Bill C-32 (40th Parliament, 3rd Session) Committee on March 22nd, 2011

[Kelly Moore, Executive Director, Canadian Library Association]

CLA is Canada's largest national library association. We represent the interests of approximately 57,000 library staff and thousands of libraries of all kinds across Canada, as well as the interests of all those concerned about enhancing the quality of life of Canadians through access to knowledge and literacy.

Our role is to represent the interests of these organizations and individuals on a range of public policy issues. None is more critical at this time than copyright.

Library users are the Canadian public. There are millions of students, educators, scholars, researchers, lifelong learners, special library users, and recreational readers--from children to seniors. When it comes to copyright, our users are not members of a special interest group. The public interest is the core of our work.

A copy of CLA's brief on Bill C-32, “Protecting the Public Interest in the Digital World”, has been submitted to the committee members and fully discusses CLA's views on the bill. Today we will highlight the key issues as they relate to the library community.

[Victoria Owen]

CLA applauds the Government of Canada for the significant improvements to Canada's copyright regime in Bill C-32. The addition of education, parody, and satire in the fair dealing section of the act are important additions to our national information policy. Education, parody, and satire stand beside other fair dealing uses, which are limited and specified and, above all, fair.

The Supreme Court identified the fairness test, and librarians have interpreted this carefully and cautiously. The fair dealing exception for education must recognize libraries of all types as well-respected cultural and educational institutions and recognize that they are integral to the provision of collections for research and private study for all Canadians. Education and lifelong learning are conducted in earnest in public libraries across the country. Educational institutions, by definition, must include libraries of all types.

CLA is seeking further improvements to the bill, which will benefit all Canadians. Of concern to CLA are the unnecessarily prescriptive protections for digital locks, particularly as they dramatically limit and reduce the impact of the important exceptions for fair dealing, access for people with perceptual disabilities, and preservation of library materials. We join our colleagues at other Canadian cultural and educational organizations in this concern.

CLA supports the fundamental principle of fair dealing in Canada's copyright bill. We do not want to hamper Canadians' ability to fully utilize their statutory rights--for a very limited number of exceptions--by the imposition of technological protection measures. Any copyright legislation must include the right to bypass digital locks for non-infringing purposes. Without this right, the legislation is fundamentally flawed.

Digital locks can prevent people from copying for the purposes of fair dealing, thwart library preservation of materials, and interfere with access to content. Each and every section of the bill that affects access for people with perceptual disabilities must be reviewed in order to ensure that we do not make equitable access more difficult or in fact impossible.

CLA members acknowledge the complexity of copyright in the 21st century. Libraries annually purchase content worth millions of dollars, librarians serve Canadian creators and users, and we see the balance between copyright and users' rights every day.

The library community plays a vital role in providing Canadians access to all forms of knowledge. Access to information is essential to ensure that Canadians are contributors to the economic, social, and cultural well-being of their communities.

We appreciate the Government of Canada's attempt to define the balance among the concerns of creators, content providers, and users as a key goal of continuing copyright reform. The bill has succeeded with fair dealing in adding preservation and in limiting liability, but digital locks on the statutory rights of Canadians undermine so much of the bill's progress in the digital environment.

We would like to thank you again for this opportunity to speak to you.

[The Chair, Conservative, Gord Brown]

Thank you very much.

We'll now go to questioning.

From the Liberal Party, Mr. McTeague.

I understand you're going to split your time.

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

Yes, Chair. You've indicated one round given the time constraints, so I will be sharing my time with Mr. Rodriguez.

Witnesses, thank you for being here, especially those from Scarborough.

Mr. Rahn, if I could, I want to begin with you. In your submission, you laud the addition of education to fair dealing--I'm going to quote here--as it permits “educators and students to make greater use of copyright material”. There are, in my view anyway--and certainly the committee has heard this--a number of very appropriate collective licensing agreements that accomplish very much the same thing. At the same time, it will compensate creators.

So I'm wondering if I can get from you, perhaps more definitively, whether you believe education should have the use of creators' content for free. Is this what you're suggesting?

[Jay Rahn]

I don't think I'm suggesting that. For example, libraries will still purchase books, and they will undertake licence agreements with organizations that service them. I wouldn't restrict the discussion to collective licensing per se. There is also the matter of individual copying for the purposes of research, private study, criticism, and review, which is currently subject to a licensing regime, although that's been disputed ever since it was first introduced several years ago.

I'm not sure that I've begun to answer your question.

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

No. You have no difficulty with collective licensing systems per se. It's other areas that you wish to introduce.

[Jay Rahn]

I think they're more germane, especially to the highly special function that universities serve, which is research. This then turns into teaching materials and so forth.

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

One final question for you. Your submission also puts some emphasis on the fact that you would prefer not to have any monitoring or reporting of the use of digital materials in education, such as library environments. You would actually suggest here that you want to be able to remove TPMs for non-infringing purposes. I'm going from what you've said here.

How would you propose that the further use of these materials be determined and managed by their creators if they are used for other purposes beyond the limitation of the exceptions?

[Jay Rahn]

In that case we were responding to the portion of the bill that would give collective licensing agencies the ability to enter into the computer systems of universities, take a look around, audit, and check on what might be at intranet services within a particular course to see which items they claim are in their repertoire and might be used.

As I mentioned in our written brief, one big problem with that is the alarm bells would go off among the professorial community that academic freedom is potentially being infringed. For such a long time we've had the practice within universities that our employers—university administrations who would be part of such a monitoring system—do not check up on what we're taking out of the library, what goes on in our classrooms, and so forth. In fact the origin of another group that was here before the committee, the CAUT, goes back to a very famous case of academic freedom where a professor who actually became dean of the college that I worked in at York was punished by his university principally on ideological grounds.

My president has no need to know whether I read Adam Smith or Karl Marx.

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

All right. I appreciate the clarification.

I'll pass this over to Mr. Rodriguez for the little time we have left.

[The Chair, Conservative, Gord Brown]

Mr. Rodriguez.

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

Thank you, Mr. McTeague.

Good afternoon. Thank you for being here.

I am going to read you an excerpt:

Extending this provision to education will reduce administrative and financial costs for users of copyrighted materials....

That's on the fact sheets on C-32 that come from the government. If the costs are reduced, some people will get less money, right?

If you pay less, and if schools pay less, someone will be getting less money. So who are we talking about here? Are we talking about creators?

[Jay Rahn]

First, I don't think there will be any change in the revenues of publishers who were in the business of publishing textbooks, for example. That would be ineffective, as far as I can tell.

There's another regime where maybe collective licensing agencies should not have been given money over the years. In regard to that, I'm referring to the point I made earlier about contests between university administrations and a particular collective licensing agency over what constitutes fair dealing. Those revenues might disappear at that point, but maybe they should never have been expended in the first place.

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

This bill would help you to ensure that the revenues will not be collected by those agencies. That's what you said.

[Jay Rahn]

Could you repeat that again? I'm sorry, I missed the translation.

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

So you are telling me that you would no longer have to pay out that money under this bill, as mentioned earlier.

[Jay Rahn]

Yes. These revenues are not that high compared to the textbook-related and course-pack revenues, in any case. The amount that was cited earlier in this committee is approximately $3.50 a student. The prospect of it being raised to $45 a student to cover all the other things has been withdrawn in the meantime.

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

Don't you think a risk is involved if we merely include the word “education”? Don't you think that, if we keep it defined or limited, for example...

This question is for both of you. In your view, what is the definition of the word “education”?

[Jay Rahn]

I know this question of the definition of education has arisen before. But actually, I would make an ideal bill much broader than being restricted to merely adding education to that list of fair-dealing exceptions--

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

So you would add even more stuff.

[Jay Rahn]

--and the people on my committee would as well. In fact, we suggest, and I reiterated that this morning, the notion of having “such as” or “including, but not limited to” preceding the list of fair-dealing exceptions. I think there are a lot of good reasons for doing that, rather than just adding on—

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

If we include everyone, what good will any copyright legislation do?

[Jay Rahn]

No, it's not a matter of including everyone. I think what you have to do is seek a principle that unites the ones that exist. For example, parody, satire, news reporting, criticism and review, and private study research all have a common thread to them with which education itself is quite consistent.

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

I would like to close with you, Mr. Maali.

You work a lot with creators and artists. Those we have heard from have almost to a person said that they are very concerned about the potential loss of revenue and rights. Do you share their opinion?

[Arash Mohtashami-Maali]

We have heard that, but we have ties with many other organizations, including libraries. We are in a delicate position because our clientele is divided.

Yes, we are concerned about those numbers. I believe you have heard it from other witnesses. We share the same concerns.