Bill C-11 Committee on Feb. 28th, 2012

[Don Conway]

Right, and this is all in station.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

I just want to clarify. Mr. Skolnik, I believe when you were talking about extending the levy to digital audio recorders you used terminology—I can't remember it exactly, and I quickly wrote it down. You said something about extended use of copies, storage, and duplication. It just struck me. I got to thinking about the way I listen to music or use music. In the past, say in the mid-1990s, I would buy CDs and get one of those storage towers and put them in the living room of my apartment. Then I'd have a few different CD players that I'd play the music on. I paid for my CD, but that was it. I paid for my CD and then I could play it.

Now the parallel to that is I buy my music. I may still buy CDs because sometimes I like to get the liner notes and things like that, but I store them on a computer, which becomes much more convenient than the CD tower, and I can put the CDs away if I want. I play them on my iPad or iPod.

It seems to me this idea of paying an extra levy for where you store your music or where you play your music from would be like having a levy on a CD tower that I would buy from IKEA or the stereo that I played my music on in the past.

The irony here is that because it's more convenient, I actually buy much more music than I ever bought before. I spend more money on music than I ever would have spent before. There is more revenue coming from me than before because of the new models, the new technology. Yet your argument is that somehow I should have to pay for my storage. I should have to pay additionally for my iPad. I also have an iPod, so I pay additionally now for my iPod, even though I'm playing the same music. I don't very often sit in a room and listen to it on three different devices at the same time. It's the same music. I'm listening to it on the same device, as I would have taken my CD and played it on a CD player or a stereo in a different room.

Why should I pay three times to listen to the same piece of music once I have paid for it?

[Bill Skolnik]

The storage I'm talking about is the capacity.

I did the same thing you did, but if I wanted to take one on my Discman to the gym, or if it I wanted to have it in my office, I either carried it with me or I bought another copy. That is the type of storage. The tower you're talking about, at IKEA? Yes, I had one too. I still have one, actually. That was because you needed the physical framework to put the different CDs in. There is no requirement for that anymore. It's duplication. You have to duplicate what the product is and store it somewhere so that you can play it in your car, the gym, when you're walking around. That is what I'm referring to.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

You are—

[The Chair, NDP, Glenn Thibeault]

I'm sorry, Mr. Lake.

Do you want to finish that very quickly?

[Bill Skolnik]

I can say one thing.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

Rare is the consumer back in the day...and you may have been one who would have had three copies of every CD you owned—one in your car, one in your office and one in the gym—but I don't think most people operated that way.

[Bill Skolnik]

I just wanted to say that the principle is there for duplication, that's all, that people did get paid for that. We think it's the technology that has removed that ability.

I think there is another means of recognizing the principle. I wouldn't get hung up on the technology. I don't, but I would like the committee at some point, not here, to look at another means of how to maintain the principle.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Skolnik.

With that, on behalf of the committee, I would like to thank all of our guests and witnesses for coming today. It was very informative, and it was great to have all of you here.

We will suspend for five minutes, and we will start in five minutes sharp.

[The Chair, NDP, Glenn Thibeault]

I'd like to welcome all of our witnesses.

From the Association nationale des éditeurs de livres, we have Aline Côté and Jean Bouchard. From the Canadian School Boards Association, we have Cynthia Andrew. From the Association of Canadian Community Colleges, we have Michèle Clarke and Claude Brulé.

Each of you has been briefed. You have 10 minutes for an opening statement. We'll start with the Association nationale des éditeurs de livres.

[Aline Côté, President, Les Éditions Berger, Association nationale des éditeurs de livres]

Good morning. My name is Aline Côté and I am the president of the copyright committee at the Association nationale des éditeurs de livres.

The Association nationale des éditeurs de livres represents a hundred French Canadian book publishing firms across Canada. Over the past few years, and despite all the pieces of legislation in place, we have been asking for more protection, or at least we have been constantly reaffirming the copyright principle in order to protect our capacity and stability in terms of both revenue and investment.

People do not always realize that Canadian publishers are competing with giants. Over the past 40 years, we have had to get back a significant share of the market. In the 1970s, French Canadian publishers were barely claiming 20% of their own market, the rest was being taken up by France or other countries. The situation was pretty much the same for English Canadian publishers. Today we control 51% of the market. It took 40 years to slowly conquer that share of the market, to develop expertise, to increase the professionalism of our employees and to establish an entire book industry.

We have also worked closely with the people from the Canadian Conference for the Arts to bring our proposals to the table and to reach consensus with the other cultural sectors in Canada. That was an unprecedented effort. In my view, the fact that cultural associations from all sectors, working in both languages, have managed to reach a consensus is unprecedented around the world. That takes weeks and weeks of work. We have made a series of proposals, knowing that, if they were accepted, we could really establish and develop sustainable industries in Canada that would prosper in the digital era.

The French Canadian book industry has been successful in adapting to the digital era. Very early on, we developed a business platform and model. We have developed partnerships and we now have a sale and distribution platform that is connected to all francophone digital bookstores in Quebec and in France. Our original model inspired large publishers from France, Italy and the United States to join. There is still a general feeling that the book industry is a bit prehistoric, but we have been really proactive and we have had a great success. We have received support from governments, Canadian Heritage, SODEQ, and our ministries in Quebec. We are now estimating the cost of this collective effort at about $25 million at least. Please note that these numbers are the actual math. They are not based on extrapolations or projections of potential losses, but that is what was really invested.

We now know two things. We are increasingly hearing people everywhere say that the added value of culture is a factor in sustainable development. WIPO studies have also revealed that the key to the success of cultural industries is the legal environment of copyright, of intellectual property. The two countries that currently have the best numbers are the United States and Australia and they are the nations with the strongest industries. That is where cultural industries take up the largest share of the market.

Books, physical books, disks, support materials or CDs are not our main asset. Our main asset and our only asset is intellectual property. It is not tangible.

We feel that the significant changes that Bill C-11 will bring will create an artificial disruption. We have been able to develop gradually over the years with the market rules that were in place. We have managed to take up more and more of our markets. We have a Canadian aboriginal industry—if that is the right term—that is successful, dynamic and competitive, but it could be better positioned in the market. Compared to the position of the book or culture industry in other countries, we are still lagging behind and we could do better. We still have room to grow.

We have shown that we were able to do very well with the way the game was played. The shock of the digital revolution did not affect us because we took action very early on, six years ago. We convinced the governments to give their support; we have put in about $25 million in development and private investments. And now that it is all starting to roll and we are on board, we realize that a piece of legislation might jeopardize all those business models that work well. That will create an artificial tidal wave in the current market. It is not a normal evolution; it is something abrupt when we have already developed everything that we wanted to develop.

We are also going to look at our close ties with the national education system and I hope that you will have questions about that. If our education systems had to outsource to produce materials, they would create a book industry. Our close ties with culture are very important. We feel that allowing free use without permission in education is extremely dangerous for our industry.

I will let my colleague continue.

[Jean Bouchard, Vice-President and General Manager, Groupe Modulo, Association nationale des éditeurs de livres]

Aline is right: publishers represent the research and development of the education departments in the country. If there were a single most important thing one could do to improve this bill, it would be to leave out the word “education” from the fair dealing exception in section 29. Because it gives educational institutions and all other commercial or non-commercial private training businesses the right to use any copyright protected work without permission or compensation, it is the one exception that will have the direst consequences on the book industry. On the one hand, academic publishers will see their textbooks largely reproduced without compensation. And on the other hand, literary publishers will lose the benefits of having one of their works studied in class. Moreover, this right is created even though educational institutions have no problem accessing material thanks to the copyright licensing agencies. We are talking about 0.5% of the total annual budget for education in Canada, which is around $70 billion.

Without a precise definition of fair dealing, everything has been said about this exception. The government says it means restricted to “a structured context, including private training but not for the public in general”. The Canadian Association of University Teachers defines fair dealing as “the right, within limits, to reproduce a substantial amount of a copyrighted work without permission from, or payment to, the copyright owner”, while the Conference of Rectors and Principals of Quebec Universities says that the proposed exception “does not mean in any way the end of compensation for creators”.

Let us resolve the issue this morning: it is open ended, free and without permission, as long as it is fair. This one and only restriction to the free use of any given material for educational purposes, fairness, does not protect the book industry in any way.

Establishing what is fair under the new law will drive to litigation and judicial proceedings. The destabilization of legitimate and well-established business models and the costs of litigation will jeopardize middle and long term investments until the courts will have decided on which uses are fair and which are not.

Without a precise definition, The Supreme Court developed a non-exhaustive list of six factors to assist in determining whether a use is fair: purpose, character and amount of the use, alternatives to the dealing, nature of the work and effect of the dealing on the work. However, the court ruled that: “Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair”. In other words, a court could conclude that dealing is fair even if it harms the market for a work. In contrast, in the “fair use” regime of the United States, this factor is the “most important, and indeed, central fair use factor”. This gives American publishers the comfort they need to invest in innovative educational resources. If Bill C-11 passes as written, Canadian publishers and foreign investors would not have the same comfort level.

This is why the second and most important thing to do to improve Canada's Copyright Act would be to make sure the “three-step test” of the Berne Convention is incorporated into our legislation so as to become the basis on which courts will rely for the interpretation of fair dealing. This would, among other things, ensure the effect of the use on the work would be prioritized in the determination of what is fair and by the same token ensure our law meets our international obligations.

[The Chair, NDP, Glenn Thibeault]

Your 10 minutes are up. Thank you.

Ms. Andrew.

[Cynthia Andrew, Policy Analyst, Ontario Public School Boards Association, Canadian School Boards Association]

Good morning.

My name is Cynthia Andrew. I appear before you this morning as a representative of the Canadian School Boards Association.

The Canadian School Boards Association members are the provincial school board associations that represent over 250 school boards across Canada and serve more than three million elementary and secondary school students.

I am an employee of one of the provincial associations, the Ontario Public School Boards Association. I am the key staff person both in Ontario and within CSBA member boards on matters relating to copyright, and I am pleased to be able to join you this morning to talk about copyright and Canadian school boards.

CSBA submitted a response to the previous copyright reform legislation. It is my understanding that this committee has access to those submissions and does not wish to see ours again. I thank you for saving me that time, and I direct you to that brief that was submitted to the committee in December of 2010. Our recommendations between then and now have not changed.

Copyright directly affects all of Canada's school boards, and it is reflected in policies and practices in school board administrations and in classrooms across the country. Technological advances have made the current Copyright Act all but obsolete. The lack of clarity that arises from this outdated legislation is the reason that Canadian school boards, along with other national education organizations, have been persistently urging the federal government to clarify digital copyright law. Therefore, CSBA is pleased with a great deal of what we see in Bill C-11 and we want to see the legislation passed. We believe Bill C-11 is good for education in Canada, and with minor amendments to certain sections it can be even better.

I wish to highlight for you this morning some matters that are of particular importance to school boards.

First, CSBA supports the inclusion of the educational use of Internet amendment. Technology has changed teaching and learning in Canadian schools. From kindergarten to advanced calculus, classrooms are filled with innovative, new learning opportunities. The proposed Internet amendment is important because the current copyright law is not clear about the extent to which teachers and students and other educational users can legally engage in what are now routine classroom activities, such as downloading, saving, sharing text or images or videos that are publicly available on the Internet. Without exception, provinces are investing in technological infrastructure in schools, but without this amendment, Canadian schools may be legally obliged to forego many learning opportunities and curtail Internet use in the school out of concern that they may be breaking the law.

The proposed amendment applies only to publicly available material, that is, material posted on the Internet by the copyright owner without password protection or technological restrictions on access or use. Most of this material is with the intention that it be copied and shared by members of the public. It is publicly available for those who wish to use it.

School boards develop and guide and administer policy and procedures in schools across the country. Legislative clarity ensures that school board policies on copyright appropriately guide teachers and other board employees without restricting access to material that supplements and enhances the typical learning experience. It is important to remember that school boards are also creators of intellectual property. As both creators and users, Canadian school boards believe that this legislation does provide a good balance, the right balance, between the rights of users, creators, and industries that market the work of creators.

Secondly, CSBA supports and is encouraged to see the inclusion of education in the fair dealing provision; however, although welcome, we do suggest that 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 that teachers may copy short excerpts from copyrighted material for their students.

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. Simply qualifying as a fair dealing purpose does not automatically deem that all copying for that purpose is fair. Such copying must still meet the standards of fairness that are set forth by the Supreme Court of Canada.

Third, it has been suggested that the education community does not want to pay for education materials. This is incorrect. Education institutions currently pay for content and for copying of these materials. These payments come at both the ministerial level and the school board level, depending on the material in question and the provincial financial structure.

CSBA is not suggesting, nor have we ever proposed, that school boards should not pay for intellectual property. The education sector currently pays hundreds of millions of dollars to purchase and license content, such as printed and digital curriculum in many formats, film, music, and art. With Bill C-11, the education sector will continue to pay hundreds of millions of dollars. Nothing in this proposed legislation alters our current relationship with education publishers, content providers, copyright collectives, or the Copyright Board.

Lastly, CSBA is not in favour of the amendment that requires teachers or students of online courses to destroy their notes upon completion of that course. This amendment is unreasonable and impractical, and it does not reflect current practices in online learning where teachers reuse their course materials each year that they teach the same course. Requiring them to destroy their materials will result in wasted time and limit a teacher's ability to effectively teach that same course multiple times.

In closing, the Canadian School Boards Association has always believed that a modern and balanced copyright framework will protect the public interest and produce many societal benefits. The need has reached a critical state, as schools across the country increasingly rely on the Internet and other digital resources to deliver programs.

CSBA supports the passage of Bill C-11 with the minor amendments we have put forward, so that the necessary legislative framework exists to support Canadian students learning in a digital world.

Thank you.

[The Chair, NDP, Glenn Thibeault]

Thank you, Ms. Andrew.

Now to the Association of Canadian Community Colleges.

[Michèle Clarke, Director, Government Relations and Policy Research, Public Affairs, Association of Canadian Community Colleges]

Good morning, Mr. Chair and members of the committee.

My name is Michèle Clarke. I'm the director of government relations and policy research for the Association of Canadian Community Colleges. I'm accompanied today by Claude Brulé, the dean of the faculty of technology and trades at Algonquin College, here in Ottawa.

I would like to thank the committee for extending an invitation to our association to appear here to speak on this important bill.

The Association of Canadian Community Colleges, or ACCC, as it's commonly referred to, is the national and international voice of Canada's 150 colleges, institutes, polytechnics, CEGEPs, university colleges, and universities with a college mandate. With campuses in 1,000 rural and remote communities and urban communities, and 1.5 million learners and 60,000 educators, these institutions draw students from all socio-economic quarters and supply graduates with the advanced skills essential to Canada's economic growth and productivity. Canadian colleges host applied research and innovation projects carried out in partnership with Canadian business communities.

Colleges play a pivotal role in Canadian skills development and in building greater capacity for our Canadian economy. Copyright law is therefore important to them as both creators and users of copyright material.

Colleges understand the need for balance and clarity in the Copyright Act. Bill C-11 helps achieve this by providing a legal framework for areas of copyright law that are currently not addressed in our country's current written law.

Digital technology is rapidly changing the face of post-secondary education in Canada. New technologies are providing teachers and students with fantastic opportunities for teaching and learning in many new ways. Without a clear and modern copyright law, teachers and students may have to forego some of these opportunities provided by technological development.

We welcome the education amendments in the legislation, particularly those dealing with the educational use of the Internet. ACCC supports Bill C-11 for it passes two fundamental tests for our post-secondary community: number one, it strikes a fair and reasonable balance between the rights of copyright owners and users of copyright works; and number two, it has achieved, in large measure, being technologically neutral and meeting the needs of teachers and students today.

ACCC recommends some minor amendments to Bill C-11 that do not alter the essential balance that has been struck in the bill. A summary of these can be found in ACCC's brief addendum, which will be submitted to the committee in the days ahead. The addendum is relatively identical to the brief that was submitted last year by ACCC, with some minor modifications to reflect the new language in Bill C-11.

I would like to share three key points.

First, ACCC strongly supports the educational use of the Internet amendment. It is balanced, reasonable, and a necessary clarification of rights for teachers and students in the digital age. Bill C-11 is needed to provide a clear, modern, and balanced framework for educational use of copyright in the digital age.

Second, ACCC supports the addition of education to the fair dealing purposes. The fear that adding education will allow unlimited copying is unfounded. Copying must still be fair in order to be fair dealing, as set out by the Supreme Court of Canada in 2004. Colleges are not trying to get out of paying for copyright materials. Colleges have paid and will continue to pay for millions of textbooks, periodicals, course packs, digital databases, and collective licences. Nothing in Bill C-11 will change that.

However, the bill needs to clarify that fair dealing can include making copies for a class of students, provided the dealing otherwise qualifies as fair. The U.S. has a fair use provision that is far broader in scope than what is proposed in Bill C-11. The U.S. fair use provision explicitly permits the making of multiple copies of a work for classroom use. Despite this broad fair use provision, the educational publishing industry in the U.S. would appear to continue to thrive.

Third, Bill C-11's digital lock provisions are unnecessarily broad. A better approach is to prohibit breaking a lock only if the purpose is to infringe. Breaking a lock to engage in a lawful activity such as fair dealing should not be prohibited.

We urge the government to enact this legislation. This is an opportunity to safeguard Canadians' learning objectives for generations to come.

I thank you for this opportunity. My colleague and I would be pleased to answer any questions the committee may have.

[The Chair, NDP, Glenn Thibeault]

Thank you, Ms. Clarke.

Now we will start the first round of five minutes of questioning. We're starting with Mr. McColeman.

[Phil McColeman, Conservative, Brant, ON]

Thank you, Chair.

And thank you to the witnesses for coming today and representing your organizations.

It's interesting to see the interdependence of the groups, how they've had their basic structure of working together over the past, and have succeeded, have faced challenges, no doubt, on both sides of the witness table here today. But as we go forward, I think what we're attempting to do, as has been said, is strike the right balance between those interdependent groups—and the witnesses who were here just previous to this are in the same situation—by bringing a piece of legislation that is fair and balanced.

When it comes to education, we heard again yesterday from a professor from the University of Western Ontario that the current provisions are fair in the sense that teachers and professors, and post-secondary educators and educators right across the full educational spectrum for that matter, will have the ability to use this as they have in the past to a certain extent. Not a lot really is changing, in the sense that the new frame of reference or the new reference points will be put into this legislation for the benefit of all parties on a certain balanced scale. That's where we're debating it at this committee.

In a general way, maybe we'll start with Ms. Andrew, with your views on striking that balance. You're in support of it. You have a few amendments. Do you think educators in general are going to change the way they do things under a new Copyright Act and the way they have been doing it and have supported that interdependence in the past?

[Cynthia Andrew]

I think what we're dealing with in the education sector is that practice has outpaced legislative frameworks. Because technology has been changing at such a rapid pace over the past, let's say, 20 years even—because when I was in school they didn't even have photocopiers in schools—educators change with it, and the act does not reflect those technological changes.

What we're looking for mostly out of Bill C-11 and what we believe it does effectively is remain technologically neutral. It doesn't say specific technologies in it, which is good, because then as technology continues to change, we won't need to continually update the act every time.

It brings Canada's copyright laws into a legislative framework that recognizes current practices with respect to digital copying and digital access to resources that did not exist before, and it allows educators and students to use those within obvious certain restrictions in a classroom way, in a learning opportunity way, so that they can benefit from the information and the technology at the same time.

[Phil McColeman, Conservative, Brant, ON]

To carry on, Ms. Clarke, maybe you could comment on the next point I'd like to make. We received a brief today from one of the organizations at the table here. It's titled, “A bill that weakens our industry and our national education system”. To me, that's pretty alarmist in some ways. What are your comments about that?

[Michèle Clarke]

Well, I haven't had the privilege of seeing the brief that is before you, so I'm not sure which organization it's from and what it says.

[Phil McColeman, Conservative, Brant, ON]

It's actually from these folks at the end.

[Michèle Clarke]

Certainly, the education community has for many years purchased textbooks, and they will continue to purchase textbooks. There are millions and millions of dollars invested on the part of our members to be able to provide textbooks to their learners.

Clearly, the way education is delivered is changing. There have been incredible technological developments in the post-secondary sector, and the world of academics has changed. Their role has changed in how they educate learners to be able to get out into the workplace.

We're all aware of the skill shortages that exist in our country at this time. There are some pressures to be able to get advanced skills out into the workplace to be able to meet those demands. Colleges are having to really step up to the plate to incorporate some new technologies into their teaching methodologies and to be able to work with what's available to them legally to be able to pass it on to their learners.

The Copyright Act is currently restrictive in the sense that there are provisions in it for fair dealing, but even some of the materials that are available, for example, through the Internet that might presumably be free and publicly available...it's not quite clear whether teachers and faculty can readily use that and distribute it to their students. So on the Internet side there are some real advantages there for that to be changed.

From the book perspective and the purchasing of books—

[The Chair, NDP, Glenn Thibeault]

Please be very brief, Madam.

[Michèle Clarke]

Okay. I'll just ask my colleague—