Industry Committee on April 17th, 2018

[The Chair, Liberal, Dan Ruimy]

Welcome, everybody.

We are—exciting times—at meeting number 101 of the Standing Committee on Industry, Science and Technology. Pursuant to the order of reference of Wednesday, December 13, 2017, and section 92 of the Copyright Act, we'll be doing a statutory review of the act.

Before we get into it, I have a few words to say as my preamble. We are televised today. We thought it would be a good idea for the whole world to see us. You're on stage. It's my genuine pleasure to welcome you all to the Standing Committee on Industry, Science and Technology's first meeting on the statutory review of the Copyright Act. The House of Commons honoured my colleagues and me when it entrusted the statutory review of the act to the industry committee. Given the importance of copyright law in our modern economy and the lively arguments it generates, there's a special responsibility that comes with today's undertaking. This is a responsibility shared among members of this committee and participants to the review.

To all Canadians who care about the issue we will examine, whether you submit a brief, appear as a witness in Ottawa, or meet us elsewhere in Canada,

you will be heard. You have our full attention. I make that commitment, as the chair of this committee.

But I ask for something in return. As we embark on what will certainly lead to difficult discussions, please remember that the role of the committee members is to ask all manner of questions to better understand the significance that copyright law has for Canada and its modern economy. Let us not presume the outcome of what will be a lengthy and fairly complex study. Let us always show respect to one another, no matter the different views we may hold on copyright. Let us aspire to a thoughtful and courteous conversation in true Canadian fashion.

Conscious of the critical role our Copyright Act plays in our economy and its effect on the everyday life of Canadians,

the members of this committee have spent many hours preparing this review. The committee has decided to conduct the review in three phases.

In phase one, we will hear from witnesses involved in specific industries and sectors such as education, publishing, broadcasting, software, and visual arts. This phase will notably provide the opportunity for stakeholders to share concerns that are unique to these industries and sectors of activity.

In phase two, we will hear from witnesses representing multiple industries and sectors. The committee looks forward to hearing from, among others, indigenous communities and the copyright board during this phase.

Finally, in phase three, we will hear from legal experts. The committee should expect bar associations, academics, and lawyers appearing in their individual capacities to share their insight and knowledge to improve the Copyright Act to the benefit of all Canadians.

The House of Commons expects from this committee that we will review every aspect of the act. We'll leave no stone unturned. You will all be heard. I want to thank you in advance for participating in this nice, long study.

Let's begin. Today we have with us, from Universities Canada, Paul Davidson, president; and also Wendy Therrien, director of research and policy. We have from the Canadian Federation of Students, Charlotte Kiddell, deputy chairperson. This is the first panel.

You have five minutes to present, and we will start with Mr. Davidson.

[Paul Davidson, President, Universities Canada]

I would like to thank the chair and the members of the committee for inviting me to appear on behalf of Universities Canada.

Our association represents 96 universities in the 10 provinces, whose teaching, learning and research activities extend to the three territories.

With me is Wendy Therrien, director of research for Universities Canada.

Let me just echo the chair's remarks of a moment ago and thank you, on behalf of our members, for undertaking this study. For those who have been on this study before, it is complex, it can be dry, it can be polarized, and it has big impact on the work of students and the work of researchers. Your efforts are vitally important in terms of the more than one million young people studying at Canada's universities today and those who will follow them. Your work is also vitally important to Canada's university researchers, who produce most of the copyrighted educational material used by university students.

The university community brings a balanced perspective to this review, as both owners and users of copyright material. Canada's future will be shaped in large measure by the education students receive today. Fair dealing for education ensures that students across Canada have a diversity of learning materials, educational opportunities, and increased accessibility to post-secondary education.

Digital materials mean that today, more than ever before, young people are equipped to achieve their potential, whether they live in Abbotsford or Attawapiskat, and that helps build a stronger, more prosperous Canada for all. In our rapidly changing world, Canada cannot afford to take a step backward in education. Maintaining fair dealing for education will help ensure Canada's young people continue to have the 21st century education demanded in our changing world.

As mentioned, the vast majority of learning materials used by students today comes from creators on campus, university faculty. University professors are prolific creators in writing books and research papers. One estimate is that academics, not literary authors, produce as much as 92% of the content available in university libraries.

Copyright law needs to balance the interests of copyright owners and the users of copyright material. It should incentivize the creation of new ideas and allow for the dissemination of knowledge. Fair dealing is important for maintaining this balance.

Compliance is also important, and that's why many universities have significantly increased their compliance efforts, with offices staffed by lawyers, librarians, and copyright specialists to advise students, faculty, and staff on the use of copyrighted materials.

Today universities spend more than ever before in purchasing content. According to StatsCan, university library acquisitions in 2016 exceeded $370 million, a figure that has been increasing year over year. In the past three years, universities have spent over $1 billion on library content. Libraries are also changing what they're buying. Our libraries have shifted their primary purchasing from print to digital content. One institution reports that in 2002, only 20% of its acquisitions were digital, but today this number has grown to 80%, and that trend will continue.

It's important for this committee to know that, unlike printed books, the use and reproduction of digital content can be negotiated and contracted. On campus, digital content is usually shared through links and not copies, and is frequently protected by digital locks. Further, Access Copyright's repertoire doesn't cover authors of born-digital works and is restricted to authors of printed material.

Along with digital content, most libraries now have e-reserve systems, making it easier for students to use library content on their personal devices 24-7. These systems are making printed course packs much less common than just a few years ago.

Beyond digital disruption, a series of Supreme Court decisions guides the use of copyright material on campus. Before 2012, the Supreme Court of Canada said fair dealing is a right, and that's significant. In 2012, a series of decisions by the Supreme Court concluded that the right of fair dealing was much broader than how the education sector had been using it up to that point. These judgments were the genesis for the shift in how the education sector has managed copyright.

Since 2012, the courts have continued to expand our understanding of copyright law. A growing body of legal decisions is determining the details of what fair dealing means, and several active court cases are still pending.

I would respectfully submit that Parliament should allow the courts to continue their work before intervening with more legislation.

To conclude, it's true that parts of our cultural industries are struggling to adapt to the digital disruption affecting Canadian society. Canada's universities were pleased to participate in the 2016 review of Canadian cultural policy and to recommend new tools to support the creative economy. But changing fair dealing is not the answer to the challenges facing copyright owners during this period of transition. Changing fair dealing would have a direct impact on the affordability of education for students and the quality of the teaching materials at all levels.

Thank you very much for the opportunity to speak with you today. We wish you well in your deliberations. We welcome any questions you may have today or throughout the consultation process.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We'll move to Ms. Kiddell from the Canadian Federation of Students.

[Charlotte Kiddell, Deputy Chairperson, Canadian Federation of Students]

Thank you. Good afternoon, and thank you for your invitation to present today.

As you said, my name is Charlotte Kiddell, and I am the deputy chairperson of the Canadian Federation of Students. The federation is Canada's largest and oldest national student organization, representing over 650,000 university and college students, including the 90,000 graduate student members of our national graduate caucus. Those in this latter group are themselves educational content creators.

The federation has a mandate to advocate for a system of post-secondary education that is of high quality and is accessible to all of Canada's learners. This includes advocating for our members' ability to access learning materials for the purposes of research and education in a way that is affordable and fair.

Over the last several years, we’ve seen a shift initiated within the academic community to prioritize learning opportunities that allow for multiple points of access to information. Tired of predatory pricing from large corporate content owners, academics have increasingly opted towards models of providing content directly to the education community. These models include the use of open access journals and open educational resources. In fact, today nearly half of all research publications in Canada are available online for free.

There's another essential facilitator of access to information—the current fair dealing provisions within the Copyright Act. Fair dealing, which has been affirmed by the Supreme Court as a central tenet of copyright law since 2004, allows for the limited use of copyright-protected works, without payment or permission, for the purposes of research and education. Such provisions allow educators to share brief video clips, news articles, or excerpts of a relevant text. Fair dealing has not resulted in the replacement of traditional learning materials. Rather, it allows educators to supplement these materials for a richer, more dynamic learning experience.

The Supreme Court of Canada has repeatedly affirmed the role of copyright law in serving the public good. The ability of students to fairly access an array of research and educational materials is essential to not only the quality of post-secondary education they receive but also their ability to contribute to innovation and development in Canada.

This government demonstrated its commitment to scientific development and innovation with substantial investment in fundamental sciences in budget 2018. We would ask that the government uphold its commitment to research and development by protecting fair dealing.

In recent months, students have heard myths, perpetuated by private publishing stakeholders, that students’ advocacy for fair dealing is rooted in an unwillingness to adequately compensate content creators for their work. I wish to address these concerns in case they are shared by members of the committee today.

First, let me affirm that students and their families have paid and continue to pay significant sums for learning materials. According to Statistics Canada, average household spending on textbooks in 2015 was $656 for university texts and $437 for college texts. Indeed, a report on the book publishing industry in 2014 finds educational titles to be one of the top two commercial categories in domestic book sales.

Second, I will acknowledge that students do struggle to afford textbooks. A 2015 British Columbia study found that 54% of students reported not purchasing at least one required textbook because of cost; 27% took fewer courses to lessen textbook costs; and 26% chose not to register for a course because of an expensive textbook. However, these results are hardly due to a desire to keep profits from content creators. When both textbook prices and tuition fees increase each year at rates that far outstrip inflation, students and their families are forced to make difficult decisions on how they afford post-secondary education.

Today the average undergraduate student accumulates $28,000 in public student debt for a four-year degree. A student relying on loans may find that a $200 textbook eats up most of their weekly loan disbursement and thus is put in the impossible position of choosing between course books and groceries.

To conclude, I would like to say that both the Supreme Court decisions and Parliament’s passage of the Copyright Modernization Act in 2012 affirmed the wisdom and justice of our current copyright regime, including fair dealing. Canadian copyright law has positioned Canada as a leader in the fair and dynamic exchange of knowledge and ideas. We ask this committee to protect our copyrights in the interest of students and educators, but also of the broader Canadian public. Students have benefited from a good system over the last several years, and are eager to continue working with this government to maintain and strengthen it.

Thank you for your time. I look forward to answering any questions you may have.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We're going to jump right into questions.

Mr. Longfield, you have five minutes.

[Lloyd Longfield, Liberal, Guelph, ON]

Thanks, Mr. Chair.

Thank you all for being here. Copyright is a complex topic when it comes to different opinions, depending on whom you're talking to.

Mr. Davidson, you outlined one of the stresses here, the balance between paying content creators for their works and being able to access their works as somebody trying to learn from previous people's publishing. Looking at the online platforms like Cengage, or other platforms available for professors and students to access information, could you talk about how Cengage works within the university platforms?

[Paul Davidson]

I can reiterate the university's position in terms of trying to find the balance between the rights of users and the rights of creators of content and rights holders. That's an ongoing challenge that we've had. The decisions over the last few years by the Supreme Court, by Parliament in the 2012 act, have helped clarify the ground considerably.

One of the newer developments in undergraduate teaching and teaching generally has been the use of learning management systems. I'm not directly familiar with the one you spoke about, but again, the learning management systems are a tool that in many ways can reaffirm the rights of rights holders and the rights of users to effectively use the content and make sure that appropriate compensation is given. There's a wide range of capacities in those learning management systems, but it's separate from the issue of copyright directly before us today.

[Lloyd Longfield, Liberal, Guelph, ON]

Thank you for that.

I had a round table in Guelph, and I had the different stakeholders: the university, the bookstore, the librarians, the researchers, the publishing houses. One of the things that came up from the library was the institutional licensing of course material and the libraries having inflationary costs they have to deal with to keep libraries open. The Guelph library did receive federal funding for an expansion for the physical location, but the operational costs continue to increase.

When it comes to policy around institutional licensing, could you speak to what your members are telling you?

[Paul Davidson]

I have a couple of comments there. Again, as the committee embarks on its work, I really invite you to visit campuses across the country to see what a dynamic learning environment there is, how the different factors at play within a university are working with new technology and new pedagogy to ensure that students have an optimum experience, a quality experience.

On the issue of buying content, I want to be clear that universities buy a considerable amount of content each year, over $300 million a year in library acquisitions. That number is large and growing. We're a major customer of the rights holders. There are also a variety of new ways of buying the rights to use content. For many years, Access Copyright was the primary source, but there are other sources now that may be more purpose-built to the needs of students and faculty.

As the committee embarks on its study, we really encourage a detailed look at those different tools and techniques available, because I think many in the university community would say they don't mind paying appropriate amounts for content, but they don't want to have to pay for it three times.

[Lloyd Longfield, Liberal, Guelph, ON]

Right. Thank you.

Charlotte, the students that I've talked to mentioned finding other ways to get course materials. There was #textbooksbroke, a site that students were using. There are student stores starting up, and campus stores competing with maybe some of the online stores. Back in the 1970s, when I was buying textbooks, you could buy used textbooks in a different way from what they're doing now.

Could you talk about how the students are getting creative? You mentioned it in the presentation, but how are students getting access to information that they need for their studies?

[Charlotte Kiddell]

I certainly acknowledge that students are increasingly struggling to afford all aspects of post-secondary education. That includes textbooks. When students are put in a position where tuition fees are increasing at exponential rates every single year, they're certainly having to make difficult choices. But I think to pin any decline in income for content creators on students is a false characterization.

For one, students are spending significant sums on university textbooks, over $600 in average annual household family spending. Moreover, adequate funding for arts and for writers is not mutually exclusive from fair dealing. We certainly support that; just not on the backs of students. The other mechanisms I talked about, open educational resources and open access journals, are mechanisms for more dynamic exchanges of information among the educational community, but certainly not at the expense of content creators; rather, they're championed by many content creators within the academic community.

[Lloyd Longfield, Liberal, Guelph, ON]

Thank you both for your time.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We're going to jump to Mr. Jeneroux for five minutes.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Great. Thank you, Mr. Chair

Thank you for being here. It's wonderful to kick off this study, which sounds like it will be a long one, with both of your organizations here before us.

I do quickly want to ask a question with regard to something that was done back in early 2015 by one of my predecessors, Minister Holder, when he announced the tri-council granting agency's open access policy.

Mr. Davidson, I'd like to get your assessment of that policy, which stipulates that reports from grant-funded research must be made freely available to the public within 12 months after publishing.

[Paul Davidson]

We're already into a great conversation today, because we're seeing the dynamics of a shifting landscape. The initiative of the previous government to ensure that publicly funded research would be publicly available has been a useful development. It has been one that our members watch with great interest. It has been one that I know students and graduate researchers benefit from, and it does address one of the questions of both content creation and accessibility of the research that has been done.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Could that expand to other areas? It's within the granting councils. Do you see a benefit of that expanding?

[Paul Davidson]

The open access publishing development is, as I say, a very rapidly evolving landscape internationally. The academic community is watching it around the world. It is an effort, to pick up on an earlier point, to try to mitigate the exorbitant, excessive costs that publishers can derive from their academic journals, from their academic publications.

I would hope in the course of this study the committee would look at the changing nature of academic publishing in the world, the concentration of ownership, and the impacts that has on the ability of people to access information that has been publicly funded.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Great.

I'm shifting gears a bit in the limited time I have. I'd like to get your assessments, Charlotte and Paul, on the amount of time it takes the Copyright Board to conclude its cases. I'll leave it at that, kind of open-ended on the Copyright Board in general.

[Charlotte Kiddell]

You go ahead.

[Paul Davidson]

Okay.

A number of people, even around this table, have been around copyright issues for a very long time, and I think you will find unanimity as you tour the country on the importance of reform of the Copyright Board, for it to be able to come to timely decisions. That's the key issue. We were pleased to participate in the Government of Canada's consultation on this. We are expecting those deliberations to conclude shortly.

One of the big challenges in this whole terrain is providing certainty to all the players. As the Copyright Board for many years was under-staffed, for many years was not fully constituted, its ability to absorb and carry out its proceedings was really compromised by that. A more robust Copyright Board could be part of the solution to resolving some of these challenges so they're not always before Parliament.

[Charlotte Kiddell]

As I was saying, among our recognition of what is a strong system of copyright right now, there are obviously opportunities to strengthen copyright law. An area of particular interest for students and academics is copyright law as interrelating to indigenous knowledge and indigenous ownership of information. I think some robust consideration is really warranted, and there are opportunities to make what is already a strong piece of legislation stronger.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Do you have anything specific to add on the Copyright Board? No? Okay.

All right, Chair. I'm good.

[The Chair, Liberal, Dan Ruimy]

You still have 30 seconds.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

No, I'm good.

[The Chair, Liberal, Dan Ruimy]

All right.

Mr. Masse, you have five minutes.