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

[Paul Jones, Policy and Education Officer, Canadian Association of University Teachers]

You were asking if copying a work could have a negative impact...?

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

A copy could not be considered as fair or falling within fair dealing, first, if that has a negative impact on the market, so if there is an impact on the market, or, second, if there is a licence from a collective for the use of that type of work?

[Paul Jones]

Certainly one of the fairness tests is the economic impact on the owner. Anything that didn't meet the fairness test would not meet the educational use of fair dealing.

In terms of the licence, I guess that's a different issue. Universities license all kinds of things. They pay a great amount of money for them, and will continue to do so whether we have an educational exception or not.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Are you saying that the exemption could apply to a work that comes under a licence granted by a collective, or not?

[Paul Jones]

It's not the source of the work that determines whether something is being dealt with fairly or not. It's the test elucidated by the Supreme Court decision and by the Copyright Act as it currently stands.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

If someone deems that, at some point, a copy should be considered as fair dealing, who has the onus of proving and showing that it is not?

[Paul Jones]

The Copyright Act itself doesn't define fair dealing. It sets out purposes. The actual test has been set out by the courts, particularly the Supreme Court in the CCH decision.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

No, I understand that.

[Paul Jones]

The will of Parliament and the way the courts have unfolded has made it a matter of the exercise of good judgment on behalf of Canadians to—

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Sorry, but you're not answering my question. Maybe I'm not clear enough.

[Paul Jones]

Perhaps you could clarify your question, please.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

Isn't it up to the rights holder, where he believes that his right is being violated and that he has suffered prejudice, to go to court and show that an illegal act has been committed?

[Paul Jones]

I think you have a fundamental misunderstanding of the notion of rights in the Copyright Act. The Copyright Act gives rights to copyright owners. It also gives rights to copyright users.

So in the sense that...is it the right of copyright owners and users to take matters to the court? I suppose so; yes, definitely, in fact.

[Pablo Rodriguez, Liberal, Honoré-Mercier, QC]

One of the fears—

Did you want to speak on this too, Mr. Tabor?

[Chris Tabor]

Yes. I can maybe address your first question on whether the cost will go up.

The provisions that are currently a part of fair dealing have not affected our sales of either course packs--and we do hundreds of thousands of those a year--or the sale of textbooks. I don't see why the addition of education to that list of exemptions will have any effect in terms of cost either way, whatsoever.

[The Chair, Conservative, Gord Brown]

Thank you, Mr. Rodriguez.

Ms. Lavallée, you have seven minutes.

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

Thank you very much.

Gentlemen, I admit I don't understand you. You represent Canadian universities and colleges, you represent university professors, and, in that sense, you should be concerned with Canadian culture, since it is culture that you represent. You should also be concerned about instilling in the students at your universities the principle of compliance with copyright, respect for artists and the value of artistic works. It seems to me that would be a minimum. You've come here to defend the principle of fair dealing. Last week, some eminent lawyers came and told us that fair dealing in Canada and the United States will never be judged in the same way and that it will take 10 to 12 years of uncertainty and no payments to artists to get through the definition that currently appears in Bill C-32.

In Quebec, the National Assembly has come out against Bill C-32 as it is currently drafted and against fair dealing for education. A motion to that effect has been adopted. Quebec's minister of education has written a letter expressly to assert that she did not approve of this exemption for education. The Fédération des commissions scolaires du Québec has also taken a stand, in a letter, in a press release, in a brief that you can see on the Internet, against this new exemption for education that appears in Bill C-32.

You've come here and you're saying that it won't cost us a lot less, but it will cost you a lot less. In any case, we wonder why you're doing this if it's not in order to pay less. If you're preparing all these briefs in order to pay exactly the same price or to pay more, I'm telling you someone's wasting his time here.

The Copyright Board issued an interim tariff last December so that universities could continue using the photocopying licence with Access Copyright. It's true that the universities are not required to use that licence, but it has issued a tariff of $3.38 per student, plus 10¢ a copy, which is exactly the current tariff.

The universities have preferred to contact the rights holders or foreign societies in order to release the rights on their own. This is one of my questions. Isn't it odd that, to avoid using the 10¢ Access Copyright licence, universities prefer to go directly to the Copyright Clearance Centre, the American society, to release rights to certain American publications and then to agree to pay twice as much, 25¢ a copy. I haven't finished.

The system in Quebec works very well. The National Assembly, the Fédération des commissions scolaires, the minister of education and, obviously, the minister of culture, have come out against this exemption. It's working well. Copibec is working well, the artists are happy, things are going well. They've all come here, or they will be coming, to say that things are going well in Quebec.

So, sincerely, I have to tell you that seeing people from Canada file in here to request an exemption so that they don't have to pay artists or pay them less—people who earn about $23,000 a year—reinforces our desire to make Quebec independent. It makes us want to tell you, never mind, work things out however you want, and we'll do the same on our side because we in Quebec respect our artists. We have a cultural and artistic system that works very well. And no one complains about having to respect the value of artists' works. Quebec as a whole has long been demanding full control over artistic and cultural works, in other words over copyright. To see you here today insisting and to see the entire range of representatives from Canada who will be coming here to tell us that they want to pay less in copyright royalties because they want to pay their artists less merely reinforces our idea that we in Quebec would be much better off alone.

[James L. Turk]

I want to start off by saying that we actually take exception to your comment that we don't respect culture and we're not advocating for culture. A significant number of novelists in this country as well as painters and playwrights are members of ours. Our members are engaged in the writing of textbooks, in all sorts of things. And what we're advocating here is a balance.

My colleague Paul Jones would like to comment further.

[Paul Jones]

I can start by reminding you of some figures; I don't know whether you missed them in our presentation or the other presentations.

CARL--this is not my Uncle Carl, this is the Canadian Association of Research Libraries--estimates that the annual expenditure by the library sector of the universities is a little over $300 million a year. The bookstores chip in another $400 million or so. That's the university sector. We add into that the college sector and then the K-to-12 sector, and we're looking at an annual expenditure of over $1 billion a year.

For you to come forward and say that somehow we're teaching people to disrespect copyright or to steal things is just offensive. And it has to stop. We have been very clear that we're not looking at fair dealing as a way to save money. This is about making the educational experience better for Canadians.

So people should just tone down on the exaggeration here. It would be really good for this debate and for this discussion.

Thank you.

[Steve Wills, Manager, Government Relations and Legal Affairs, Association of Universities and Colleges of Canada]

Madame Lavallée, I'd like to respond to a few of the points you raised.

First of all, in regard to the educational community, nothing in Bill C-32, for starters, is going to change the revenue going to the collectives such as Access Copyright and Copibec. It's not about saving money. What it is about--the change to fair dealing in particular--is allowing certain educational opportunities that right now sometimes don't occur.

Take the process of getting a clearance. Say, for example, a student is putting a portion of a work into a multimedia project. It's not reasonable to expect that the student will go through the process of identifying who the copyright owner is, waiting for a clearance that may or may not come, and then paying a fee to do that.

I can give you another example that was told to me by an individual who works with clearance at a university. One professor wanted to use short excerpts of two television programs to show his class, and he was quoted fees of $8 a second and $66 a second. Now, the net result of this kind of thing is that the works aren't used. There are many, many examples I could cite like that, where educational opportunities have been foregone because the cost of getting further clearances would be quite excessive.

In respect of your suggestion that institutions are paying $3.38 per student, that is only an interim cost, and that does not include the 10¢ per page that will be paid for course packs. The request from Access Copyright is $45 a student. It's not clear where the ultimate fee will come out.

Lastly, just very quickly, in terms of going to foreign sources, one of the reasons universities have gone to the Copyright Clearance Center is that Access Copyright is refusing to process transactional permissions for digital works, something it has done in the past readily, because it's trying to push institutions into using its new tariff. As a result, institutions that do not wish to use the tariff have no option but to go to the Copyright Clearance Center in the U.S.

[The Chair, Conservative, Gord Brown]

Thank you very much.

Mr. Angus, you have seven minutes.

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

Thank you very much, Mr. Chair.

Thank you for coming today. This is a very interesting discussion.

I represent a region that's bigger than Great Britain. Many of my communities have no roads. The opportunities of digital learning are so exciting for our communities: to get access to higher levels of education, for retraining of students, and for people who have been laid off to be able to go back to college. They simply wouldn't be able to do it if they had to travel and add in the cost of living in a complete other community.

So I'm very concerned about the provisions in this bill in terms of long-distance learning, particularly proposed section 30.01, which tells students that if they go into a digital learning environment, they have to destroy their class notes 30 days after a semester is finished.

I'd like to just ask you why this bill would essentially cripple the rights of students in a digital learning environment when the opportunities are so immense.

[Paul Davidson]

Perhaps I can respond, Mr. Chair.

I really appreciate your interest in digital learning, Mr. Angus. It is one of the great opportunities that this country has. We have both the technological expertise and the pedagogical expertise and also the need for it. It's urgent. I know the part of the country you're from, and I know we need to do more in this area.

Our first recommendation to the committee in our written submission is that proposed section 30.01 of the Copyright Act be amended to eliminate the requirement to destroy reproductions of lessons. We think this is an area where we can make an amendment that would not change the fundamental balance in the bill, but would significantly improve the educational opportunities for students.

[Paul Jones]

I think the drafters of the bill are to be congratulated for recognizing a real need here. I also know that the drafters are trying to find ways to balance out different concerns.

In this case, the requirement to destroy material shortly after it has been delivered simply doesn't meet the real needs of the reality of teaching and learning in Canada, and we certainly would side with the AUCC in terms of the suggestion they've put forward to correct that.

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

I'm interested in the effect of the proposed section 41 on education--and research in particular. These are the technological protection measures that make it illegal to infringe any kind of lock.

What our colleagues in the Conservative Party say is that we'll take it to the market and let the market decide. Yet it seems that we've clearly outlined legislative rights that Canadians have a right to access, such as, for example, the right of fair dealing, the right of satire, the right of parody, and a number of other rights, but those rights are trumped by the digital locks.

Now, we see that in the U.S., in July 2010, the Fifth Circuit Court of Appeals ruled on the U.S.'s own rights, which had been very restrictive rights in terms of anti-circumvention, and said that the right to access a work did not trigger the anti-circumvention measures under the DMCA. So we would see Canada in even a much more restrictive light than the United States.

From the people I've spoken with in the United States in the education community, there's a real concern about the litigious effects of the digital lock provisions that had existed on the ability to have the research and the innovation that are happening at the university level. Can you talk about your concerns about the TPMs and what it would mean, as it is written, for educational innovation?