Evidence of meeting #8 for Bill C-11 (41st Parliament, 1st Session) in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was copyright.
A recording is available from Parliament.
Executive Director, External Relations, Legal and Government Affairs, Canadian Publishers' Council
That's okay.
President and Chief Executive Officer, Nelson Education, Canadian Educational Resources Council
—but fair dealing and free dealing are two completely different things.
NDP
Tyrone Benskin NDP Jeanne-Le Ber, QC
The question I'm going to ask you, though, is how you tell that in advance.
Executive Director, External Relations, Legal and Government Affairs, Canadian Publishers' Council
How do you...?
Executive Director, External Relations, Legal and Government Affairs, Canadian Publishers' Council
The assumption is that people will recognize when there is an unfair dealing. If there's an exception in the Copyright Act to do something with this, an existing exception, then you use that exception. You don't use this exception plus default to fair dealing to use more exceptions. You have to use the exception that is relevant to your work.
NDP
Executive Director, External Relations, Legal and Government Affairs, Canadian Publishers' Council
It's measurable.
NDP
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
Thank you, Mr. Chair.
Again, thank you to the witnesses for coming today.
My first question is to Mr. Swail and Mr. Nordal.
On the CCH decision regarding the six factors, did the Supreme Court get it wrong?
President and Chief Executive Officer, McGraw-Hill Ryerson Limited, Canadian Publishers' Council
I'll let Greg jump in as well, but I think the CCH case was a very specific case about a very specific kind of content with a very specific role that the publisher played in that instance.
Our concern with CCH is that it does not make the primacy of the market first and foremost. In fact, it quite blatantly states that “fair” isn't really defined by the commercial impact on the work. For us, that's absolutely antithetical to the notion of copyright: how can it be fair if it undermines the commercial prospects for the work? We just don't understand that.
That's why we feel CCH does not elevate the marketplace to the first priority.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
Just before I come to Mr. Nordal, you stated that they said “fair” is not defined by the value of the work?
President and Chief Executive Officer, McGraw-Hill Ryerson Limited, Canadian Publishers' Council
They said that the commercial prospects for a work can be harmed, and it can still be concluded to be fair.
That's what we feel—
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
Because of the six factors, it asks if the copying of the work will affect the marketing of the original work. The quote is the following:
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.
President and Chief Executive Officer, McGraw-Hill Ryerson Limited, Canadian Publishers' Council
Precisely.
Conservative
President and Chief Executive Officer, McGraw-Hill Ryerson Limited, Canadian Publishers' Council
But in our view, it is the most important factor. That's really what our amendment would propose.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
So for the example that I believe Mr. Nordal gave about copying half of the book and giving it to the entire classroom, it seems to me that when I read the factors here, at least five of the six factors would come into play. Now, the character of the dealing talks about a single copy or multiple copies, so there's one. Both the amount of the dealing and the importance of the work allegedly infringed are to be considered, so the amount of the dealing would come into play there.
With regard to alternatives, is there a non-copyrighted equivalent of the work? Well, there is not, so that would come into play. On the nature of the work, if it has not been published it may be more fair. Well, it has been published, so that would come into play in the effect of the dealing on the work. We're talking about five of six factors coming into play.
It sounds as though Mr. Swail would want to wipe out four of the five and just have the one factor.
President and Chief Executive Officer, Nelson Education, Canadian Educational Resources Council
If Bill C-11 goes through unamended, we're actually inviting this as an exception.
It will confuse. It already is confusing, as I mentioned to folks, today.
When you think of the CCH ruling, the Copyright Board and the Federal Court of Appeal have both said that what's happening with multiple classroom copies is not fair, and that is now going to the Supreme Court. That's eight years of litigation.
One might say, well, what is eight years of litigation? Well, in the digital age and with the amount of investment we make, that's a lifetime. That's a lot of curriculum that may not be supported. That's a lot of investment dollars. That's a lot of authors not sure whether they should do the actual work.
Even since CCH, we still have the Federal Court of Appeal ruling on what is fair. It's still out there, notwithstanding CCH. We don't know where that's going to go. If you include fair dealing for education as an exception, to me that's an invitation, and it will clarify in the minds of tens of thousands of school teachers, who will say, “I guess it's okay now.”
Again, we already have—
Conservative
President and Chief Executive Officer, Nelson Education, Canadian Educational Resources Council
Have they?
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
They have. When you look at the six factors, the court says that it is not.
President and Chief Executive Officer, Nelson Education, Canadian Educational Resources Council
The Supreme Court is hearing it yet again on education.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
There are always hearings going on to clarify even more. I mean, that's part of due process as we go through the process.
Clearly, when you look at the six factors, it's pretty clear that the examples that are given time and time again before the committee are not actually fair dealing.
President and Chief Executive Officer, Nelson Education, Canadian Educational Resources Council
I find that of little comfort. It's certainly not the comfort that is provided in other jurisdictions like the U.K. or the U.S., which is often quoted as an example. Why would there be an issue? Again, if it's not an issue for the educational sector, as they have said in various representations, we would respectfully ask that that be reflected in the actual language.
They don't indicate that they have an issue with it; therefore, let's ratify it under law.
