Members of the committee, hello, bonjour. I'm Greg Hollingshead, chair of the Writers' Union of Canada, which represents approximately 2,000 Canadian book authors. I'm a writer myself, and for 30 years, until I retired, I was an English professor at the University of Alberta. With me today is Marian Hebb, our legal counsel.
Thank you for inviting me to talk to you. I know you've been hearing a lot about the expansion of fair dealing to include education and I know you're tired of the subject, but I hope that as a teacher, writer, consumer, and creator I can cast some light on how and why this broad exception is likely to launch an unintended assault on the intellectual property of Canadian writers.
When Bill C-11 was introduced, the Honourable James Moore, Minister of Canadian Heritage, stated that when laws are clear, consumers know what the boundaries are. He also said that it is wrong to not allow people to protect what they have invested in. He was talking about digital locks, but he inadvertently put his finger on exactly what the Writers' Union believes this new education exception fails to do: give students and teachers sufficient guidance concerning what is lawful and what is not when it comes to copyright. By so failing, it fails to respect the property of creators.
A few years ago a short of story of mine appeared in a print anthology for colleges and universities. For the rights to my story I had been paid for its appearance in successive editions, but in recent years fewer instructors have been using print textbooks in courses. Instead, the instructor creates a course pack—like this one from my own university, for consultation later if anyone's interested—which is a compilation of photocopied texts for distribution to students taking a particular course. This one provides sections or chapters of books, plus one essay from a journal.
In 2010 Canadian universities and colleges copied over 100 million pages from close to 120,000 unique titles for paper course packs alone; however, increasingly these days, instead of offering a course pack, an instructor will post in digital form the text she wants to teach and discuss on a website devoted to the course, a website accessible only to those teaching or taking the course.
This same short story of mine is now available through a licensing agency representing authors and publishers for any teacher in the world who chooses to include it on a course site. For this digital use my publisher and I are paid a fee, just as I was paid a fee for the use of my work in a traditionally published text, and just as I was paid by our national licensing agency, Access Copyright, which issued a licence to the university or college so that its instructors could make use of my work in a course pack or for distribution of multiple copies in the classroom.
This is all good. Whether in a course pack, for distribution of multiple copies to the class, or on a dedicated website, texts for a particular course are now provided much more efficiently and at a lower cost to the student. The student gets easy and cheaper access to professional Canadian texts. The writer and publisher get paid for their work, for their product. The institution doesn't need to do the work of securing the rights to individual works or worry about its staff or students violating copyright. The problem arises because Bill C-11 fails to make clear what sort of reproduction for educational use constitutes fair dealing and what sort does not.
As an educator myself, I know that teachers are not the enemies of creators. The working teacher believes that creators should be compensated for their work. She understands that this means schools paying for a blanket licence to copy.
Teachers want to pay, and they have said as much to this committee and to the Bill C-32 committee. The question is what they need to pay for, and that is what Bill C-11 does not as yet define. The Writers' Union of Canada believes that it needs to do so and that it is for Parliament, not the courts, to decide what the education sector needs to pay for.
The larger context here is that we're all living in a culture of free digital information and entertainment. In this digital climate, human behaviour can't be counted on any more than digital locks can be counted on in the realm of books, when you can buy a printer with a scanner for under $100.
I can assure you from first-hand experience that if Bill C-11 passes unamended in this respect, the result will be a perfect storm of unauthorized copying in the schools. It's no secret that the noisiest opposition to Bill C-11 has been from people who have come to assume that free access to everything digital is their right. It's no secret that students today have grown up in a culture that has encouraged them to expect free use of everything they can download.
It's also no secret that over 50 colleges and universities, by refusing to pay collective licensing fees, have been doing another kind of downloading: downloading onto the working teacher the responsibility, the time, the extra labour, and the liability for clearing the rights to the works she teaches.
However, how many teachers are going to the trouble to clear those rights when the institution they work for has rejected collective licensing, when the website for any particular course is next to impossible to police, and when, to all appearances and by all reports, Bill C-11 is on the way to loosening up restrictions around copyright in education in ways that nobody can perfectly predict?
Just last week this committee was addressed by educators who talked about the copying, for classroom use, of a few pages here and a few there as a trivial matter that should be considered fair dealing, but you have to look at the aggregate. Multiply this practice by the number of classrooms in this country, where nearly 250 million pages of books are copied annually in Canadian schools, and there alone you have lost revenues to writers and publishers in the tens of millions of dollars annually.
A few pages here and a few pages there is not about ease of access to materials; it's about payment for copying. The educators are asking you to excuse them from paying for what they are already licensed to do.
In its CCH ruling, the Supreme Court named damage to the market as only one of six or more factors to be considered when deciding if a dealing is fair, and not as necessarily the most important factor. A dealing may be considered fair that does damage to the market, and a few pages here and a few there in the classroom would be dealing that would do major damage to the market. The potential for damage to the market and the uncertainty of continuing investment in Canadian publishing that will result from unclear legislation are too great for Parliament to leave to the courts.
We ask you, the members of this committee, to clarify the legislation to make it evident that uses being paid for today will continue to be paid for tomorrow. Otherwise, the money the schools will save will come directly from the pockets of those who can least afford it—in this case, Canadian writers, who earn, on average, less than $20,000 a year from their writing.
The Writers' Union of Canada has taken an active role in the creation of and, along with 67 other Canadian arts organizations, is a signatory to a document sent to you in January, which has been referred to by other members of this panel. It contains proposed amendments that address our concerns.
The Writers' Union has also submitted to you a brief today to address this and other issues in Bill C-11, including user-generated content and digital delivery by libraries.