Evidence of meeting #47 for Canadian Heritage in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was fair.
A recording is available from Parliament.
Chief Operating Officer, Universities Canada
In response, we absolutely value creators. The universities themselves are full of creators. They create the audience, they create the students, and they stimulate the future creators. Universities and creators are one and the same.
This is a legal question around a collective society. Universities hold no grudges against authors, creators, publishers or musicians.
Liberal
NDP
Heather McPherson NDP Edmonton Strathcona, AB
Thank you very much, Mr. Chair.
Again, thank you for this very interesting conversation.
I have a question for Mr. Perro.
First of all, happy birthday. It's very nice of you to join us today on your birthday.
As somebody who is trying very hard to learn French, it looks like I have my summer reading list all set up. I'm a big fantasy fan.
I have spent a lot of time working with non-profits, with charities and with international development organizations. When you were talking, one of the things that was clicking in my mind was that we've constantly asked the government for a recognition of the time it takes to develop talent, to develop projects, to develop work, and the need for long-term commitment and predictable funding mechanisms. I think you spoke about that a little, but I'll give you a bit more time, if I could, to articulate just how important those things are in ensuring that our writers can go from those hundred books sold to the massive success that you've seen.
Writer, As an Individual
That's what we call in French “recherche et développement”. We just have to note that.
I will continue in French, if you don't mind.
No writing career develops overnight. We don't start writing, just as we don't start living—actually, few people do so—with tremendous success.
It's sort of like climbing Mount Everest. If you try to climb Mount Everest all of a sudden, you will lack air and come back down very quickly. There are steps to building a career. We need the air necessary to enable us to climb from one step to the next, thereby building a career.
You are completely right in saying that this is done over the long term. It is not an immediate or a miraculous development. It happens through work and with the support of a community of readers, government and policies, which enable us to climb that Mount Everest and to mean something to a people, a nation and a country. Authors are there to provide meaning. Few people have that function in society.
Am I answering the question well?
NDP
Heather McPherson NDP Edmonton Strathcona, AB
That's great. Thank you so much.
Mr. Chair, do I have time?
Liberal
Liberal
The Chair Liberal Scott Simms
No, that's all right. It was very engaging.
Thank you.
We will now go to Mr. Aitchison for five minutes, please.
Conservative
Scott Aitchison Conservative Parry Sound—Muskoka, ON
Thank you, Mr. Chair.
I feel that I'm missing something. I'm new to this committee too. I don't know who is the best person to answer this question, but it seems as though the sticking point is that this situation or this issue is before the courts, it sounds like, somewhat endlessly. What is the crux of the latest court battle? Does it really just come down to what's adequately compensated, or not?
Maybe we could start with Ms. Levy.
President and Chief Executive Officer, Access Copyright
There are two issues before the court right now. The first issue is whether or not the copying guidelines that York University has, which are the same as the rest of the education sector, are fair. In other words, are they legal? Do they comply with the Copyright Act as well as the Supreme Court of Canada's past decisions on fair dealing? What the trial and the appeal courts said was they are not fair, and that's now before the Supreme Court.
The other question is whether tariffs that are certified by the Copyright Board, which is a quasi-judicial tribunal that sets rates to make sure that they're fair and equitable for users and for the rights holders, can be enforced. In other words, if somebody uses a work in Access Copyright's repertoire and they haven't cleared the rights and it is not under an exception, can Access Copyright enforce the tariff to make sure that the tariff gets paid? At trial it was found that the tariffs are enforceable; at the appeal level it was found that they're not enforceable. Now the Supreme Court will say whether or not tariffs are enforceable.
This is an important question, because as you've heard from others, particularly the authors rely heavily on their collective to do not just the management but also the enforcement of the right, because it's almost impossible—“an absolute impossibility”, Mr. Rollans said—to actually enforce the rights and go after users when they use materials illegally.
Those are the two questions. Now, the reason we say we can't wait for the Supreme Court of Canada decision is that we believe that “fair dealing” is so vaguely defined that even if we win at the Supreme Court —and we believe we will win at the Supreme Court, and they will say that the guidelines are not fair and are illegal—we'll be in a situation in which the university sector will just design a new set of guidelines. We will be back before the courts again with a new set of guidelines. It will be “fair dealing 2.0”.
Conservative
Scott Aitchison Conservative Parry Sound—Muskoka, ON
Instead of waiting for the court to interpret a bad law, let's fix the law and make it better. Is that basically what you're saying?
President and Chief Executive Officer, Access Copyright
That's right, because the interpretation of fair dealing will not turn it into a good law. It will still remain uncertain, and we will still be before the courts again for another 10 years. This has been going on long enough.
The damage is not just the payments to the collective for creators and publishers. The damage is not benign. I mentioned the publishers that have exited the market altogether. Authors are not writing books that otherwise would be written. The damage is not benign, and it's been going on long enough.
Conservative
Scott Aitchison Conservative Parry Sound—Muskoka, ON
Ms. McNicoll has her hand up. If you would like to jump in on that, I'd be happy to hear from you. I'm thinking your advice on becoming a lawyer is a good piece of advice.
Author, Canadian Society of Children's Authors, Illustrators and Performers
Actually, I wanted to drill back for the newer members. I wanted to explain something.
I just wrote back copy for my new book, and it took me about three days going back and forth with other writers. Every page of a novel or a textbook requires editors. It requires illustrators and design. There is not one page [Technical difficulty—Editor] exemption. The educational institutions have declared 10% free, so 10% may be a chapter of mine, but it might be a short story in How to Pronounce Knife, and if it is, then they could easily take one of her stories and hand it out every year to students absolutely free. That is where we are with that fair dealing exemption. It has to be reined in.
Conservative
Scott Aitchison Conservative Parry Sound—Muskoka, ON
I'm sorry I don't know how much time I have left, Mr. Landon, but if I create something, it's mine, and if I sell it, it doesn't mean that.... I just don't understand how we can justify that if we buy something once, we can then copy it and give it to a whole bunch of other people.
I'm really struggling with this issue. I'm wondering if you could speak to the educational sector and how they perceive this as sustainable, I guess. It boggles my mind that it's legal, but how is it sustainable? We won't have creators to use for educational purposes if we don't support these folks.
Chief Operating Officer, Universities Canada
Mr. Aitchison, fair dealing is a very common element of copyright regimes across the world, and the line as to whether it's 10% of a book or 20% of a book changes and so on and so forth. In many cases, the allowance is much higher.
It is to balance the users' rights and the creators' rights. It's to create an environment where students can learn so that in certain places there's free access to parts of a work. It's an important element of Canada's copyright law, just as it's an important element of copyright laws across the country.
Conservative
Scott Aitchison Conservative Parry Sound—Muskoka, ON
We're out of time. I have another question, but I have to stop.
Thank you.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
Thank you, Mr. Chair.
I'm going to pick up a bit from where Mr. Aitchison was, because I have some questions going from there.
There has been a fair bit of conversation, and I'm just trying to understand. In 2012, when the Conservative government created this education exception for fair dealing, what was the upside for the universities? Can you explain to me how it's a win such that Universities Canada says that this is why they must keep the education exception?
Chief Operating Officer, Universities Canada
Thank you very much for the question, Ms. Dabrusin.
I think the upside is that a fair dealing exception in education—as it's included in satire, as it's also included for research purposes—is a proper element for a fair balance of materials, really, and it gives students, the public and educational institutions the ability to use material and parts of material in order to educate—
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
I'm sorry. I just want to jump in, because I don't have much time.
As an example, what is it that you can do now that you couldn't do before, just so I can have a better idea?
Chief Operating Officer, Universities Canada
What you can do is print a portion of a work and share it with students without paying for it.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
Okay.
What would be the downside, then, if that were to be reversed? I ask that because there have been some numbers tossed around. I believe that it was $14 per student and, as I think Ms. Levy said, 0.004% of the university budget. Is that the downside we're looking at for universities if we were to reverse this policy?
Chief Operating Officer, Universities Canada
I think it's very important to recognize that, first of all, that $14 number is a recent one. Access Copyright has been asking for $26 in Copyright Board submissions. By reversing that, you give Access Copyright, the collective, a monopoly power over the use of collectives and give them uneven bargaining rights, which they have used in the past in a way that has been very detrimental to the community.