Evidence of meeting #101 for Industry, Science and Technology in the 42nd Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was access.
A video is available from Parliament.
President, Universities Canada
To be honest, we don't have a view on that explicitly. Again, we are active participants in the work that you're doing to try to assess what makes most sense in an evolving landscape.
Conservative
Matt Jeneroux Conservative Edmonton Riverbend, AB
Okay. Great.
Could you quickly expand on some of the court cases you referred to as they're making their way through the court and what type of legislative changes you'd like to see specifically in reference to those cases?
President, Universities Canada
I should say at the outset that we are seeking leave to be intervenors in one case that's being considered, and that's the York case, so I want to be very careful that we don't comment explicitly about that.
Again, to come back to the point of the previous committee in the previous Parliament, I think there were three ministers involved. There were three rounds of consultations to get the Copyright Modernization Act to its current state in 2012. That was a massive undertaking, and we believe it struck a fair balance. It struck a correct balance. To be upsetting that apple cart as universities are investing in compliance and as, frankly, rights holders are trying to develop new products and services, to dramatically change what we think is a fair balance right now, would not be in the public interest.
Liberal
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
Thank you, Chair.
First, we heard about your increasing expenses vis-à-vis copyright. I think you said $370 million this year. By the same token and on the other side of the coin, we're hearing a lot from small Canadian publishers who are coming to us and saying they've seen a radical drop-off. Where's the money going? You're paying more and they're not getting any. They're not satisfied. What's happening?
President, Universities Canada
It's a fair question, and it's something I have great sympathy for. The public policy tools that were developed in the 1960s and 1970s to create a vibrant Canadian culture were extremely effective. I think the real public policy challenge is this: how do we ensure that we have new public policy tools that respond to the new reality to ensure that Canadian stories can be told far and wide? I think the Canadian cultural policy review that looked at export opportunities is something that bears further scrutiny.
In direct answer to your question, about 92% of library holdings are created by academics. The content is created by academics. They're not created by the small Canadian publishers. They're not created by the literary authors. I think there are other vehicles to address the needs of small presses and so on.
Liberal
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
They said that since fair dealing has come in, they've seen a radical drop-off in their income. On the other hand, you say we're paying more and more and more. Where is your money going? You're not giving them the money. It has got to be going somewhere else if you're paying more. Correct?
President, Universities Canada
The money is going to a variety of intellectual property from a variety of sources, international publishers, international rights holders, and other sources—
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
This is your chance to talk to us, because they're going to be talking to us and telling us that you should be clamped down in fair dealing. We need to address their concerns. It's not working for them. Unless they're misleading me or whatever, they're saying that they're seeing the point of even bankruptcy. So we need to know.
You mentioned monopolies in publications, and I think Ms. Kiddell mentioned open source. Where is the money going if it's not going to our Canadian small businesses?
President, Universities Canada
Intellectual property is being purchased in record amounts by Canadian universities through other publishers, through other sources of content providers. That's the best answer I can provide you. It's not that....
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
Do you know how much more you would be paying if in 2012 the fair dealing hadn't come in?
President, Universities Canada
Again, I think some are trying to establish causation by correlation. We're living in a disruptive world. Look at how the taxi industry has changed over the last five years. Look at how other sectors are roiling because of disruptive change. I think there are all sorts of public policy measures and mechanisms that can be used to support small Canadian publishers and small Canadian authors, but fair dealing is not the approach. It's using the wrong tool.
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
Fair enough. They've come to us, or companies have come to me, on this concept.
I want to touch on the point you had about it going through the court system. I think you were referring to Access Copyright v. York. To my understanding—I've only read summaries of it—York lost, and it was said that they're abusing fair dealing in not paying these publishers. But then in your testimony you said let it go through the courts. I know it's being appealed. Is it your feeling that if it's appealed to the Supreme Court they will reverse what the Federal Court did?
President, Universities Canada
There are a number of proceedings under way. York is one of them. We are a potential intervenor on that, so I want to be cautious about commenting on specifics in that case. What I will draw your attention to is the ruling of the Federal Court a year ago, and as recently as four weeks ago, that strongly upheld the principles of fair dealing for educational purposes.
So there are a number of court cases under way, and—
Liberal
Frank Baylis Liberal Pierrefonds—Dollard, QC
In that sense, in the end it comes down to what's fair: I have written a book, and you're using a chapter of the book. If there are only two chapters in the book, you're using 50%. If there are 10, chapters you're using 10%.
I'll ask both of you, but starting with you, Ms. Kiddell, what in your world view would be fair dealing in, say, taking a book and taking a section of the book and not paying for it? What would be fair in your world view and in the view of the students?
Deputy Chairperson, Canadian Federation of Students
As I said, I think the current fair dealing provisions under the copyright law are very strong, but I actually want to address what you were bringing up earlier in terms of concerns from the small publishing industry about declines in profits being associated with fair dealing.
I would absolutely echo the statement that that's a matter of correlation and not causation. I think there's strong evidence for this, because internationally, profits and income in terms of content creators and small independent publishers are on the decline, and that's not because of fair dealing. That's happening in many countries without fair dealing for the education sector. I would say that's much more attached to in fact a global trend of stagnant and declining profits and wages.
I think both Mr. Davidson and I have affirmed that there is a strong role for the government to play in funding arts and culture. In fact, I, as a person who represents students who are aspiring content creators, many of whom are already content creators themselves, am very concerned about lack of income for content creators. But government investment in arts and culture for this country ought to come through direct government funding for arts and culture and not through subsidizing that through the education sector and mostly on the backs of students.
Conservative
Matt Jeneroux Conservative Edmonton Riverbend, AB
Thank you, Mr. Chair.
There's a copyright law expert from Osgoode, Professor Vaver. He expressed a concern that clarity in terms of the exact meaning of fair dealing has been left up to the courts, given the ambiguity of its definition in the Copyright Act.
Do you believe copyright should be updated to provide a clearer definition of fair dealing, or should the responsibility be left to the courts?
President, Universities Canada
Let me jump in and say that, first of all, fair dealing is a right that has existed for decades. Fair dealing for education was made explicit just five years ago in a series of five decisions by the Supreme Court of Canada. So this is complex law that needs to be determined.
There are a variety of approaches to addressing fair dealing. Some advocate very clear definitions of bright lines; others have different views. I think you're at the start of a very long process where you're going to hear a lot of conflicting testimony, and you have a really big task in front of you.
I believe the act in 2012 struck an appropriate balance. We have a set of guidelines that our sector is using that is, in my view, concurrent with the legislation, and that is being tested in the courts right now.
Conservative
