Canadian Heritage Committee on April 20th, 2010

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

I understand your interest in advocating photographers' copyright, but there is, on the one hand, the art photograph and, on the other hand, what I would call the useful photograph, such as the official photo of a member of Parliament, for example. In the case of an official MP photo, how can you consider that a photographer would retain copyright for that kind of photograph? Wouldn't there be a way to reach an agreement?

[André Cornellier]

There's always a way to reach an agreement, and that's why we have contracts. When you put a contract on the table, both parties read it, negotiate, say they don't like clause 1, 2 or 4. They change it, negotiate and agree all the time. As long as you work with contracts, there's no problem; people agree. People submit a request to us, we answer it and we write it into the contract. Contracts change; they aren't fixed.

It's obvious to us that we have to own our works. Consider Yousuf Karsh, who photographed the greatest thinkers on the planet and everyone. He was subsequently able to assert copyright because he had retained it, but if you don't have copyright, you can't live off your pension later on when you retire. You have very specific needs, and we respond to them; there's no problem. However, you don't need all rights in order to meet your needs. We need those rights so that we can publish, create an art book later on or something else. You say it's just a picture of a politician.

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

Yes.

[André Cornellier]

It may be someone very important.

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

If your gentleman calls me, I will assign the rights to him.

[The Chair, Conservative, Gary Schellenberger]

Thank you.

We'll move on now to Mr. Del Mastro.

[Dean Del Mastro, Conservative, Peterborough, ON]

Thank you.

Mr. Rollans, Lone Pine is an educational publisher. As I'm sure most of us have, I have stacks of textbooks in my garage that go back to my days at university: finance, accounting, business law, and economics. It's all wonderful stuff. I sure wish I had it digitally so that I could access it more easily and store it in a much smaller space.

Is the time here now or is the time coming when these textbooks will in fact be a digital resource? And how are you adapting to that?

[Glenn Rollans]

I should clarify that Lone Pine Publishing is a trade publisher. I left the educational business partly because of the uncertainties around publishing for education.

[Dean Del Mastro, Conservative, Peterborough, ON]

I see.

[Glenn Rollans]

But my experience as a partner in Les Éditions Duval was especially in the K-to-12 world, the grade school world, and I had some contact as well with post-secondary.

To some extent the answer is that it is here now. Digital transactions and digital resources are happening much more commonly in education than they are in the trade world, the world of bookstores, and consumer products. Teachers demand it. Professors demand it. When it's not forthcoming from producers—publishers, authors, and others—they have other options. They can go to open source materials. They can do user-created materials. That's something that has the industry paying attention, so they are working very hard to provide the materials that are requested by the system in the form that the system wants.

Over the past couple of years, I had a chance to do some consulting for Ministry of Education in Alberta and some for Canadian Heritage on describing the educational publishing system. What's really clear is that there is not going to be a wholesale, immediate transition. Some learning purposes demand paper. Some users demand paper. Alberta, for example, has some cultural groups that refuse to use digital technology because it conflicts with their faith. They'll never be using digital resources, and they still come under the education act.

So I foresee a fairly long transition, wherein the balance between digital and paper is shifting but both remain in use, and probably paper will remain in use over the long haul. In the meantime, it's a functioning marketplace between the producers and the users. The users really are demanding it, and they're purchasing it under terms that are acceptable to producers.

[Dean Del Mastro, Conservative, Peterborough, ON]

That's interesting, especially given that there's a bit of a generational separation and that younger people are far more exposed to or are already using this type of digital format in a much more profound way than older generations. We certainly see this with newspapers. I don't have a newspaper subscription, except at my office, but my mother and my grandparents have newspaper subscriptions. I think people who are younger are even less likely to have a newspaper subscription whereby they pay a person for the paper at the door.

The question is whether there is an opportunity to use this digital transition in educational publishing, or otherwise for publishing, to reach even farther. Or is it a defensive kind of stance for Lone Pine?

[Glenn Rollans]

At Lone Pine, we've invested in preparation for it. But in the book trade, we're still in a defensive stance. We're concerned about letting the horse out of the barn, because digital transactions are such a small part of the marketplace at this point—1% to 5%. It's not that we're persisting in an old business model in the book trade: we're persisting in the current model. If 95% of buyers are buying in paper form, even though digital opportunities are there, you can't not take care of the print world.

That said, my experience in both education and trade says that people are really excited about the digital opportunities. We want access, we want people to come to our material, and we want them to find what they need. We want them to use it in new ways, with searchability and built-in functionality that are not possible in print. But we need to find a way to be compensated for it.

If you're like me--and I think many of you are—I have an iPhone on my hip, a laptop in my bag, and The Globe and Mail in my other bag. None of this stuff goes away, and if the industries are being asked to produce in all of those formats for a declining revenue stream, something has to give. It's not just a reluctance; it's not being technology-averse that stops us from going there. It's that the marketplace has to come to it for us to be able to invest in it. And for the marketplace to come to it, we need clear rules that tell people what's free and what's not free.

[Dean Del Mastro, Conservative, Peterborough, ON]

Am I done?

[The Chair, Conservative, Gary Schellenberger]

You're done.

[Dean Del Mastro, Conservative, Peterborough, ON]

Okay.

[The Chair, Conservative, Gary Schellenberger]

You could have another little chance yet, because Ms. Dhalla is on right now.

[Ruby Dhalla, Liberal, Brampton—Springdale, ON]

Thank you very much to everyone for coming here today. Your presentations were extremely interesting and insightful.

I want to follow up on a couple of comments that Roanie made in respect to the impact analysis not taking into account the innovation and the creativity portion of it.

Could you please provide some insight for the committee itself, in terms of the recommendations we have to prepare, on what you perceive as the impact analysis as seen from the aspects of innovation and creativity?

[Roanie Levy]

For talking about innovation and creativity, probably my colleagues around the panel are in an even better position, because they are the innovators and the creative forces around the creation of published works and of other works as well.

I talked about the impact analysis that would be lacking. An analysis that would be done by the courts to determine whether or not a payment should happen is the type of analysis we see happening all the time before exceptions are created. On the one hand, the analysis would look at whether we're dealing with an access challenge or whether it's a payment challenge.

That analysis would happen. Then, what would happen if you were to create an exception? What would happen to existing business models? What would happen to future business models? What would happen to jobs, what would happen to investment, and what would happen to innovation? Et cetera.

Mr. Simms referred to the Supreme Court of Canada decision and the fact that it's a balance. It is a balance. Many people have come to you saying that we have to change the balance here and change it there.

We would all agree that it's a very difficult balancing act to even figure out what the balance should look like. It is difficult because it involves all of these very important social, economic, and political issues that need to fit into the balancing act. You need a lot of analysis and evidence and need to understand what the implications of it are before you're able to say that you're going to allow this use without compensation to the rights holders. That is what, in a fair dealing context, we're saying we'll let the courts determine, and that's a big risk.

But talking about innovation, I think Glenn mentioned it, as did others.

[Ruby Dhalla, Liberal, Brampton—Springdale, ON]

In the last few minutes that I have left, I will ask you what I have asked all the witnesses who have come forward. As we prepare our recommendations and talk to a variety of different stakeholders, organizations, and advocates, what is one recommendation that each of you would give to the committee and to all of the members to help ensure that Canadians benefit from digital and new media, while also ensuring that government has the policies, programs, and initiatives under way to deal with it?

What's one recommendation that you would be able to provide? We can start with Glenn.

[Glenn Rollans]

I'll come back to clarity. If the rules of the game--let's call it that--are clear, I think there will be a lot of flexibility within the rules and a lot of innovation. When the rules are unclear, people tend to sit back and argue about “ifs” and “ands”. So clarifying early, and I think regular review as part of the future as well, but I'd say that it's clarity.

[Ruby Dhalla, Liberal, Brampton—Springdale, ON]

André?

[André Cornellier]

From my point of view, I think it's basically the way that the law will settle a small problem, because if it's clear on the basis of the law, like copyright exists and people own their rights and everything.... The question of trying to solve the problem of each of the media, or each support, or each way that we're going to distribute, will never be solved; this will always evolve. The problem is simple, as you've put it, at the base. You say that this is owned by these people, and obviously it's my goal to sell more and more. I will go out into the marketplace and sell it. The price will vary depending on the demand, and we'll adjust all the time. If there's no such rule as that, I don't know where to go; I cannot do it.

Basically, for me, if I produce something, I own it, and the government should not try to be technologically correct, because it's impossible. When books and printing came along 100 or 200 years ago, a big problem was created, but the problem was solved after a few years. We are in the midst of technology. Technology creates problems, but technology also always solves the problems. We're just in the middle of it and we don't know. In a few years those problems will be solved if we have access to our rights and we can negotiate it.

[Roanie Levy]

I was going to say legal certainty, but I think Glenn took that away from me. So instead of legal certainty, I will reiterate something I've mentioned a few times already today, and that is, don't put in the hands of the court what should be determined by Parliament.

[Marie-Louise Nadeau]

To be able to adopt an international position, we have to go back to the fact that fair use was rejected in England and New Zealand, and we have to ask ourselves why. That's what is important, I think. Canada is a signatory to the Bern Convention. That's important.

I also want to go back to what Glenn said about clarity. We're in contact with users every day. The clearer it is, the simpler it is. People are ready to pay certain royalties that aren't costly. School royalties are not high. If it's clear, it's perfect. People are ready to pay.

[Danièle Simpson]

I'm also in favour of clarity, but you have to maintain the current balance between user rights and creators' rights. Compensation for creators should not be considered a constraint that you have to disregard in order to achieve greater flexibility. That doesn't give artists any.