Bill C-32 (Historical)

Copyright Modernization Act

An Act to amend the Copyright Act

This enactment amends the Copyright Act to
(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;
(b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;
(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;
(d) allow educators and students to make greater use of copyright material;
(e) permit certain uses of copyright material by consumers;
(f) give photographers the same rights as other creators;
(g) ensure that it remains technologically neutral; and
(h) mandate its review by Parliament every five years.

[Jon Tupper, President, Canadian Museums Association]

Thank you, Mr. Chair.

My name is Jon Tupper. I'm the president of the board of the Canadian Museums Association. My day job is as director of the Art Gallery of Greater Victoria in British Columbia. I'm here with our executive director, John McAvity.

Established in 1947, the Canadian Museums Association is the national organization to advance and serve the museums of Canada. There are over 2,700 non-profit museums, ranging from large art galleries in metropolitan centres to volunteer-run heritage museums in small communities in every riding of the country.

Museums are interesting cases for you to consider, as they are both users of copyright materials and also owners of copyrighted materials. This forces us to see the balance that is at the heart of copyright legislation between fair public policy and private rights.

We are here today to speak largely in favour of Bill C-32, with several recommendations for improvement and future consideration. We are pleased with most provisions, including the bill's recognition of education as a legitimate fair public benefit.

Today Canadians are attending museums in record numbers. They are interested in heritage and arts and they want to see more of it, not just on our walls but also on their home screens.

However, these are our services in the public interest, and there is little to no significant revenue generated from these due to the failure of the Canadian art marketplace. And yet we face infringements for making works available for non-commercial purposes, even if we own the works themselves. Museums must pay fees to artists to put a work on exhibition even if the museum owns the painting, and this is not right. We cannot copy or place works of art on our websites without payments; we cannot copy documents or photocopy for others to use, without infringing copyright; we cannot offer public lectures with slides of art without paying a fee; nor can we publish a money-losing catalogue without also paying other fees.

There are other issues that we'd like to address here today. One is the artist's resale right. It has been requested by some organizations that you add this new right, which is, we feel, out of the scope of this present bill. We do not support this, as it is premature and requires considerable study. It will have an impact on museums and a much greater one on the art marketplace. Our principal concern is that this proposal will only benefit a very small number of successful artists, and not those who really need greater support.

Expansion of the exhibition right, which was introduced in 1988 amid much controversy and even rejection by the Senate of Canada, today remains an unsuccessful right in Canada's copyright bill. In fact, no other nation has such a right. Last week it was proposed by a witness that the public exhibition right be expanded by making it retroactive. This would not be a wise move, in our opinion.

Despite our having had this provision for more than 20 years, no other nation has followed our lead. It is costly, cumbersome, and has failed to deliver any significant revenue to artists. We recommend that the exhibition right be reconsidered and reviewed in the next round of amendments, with a view to abolishing it and having it replaced with a compensation program similar to the public lending right.

With respect to digital locks, we join our colleagues, the Canadian Council of Archives among others, in concern over digital locks as a grave issue over the ability of our collecting institutions to acquire, access, and preserve materials with such devices. We believe that the circumvention of TPMs for the purpose of preservation in public collections should take precedence over private ownership rights.

With respect to educational exceptions and fair dealing, in a word, keep them as drafted. Bill C-32's proposal to expand the allowable use for fair dealing to include education, parody, and satire is a reasonable step that will slightly increase access to works. This will not lead to wholesale exploitation of works; it will only apply within the concept of what is fair dealing when balanced against the needs of the owners.

Finally, the issue of what we call orphan works is not dealt with by these amendments, and frankly, it should be. Orphan works are those whose copyright owners cannot be located, which produces a difficulty in obtaining rights and licences for their use and is a frequent problem. A mechanism is urgently required.

With respect to clause 46, we are pleased with the provisions of proposed section 38.1 over statutory penalties for non-commercial infringement. This represents a reasonable approach, which we support.

Thank you, Mr. Chair. We'd be pleased to answer any questions from you and your colleagues.

[Ernie Ingles, President, Vice-Provost and Chief Librarian, University of Alberta, Canadian Association of Research Libraries]

Thank you very much, Mr. Chair.

Ladies and gentlemen, I want to thank you for taking the time to hear from CARL today.

I'm here as the president of the Canadian Association of Research Libraries, although I'm also a librarian and the vice-provost at the University of Alberta, with oversight for libraries, but also for some cognate units, including the university press and the bookstore.

CARL is the leadership organization for the Canadian research library community. Our members include the 29 major academic research libraries across Canada. They support research and innovation by facilitating access to scholarly information. They provide library services to support teaching, research, and learning at Canada's largest universities.

We at CARL were pleased to see Bill C-32. Updating of the Copyright Act is long overdue, and we are happy to see some helpful provisions that would permit our libraries to respond to the changing needs of their patrons.

Librarians at academic institutions are constantly encountering copyright issues. On our campuses we assist both users and creators. We facilitate access while respecting rights. This is what we do. This is what we will always do. With this in mind, I will focus my remarks today on why education is appropriately included as a fair dealing purpose.

Many technological changes in the library and in the classroom over the past 15 years have had a significant impact on the ways in which librarians acquire and make available content for research and instruction. For our universities and their graduates to be competitive in the international information economy, it is crucial that students, instructors, and librarians take full advantage of emerging technologies.

It is time to recognize, as other countries already have, that the contemporary university environment does not easily separate its activities according to the current fair dealing categories. In today's classrooms and libraries, research, personal study, review, criticism, and instruction are intertwined. The boundaries of these activities often overlap. The inclusion of education among other fair dealing purposes allows for new and innovative teaching methods while encouraging student creativity through broader use of information in all formats.

Some have claimed that the inclusion of education as a fair dealing purpose will lead to wholesale copying of entire works. This assertion ignores the fact that libraries and universities respect copyright under the present set of fair dealing purposes, and it wrongly assumes that an additional fair dealing purpose will automatically lead to abuses.

We recognize that fair dealing has to be fair. The mass copying that certain groups have talked about is never fair dealing under the current act and will not become so under an amended act. The inclusion of education as a fair dealing purpose will not change what is acceptable as fair dealing. All fair dealing copying remains firmly subject to the fairness test established by the Supreme Court. Libraries have been circumspect, even cautious, when exercising their fair dealing rights, and this is highly unlikely to change.

Currently, Canadian university libraries spend more than $300 million annually on the purchase or licensing of content. This will not change either with the addition of a new fair dealing purpose.

This is not a question of saving money. We won't be spending any less. Indeed, I think we'll be spending much more. This is a question of addressing the realities of the modern classroom and the modern library in support.

Finally, I would like to remind the committee that Bill C-32 is a package of provisions that aim to balance the needs of users and creators. The removal of education as a fair dealing purpose would destroy any balance in this bill—that is, in our judgment.

There are many provisions that address the needs of copyright holders. We must remember that Canadians from all regions expressed a desire to broaden fair dealing, and the inclusion of education among current fair dealing purposes addresses this.

I have one final note. A very important part of the role of the research library is to preserve our great works and our great collections and ensure the safety of these cultural products by organizing, cataloguing, and archiving what is created. This is in pursuit of preserving this human record in perpetuity for Canadians not only five years from now but also, believe it or not, 500 years from now. That is part of what we do.

Our community is concerned that any restrictive changes to the bill--they're not proposed at the moment--may compromise our capacity to preserve information in perpetuity. We ask that the committee take this into consideration when it is proposing amendments.

I'd like to thank the committee for its hard work and for taking the time to listen to us today.

I'd be pleased to answer any of your questions.

[The Chair, Conservative, Gord Brown]

I will call this 13th meeting of the special Legislative Committee on Bill C-32 to order for the second hour.

We have with us today, as witnesses, Ernie Ingles and Brent Roe from the Canadian Association of Research Libraries; Jon Tupper and John McAvity from the Canadian Museums Association; and David Molenhuis from the Canadian Federation of Students.

The Canadian Association of Research Libraries has the floor for five minutes.

[Serge Cardin, Bloc, Sherbrooke, QC]

Thank you, Mr. Chairman.

Good morning and welcome to the committee, gentlemen.

For a while now, you have been saying that, to all intents and purposes, there will be no losses for creators. However, the people who came to see us not long ago assessed the losses at approximately $74 million. Now they assess the royalties of all kinds that could be lost if the bill were passed at $126 million.

You seem to be saying that, no, there will be no losses. In education, for example, we're talking about $40 million for Canada and $10 million for Quebec. Let's consider photocopies, for example. If there aren't any losses under Bill C-32, could there at least be slowdowns in royalty payments? What's happening at the present time? What will Bill C-32 change in this sector, among others?

[Paul Jones]

Are you saying that I'm saying we should put this in Bill C-32?

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Thank you.

Is it fair to say that Bill C-32 does not alter access copyright fees or any other licensing fees that the university community currently pays?

[Steve Wills]

We were given the figure of over $300 million by the Canadian Association of Research Libraries. It involves spending by libraries in universities across Canada. Of that $300 million, my understanding is that $160 million, approximately, is for licensing digital resources--for example, the digital versions of academic journals.

There are various.... For example, there's the Canadian Research Knowledge Network, which was set up by a consortium of, I believe, about 68 universities. That body negotiates licensing agreements directly with academic publishers for use by the universities in that consortium of digital versions of those journals. Similarly, the regional university library consortia across the country, such as the Ontario Council of University Libraries, together with their counterparts in the west, the east, and in Quebec, all negotiate similar licensing arrangements.

So a significant portion of what's happening is that universities have transitioned towards the use of digital resources and away from photocopying. For that reason, when people talk about the threat to the licensing revenues, for example, of Access Copyright or Copibec, the threat does not come from Bill C-32. The threat comes because in the digital environment those who are offering licences for the digital works are often bypassing these collectives and dealing directly with institutions to negotiate new agreements.

As I said, of the $300 million, about $160 million is licensing of that kind. I don't have a breakdown on the rest of this money.

[Paul Jones]

I'll try to be quick in my answer.

The United States has a robust publishing industry. It has an incredible content or entertainment industry, probably the strongest in the world. It has educational fair dealing. The U.S. copyright law says that you may fair deal for purposes “such as”; it lists some, but you can do other things. It's broadly accepted there that education falls within that. It's set out in certain guidelines, including the right to make multiple mechanical copies of a work for classroom use.

There's no indication that Bill C-32 is heading even remotely in that direction, but that's the standard in the United States. They allow that; they still have authors; they still have writers; they still have all kinds of cultural activities going on. To suggest that Canada moving even modestly in that direction is somehow going to cause the sky to fall is just ludicrous.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Thank you very much, Mr. Chair.

Thank you to all our witnesses for appearing today. It's been quite informative. It is indeed refreshing to hear that in fact the sky isn't falling, and that there's urgency to studying and passing Bill C-32.

Mr. Turk, I wanted to start with a question for you, please. In your presentation you made the statement that fair dealing under Bill C-32 does not exceed the U.S. notion of fair use. Could you please elaborate on that?

[Paul Jones]

Yes, I can quickly speak to that.

The TPM or digital lock provisions in Bill C-32 stand out strangely as really containing no balance whatsoever. What it will mean is essentially the end of fair dealing, the end of a fundamental right enshrined in the Copyright Act, in any kind of digital environment.

What's unfortunate about the overbroad application of the TPM rule is that there's a really elegant solution available, and we saw it in Bill C-60, which says if you're going to break a lock in order to pirate a material, in order to steal from an artist, you can't do that. That's something we're four-square behind.

What we are saying, though, is that there are reasons you might want to break a lock for lawful purposes. It could be fair dealing. It could be archival reproduction of material. It could be to help visually impaired people access a work. You can make a simple amendment to the act that says, look, you can't break locks for infringement purposes, but if it's non-infringing, then it's permissible.

[Steve Wills, Manager, Government Relations and Legal Affairs, Association of Universities and Colleges of Canada]

Madame Lavallée, I'd like to respond to a few of the points you raised.

First of all, in regard to the educational community, nothing in Bill C-32, for starters, is going to change the revenue going to the collectives such as Access Copyright and Copibec. It's not about saving money. What it is about--the change to fair dealing in particular--is allowing certain educational opportunities that right now sometimes don't occur.

Take the process of getting a clearance. Say, for example, a student is putting a portion of a work into a multimedia project. It's not reasonable to expect that the student will go through the process of identifying who the copyright owner is, waiting for a clearance that may or may not come, and then paying a fee to do that.

I can give you another example that was told to me by an individual who works with clearance at a university. One professor wanted to use short excerpts of two television programs to show his class, and he was quoted fees of $8 a second and $66 a second. Now, the net result of this kind of thing is that the works aren't used. There are many, many examples I could cite like that, where educational opportunities have been foregone because the cost of getting further clearances would be quite excessive.

In respect of your suggestion that institutions are paying $3.38 per student, that is only an interim cost, and that does not include the 10¢ per page that will be paid for course packs. The request from Access Copyright is $45 a student. It's not clear where the ultimate fee will come out.

Lastly, just very quickly, in terms of going to foreign sources, one of the reasons universities have gone to the Copyright Clearance Center is that Access Copyright is refusing to process transactional permissions for digital works, something it has done in the past readily, because it's trying to push institutions into using its new tariff. As a result, institutions that do not wish to use the tariff have no option but to go to the Copyright Clearance Center in the U.S.

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

Thank you very much.

Gentlemen, I admit I don't understand you. You represent Canadian universities and colleges, you represent university professors, and, in that sense, you should be concerned with Canadian culture, since it is culture that you represent. You should also be concerned about instilling in the students at your universities the principle of compliance with copyright, respect for artists and the value of artistic works. It seems to me that would be a minimum. You've come here to defend the principle of fair dealing. Last week, some eminent lawyers came and told us that fair dealing in Canada and the United States will never be judged in the same way and that it will take 10 to 12 years of uncertainty and no payments to artists to get through the definition that currently appears in Bill C-32.

In Quebec, the National Assembly has come out against Bill C-32 as it is currently drafted and against fair dealing for education. A motion to that effect has been adopted. Quebec's minister of education has written a letter expressly to assert that she did not approve of this exemption for education. The Fédération des commissions scolaires du Québec has also taken a stand, in a letter, in a press release, in a brief that you can see on the Internet, against this new exemption for education that appears in Bill C-32.

You've come here and you're saying that it won't cost us a lot less, but it will cost you a lot less. In any case, we wonder why you're doing this if it's not in order to pay less. If you're preparing all these briefs in order to pay exactly the same price or to pay more, I'm telling you someone's wasting his time here.

The Copyright Board issued an interim tariff last December so that universities could continue using the photocopying licence with Access Copyright. It's true that the universities are not required to use that licence, but it has issued a tariff of $3.38 per student, plus 10¢ a copy, which is exactly the current tariff.

The universities have preferred to contact the rights holders or foreign societies in order to release the rights on their own. This is one of my questions. Isn't it odd that, to avoid using the 10¢ Access Copyright licence, universities prefer to go directly to the Copyright Clearance Centre, the American society, to release rights to certain American publications and then to agree to pay twice as much, 25¢ a copy. I haven't finished.

The system in Quebec works very well. The National Assembly, the Fédération des commissions scolaires, the minister of education and, obviously, the minister of culture, have come out against this exemption. It's working well. Copibec is working well, the artists are happy, things are going well. They've all come here, or they will be coming, to say that things are going well in Quebec.

So, sincerely, I have to tell you that seeing people from Canada file in here to request an exemption so that they don't have to pay artists or pay them less—people who earn about $23,000 a year—reinforces our desire to make Quebec independent. It makes us want to tell you, never mind, work things out however you want, and we'll do the same on our side because we in Quebec respect our artists. We have a cultural and artistic system that works very well. And no one complains about having to respect the value of artists' works. Quebec as a whole has long been demanding full control over artistic and cultural works, in other words over copyright. To see you here today insisting and to see the entire range of representatives from Canada who will be coming here to tell us that they want to pay less in copyright royalties because they want to pay their artists less merely reinforces our idea that we in Quebec would be much better off alone.

[James L. Turk, Executive Director, Canadian Association of University Teachers]

Good morning, Mr. Chair. I'd like to thank you and the committee for the opportunity to appear before you today.

The Canadian Association of University Teachers represents 65,000 academic staff at more than 120 universities and colleges across the country. Our members include both creators and users of copyright material. We have had to deal with both sides of some of the controversies that have come before your committee. While we realize it is unlikely the committee will be able to satisfy the wishes of all Canadians, we are hopeful that our presentation will help the committee find a proper balance in this difficult area.

We'd like to begin by recognizing the efforts of successive governments to modernize Canada's copyright law. In particular we'd like to acknowledge the generally open and meaningful consultation process leading up to Bill C-32. The consultation, in perhaps the strongest way yet, heard and seriously considered the interests and concerns of all Canadians.

With respect to Bill C-32 itself, it contains some elements that disappoint us, and we have several amendments to suggest. Nonetheless, CAUT supports the overall direction of the legislation and recognizes it as a good-faith attempt to create balance in copyright law. In these brief opening remarks, we will address two particular issues: digital locks and educational fair dealing.

On digital locks, CAUT believes the efforts of balance found elsewhere in Bill C-32 are absent. The bill's overbroad lock-breaking prohibition will not deter digital pirates; it will only inhibit honest Canadians from engaging in otherwise lawful activity to a very great detriment of free expression, research, and education. Bill C-60 got it right when it banned breaking locks to violate copyright but permitted the activity for lawful purposes such as fair dealing. That is the balanced way to proceed, and we urge the committee to recommend that.

With respect to educational fair dealing, Bill C-32 will allow Canadians to take advantage of teaching and learning opportunities more fully. For example, fair dealing for the purpose of education would permit Canadians to fairly incorporate excerpts from works into individual presentations, lessons, lectures, and academic articles and fairly distribute copies of material that meets a spontaneous in-class educational need such as a poem or song lyric in remembrance of a special event, or a news clipping on a world crisis.

Importantly, educational fair dealing will comply with our international obligations under the Berne three-step test. We know this because the Supreme Court's test for fair dealing itself addresses the Berne requirements. We also know this because Canadian educational fair dealing does not exceed the U.S. fair use practices, the gold standard for copyright compliance.

Equally important, because we have heard suggestions that it will cause the sky to fall, we want to emphasize that educational fair dealing will not cause entire books to be copied or distributed, will not replace the need to purchase course packs, will not significantly reduce the millions and millions of taxpayers' dollars the education sector currently spends annually on copyright material. In this particular regard, CAUT agrees that if there are any savings associated with educational fair dealing, they should be used for additional library acquisitions and site licences.

As well, fair dealing will not unleash a flood of litigation. There will be no litigation storm because the Supreme Court's CCH decision has defined fair dealings parameters. These familiar parameters will not change if new purposes such as parody, satire, or education are added and there will be no need endlessly to relitigate them.

Finally, on the issue of educational fair dealing, there has been discussion about whether or not it should be narrowly defined. CAUT believes educational fair dealing must not just encompass formal educational institutions as defined by the Copyright Act. The beauty of fair dealing is that it is a right for all Canadians, not a special exemption for a privileged few. It should be available in a wide range of settings, including public libraries, galleries, and museums. It should also be available to a girl scout troop learning about trees, a Sunday school class studying the geography of the Holy Land, a photographer teaching a photography class, a hockey coach explaining skating techniques, a Kiwanis club presenting a speaker on the emerging economic power of China. Learning occurs inside and outside educational institutions and from youth into old age. The Copyright Act must recognize and respect this.

Thank you, Mr. Chair. My colleague Paul Jones and I will be happy to answer any questions the committee may have.

[Paul Davidson, President, Association of Universities and Colleges of Canada]

Thank you very much, Mr. Chairman, and thank you for inviting the Association of Universities and Colleges of Canada to take part in this study by the committee on Bill C-32.

My name is Paul Davidson, President and CEO of the association. Steve Wills, our manager of Legal Affairs, is with me today.

The association represents 95 public and private not-for-profit universities and colleges across Canada.

Let me be very clear: AUCC supports Bill C-32 as a fair and reasonable balance between the rights of copyright owners and users of copyright works. We urge this committee to complete its work and report back to the House. As everyone knows, this is the third effort in recent years to modernize the legislation, and it's important that the work be completed in this session.

Universities really appreciate the need for balance. Universities create intellectual property, universities use intellectual property, and universities sell intellectual property. Within universities you have faculty as researchers and teachers, students as learners, librarians, booksellers, and publishers.

Of all the groups that are appearing before you, and the many more that want to appear before you, I think our organization understands keenly the need for balance in the legislation.

Universities in all regions of the country, both large and small, focusing on research or on undergraduate teaching, strongly recommend that the committee make minor amendments to Bill C-32 and then refer it back to the House of Commons so that it can be voted upon as soon as possible.

We believe the bill could be strengthened by reasonable and fair amendments to certain of its provisions, which are detailed in AUCC's submission. Rather than review the written submission we provided, which is with you today—there is also a one-page summary—I want to take a moment to dispel some of the myths that have been propagated by some of the witnesses who have appeared before this committee.

In particular, it has been suggested that the education community does not want to pay for educational materials and that Bill C-32, especially the addition of education as a new fair dealing purpose, will undermine the publishing industry in Canada and decimate the revenues of copyright collectives such as Access Copyright. Another claim says the education community does not wish to compensate creators who produce educational materials. These claims are false and are not supported by the facts.

Canadian university libraries spend more than $300 million annually to buy and license new content for research and learning. In addition, Campus Stores Canada, which represents post-secondary institution-owned bookstores across Canada, estimates that over $400 million is spent every year in university bookstores to buy new textbooks, course packs, and some works in digital format.

It is clear that universities and university students are paying very large amounts annually to purchase and license educational materials. Their spending provides tremendous support to Canadian creators, and nothing in Bill C-32 will cause this spending to decline.

Some have also claimed that Bill C-32 will undermine publishing in Canada and destroy the revenues of copyright collectives. For example, in its testimony before this committee on December 6, Access Copyright claimed that both it and the Quebec reprography collective Copibec will be at risk of losing $40 million in revenue as a result of the amended scope of fair dealing in the education sector, as well as other education-related exemptions provided for in the bill.

This assertion is groundless. Two years ago the Copyright Board of Canada clearly defined fair dealing as it relates to educational copying. Teachers in K-to-12 schools made copies of required readings for each of their students, and the copying in question amounted to an average of only several pages per month per student. The Copyright Board found that the copying by teachers failed to meet the fairness factors laid out by the Supreme Court of Canada. Had Bill C-32 been passed before this decision, the availability of education as a fair dealing purpose would have had no effect on the outcome, because the ruling was based on fairness tests, not on the purpose of the copying.

In other words, the Copyright Board ruling created a strict precedent that severely limits the fair dealing copying for educational purposes. If copying several pages per month for each student in a class is not fair dealing, then surely it is unreasonable to suggest that the legislation would permit the multiple copying under fair dealing of complete journals and journal articles and chapters from books that accounts for most of the licence revenue received by Access Copyright and Copibec from universities and students. Simply put, the proposed amendments to fair dealing would not undermine the sale of books, especially textbooks, or the revenue base of copyright collectives.

Let's take a brief look at our neighbours to the south, who have a fair use exception that is far broader in scope than what is proposed in this bill. The U.S. fair use exception explicitly permits the making of multiple copies for a work of classroom use. Despite this broad fair use provision, the educational publishing industry in the U.S. continues to thrive. Last July the Association of American Publishers noted that higher-education publishing sales increased 6.3% for the month and 21.4% for the year.

Our submission recommends some modest amendments that do not alter the essential balance that has been struck in Bill C-32, and addresses some of the concerns raised by other stakeholders.

I'd like to thank the committee for the opportunity to present these views before you, and I welcome any questions you might have.

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

Good morning, everyone.

We will call to order this 13th meeting of the special Legislative Committee on Bill C-32.

For the first hour we have witnesses from the Association of Universities and Colleges of Canada, Paul Davidson and Steve Wills. From the Canadian Association of University Teachers, we have James Turk and Paul Jones. From Campus Stores Canada, we have Chris Tabor.

Some of our witnesses are still in the security line, so we will go ahead with those who are here.

Mr. Davidson, you have the floor, five minutes.