I will start. Following me will be Danièle Simpson, and then Glenn Rollans, followed by Marie-Louise Nadeau, and then André Cornellier. We will try to keep it at 10 minutes or less.
Good morning. Thank you for the opportunity to appear before the committee.
My name is Roanie Levy. I am general counsel and director of policy and external affairs at Access Copyright.
Access Copyright is a not-for-profit organization established in 1988 by publishers and creators--authors. We have a dual objective. The first is to facilitate dissemination, access to and use of published works and our Canadian cultural heritage by the public, including the education sector. The second objective is to ensure that authors and publishers are reasonably compensated so they can continue this vital role.
Many people have testified about the opportunities and challenges presented by digital media. Notions such as business models, technology, industrial financing, new players, access, interoperability, jurisdiction and others have given rise to much discussion and will continue to do so.
Although the focus of these meetings was not copyright as such, virtually every meeting has mentioned the Copyright Act and the need for amendments to it, perhaps to the despair of committee members.
One fact concerning copyright seems to be emerging. Some witnesses have come back to the subject a number of times. And that is fair dealing. For the most part, you have heard witnesses come before you and ask for a simple and cumulative change to the fair dealing provisions. You have heard that the addition of a single word, such as “notamment” in French, or of two words, “such as”, in English, would resolve the matter of the access needs of consumers and users of copyright-protected works.
Today you will hear that not only is this proposed amendment not simple and will not resolve the problem of access needs of consumers and users but, what is more, that such a change would have a considerable impact on the ability of creators and copyright holders to monetize the use of their works.
Adding the words “such as” can be so detrimental to existing and future business models that over 50 Canadian organizations, representing hundreds of thousands of artists, choreographers, composers, directors, educators, illustrators, journalists, musicians, performers, photographers, playwrights, producers, publishers, songwriters, videographers, and writers from across the country, joined forces to submit a paper during the copyright consultations, warning against expanding the fair dealing list.
These hundreds of thousands of creative Canadians are asking this government to provide a secure legal environment that allows them to continue to earn a return on their work without fear of spending their time, energy, and the return they do earn, on litigation.
First, I will provide a brief explanation of how fair dealing works in Canada. The permitted purposes under Canada's fair dealing provisions allow dealing with a work when the purpose is for research or private study, étude privée ou recherche; criticism or review, critique et compte rendu; or news reporting, communication des nouvelles. A user can make a copy of work without permission or payment for one of these purposes, provided the dealing is also fair.
Adding the words “such as” to the current fair dealing purposes turns the list from an exhaustive list of five purposes to an illustrative list. This is a significant change to Canada's current fair dealing provisions. It is not simple, nor is it incremental, as some proponents of an open fair dealing provision contend.
Let me explain why. Adding the words “such as” creates a lose-lose situation for everybody, creators and users alike, since everything becomes uncertain and is subject to expensive litigation. That's because an open-ended fair dealing provision—or “fair use”, as it is called in the U.S.—puts into the hands of the courts what should be determined by Parliament.
Let us take a moment to consider how this constant moulding of the fair dealing exception by the courts would happen. The courts would essentially determine whether a particular use is fair as a result of a conflict between two private parties. With the evidence that is needed to resolve that particular individual and private conflict, the courts would set or reset where copyright ends and fair dealing begins.
Moreover, in the context of private litigation, the courts would never be able to make decisions that take into account the political issues involving major public policy considerations or public policy issues with economic, social, political, tax, employment, and cultural implications, as well as implications affecting investment and innovation and the preservation or promotion of specific cultural values throughout the country, including Quebec, among aboriginal people, and in Atlantic Canada.
So not only is the setting of the boundaries between copyright and fair dealing an abdication of political decision-making, with huge implications for a multicultural country like Canada, but the courts do not have the capacity to do it justice.
This is not just speculation about what would happen. We are already living with the uncertainty created when court decisions based on a particular set of facts are applied by users to a different set of facts. For example, the decision by the Supreme Court of Canada in CCH, a decision that others have mentioned to you, has significantly increased the difficulty faced by Access Copyright to negotiate licences for the photocopying of works in all industries.
The right of publishers and creators to collect, for example, $20 million a year for the copying of their works in the elementary and secondary sector is in jeopardy. The ministries of education are arguing that as a result of the Supreme Court of Canada decision in CCH--that involved lawyers--the 265 million pages a year of published works that are photocopied by teachers is fair dealing.
This $20 million was the value set by the Copyright Board, which is an expert tribunal, as a fair and reasonable rate to pay after it analyzed extensive evidence on the use and value of the works photocopied by teachers in elementary and secondary schools. Often these uses are a substitute to purchasing books. This value also factored in an allowance for fair dealing.
The educational publishing sector relies on these revenues to sustain its investment in Canada. This is a sector where Canadians have unique and important needs across the country, and the capital investment required to serve those needs is large. Nevertheless, the outcome of the $20 million a year is in the hands of the courts.
Expanding fair dealing by adding “such as” or adding extensive new purposes will significantly exacerbate what is already a very difficult situation for creators. It would change from five permitted purposes to all uses of works, or extensive new uses, being subject to a court's interpretation of fairness.
So what some are calling flexibility is, in practice, a liability for both creators and users of copyright. An open-ended fair dealing provision leaves copyright owners and users guessing where copyright ends and fair dealing begins.
This is why Lawrence Lessig, a well-known advocate of free culture, says that fair use, which has an open-ended list of purposes, amounts to little more than “the right to hire a lawyer”. David Nimmer, a well-known copyright scholar, also calls fair use a “fairy tale”, whose complexities have required four separate visits to the U.S. Supreme Court, and yet have resulted in a system whose “upshot would be the same...had Congress instituted a dartboard rather than the particular four fair use factors embodied in the Copyright Act...”. Nimmer was referring to the illustrative list in the U.S. Copyright Act.
The truth is that this level of uncertainty is not good for anyone. The full impact of an open-ended fair dealing provision may be difficult to predict, but the fact there will be unintended consequences is wholly predictable.
Adding the words “such as”, or adding to the list of purposes things like education, teaching, or private use, would significantly undermine existing and future business models. It has the potential to impede on collective administration of copyrights, which is of growing importance in a digital environment. Collective administration can be relied on to meet the needs of users by providing easy and affordable access to works, with the certainty they are not infringing copyrights, and to at the same time compensate rights holders for their creative efforts and investments. Expanding fair dealing would also negatively impact the private copying regime and cause confusion in existing contracts between creators, rights holders, and users.
Faced with similar pressures by users to expand fair dealing, almost every country or jurisdiction that has considered an open-ended fair use model has rejected or not adopted it, including, recently, Australia, the United Kingdom, New Zealand, and the European Union. They rejected it for the reasons I've just described, but I would like to read for you one of the reasons given by the U.K. government when it rejected the idea of moving to a fair use model in 1981: “In view of the difficulties already experienced by copyright owners in protecting their rights, the Government does not feel it would be justified in making an amendment which might result in further encroachments into the basic copyright”.
I think you will agree with me that to say copyright owners are experiencing difficulties in protecting their rights today is an understatement in today's digital environment. The statement made in 1981 that I cited above is truer today than it ever was, so it is not surprising that the U.K. government rejected the notion again when it revisited the issue, this time in 2008. Canada should do the same.