Bill C-32 (40th Parliament, 3rd Session) Committee on Feb. 15th, 2011

[Steve Wills]

Could I just make a comment?

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Yes, sorry, Mr. Wills.

[Steve Wills]

It's been suggested that the three-step test be incorporated into the law to provide some guidance.

We agree with Professor Pina D'Agostino; when she appeared before this committee she said that would just bring more ambiguity. And we agree with Professor Geist, who said the six fairness tests set out by the Supreme Court in the 2004 CCH decision would provide far more clarity.

In any event, Canada is already subject to the three-step test as a result of our being a signatory to international agreements, such as the TRIPS agreement under the World Trade Organization.

[The Chair, Conservative, Gord Brown]

Thank you very much. We have to--

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

Could I ask a last question just to make sure it's clear?

[The Chair, Conservative, Gord Brown]

Ten seconds.

[Dan McTeague, Liberal, Pickering—Scarborough East, ON]

I just want clarification on whether or not they would also want to infuse the Berne step....

Okay. That's fine.

Thank you, Chair.

[The Chair, Conservative, Gord Brown]

Thank you.

Monsieur Cardin, pour cinq 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?

[Steve Wills]

Perhaps I could respond to that question.

First of all, our comments were directed at the amendment to fair dealing and whether or not that might undermine the $40 million in revenue for Copibec. I don't think we meant to say there would be no possible loss of revenue from any of the provisions in the bill. Clearly there is a provision, for example, that allows the performance of audiovisual material, cinematographic works, in the classroom, which is a provision that has existed in U.S. law for a number of years. That would result in institutions not having to pay public performance rights for those works.

However, the works represented by the collectives in that area are mostly U.S. feature films. Given that U.S. educational institutions don't pay public performance rights for the use of those works, it's not clear why it would make sense to continue forcing Canadian educational institutions to pay for the use of those works, especially when most of the royalties would flow outside the country.

In response to the issue of whether there will be any loss, there could be loss from a provision like that, but we were addressing in particular the claims of Copibec and Access Copyright, that they would lose their $40 million in revenue. Nothing in this bill would change their revenue from the university sector.

Even in the K-to-12 sector, as you may well know, there is a dispute over fair dealing that is still in the court process. There's been an appeal to the Supreme Court, and it's not clear whether the Supreme Court will accept the application for leave to appeal.

Even if it were to make a decision that overturns the Copyright Board in the Federal Court of Appeal, at most that would amount to 6% of the revenue being collected annually by Access Copyright, or $1.2 million out of $20 million that's being collected annually.

That dispute has nothing to do with education as a purpose for fair dealing; it's all about the fairness of copying in the educational context.

[Serge Cardin, Bloc, Sherbrooke, QC]

Mr. Tabor, earlier you said that students increasingly need to use computer media, the iPad, for example, and that there could be data transfers on that equipment. How would your production of material on the iPad, among other things, affect rights?

[Chris Tabor]

I don't know for certain. Most of what we do now is copying works that were written when digital rights weren't even contemplated. Most of what we produce now are reproductions of printed materials, textbooks--primary sources.

It's my understanding that the publishing industries are including digital rights and distribution rights as they enter into new contracts with their authors. It remains to be seen how that unfolds in a mobile consumption environment.

We have distributed a number of products that are royalty-free. They were created under Creative Commons licences and so on, and we see those used across the different forms of devices. How the publishers will safeguard those--DRM, digital rights management, and the digital rights, and the measures they put on them to control them--is a function of the publishers' manufacturing, if you will, of those products.

[The Chair, Conservative, Gord Brown]

Thank you very much.

Mr. Del Mastro, you have five minutes.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you, Mr. Chairman.

Thank you to the witnesses. I really appreciate the clarity that a number of you have brought to the question of fair dealing, specifically fair dealing for educational purposes.

I really hope that this changes the debate on the committee, because to this point, I think it has largely been portrayed as a government attack on creators, which it's not, and an attack on the copyright collectives related to education, which it's not. I think it's important that we recognize those things.

What it's really about...and I'd love to get your feedback on this.

Mr. Davidson, you said that it took us 25 years to figure out what to do about the photocopier. But the reality is that if we go back to that period of time and compare it to this period of time, technology is changing so quickly. Education has to meet this evolution and progression that's occurring. If we don't, we fall behind, and we run the risk of falling behind at an exponential pace compared to 1975, when the photocopier was first coming to prominence.

Can you talk about why getting these rules right--and I would invite some of the rest of you to comment on this--will help our educational facilities meet the demands of tomorrow and will help our students be better prepared for the challenges of the digital economy?

[Paul Davidson]

If I may, I would say that the first reason it's important is because of the balance that's been struck. Like others, I've been very concerned about the way the issues have been cast. Universities do want to pay creators and universities do pay creators. Universities do promote culture. Universities are vital forces for culture and creation in this country, and it's important that we get the balance right.

The second reason it's important is because of the clarity this legislation provides. Let's face it, when you got chosen for this committee, you didn't say, “Yes! I get to spend endless weeks going into the minutiae of copyright legislation.” This is tough stuff. It's dry stuff.

Jack McClelland, the icon of Canadian publishing, said that copyright is the most boring subject--but the most important.

He's right. It's important because we need to make sure that artists are adequately compensated. We need to make sure that people have access to the phenomenal creative works that are achieved in this country.

It's important in global terms because of the fast pace of technological change. I happened to be in India last November with 15 university presidents promoting Canada's brand in India. There are 500 million students under the age 25. They want to know how they can learn online. They want to know how they can access materials quickly. They want to look at digital learning.

There are opportunities for Canadians. There are opportunities for Canadian students. There are opportunities for Canadian instructors. There are opportunities for Canadian researchers. There are opportunities for Canadian technology firms.

We need the clarity that this act provides, and we need to get into the digital age in terms of our copyright legislation.

[Dean Del Mastro, Conservative, Peterborough, ON]

That is a huge opportunity.

Go ahead, Mr. Turk.

[James L. Turk]

One of the things that's concerned me in the discussion is this continued polarization of creators and users.

Our organization is probably the largest organization representing authors of books in the country. We had to wrestle with all of the issues before you in developing our position: how to be fair to students and to faculty members and librarians, but also how to be fair to our members in their role as creators of cultural and intellectual material.

The kind of balance we're suggesting—having a clear fair dealing provision—is important to all creators, because they all use other people's work and draw on that and need it for those purposes. It's important for our students, and, as my colleague Paul Jones has said on several occasions, if you look at the provisions for fair use in the United States, they're far more generous than what we're considering, and they have had none of the devastating effects that some witnesses before your committee have suggested.

We've really worked hard to try to balance those things, because our membership is from all sides of this. We think the kinds of recommendations, both on fair dealing...but also asking you to reconsider the absolute prohibition on breaking digital locks and modifying that so it's limiting it to breaking digital locks for infringing purposes but allowing it for non-infringing purposes.

I think if you made that change, that would be a major step to bringing forth a piece of legislation about which all Canadians could be proud.

[Dean Del Mastro, Conservative, Peterborough, ON]

We appreciate your input on that.

I will say that the inclusion of the words “such as” would have brought the roof down on this place, so...but I do understand why you've suggested that.

Mr. Davidson, your point about the opportunities that exist is really what excites me about the potential this bill has to create the economy of tomorrow and help Canadians realize their future in a digital economy, which I really believe we're well positioned to do.

I'm a big believer in the market. We have $750 million of music industry revenue that's been wiped out in this country. If we look at what's been wiped out and then we look at the opportunity, shouldn't that be enough encouragement to get this thing through this process and back to the House?

[The Chair, Conservative, Gord Brown]

Mr. Del Mastro, you're only going to have 10 seconds for that answer.

[Paul Davidson]

One of the problems we always face is that we fight the last war. If we fight the last war on this, we're going to miss the opportunity that presents itself for Canada in the digital age--and for Quebec, I would say.

I might add that Quebec has one of the strongest cultural communities in the world. Its cultural policies are incredibly important, and there are many areas in which Canada could learn from Quebec on this, but this isn't an area that I would pursue.

[The Chair, Conservative, Gord Brown]

Thank you very much.

Thanks to our witnesses.

We will briefly suspend.

[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.

[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]

Thank you.

We'll move to the Canadian Museums Association.

[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.