senators vote for this bill’s adoption. Thank you.

The Hon. the Speaker: Are senators ready for the question?

Hon. Senators: Question.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to and bill read third time and passed).