Canadian Heritage Committee on June 21st, 2021

[Roanie Levy]

Yes. That's another interesting difference. In the U.S., the use of an unpublished work, under fair dealing, tends to be not fair, whereas it's the opposite in Canada.

That all just points to the fact that the concept of fairness is very vague and is always changing. Another set of judges might come up with a different set of fairness rules. It's very hard to run a market on something that is so vague.

What's interesting as well is to learn from those jurisdictions that do have fair dealing—not fair use, as in the U.S.—fair dealing as [Technical difficulty—Editor] and how they've managed to have fair dealing for education in a more manageable and market-friendly way. The U.K. and Ireland and Australia are examples where the availability of the licence trumps fair dealing. Fair dealing for education is still there, but when there isn't a licence that is available at a reasonable cost with reasonable effort, then fair dealing is no longer available for educational institutions. In those jurisdictions, the fair dealing is still available for students, but not for educational institutions.

The point there is to not allow the mass and systemic copying that happens when copying is directed by educational institutions.

[Anthony Housefather, Liberal, Mount Royal, QC]

That was very helpful. Thanks.

Mr. Landon, in the event that you wanted to respond to that, I'd be interested in hearing your take about the U.K., Australian and Irish experience versus the Canadian. Do you feel that would be a reasonable type of compromise?

[Philip Landon]

Thanks very much, Mr. Housefather.

I would say that the fact that those jurisdictions do all include fair dealing sort of echoes my previous point that this is an international standard to have. How they apply it does change. I think Ms. Levy's point about whether you have guidelines or whether you have bright lines is a challenging one. The Supreme Court developed six factors to determine whether the dealing was fair. That's gone through a serious legal process. It's not an easy thing for a high school teacher or a university person to apply.

What is important to remember is that Access Copyright does not represent all works. Their repertoire is limited, and the educational fair dealing exception gives universities and K-12 schools access to a much broader range of material than just an Access Copyright licence does. That was, I think, the true spirit of the change of the law in 2012.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thanks. I agree with what you say. Reading [Technical difficulty—Editor] decision is not exactly clear or simple for people to follow.

Mr. Degen, maybe I can turn to you. We've talked a lot about universities and we've pointed to Mr. Landon here a lot.

Could you talk a little bit more about K-12? Ms. McNicoll talked about it from a writer's experience, but it would seem to me that there would be a lot more abuse in primary school, where people come back with photocopied books all the time, than there is at the university level.

Could you talk about The Writers' Union's experience with primary and secondary schools?

[John Degen]

Thank you for the question, Mr. Housefather.

Ironically, a lot of the members of The Writers' Union are teachers themselves, so they feel sort of stuck in the middle on this kind of thing. It really comes back to something that somebody was saying earlier, which was that there is obviously a lot of economic and budgetary pressure on K-12 schools these days. It seems to be that one of the first places budget makers will look is at the materials budget.

Our official position at The Writers' Union is that we're not mad at the teachers, not at all. We understand that they are in a very difficult position and we do understand that they're often spending their own money to outfit their school libraries. Really, it's a question of setting the principles in place in law and making sure that the funding is available.

[The Chair, Liberal, Scott Simms]

Thank you, Mr. Degen and Mr. Housefather.

Mr. Champoux, go ahead for two and a half minutes.

[Martin Champoux, Bloc, Drummond, QC]

Thank you, Mr. Chair.

I want to come back to the situation of authors and writers, as this is something that worries me and piques my interest.

Mr. Degen, I would like to put to you a question similar to the one I put earlier to Mr. Perro on writers' income. In Canada, that income has apparently dropped markedly since 1998—so well before the act was amended in 2012. What other factors caused you concern before that amendment?

[John Degen]

That's a very complicated question to analyze.

Obviously, there are more factors than just copyright non-compliance at play. Books are, to a certain extent, old-fashioned technology, and we've been in competition with some pretty fancy and exciting new technologies as well. We feel, though, that writers and publishers can hold their own in that competition as long as it's a level playing field. The change in 2012 just completely tilted the playing field against us.

I think Ms. Levy mentioned earlier that about 20% of a writer's income depended on educational licensing. Even though 20% may not seem like a lot, it can be the difference between continuing in your career or just giving up on your career.

[Martin Champoux, Bloc, Drummond, QC]

That is where the danger lies, and you are right to mention it. We are living in a society where we want to provide our youth with more education. We know that education is paramount, especially for countering misinformation. We want our young people to be curious and to have access to quality books. We don't want to discourage writers and authors.

Ms. Levy, I have only a few seconds left, and I would like you to answer quickly. You invited 50 authors to send a copy of their book to the Prime Minister, with a clear intention to draw attention.

What concrete outcomes do you expect from your initiative and have you seen any results already?

[Roanie Levy]

We have not had any results yet. We hope that this committee will help us.

When the Copyright Act gets amended for the Canada—United States—Mexico Agreement, we expect recommendations 18 to 21 from the committee's report to also be added. We expect the issue to be resolved once and for all, so that we can come up with courses and establish a better partnership with the education sector.

[Martin Champoux, Bloc, Drummond, QC]

Thank you, Ms. Levy.

Mr. Chair, I think my time is up.

[The Chair, Liberal, Scott Simms]

Thank you, Mr. Champoux.

Ms. McPherson, you have two minutes and 30 seconds, please.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

Again, thank you to all our witnesses.

I have the enviable position on this committee of always going last. I want to take a moment to give everybody just a few minutes, or perhaps a few seconds, to tell us if there is something that we didn't hear from them today. Is there something they would like to make sure that our phenomenal analysts hear before they put this information together?

I'm going to start with Mr. Rollans, as my Edmontonian guest.

Could you be brief speaking about anything that we haven't heard that isn't on the record but that you want to make sure we get down?

[Glenn Rollans]

That's a good question. Thank you.

I think the numbers, the percentages, and the back-and-forth between our sector and the education sector get very confusing.

The simple thing in my mind is that the lack of a tariff or a licence for copying breaks the marketplace. Before 2012 we had a marketplace that had a chance of working. Afterwards, what we have is a bright-line arbitrary definition of “fair dealing” that gives a free option to large-scale institutions to leverage that option as a source of learning materials, rather than paying for learning materials. It doesn't have anything to do with their library purchases or with their scholarly journals; it has to do with a new system that takes percentages of many books rather than the whole of one book and makes educational resources for free in-house.

I think that is what we have—a broken marketplace.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you very much, Mr. Rollans.

Would anyone else like to jump in?

[John Degen]

Sure.

I would like to say that there's this impression out there that licensing of creative material somehow stands in the way of access because there's a price on it. In fact, licensing is a way of creating access to materials in a fair way that is fair to everyone.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Degen.

Ms. Levy, would you comment?

[Roanie Levy]

The one thing that hasn't been said is that the writing and publishing sector is not against fair dealing for education. That is not what we are against, and that is not what we're asking. We're not asking for fair dealing for education to be removed; we are asking for it to be put in the proper kind of parameter and to be encompassed within the context of licensing as well.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Ms. McNicoll or Mr. Landon, does either of you have anything to add?

[Sylvia McNicoll]

What I would want to reiterate is that I'm not afraid for me. I think that if there were a back payment, I would probably have $7,000. What I'm more afraid of is that publishers need that money. They will go under, and our children won't have these wonderful jobs for [Technical difficulty—Editor] illustrators.

[Philip Landon]

The last thing I'd say is what I've said throughout. It is that universities and creators are very much of the same ilk. We all want creators to have a profitable future and a way to a future. We don't believe that going back to a mandatory collective licensing system is the way to achieve that. There are other means that can help achieve that.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Mr. Perro, I think you might have the last word.

[Bryan Perro]

I have nothing more to say.

Let's respect authors and our collective imagination, which is the very essence of our culture, our way of thinking, our way of being different and seeing the world differently.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you very much.

[The Chair, Liberal, Scott Simms]

Yes, I was a bit generous, Ms. McPherson, only because you provided everyone with a great extro, and thank you for doing that with your time. It's well appreciated.

Folks, I've been through a lot of conversations. As I mentioned, we keep on getting better and better. Today was an excellent meeting, very informative. Thank you to my colleagues for providing that, and equally thank you to our guests, who provided their experience, their work, and their entertainment as many not only young but also older people enjoyed your books and publications. We thank you so much for bringing that experience to us here today as we go forward.

Colleagues, this brings us to our final session of the spring session. I wanted to say a huge thank you to you all. This has been quite an interesting little session we had this spring between legislation, hearings, reports and so on and so forth. Of course, we're not done yet, as we never are, but it was a good session nonetheless.

I want take a special thank you to Aimée, Gabrielle, and to Marion, who are apart of our staff, and in absentia also to Philippe Méla for his work.

If you'll join me, colleagues, I can't think of a more appropriate way to say thank you to a group of people who are highly professional for the wonderful job that they do. They always give us the thumbs-up when we're clear. I would ask you that you join me in giving them a thumbs-up, not just for being clear but also for being incredibly professional and patient. Thank you so much to our interpreters. Thank you.

Let me just name the guests very quickly before I go out.

Now, Ms. Levy, it appears that by a conservative count your name was differently pronounced in about 10 different ways, I think. How do you pronounce your name, Madam?