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

[The Chair, Conservative, Gord Brown]

Thank you very much, and thanks for keeping it under the five minutes.

We'll now move to the Canadian Federation of Students.

[David Molenhuis, National Chairperson, Canadian Federation of Students]

Thank you very much, Mr. Chair and members of the committee.

My name is David Molenhuis. I am here today on behalf of the Canadian Federation of Students, Canada's largest national students organization. I am accompanied by my colleague Noah Stewart, who will answer any questions that members of the committee may have. Our more than 600,000 members are students at universities and colleges, both undergraduate and graduate.

Students are users and creators. We need both ready access to the works of others and the ability to protect our work from unfair use and appropriation. I would like to begin by addressing Bill C-32's proposal to add education to the enumerated categories of fair dealing. While this falls short of the flexible definition of fair dealing that students have called for, it is a reasonable step forward. Listing education explicitly will only be a modest change to the act, which already allows fair dealing for the purposes of research, private study, and criticism—categories that include the vast majority of educational uses—so long as the use is, of course, fair.

Fair dealing involves a two-part test. While Bill C-32 proposes adding education to the list of permissible dealings, it does not propose to alter the second part of the test, which is the fairness analysis. It will not permit the wholesale copying of textbooks, as some have falsely claimed, nor will it permit teachers to replace the use of textbooks and novels with photocopied excerpts.

In Bill C-32, fairness remains the cornerstone of the law. If a dealing isn't fair, it infringes on copyright no matter how educational it might be. What the proposed expansion will do is promote innovative uses of copyrighted works--for example, a teacher showing a clip from a film to their class, or a student distributing a magazine clipping to accompany a presentation, or even a homework assignment in which students build a website dedicated, for example, to the work of a modern Canadian artist.

Post-secondary institutions have often proven reluctant to rely on fair dealing out of fear of litigious rights holders. The inclusion of education will reassure students, teachers, and other members of the educational community that their uses can qualify as fair dealing, provided they are in fact fair.

While some individuals have claimed that educational fair dealing is unclear and will lead to excessive litigation, this is far from true. The proposed expansion will bring greater clarity to the act, filling in the grey zone between research and private study. Moreover, the bounds of fair dealing have been well established by successive decisions of the Supreme Court, the Federal Court of Appeal, and the Copyright Board. The education community is a major contributor to Canada's creative industry. College and university students spend over $1.3 billion on education materials each year. Moreover, this is one area in which spending on copyrighted works is actually increasing, having grown more than 35% in the last decade.

Expanding fair dealing will not diminish these expenditures. Rather, it will encourage students and teachers to make even greater use of copyrighted works, extending the reach of authors and creators and further supporting Canada's creative sector.

The broad language currently used in the bill supports fair dealing as a right for all, not a special exception for a privileged minority. It ensures that educational fair dealing is available to everyone from a church group, for example, to a music teacher, or even to a university student. Educational fair dealing embodies the very best of Canadian values. It recognizes that a commitment to supporting creators can and must be fairly balanced against a commitment to education.

Although by and large Bill C-32 reflects the balance sought by Canadians, one glaring omission is in the approach taken on digital locks. These provisions would stop, for example, a student from using a graph or picture from an e-textbook in their essay; a teacher from using a clip from a video in a class presentation; and a musician from using pieces of recorded music to create an entirely new song. This approach is especially of concern for members of the education community who are increasingly turning to the use of electronic course packs, e-textbooks, electronic reserves, and other digital materials.

Although the bill includes explicit protections for digital locks, it fails to provide any mechanisms to assist users who wish to access locked materials for lawful purposes. Criminalizing the legal use of these materials strips away any and all user rights and gives copyright owners absolute control over how their works are used. The proposal should be amended to modify the definition of circumvention to apply only to infringing uses. This would address many of these problems.

One last area of concern is the special exception for delivery of lessons by telecommunication found in proposed section 30.01. This section is unnecessarily complex and will hamper digital learning. The requirement that lessons be destroyed after the end of a course will force already overworked teachers to rebuild their courses from scratch each term, and students to delete their learning materials at the end of each semester.

Providing for the digital delivery of course materials could be better achieved by simply modifying the definition of “premises” of an educational institution to include any place from which persons are authorized by the institution--that is, including staff, teachers, and students--to access it.

That said, I'll thank the chair and welcome any questions that committee members might have.

[The Chair, Conservative, Gord Brown]

All right. Thank you very much.

We'll now move to questioning.

Mr. Garneau, for seven minutes.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you, Mr. Chair.

Thank you to all the witnesses for coming this morning and explaining your point of view.

I guess I'll go through in the same order in which you spoke, and start with CARL.

First of all, I have some acquaintance with research libraries. I had the pleasure of working at the National Research Council and became very familiar with CISTI, a very fine internationally recognized facility.

I have two questions. You basically spoke about the education exemption exclusively. You didn't speak about any other parts of the bill. Do you have opinions on other parts of the bill, very briefly?

[Ernie Ingles]

Absolutely we do have opinions on other parts of the bill. I can deal with those summarily, if you wish.

The reason we focused on the education is because that is where we think the nuts and bolts are of what we think is good about this particular iteration of Bill C-32. So that's the part we want you to remember and to continue.

But there are other things that are important. For example, the question of the digital locks; this isn't necessarily our issue. In reality, quite often, to do the kind of work that my members do, we negotiate licences that permit us to do certain things with regard to some of that information.

We are concerned...and I was delighted to hear the comment from the student group about the preservation issue. As I indicated in our submission, preservation is very important to what we do and who we are, and we wouldn't want the lock to get in the way of some of those kinds of activities.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

As it's written at the moment, if I understood you correctly, with respect to your archiving function, you feel the bill does not prevent you from that task?

[Ernie Ingles]

Generally speaking, yes; we think it's fine. We just wouldn't want to see other hurdles put in the way of that important activity.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you.

To the Canadian Museums Association, you raised quite a few things here. One thing you mentioned was that even if you own a work in a museum, you are not allowed to make copies of it without, I presume, payment to the original artist.

What are you suggesting--that this just be totally removed?

[Jon Tupper]

No. Actually, I was addressing the exhibition rights and the fact that we can buy the work of art but we can't show it without paying additional fees to the artists. We just feel that this is an inefficient way of--

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

But you talked about slides and other materials as well.

[Jon Tupper]

Right. It's slides for lectures and that sort of thing for education purposes.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

So what you're saying is you don't feel that it's necessary to pay to exhibit even though you bought the thing or to make copies for resale or for lectures or whatever.

[John McAvity, Executive Director and Chief Executive Officer, Canadian Museums Association]

If I could, I'd like to address the exhibition right.

We're here to talk about copyright. Copyright is about the issue of making copies. The exhibition right is not about making a copy; it is about displaying a painting in a public space, not for sale or for rent, for any work created after 1988.

So we feel, first of all, the concept is an anomaly. It does not belong in copyright legislation. Museums had been, before this was brought into play, voluntarily paying artists fees, and we will continue to do that. We believe in that, when the work comes from an artist.

When the museum, however, purchases a work and it goes into its permanent collection, we believe we should have the right freely to display and not seek the permission or pay a fee to a copyright owner.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you. You've been clear on that.

On the issue of resale, there are countries that have adopted the policy of resale for a certain percentage, and we heard witnesses a week ago on this issue both for and against. You obviously are against it. Your argument was that essentially it's not proven to be necessary or we don't have enough information to make a decision on this. Could you expand a little bit on that?

[Jon Tupper]

Sure.

The effect for us is going to be minimal. It's going to be increasingly minimal because our opportunities to purchase works are becoming diminished; we just don't have enough money to purchase them.

So it really doesn't have a big impact on us. We think it requires more study. We are concerned about the ecology: we're very concerned about the effect it's going to have on artists, so we want it studied more.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Yes.

If you buy something, it's presumably because you feel this is a work of art, it's valuable, and it's worthy of being put into your museum. That painting or sculpture or whatever, of course, may have sold very modestly initially, but now you want it because you consider it to be a great work of art, or potentially, one day, a great work of art. And you don't feel the artist should get any compensation whatsoever.

[Jon Tupper]

By and large, when we purchase works of art, to be honest with you, we're purchasing contemporary works of art right from the artist. We're not purchasing historical works, because we can't afford them. That's the reality of the situation.

As you say, we look at a work of art and think it should be acquired for the collection as a historical record, but we see the role of acquisitions funds supporting artists in the community as well.

[Marc Garneau, Liberal, Westmount—Ville-Marie, QC]

Thank you.

To the Federation of Students, we in the Liberal Party are looking, on the education exemption under fair dealing, to try to define a little bit what we mean by “education”. We've asked this question to other groups as well. You don't have to do it right now, but we would appreciate your providing us with what you consider to be a good definition of education, because we think it does require some education.

We've also stated that we intend to codify, or we've proposed an amendment that would codify, the six criteria that were proposed by the Supreme Court for deciding whether or not fair use has been made under the educational exemption.

Would you be prepared to provide us with your proposed definition of what “education” is?

[Noah Stewart, Communication and Policy Coordinator, Canadian Federation of Students]

Absolutely.

I can say, I think as a starting point, our position is that we would not to restrict the definition, that the use of the simple term “education”, the broad and expansive use, is in line with the view of the Supreme Court that fair dealing is a fundamental users right and is in line with the fundamental values of Canadians. Regardless of the context of the education, whether it be formal education in a college or university classroom, or going to the examples given by my colleague--a church group, a YMCA swim class, wherever--they should have access to this exception.

I think this puts a fair dealing test on to what we consider the more important part, the fairness analysis. It says that as long as you're using the work for an educational purpose, regardless of the context, and as long as that is fair...you have access to this exception, in that it means it's there for every Canadian and not simply a privileged minority.

[The Chair, Conservative, Gord Brown]

Thank you very much.

We'll move to....

Yes, Mr. Lake.

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

Mr. Garneau just asked for that definition to be presented to the Liberal Party. I'd ask that it be presented to the entire committee, if you could.

[The Chair, Conservative, Gord Brown]

Okay.

Thank you.

Madame Lavallée, sept minutes.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Thank you, Mr. Chairman.

My first comment will be for Mr. McAvity. Earlier you said that the exhibition right had nothing to do with the copyright bill. That's no doubt because we have a very different approach, in English and in French. While, in English, we talk about a copyright bill, a bill on the right to copy, copyright, in French, we talk about a bill on copyright and creators. The difference between the approaches lies in large part in the way the bill is named. In a bill on copyright, the exhibition right makes sense because it is the right of authors of visual works to be compensated when their exhibition is made public. I simply wanted to emphasize that point of view.

Similarly, our approach is also very different from that of the Federation of Students. Reading between the lines of their brief, we see that they believe there is also a user right, whereas the creation always belongs to its creator. Creators can assign certain rights from time to time, a little or a lot, but the creator's fundamental right is that the creation always belongs to him, and he has the right to refuse to allow it to be made public, as was seen in the case of Gilles Vigneault during the Vancouver Olympic Games. I don't know whether you followed that affair in the newspapers, but he refused to allow his song to be sung in tribute to Canada, since his song Mon pays is a tribute to Quebec. So he refused, and it was his right to do so, because his creation belongs to him. That's a first case.

Now I want to talk essentially about artists' resale rights. You say you don't agree on resale rights. And yet 59 countries around the world have adopted that right, some of them nearly 100 years ago. To my knowledge, those countries, most of them European, nevertheless have a very profitable and vibrant art market.

You also mentioned that you're afraid this proposal might benefit only a very small number of well-known artists, not those who really need greater support. Incidentally, for those who really need greater support, the Department of Canadian Heritage has a range of subsidy programs. The Government of Quebec also has some. You said that benefited a very small number of artists.

Even if it only benefits a small number, why would you refuse to allow those artists to have a share in the prosperity generated by their renown and popularity?

[John McAvity]

I'll address some of your preliminary comments.

I think you have good reason to make a distinction between les droits d'auteur and copyright.

We are very supportive of moral rights. We are very supportive of the condition of artists. They are the reason why we have museums. The relationship is very strong.

However, I think you also said that it was very important for artists to profit from their works—that is, when they own their works. We agree. Our difference is when the work crosses the line and goes into a public collection—that is, a museum collection. Up until that point, we think the artist should profit.

With respect to the resale right, droits d'auteur—

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Mr. McAvity, as I have a limited amount of time at my disposal, I'm taking the liberty of interrupting you.

Even when a museum acquires a work of art, the work itself continues to belong... There's always a certain right that belongs to the artist. For example, you could never destroy that work without the artist's consent.