Bill C-32 (40th Parliament, 3rd Session) Committee on March 24th, 2011

[The Chair (Mr. Gordon Brown (Leeds—Grenville, CPC)), Conservative, Gord Brown]

Good morning, everyone.

I will call to order this twentieth and apparently possibly the last meeting of the Special Legislative Committee on Bill C-32.

For the first hour today we have the Honourable Ramona Jennex, who is the Minister of Education for the Province of Nova Scotia, as well as her deputy minister, Rosalind Penfound, and Wanda Noel, legal counsel of the Copyright Consortium.

Minister Jennex, you have the floor for five minutes.

[Ramona Jennex, Chair and Minister of Education for Nova Scotia, Council of Ministers of Education, Canada]

Thank you very much.

Good morning, everyone. As stated, I am accompanied today by Nova Scotia's deputy minister of education, Rosalind Penfound, who also serves as chair of the CMEC deputy ministers' committee respecting copyright issues, and by Wanda Noel, the legal counsel to our organization.

The Council of Ministers of Education Canada, CMEC, is an intergovernmental body founded in 1967 by education ministers to support their collective efforts in fulfilling the constitutional responsibilities for education conferred on provinces and territories. I am the chair of CMEC's Copyright Consortium, which is comprised of 12 of the provincial and territorial education ministers, the one exception being the minister from Quebec.

Copyright law directly affects our policies and practices in classrooms across Canada. The existing lack of clarity is why the CMEC Copyright Consortium has been persistent over the past decade in urging the federal government to clarify digital copyright law.

Ministers of education, as the guardians of the Canadian public education system, view copyright matters very seriously. We respect and teach respect for copyright within schools. We are actively engaged in the federal copyright reform process to seek fair and reasonable access for students and teachers in their educational pursuits.

Rapid advances in technology-enhanced learning call for a modernized Copyright Act. Students and teachers require a copyright law that addresses these new technologies, technologies that have opened doors to wonderful new ways for teachers to seize upon that “teachable moment” with their students. In the absence of the proposed education amendments that embrace this technological development, Canadian schools and post-secondary institutions may be legally obliged to forgo learning opportunities and curtail Internet use in the classroom out of fear that they may break the law. Bill C-32 deals appropriately with these significant education issues. This legislation provides the right balance between the rights of users, creators, and the industries that market the works of creators.

This morning I submitted to the committee clerk a set of recommendations addressing a number of Bill C-32 amendments that impact education. In certain cases, the consortium has suggested specific legislative wording. In my short introductory remarks I wish to highlight three matters that are of particular importance for education ministers.

First, Bill C-32 addresses the priority concern of the education community, which is to establish the legal framework for students and teachers to use the Internet for teaching and learning. The proposed educational use of the Internet amendment is a reasonable, balanced approach for learning in the digital age. We applaud the government for this, because balanced legislation, based on principles of fairness, can be effectively taught and enforced.

Second, the consortium applauds the inclusion of education in the fair-dealing provision. However, although welcome, we suggest the education and fair-dealing amendment needs to be clarified. For this amendment to have its desired effect, the term “education” should be clarified by stating that education includes teachers making copies for students in their classes. This clarification is needed so teachers may copy short excerpts from copyrighted material for their students--for example, a clip from a television program for a current events class or a diagram illustrating a science or math topic. The wording of our proposed clarification is similar to the United States fair-use clause, which has been in place since 1977. Adding education--including multiple copies for class use--to the list of enumerated fair-dealing purposes will not mean teachers can copy whatever they want. Copying by teachers still must be fair under the two-step test to qualify for fair dealing established by the Supreme Court of Canada. For example, copying entire books does not meet the second test for fairness.

Third, it has been suggested by some witnesses that the education community does not want to pay for education materials. This is clearly wrong. Educational institutions currently pay for content and for copying materials. For the education community, copyright reform law is not about getting material for free. The education section currently pays hundreds of millions of dollars to purchase and license content, such as textbooks, film, music, and art. With Bill C-32, the sector will continue to pay hundreds of millions of dollars. Nothing in Bill C-32 alters the current relationship among education, publishers, content providers, copyright collectives, and the Copyright Board.

In closing, the education ministers across this country have long maintained that a modern and balanced copyright framework will protect the public interest and produce many societal benefits. The need for such a framework has never been more important than now, when all levels of government are investing in connecting learning Canadians and promoting skill development and innovation. The CMEC Copyright Consortium would like to see this copyright legislation passed to establish that necessary framework for learning Canadians to excel in our digital world.

Thank you.

[The Chair, Conservative, Gord Brown]

Thank you very much, Minister.

Is there anything that the legal counsel or the deputy minister would like to add?

[A voice]

Not at this point.

[The Chair, Conservative, Gord Brown]

Okay, thank you very much.

We will now move to the first round of questioning, with the Liberal Party for seven minutes.

Mr. Garneau.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you, Mr. Chair.

First of all, I would like to thank the Council of Ministers of Education for the very complete documentation they have been sending us over the course of the past year. We've certainly received a great deal of material. Many of your positions, if you like, are quite clear and well known.

You talked about the need to perhaps define more clearly what is meant by “education”, and you brought up the fact that it should specifically include teachers making copies for their students. Is it possible to ask your organization to provide us with what they would consider to be a proper and full definition—perhaps taking into account the legal aspects of it—of what they consider to be the education exemption? Is it possible for all of you to put your heads together and send us something you would consider to be an adequate definition? Is that a request we can make to you?

[Ramona Jennex]

Yes, we can provide that information.

We're asking for the words “education with multiple uses” to be added at this time.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Okay, you're saying “with multiple uses”?

[Ramona Jennex]

It's “with multiple copies”. Sorry about that.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Okay. That obviously adds some definition to it, but it would be useful for us as legislators to understand it more fully.

I think there has been a general consensus that we want to provide some definition to the term “education” because it can be interpreted in different manners by different groups. Obviously with you being a minister of education and working with others, it would be very useful for us to have what you would consider to be a definition of education. That would be much appreciated.

On a different subject, do you see this bill, if it passes the way it is written, having any implications, from a budgetary point of view, for the ministries of education of the provinces and territories?

[Ramona Jennex]

No, there would be no change in terms of the budget aspect.

But I will ask that Rosalind Penfound speak on budgets. As you know, deputy ministers are the ones who are always in charge of the budget process, so I would appreciate if she would respond to your question.

[Rosalind Penfound, Deputy Minister, Copyright Consortium, Council of Ministers of Education of Canada]

Thank you, Minister.

Thank you for the question. Our assessment is that each year across Canada there's likely more than a billion dollars spent by the education sector to pay creators for their books, movies, art, etc., that are purchased and used by schools and universities. There are processes in place via the Copyright Board for things like access copyright and rates to be struck for the photocopying of material.

We don't believe in any way that this bill would change that. All of those processes will be in place. We would not anticipate that this bill would in any way reduce the amount of money the education sector would be putting into these efforts. We think it's cost-neutral in that respect. Those processes remain in place. They will still be there. As they are there now, they will be there should this bill become law.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you.

You have focused, for obvious reasons, on education. Do you have opinions on other parts of the bill that are of interest to us as legislators--for example the issue of digital locks, the issue of statutory damages, and those kinds of things? Are there opinions you want to express to this group this morning on those things?

[Ramona Jennex]

I'm here representing education ministers. We've long maintained that we need a modern legal framework in which to operate. But on the issue you speak of, I will be asking legal counsel to respond.

Thank you.

[Wanda Noel, Legal Counsel, Copyright Consortium, Council of Ministers of Education of Canada]

Thank you, Minister.

The submission that was given to all the committee members this morning does address digital locks. The position of the consortium on that issue is that breaking of a digital lock should be prohibited only when the purpose of the breaking of the lock is to infringe copyright. That's the position in a nutshell.

It also describes why the digital lock provisions in the bill are not workable in practice, and I believe there are seven reasons set out in the submission as to why, in a school or post-secondary institution, you can't apply them and make any sense of them.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Okay. I think you line up with the vast majority of witnesses we have heard on this subject. In other words, the issue of copying for non-infringing purposes for personal use is something the bill should contain, which it doesn't at the moment. As the bill is currently written, any circumvention of a digital lock is considered an illegal activity.

[Wanda Noel]

That's correct.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Very good.

Do you have opinions on the statutory damages?

[Wanda Noel]

Yes.

The statutory damage provision in the bill is intimately connected with the technological protection measures sections. In the digital lock sections, there's a provision that says that if you honestly believe you are not breaking a lock, then you shouldn't be penalized for doing so under the bill. The position of the council is that the same legal notion or concept should also be applied to the exercise of fair dealing rights under the bill. So the result would be that if you, as a teacher or a student, honestly believed that what you were doing was fair under the second test in the CCH case, then you shouldn't be liable for statutory damages. In fact, we went so far as to say there should be no damages at all.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

On the other side of the coin, on the main point you brought up today, of course we have also heard from many writers and those who produce materials—not just writers, but those who produce materials that are used in the educational field—and some of them feel this bill will prevent them from having access to payments for their works that they consider to be due to them. Now, you have made the case that you don't believe this is the situation. Can you expand a little bit as to why you feel they will not be shortchanged by this legislation as it's proposed?

[Ramona Jennex]

The creators who use the Internet, for example, for business will not be impacted. There are many aspects that are in the public domain, and unless we have clarity we're not going to be able to move forward in our society and in our education system without fear.

In terms of copyright, and the teaching of copyright, I would just like to add at this point that I come from a 30-year background as an educator. I was a teacher. Copyright is taught from primary up: what it is, what people need to do to respect copyright, and how important it is. These provisions, with these amendments we're suggesting, will provide clarity. They will not impact any of the creators or any businesses at all. Those things will stay intact, and we'll be able to have much clearer guidelines through which we'll be able to not only teach it but also continue to instill the respect that students need to have for copyright.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you.

[The Chair, Conservative, Gord Brown]

Thank you very much, Minister.

Thank you, Mr. Garneau.

We'll move to Madame Lavallée, pour sept minutes.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Good morning to our witnesses.

I find this morning's discussion to be a bit theoretical. As you are surely aware, this bill is about to die on the Order Paper. I am fairly certain that we will not be talking about Bill C-32 for very much longer, that today is our last meeting and that the bill will die on the Order Paper. So this is a theoretical discussion.

To begin with, I was quite surprised to see, in the first paragraph of your speaking notes, a list of all the provinces and territories that are part of your consortium. We can see that Quebec is not among them; but the way in which it is indicated is not very clear. The text says: “...Ministers of Education in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick...”

Would it not have been simpler, and more honest and direct, to say that the Quebec Minister of Education was not part of your consortium? The approach used is misleading and implies that there may be other things just beneath the surface of the brief that are less than straightforward. It makes me uncomfortable.

So the Quebec Minister of Education and the Quebec Government are not included. As you know, the National Assembly unanimously passed a motion against Bill C-32, specifically because of the education exemptions. I am not sure if you are aware, but it is quite difficult to achieve unanimous consent in the National Assembly, where you have Liberal federalists, PQ sovereignists and ADQ right-wingers.

The Minister of Education wrote a letter in opposition to Bill C-32. She wrote that the bill did not respect the value of artists' work. The Fédération des commissions scolaires du Québec also came out against Bill C-32 for the same reasons, since the fair dealing provisions do not show respect for the work of artists or the value of that work.

I would not say that there is a unanimous Quebec view on Bill C-32, since I know one organization that supports it. That said, how is it that almost all Quebec institutions, organizations and orders of government are opposed to Bill C-32 and its education exemption and fair dealing provisions? How is it that, in Quebec, in the field of education, we all agree with paying artists and with the need to respect their work and to instil that value in our children? How is it that we do not have the same approach? Actually, I think that we do not share the same values. Last Tuesday, a witness sitting where you are sitting now told us that the difference was explained by the term “copyright,” that is, the right to copy.

In French, we do not talk about the right to copy. The term we use is the right of authors. We have respect for creators and their work.

So how is it that this works for Quebec and not for you? Would it be possible to have two approaches—each of us with our own sovereignty, you might say? If Canada and Quebec each developed its own approach, we would stop arguing about it. You could have your fair dealing roles, and we in Quebec would continue to respect our creators. Would it be possible to do that?

I would also like to know whether a school, a class, a child, a student or a school board has ever been taken to court by a copyright holder for breach of copyright.

[Ramona Jennex]

Thank you. I will begin to answer the question, and then I will be looking to Wanda for that last part.

The point to note about the minister from Quebec is that we have an open-door policy with this consortium, and all of the information that we have is provided to the Minister of Education in Quebec.

We're here today at what you point to as being probably the last meeting of this committee. I felt it very important that the group of ministers from across Canada have its voice added to the record, to the effect that we maintain the need for a modern and balanced copyright framework. This is why I am here today, to discuss this issue.

This bill, as amended, will continue to respect the artist and creators. It will provide a balance whereby the public education system will have fair and balanced access to materials. There is nowhere that the amendments would impact upon creative people and businesses receiving their information.

I'm going to look to Wanda to answer the legal point, and if possible I will also have my deputy minister respond.

Thank you.