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

[The Chair, Conservative, Gord Brown]

Thank you.

Mrs. Lavallée, you have seven minutes.

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

Thank you very much.

Mr. Rahn, Ms. Owen and Ms. Moore, it is surprising to see you supporting fair dealing for education whereas, in Quebec, the approach is very different. You say you are representing the Canadian Federation for the Humanities and Social Sciences and the Canadian Library Association, but there is another viewpoint in Quebec, completely different from yours. First and foremost, the Assemblée nationale du Québec was unanimously against Bill C-32in its present form, and particularly against the broader education exception suggested under the bill. The minister of culture, Christine St-Pierre, was against it too. The minister of education—that's quite something—said:

In Quebec, the government wants to make sure that creators get what's fair for their works being used by third parties, especially by schools. Quebec's position that the right to education and the rights of creators go hand in hand is in line with the guidelines set out in the 1980 creators' fair share policy by the ministère de la Culture et des Communications.

I won't mention the Fédération des commissions scolaires du Québec. I will skip that and go to the Association des bibliothécaires du Québec. One of its representatives said the following:

Why have Quebec's public libraries taken a position opposite to that of the other provinces? Extending fair dealing and any other exceptions will result in a loss of revenue for authors and other rights holders. If we broaden the scope of these exceptions, as you suggest, the loss of revenue could be quite significant. Isn't this a funding issue rather than an access or fairness issue? Public libraries are certainly underfunded, but should authors be paying for that?

That's how it is everywhere in Quebec. There is also BIBLIO du Québec, another organization that is against fair dealing. Whatever you say, fair dealing, as defined under the bill, means a loss of revenue. It would be even worse if we added the infamous “such as”, as Mr. Rahn suggested. That's basically where we are headed. Yet, in Quebec—unlike the other provinces in Canada, it would seem—we have a great deal of respect for creators, for compensating creators and for our young people. As a result, we want to teach our young people about respect for creators and our duty to compensate them.

Mr. Rahn, you are saying that a professor is entitled to show students something through any digital media. That's true if the professor has the creator's permission and the creator is compensated. The creative work belongs to the creator. Mr. Rahn, if I want to come and visit your house, I will ask for your permission and I might even pay for the visit. It's the same thing: the creative work belongs to the creator. If we want to have a vibrant culture, it is even more important for young people to be aware of that, recognize it and compensate the artists.

You may comment.

[Victoria Owen]

Thank you very much, Madam Lavallée.

From the perspective of the Canadian Library Association, I think education, parody, and satire join the other exceptions to copyright because they're very limited, specific, and fair. To be defined as exceptions, they cannot interfere with the economic interests of the creators. They have to be constrained. They have to be for specific uses. They have to be constrained by all of the six factors that the Supreme Court laid out. They mustn't significantly interfere.

I also think it's part of the initial balance of copyright on striving to achieve a balance between access and protection of the economic interests of the creators.

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

I’m sorry, but there is no access problem. You can access all the information you need when you are a teacher or a student. The problem is compensation. Artists have to get paid, if we decide to use their works.

[Victoria Owen]

The access I was referring to was the access to making limited specified copies of a material under constrained conditions. That's the access I was talking about, not that they weren't available.

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

That's possible if you pay, which is normal because artistic works belong to their creators.

[Victoria Owen]

For libraries in Canada, I don't think there has been any problem. We have significant collections. We've spent an enormous amount of money, and we have spent a lot of time protecting the rights of creators. It is a small sliver of exceptions, and we try to manage them responsibly and cautiously.

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

That probably goes hand in hand with fair dealing, as described in the bill. Things will end up being sorted out in court, which will take years and artists won't get paid during that time. That’s what fair dealing is.

In addition, if you compare that with what is happening in the United States, your comparison will automatically be flawed. The criteria used to determine fair dealings in the United States are not the same as those used by Canadian courts, if we look at the case law.

[Victoria Owen]

No, the American doctrine is fair use, and ours is fair dealing. The American is “such as”, and our law does not have “such as”. It's very limited to the specified exceptions, and it's a very narrow range of applications that we can use it for. It's very prescribed. If you go through all those six steps that the Supreme Court has laid out for us, you will see that what people are afraid of just could not happen. They are constrained by those six tests.

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

But case law in Canada ensures that, on the contrary, fair dealing is assessed based on much broader criteria and based on the rights of users, and they don't have that in the United States. We wouldn't get the same results, because American judges do not use the same criteria and the situation is different. In Canada, when legal action is taken under the section on fair dealing, the results won’t be the same as in the United States. Anyway, this section opens the door to a wide range of lawsuits.

The Barreau du Québec was also against Bill C-32 saying that it would clog the courtrooms. Is that really what we want to do in order to save $40 million in annual revenue that should be going to the artists? In addition to short-changing artists of $40 million annually, do we want everyone to end up in court to solve our problems? Would it not be better to recognize that our culture is vibrant and our artists are creative, and say that we will pay what that’s worth? I understand that you don’t have enough money, but perhaps you should turn to other sectors, look at other budget items, rather than impoverish artists, a segment of the society whose annual income is $23,000 per year on average. That’s not quite fair, in my opinion.

Incidentally, when I look at what is happening in Quebec with all the protest against Bill C-32 and fair dealing compared to what is happening in the rest of Canada, let me say it again—I have already said this here—that is another good reason to convince Quebeckers to work towards Quebec's sovereignty.

[The Chair, Conservative, Gord Brown]

Okay, merci.

Mr. Angus.

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

Thank you.

If our country breaks up, Madame Owen, I'm going to hold you personally responsible, because the Bloc are leaving, and they can't wait to go, but I'm sure many others would disagree with them.

I'm concerned as we move forward with copyright that we're creating a two-tier set of rights here, one in the paper world and one in the digital world, one in the analog world and one in the digital world. I want to look at the situation with the libraries and what really happens on the ground.

I'm looking at the changes to subsections 30.2(4) and 30.2(5):

(4) A library, archive or museum may provide the person for whom a copy is made...only on the condition that

(a) the person is provided with a single copy of the work; and

(b) the library...or museum informs the person [it is only to be used] for research or private study....

That seems fairly straightforward. I go and I want to take something out. You make me one photocopy of the work. You tell me I can't go make 20 copies and give them to all my friends. That's fairly straightforward.

Yet the next section, regarding interlibrary loans, subsection 30.2(5.02), says that:

(5.02) A library...or museum...may...provide a copy in digital form to a person who has requested it through another library...if the...library takes measures to prevent the person...from

(a) making [a] reproduction [in digital form];

(b) communicating that digital copy to any other person; and

(c) using the digital copy for more than five business days

I have two questions here. One is, does “taking measures” mean you're not allowed to do any digital interlibrary loans without the technical protection measures that will not allow anybody to make a secondary copy? And would the libraries across Canada have the means to take some student's master's thesis from 1983 and put a digital lock on it? Is that how you read “taking measures”?

[Victoria Owen]

Thank you for the question.

I read “taking measures”, with regard to interlibrary loans, as there being a technological measure that would deliver it. I think in some university libraries, the libraries that I know of, for example, we receive the copy of the interlibrary loan electronically, we print it, and the print is given to the person who made the request. That's an interlibrary loan or document delivery. It would be electronic.

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

You would print it. You wouldn't give him the electronic form.

[Victoria Owen]

At the present time we don't. I think those kinds of software may be available at present. We take the delivery from the interlibrary loan or the document delivery, and we make a print copy and distribute that to the requester.

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

Mr. Rahn.

[Jay Rahn]

In the university setting, I can tell you that just this week I've been trying to negotiate a deal that involves UCLA and the Royal Court of Thailand concerning what existed originally on paper in microfilm. Short of my going at my own expense or maybe SSHRC's expense over to Thailand to talk to those people personally, it would be really valuable, and in fact that's what UCLA suggested. We're busy making digital copies of archival materials of that sort for people like you who are doing that kind of research. We just haven't managed to arrange an agreement with Thailand on that.

I can tell you that just last week I looked up a master's thesis on Thai music and a dissertation from the University of York--not York University--in the U.K. At first I couldn't find it anywhere. My interlibrary loan librarian at York said “We found the website where you can get it. Take a look.” I downloaded it entirely for free. I identified myself as a university researcher. It was accessible in a digital copy. There was no notice that I had to destroy it or any copies of it within five days.

Even with regard to using the old print technology and making only a single copy, I can tell you that if you do editorial work or you work with databases or concordances--and we mentioned that in our written brief--you never make a single copy. That first copy is so marked up, you're making 10 or 20 copies and putting them all together. They're paper copies, mind you. And you're not doing them all in manuscript, because that would be very inefficient.

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

I guess, again, it's a question of whether or not we're trying to interfere too much by thinking of every possible way that copyrights could be undermined. I'm looking at having it for five business days and then, poof, having to destroy it.

I have a confession to make, Mr. Rahn. I did get on an interlibrary loan a York University master's thesis from 1986. It took two weeks to come, and then I made a copy. I still have that copy. Then I gave that copy to my daughter. So if you want $5 for it for the library, I'll give it to you. But it seemed to me crazy that if I was researching a book or doing some kind of work, the clock started ticking the second it went from library to library. What possible benefit could there be when we are moving all our libraries into the world of digital to say you can't access this for more than five days? Are you concerned that the incredible potential for research that's out there is going to be impacted if we have a provision like this proposed paragraph 30.2(5.02)(c)?

[Victoria Owen]

I agree. I think it misunderstands the research process and the ability to have access to the material long after the delivery of the material. Also, when you look at the tools scholars use to cite their research, they use the citation for electronic references for all manner of use and citation use for the work. So I think it does misunderstand the research process and how scholars and people who do research interact with the material they're studying. It doesn't happen over the extension of five days.

[Jay Rahn]

I would add, in this regard, that internationally, Canada can't afford to be the caboose in the train of development of digital technologies. We're very, very far behind. I've cited the case of the U.K., and there are several other parallel ones that could be cited as well. We would be building in more and more restrictions, whereas other folks are opening up their materials that have been largely....

Apart from textbooks, almost all the research is done by university professors and graduate students as part of, say, partial requirements for their degrees or as part of their salaried work. They don't make a great amount of money. If you've ever published with the University Press in Canada, you know that the going rate is 10% beyond cost, and the cost has already been subsidized. You're getting only a tiny fraction. I did one a few years ago that was published by two collaborators. The two of us each got 5%.

So the $23,000 being cited there is not really the central figure. The large dollar amounts are going to publishers or bureaucracies that are created around collective licensing agencies and....

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

But on this issue of the $23,000, my question is whether in this desire to go after the isoHunts and the peer-to-peer traffickers we're actually going after university research and saying that if we allow that student to keep that case note for more than five days, we're going to destroy our entire creative empire. It seems to me that this is a load of hokum. But it could also create a lot of problems, because people are going to make copies anyway, because they're going to actually need to have copies to defend their theses. A person can't say, “Well, professor, I did have it, but I had to give it back after five days.”

Could we not streamline this process a little more to ensure that the intent of limiting copying and the protection of copyright remains in place, while this needless intervention in the real world is just taken out?

[Victoria Owen]

I agree. I think the five-day timeline is an unnecessary encumbrance. I think that if people make copies, and they're infringing us, that's the remedy: they're infringing.

[The Chair, Conservative, Gord Brown]

Okay, thank you very much.

We'll now move to Mr. Lake.

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

Thank you, Mr. Chair.

Thank you to the witnesses for coming today.

I want to start with fair dealing for education. I have a really basic question. You're all in favour of fair dealing for education, I think. Why is it so important? Maybe you could, in explaining that, provide some examples of how you see it being used.

[Jay Rahn]

I would say that the primary importance is not financial, as seems to have been stressed in earlier sessions, and even in this session. That question, certainly in my world, is of relatively little consequence.

What I see all the time are students, and also librarians, to a certain extent, and faculty members suffering from copyright chill when they are in fact already doing research, private study, criticism, and review. They're scared to death of the copyright police, who might be out there. They over-interpret.

I can tell you that currently, at York University, I've been working for a year now on getting rid of all sorts of semi-official language in guidelines for students about academic integrity that conflate, say, plagiarism, on the one hand, with copyright infringement on the other hand, when the two really need to have a bright line between them. Merely putting that word in as an illustrative example of what fair dealing is I think would clarify it for those people enormously.

I can't give you any figures on this, because the phenomenon necessarily involves self-censorship up to this point. People are not going to tell you that, yes, they've been making these copies that may be dubious or are in a grey area. But self-censorship is certainly against the article 2 freedom of expression encouragement we would hope would be manifested in copyright legislation.