Industry Committee on April 17th, 2018

[Charlotte Kiddell]

Briefly, focusing too much on cost savings as part of fair dealing really misses the main point, which is that fair dealing enables students to access a diversity of learning materials in—

[Brian Masse, NDP, Windsor West, ON]

That's not the question. The question is this. If there is a change and it incurs a difference in the cost situation, should that be part of the decision if a change takes place, so there can be real measurement for the costs to students later?

[Charlotte Kiddell]

I'm confused about how you're working the cost of tuition in with cost of learning materials and what have you.

[Brian Masse, NDP, Windsor West, ON]

Well, we can follow up, but you're arguing it's costing more if it changes, but that's what we're trying to find out. Is there is a true measurement about the costs to students related to copyright or not?

[Charlotte Kiddell]

The costs would be that students would be paying for any supplementary materials brought into the classroom or that they would be seeing a classroom environment with a much poorer diversity of materials, essentially.

[The Chair, Liberal, Dan Ruimy]

Thank you.

I'm afraid we're out of time for our first panel.

It's important to understand that, as committee members, if we can't get witnesses to say what they need to be saying on the record, then it doesn't enter into the report, so all manner of questions have to be asked and we don't want to assume anything. That is why this is so important. We know it will be complicated.

Thank you very much for coming in. We're going to suspend for a very quick two minutes to get the next panel in.

[The Chair, Liberal, Dan Ruimy]

Can I get everybody back? We're on a tight timetable. Welcome back, everybody.

For the second portion of this, we have, from the Canadian Association of University Teachers, Pamela Foster, director of research and political action; and Mr. Paul Jones, education officer.

From Campus Stores Canada, we have Shawn Gilbertson, manager of course materials for the University of Waterloo.

I'm sure you sat down and watched the beginning of the proceedings. The name of the game is to get stuff on record. That's how we'll be able to present a good report.

We're going to start right off with Mr. Jones. You have five minutes.

[Paul Jones, Education Officer, Canadian Association of University Teachers]

Thank you. My name is Paul Jones, and I'm with the Canadian Association of University Teachers, CAUT. I'm joined by my colleague, Pam Foster. We would like to begin by thanking the committee for presenting us with the opportunity to appear before you.

CAUT represents 70,000 professors and librarians at 122 colleges and universities across Canada. Our members are writers, creating tens of thousands of articles, books, and other works every year. We understand the importance of authors' rights, and as a labour organization have succeeded in protecting these rights through the collective bargaining process.

Our members are also teachers and librarians, whose success depends on making information available to others. In these capacities, they have been at the forefront of implementing new ways to create and share knowledge with each other, with students, and with the public at large. The dual nature of our membership has taught us that copyright should serve all Canadians equally. It is in respect to the need for the act to serve all Canadians that we raise our first issue.

In their letter to this committee, the Honourable Navdeep Bains and Melanie Joly stated:

During your hearings and deliberations, we invite you to pay special attention to the needs and interests of Indigenous peoples as part of Canada's cross-cutting efforts at reconciliation.

This is something we wish to address. From indigenous communities, CAUT has heard first-hand of the damage caused by the appropriation of their cultural heritage, and of the failure of the Copyright Act to provide protection.

In fact, we know of one provision in the act directly responsible for the loss of a community's stories. Indigenous elders and scholars are working to address this broader issue, as are dedicated experts within the public service of Canada. We encourage the committee to support these efforts, and ensure that the Copyright Act recognizes indigenous control over their traditional and living knowledge.

The other issue we wish to address this afternoon is fair dealing. Not that long ago, the Copyright Act's purpose was seen as primarily benefiting the owners of literary and artistic works. This has changed with the Supreme Court's 2002 decision in Théberge v. Galerie d'Art du Petit Champlain inc., which was an important turning point.

In that decision, the court said:

The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them.

This idea of balance was expanded in a series of more recent Supreme Court decisions, and it was affirmed by Parliament in the 2012 Copyright Modernization Act.

This approach, in which user rights and owner rights are given equal weight, has accompanied enormous innovation in the way knowledge is created and shared. Librarians and professors have been at the forefront of the open access movement and the open education resource movement, in which the journal articles and textbooks they write are made freely available to the online world.

Fair dealing has been a small but important part of this innovation, allowing students, teachers, and researchers to easily exchange material in a timely fashion. For example, it would allow a class to quickly share a controversial newspaper editorial, an excerpt from a movie, or a chapter from a rare, out-of-print book. The recognition of fair dealing for educational purposes by the Supreme Court and by Parliament has been of benefit to Canada.

Now, as I'm sure you are aware, not everyone is happy with fair dealing. There are two things you will hear or will have already heard. First, you will hear that poets and storytellers in Canada are often struggling at or near the poverty line. This is absolutely true. Second you will hear that fair dealing is in part responsible for this. This is not true.

The impoverishment of large sections of our artistic community far predates educational fair dealing. It is also a sad fact across the globe, including in jurisdictions where educational fair dealing does not exist. The reality is that fair dealing covers a small amount of content use on campuses, of which an even smaller fraction is literary works by Canadian authors. In fact, when it comes to supporting authors and publishers, Canada's post-secondary education sector has a proud record to point to.

Yes, we are developing new ways to create and share information, and it is true that in the last 10 years there has been enormous disruption in the world economy, with more losers than winners in all sectors, but we in the post-secondary sector continue to spend hundreds of millions of dollars per year on content.

To conclude, we urge the committee to affirm the Copyright Act as legislation for all Canadians by addressing the concerns of indigenous communities and by supporting a public post-secondary education sector where a combination of open access journals, open education resources, fair dealing, and hundreds of millions of dollars spent annually on content provides the best possible learning and research environment.

Thank you again for inviting us, and thank you for the important work that you're doing.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We're going to move to Mr. Shawn Gilbertson from Campus Stores Canada.

You have five minutes, sir.

[Shawn Gilbertson, Manager, Course Materials, University of Waterloo, Campus Stores Canada]

Thank you, Chair.

Good afternoon. I'd like to thank the committee for the opportunity to appear before you today. My name is Shawn Gilbertson. I'm the course materials manager at the University of Waterloo. I'm here today on behalf of Campus Stores Canada, the national trade association of institutionally owned and operated campus stores. Campus Stores Canada has 80 member stores and more than 150 vendor and supplier associates nationwide. This means that, if you know one of the million or so post-secondary students, you probably know someone who is served by a member of Campus Stores Canada.

Campus stores serve students by ensuring they have access to high-quality learning resources by acting as a conduit for the distribution and fulfillment of print and digital course material. We are here today with a simple message. Fair dealing has not negatively impacted the sale and distribution of academic material in Canada. The 2012 expansion of fair dealing to include educational use as an exemption is an important clarification of user rights. Importantly, this review must be considered within the context of a rapidly evolving marketplace.

To be clear, the higher education publishing market has seen a significant shift away from traditional print-based mediums towards digital learning products often sold at lower prices. This might clarify some of the questions asked earlier. Further disruption is a result of changes in consumer behaviour, provincial policy changes, and a competitive online marketplace. These changes are part of an industry faced with increased competition and more choice for consumers in the way they purchase, access, and consume course material.

However, I should note that unaffordable prices of some course material has led to decreased demand for expensive textbooks that may have only been slightly updated. In addition, there has been significant market saturation of print learning material with increased competition through the growth of textbook rentals, imported international editions, peer-to-peer selling, and increased demand for less expensive older editions.

Students, the ultimate users of learning materials, no longer see the value in expensive, single-use texts. As with other industries like music and video, user expectations of value have shifted. New channels, new business models, and new market entrants are further perpetuating the disruption of traditional print revenues, fostering the investment and development of digital products and subscription-based services, with early indicators pointing to significant growth.

With that said, we would like to underscore an important point from the joint ministers responsible for copyright when they stated in a letter to this committee that “...the Copyright Act itself might not be the most effective tool to address all of the concerns stemming from recent disruptions...” Campus Stores Canada encourages the committee to keep this top of mind when reviewing briefs and listening to testimonies from creators and copyright owners.

To conclude, it is imperative that this committee recognize the important balance between creators and users of intellectual property and the value of fair dealing. Fair dealing remains a fundamental right necessary to safeguard creator and user interests as this industry innovates and evolves.

On behalf of Campus Stores Canada and the students we serve, thank you for the opportunity to speak to you today.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We are going to go right into questions.

Mr. Sheehan, you have five minutes.

[Terry Sheehan, Liberal, Sault Ste. Marie, ON]

Thank you very much.

Those were great presentations.

Earlier on, I asked about how the government, this committee, could make recommendations to better address the long-standing issue of indigenous concerns over copyrighting.

Paul, I know in your remarks you just made a statement about that. Again, I don't know if you were here, but in Sault Ste. Marie we have a number of indigenous activities going on relating to truth and reconciliation and the building of initiatives at the Discovery Centre. The infrastructure is being built right now and is going to work with Algoma University, which is also a site that was a former residential school.

They are really trying to address the issue of indigenous education, so they're involved with it, but they're also helping address the truth and reconciliation recommendations. Part of that is that they are going to be housing a lot of artifacts. There are going to be a lot of teachings, and there are concerns about indigenous copyrighting in Canada.

Would you be able to expand a little further about your views or your organization's views on how Canada can better protect indigenous teachings and cultural artifacts, etc. in the institutions through better copyright legislation?

[Paul Jones]

The first thing I should clarify is that we take our knowledge from our indigenous members—indigenous academic staff—who have explained the problems to us. We are trying to convey that along, but they will be the main spokespeople on this and will bring forward the concerns more directly. I would not want to appear to be pre-empting that or speaking on behalf of another community.

We have learned that western notions of intellectual property set out in the Copyright Act or the Patent Act, with very precise definitions of individual or corporate ownership and very precise timelines for the creation of knowledge and how long that knowledge lasts, do not fit at all well with the different kinds of indigenous knowledge systems that exist within aboriginal communities. The mix between those two things—our Copyright Act and traditional approaches to indigenous knowledge—is very difficult.

One particular example that came to our attention was that of a historian in New Brunswick who, in the seventies, recorded stories of elders. When the community wanted to access those stories, recordings, and transcripts, they were not able to, because copyright ownership in those stories was claimed by the person who had made the recordings. It's now section 18 of the act, I think, that gives those rights to the recordist. In this case, the community was not able to access the stories. The elders who had told the stories had died. Most of their children had died. It is just now that they have finally broken through and been able to publish these stories.

That was a specific example of one small part of the act, which in that instance caused real damage to that community, real sorrow and heartbreak. I believe that same situation has happened in other places.

There are other situations where, because the copyright requires a specific creator—someone to claim ownership—and a specific timeline, it doesn't fit well with notions of community ownership or with notions of ownership since time immemorial, going back and going forward.

We would not purport to say exactly what has to be done. We know there are experts and elders within indigenous communities who can speak to this. We just want to put our support behind them in making the changes necessary to protect indigenous knowledge.

[Terry Sheehan, Liberal, Sault Ste. Marie, ON]

Thank you for that, Paul.

We wanted to make sure we got that on the table right away. This is the first meeting of this copyright study, so to both sets of witnesses, I really appreciate your contribution to that important discussion we'll have later.

For Shawn, what is the position of Campus Stores Canada on the current litigation between collective societies and Canadian universities? Can you delve into that?

[Shawn Gilbertson]

I can only speak to the role that Campus Stores Canada played prior to 2012. Campus Stores Canada is responsible for course pack printing. My understanding is that about 75% of the revenues came from that previous licensing arrangement. As we understand it, there are two parts to that licensing arrangement, one that was a blanket FTE fee that covered all incidental copying, and then 10¢ per page for print course packs.

One of the key differentiators we've seen leading up to 2012 and since is a shift to e-reserve use, because of the increase in expenditures in library licensing. Needless to say, there is less of a need for that type of licensing scheme when students would otherwise be paying twice for that course material.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We're going to move to Monsieur Bernier.

You have five minutes.

[Maxime Bernier, Conservative, Beauce, QC]

Thank you very much.

My question is for Mr. Gilbertson.

Thank you very much for being with us.

I want to know in a bit more detail what your members are doing to respect the law right now.

Also, what would be the impact on their activities if they wanted to promote their rights? Can you just answer the first part?

[Shawn Gilbertson]

I probably can't speak more broadly on the education sector.

Certainly, Campus Stores Canada is involved in the sale and distribution of course material, not necessarily copyright enforcement. However, we have individuals who are part of our staff and who have expertise in copyright licensing. For example, we still adhere to the transactional licensing required for various permitted uses, those that exceed fair dealing exceptions.

Does that help answer your question?

[Maxime Bernier, Conservative, Beauce, QC]

What is the big change that we must make for the renewal of this legislation? If you have only one recommendation, what would be your recommendation?

[Shawn Gilbertson]

It's simply not to address fair dealing. There's no reason to change the current law.

[Maxime Bernier, Conservative, Beauce, QC]

Okay, thank you.

I have another question for Mr. Jones.

How can we ensure that a university professor would be able to respect that legislation and at the same time also their right to be protected? With the legislation that we have in front of us, what is the biggest concern of the university professors?

[Paul Jones]

You've asked for one concern, and we have five issues we want to bring forward—our five biggest concerns. The first one is to leave fair dealing alone. You know that. We're also very concerned, as in our opening statement, that the concerns of indigenous communities are addressed in the act. Beyond that, the current term is life plus 50, and that's a reasonable approach. To the extent that this can be protected in national legislation, what with international trade agreements starting to infringe on that, we urge that it remain at life plus 50.

The Copyright Modernization Act of 2012 did a good job of moving a lot of things forward. One area where it didn't quite succeed was on the issue of technological protection measures. In particular, a small, but elegant change there that would allow digital locks to be broken for non-infringement purposes.... If there are reasons that you can legally reproduce something, but it's in a digital format and it's protected, you should be able to still go in and do that.

The other issue that we were interested in talking about further, and we'll develop this in our submission, is the issue of crown copyright, which we would want to see loosened, to be moved back to allow Canadians better access to the information that the government produces, ultimately with a goal perhaps of abolishing it, but with some baby steps along the way to move that forward.

[Maxime Bernier, Conservative, Beauce, QC]

Thank you.

[The Chair, Liberal, Dan Ruimy]

Mr. Masse, you have five minutes.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

I am going to touch on the digital locks. Give us an example as to what is taking place, and where that can be problematic. I think that's an important part of the previous review that took place that seems to be getting eclipsed in terms of its understanding of the repercussions. Can you perhaps give us a bit of an example?