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

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

Let me ask this. Is it unrealistic to suggest that students and teachers are burning their notes after 30 days? Does this bill, in your opinion, force students to burn all of their course notes after 30 days?

[Claude Brulé]

It suggests that in clause 27 at the moment.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

All of their course notes and everything to do with that course needs to be burned, not just a copy of...?

[Charlie Angus, NDP, Timmins—James Bay, ON]

I have a point of order.

[The Chair, NDP, Glenn Thibeault]

The time is up, but I'll go to the point of order.

Mr. Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

It says, “The educational institution...shall (a) destroy any fixation of the lesson within 30 days after” the lesson. That is within the bill; that's what they're being told to do. So I think—

[The Chair, NDP, Glenn Thibeault]

It's now a debate. We'll shut it down, please, Mr. Angus.

Thank you very much.

Thank you, Mr. Brulé and Mr. Calandra.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

I suggest that Mr. Angus read—

[The Chair, NDP, Glenn Thibeault]

That's debate as well, Mr. Calandra. Thank you very much.

We'll move on to the next person, to Mr. Regan.

[Geoff Regan, Liberal, Halifax West, NS]

Thank you, Mr. Chairman.

I will start with Ms. Andrew.

You said that in fact you expect that with this bill teachers would still have to meet the test of fairness set out by the Supreme Court of Canada. Would I therefore be right to assume that you would not be opposed to having that test spelled out in the legislation?

[Cynthia Andrew]

I think it's fair to state that by making one thing.... The Supreme Court test has two stages, and the first sets out those things that will be fair use purposes. Simply making one thing, education, a fair use purpose does not automatically deem that one thing or any of those other purposes meets the standard of fairness set out in the Supreme Court. I don't see how placing education under the first step automatically means that it's going to pass the second step; it is not.

Placing those things into the act.... I'm not a lawyer, so I can't foresee what long-term ramifications that might have. I'm hesitant to say there's no danger in doing it, because I haven't thought about it and I'm not a lawyer.

[Geoff Regan, Liberal, Halifax West, NS]

Let me ask Ms. Clarke, then.

You also said you anticipated still being subject to the Supreme Court of Canada's test in CCH. In view of the fact that you're both saying this, I'm wondering what objection you have to the recommendation from the book publishers that in fact this be spelled out.

[Michèle Clarke]

Let me give you an example. I'll try to do it briefly.

If you had education in the first allowable instances for fair dealing and you had a teacher in a classroom who wanted to make use of two pages of a particular book or a page of a particular book for a particular class of 20 students, and there's only that one page of that book, if it were for education purposes then it would pass the first test of the two-step test. The second test is whether it is fair, and there are six standards to look at with respect to whether it is fair.

If it is one page out of one book for one class, one time only, to be studied because of a statement by an author, and it's for education and learning purposes in that classroom to get a point across, will it be fair? Compare this with a professor who in the same instance, for education purposes, wants to copy five chapters out of a book to share with a class. Perhaps in that instance it would not be fair, because it would still have to pass that second test.

I would suggest that if education were in the first step, when you have two different circumstances, one that would be fair and one that would not be fair, it wouldn't pass the second test.

[Geoff Regan, Liberal, Halifax West, NS]

Ms. Côté, do you have anything to say about this?

[Aline Côté]

One of the things we need to keep in mind is that most of the current course notes would not be covered by this type of provision because they come under collective management licensing. All of that is based on knowing whether it falls within the limits allowed under licensing or if we must withdraw licences because there is fair dealing for education. Everything sort of becomes up for grabs.

We think that the fact that this provision exists and that it will be controlled by external criteria—the two tests that Ms. Clarke spoke about—will lead people to withdraw from collective management, and so the problem will remain whole. If the problem is much better defined, there will be an entire portion of the rights that will effectively be paid, which will enable the entire education sector to do its work, no problem.

So we are suggesting that, for all these types of excerpts, we strongly maintain these provisions that ensure the survival of collective management and that enable the classes to do this very well. We are suggesting limiting this much more, by using the three-step test to define with much greater clarity what is fair. We must make sure not to have too many courses on the market, particularly community courses, courses offered by language schools or many other courses in the private sector, that benefit from this exception in favour of the needs of the school.

We want to develop a legal offer. We have developed a lot and this is what we are talking about. Currently in Quebec, there are 7,800 digital titles, and that number is constantly growing. We experienced an increase of 1,000% in 2011 alone.

What we are currently putting forward is these provisions to ensure that schools have the materials. We would like the excerpts of the work to not move from platform to platform without permission or royalties. However, we must note that, with the ability to shift formats and with reproduction in class, the new provision of Bill C-11 will make it possible to show complete works in full compliance because they will not be subject to the fair dealing criterion.

Given the jurisprudence, all the provisions together will have a significant impact on the market. It isn't about any one provision, but rather how the provisions are interpreted.

Thank you.

[The Chair, NDP, Glenn Thibeault]

Thank you, Ms. Côté.

Thank you, Mr. Regan.

That is the end of the first round of questions.

Moving on to the second round, for five minutes of questioning as well, we have Mr. Braid.

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

Thank you, Mr. Chair.

Madam Côté, I want to try to pick up exactly where you left off. It sounds as if you have certainly embraced the digital age and that you're well positioned for that.

I have not only one but actually two universities in my riding. It's my understanding that, more and more, our universities are purchasing textbooks in digital format. Is that your understanding, and are you not well positioned to continue to take advantage of that?

[Aline Côté]

The universities have a long tradition. Scientific, technical and medical publishers were the first to provide legal offerings. In some ways, universities have made use more quickly of a legal offering that was very important. The same thing is done in French-speaking Canada. We are developing this offering.

Personally, I think that the technologies will end up resolving the problems they have caused. For example, we have an agreement with 1,000 libraries in Quebec that lend chronodegradable files, which self-destruct after 30 days. So we do not have the problem of wondering whether we need to stop a student and confiscate his or her iPad and remove the material. We don't. Instead, we offer a license. We made exceptional agreements with the libraries. This could be done in the education systems. We could make chronodegradable documents.

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

Thank you.

I'm going to try to cover everyone with my questions here.

Ms. Andrew, there's been a lot of discussion today about the notion of fair dealing. Do you believe that, among the teachers in your school board systems across Ontario, teachers will generally understand the standards of fairness?

[Cynthia Andrew]

I do, actually.

I think it's important to point out that while Bill C-11 provides a legislative framework that clarifies what is allowed and what is not allowed in classrooms, it doesn't substantively change the way we pay for those things.

The Copyright Board has set a tariff for Canadian schools, and it's $5.16 per student currently. We will continue to have to pay that tariff every year per student to ensure we can continue to use print—that tariff doesn't cover digital—materials in the classroom. So that means textbooks.

Mr. Angus was talking about old novels that his son is studying. I'd like to point out that it's a matter of curriculum choices and not a matter of availability.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Someone is to blame.

[Cynthia Andrew]

There are lots of available resources that are not old, but I dare you to find anything better than Jane Eyre—

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

Or Margaret Laurence.

[Cynthia Andrew]

School boards will continue to pay this tariff that allows them to use material in the classroom, and teachers understand what is allowed in that tariff. It is set out not only at every photocopier, but there is a booklet that CSBA and the Council of Ministers have made available for every school board and every school in the country to understand copyright issues. I know those are very widely distributed.

Also, there is nothing in Bill C-11 that will permit blanket copying of resources. It will not allow school boards, instead of purchasing textbooks, to photocopy them. That is not allowed. It has never been allowed and it is not allowed under Bill C-11. We don't encourage it; we actively discourage it, and where it happens, those teachers should be instructed by their supervisors about appropriate classroom resource use.

Unless the boards purchase a licence, which they have to do under access copyright and they may do under various digital resources, they should not be using those materials without permission. That is our position, it has always been our position, and it will continue to be our position.

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

Great.

Yesterday we heard from a University of Western Ontario professor who suggested that he felt professors and universities are overly cautious when it comes to the application of these requirements. Is that the case in the secondary system and the primary system as well?