Industry Committee on April 24th, 2018

[The Chair, Liberal, Dan Ruimy]

Welcome, everybody, to meeting number 102 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 are continuing our review of the Copyright Act.

Today we have with us, from the Canadian Alliance of Student Associations, Michael McDonald, Executive Director. From the Canadian Association of Research Libraries or CARL, we have Susan Haigh, Executive Director, and Mark Swartz, Program Officer. From the Union des écrivaines et des écrivains québécois we have Suzanne Aubry, President, and Laurent Dubois, General Manager. From the Canadian Research Knowledge Network, we have Carol Shepstone, Past Vice-Chair and Chief Librarian at Ryerson University.

We will start with the Canadian Alliance of Student Associations.

You have seven minutes, sir—or is it five?

[Michael McDonald, Executive Director, Canadian Alliance of Student Associations]

I'll take seven. That's a great trade.

Good afternoon, Mr. Chair, esteemed committee members, fellow witnesses, and members of the gallery.

My name is Michael McDonald. I'm the Executive Director of the Canadian Alliance of Student Associations, otherwise known as CASA. CASA is a non-partisan organization that represents over 250,000 students at colleges, universities, and polytechnics from across the country. We advocate for a post-secondary education system that is affordable, accessible, innovative, and of the highest quality for all.

Thank you for the invitation to speak today about the Copyright Act. Copyright law has a profound impact on students in Canada. We believe the statutory review presents an excellent opportunity to reflect on what has worked, and to address what has not.

Students purchase, study, and create copyrighted material daily. It will surprise no one at this hearing to learn that students are seeing first-hand the rapid shift towards digital content delivery and the adoption of new learning tools. For example, open access journals are ensuring that more content than ever before is available freely. In many academic fields, including the STEM fields, these journals are now becoming the primary way through which new research is shared.

Open educational resources are also reshaping the academic materials landscape. These high-quality, open-source materials allow for content, such as textbooks, to be available to students and educators for free. Such materials have immense potential to be adapted to meet the needs of diverse students and diverse audiences. British Columbia and Ontario have already committed to providing funding for the creation of OER textbooks, and the savings students have seen for these programs have been growing daily.

Both open access and open educational resources are modern innovations whose returns for students, in both cost savings and quality improvements, are only just being realized. While we understand this is outside of the Copyright Act itself, we believe it is crucial to understand what educational content will look like in the years to come when reviewing the act and the arguments presented here today. They also present a valuable opportunity for the federal government to foster further innovation and learning.

A further facet of the modern learning environment has been fair dealing. The official inclusion of education as a component of fair dealing in 2012 clarified the rights articulated by the Supreme Court. While this right has helped reduce some of the transactional costs for students associated with accessing content, we think it is important to give special attention to how fair dealing has improved the quality of the post-secondary education experience provided here in Canada. The inclusion of education as a component of fair dealing creates a mechanism that facilitates the legitimate exchange of small amounts of information. This encourages a diversity of sources and perspectives to be used. In an academic setting, to use a metaphor, this is an intellectual lubricant. This can be content delivered by professors in classrooms, but it can also be through the peer-to-peer learning experiences fostered in study groups and group presentations. This is the organic teaching that is so hard to quantify, and we think is so precious to protect.

CASA believes that fair dealing for educational provisions in the Copyright Act must remain intact. We also recommend that, to further strengthen the system, the committee examine any punishments for bypassing digital lock systems and consider their removal, since these restrict users' ability to exercise their legal rights over that content.

It is critical to note that, throughout this era of digital disruptions, students, professors, and post-secondary institutions continue to pay for academic materials. According to household survey data from Statistics Canada, average household spending on textbooks alone was over $650 in 2015 for university texts and $430 for college texts. These expenditures are clear evidence of the continued use and purchase of effective published materials.

This leads us to discuss the Copyright Board. CASA believes that the current regime overseen by the Copyright Board does have some flaws. Transparency, openness to feedback, and honesty are values that we would expect from Facebook, and these are values that we would expect also from our tariff system. While post-secondary education tariffs are presented as an agreement between rights holders and the post-secondary education institutions, we believe that it's important that the primary consumer of these materials—students—be considered. Students pay for these tariffs, either directly, through ancillary fees administered by provincial ancillary fee structures, or indirectly, through operations budgets. It is the cost they are expected to bear and one that we do not believe is being adequately considered. CASA believes that any fee assessed on students must clearly be explained and justified. This is something we would ask at an institution and it's something we expect from the federal government as well.

Access Copyright fees, so far, have lacked many of the attributes that we would expect from normal service provision. First, these fees sometimes seem to be determined at random. The fees for university students were $45 in 2011 to 2013, and were adjusted to $35 in 2014 and 2017, while the fee offered on the website was $26.

Students are concerned about what kind of product they have this kind of variability. The attempts that have been made to more clearly understand this fee have been met by opposition from Access Copyright, when requests for this transparency have been made by the Copyright Board.

At it stands, there's no clear rationale why these fees apply to all students equally, especially considering the different licensing needs of faculties. We believe that university administrations are excellent decision-makers when deciding what kind of content to purchase in these environments.

We're also extremely concerned that the fees proposed in other sectors by Access Copyright have so far been found to be much higher than deemed appropriate by the Copyright Board. This is deeply troubling, and we're calling on the committee to ensure that the Copyright Board provides clear, public rationale for why fees exist and to demand public accounting for those who wish to operate tariffs.

CASA hopes that the committee, through it's consultations and deliberations, keeps in mind the importance of preserving flexible, adaptable copyright systems that serve the needs of both creators and users.

Students appreciate the committee's dedicated work on this complex subject.

I look forward to answering your questions.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We are now going to move on to the Canadian Association of Research Libraries, and Susan Haigh, the executive director.

[Susan Haigh, Executive Director, Canadian Association of Research Libraries]

Hello. My name is Susan Haigh and I am the Executive Director of the Canadian Association of Research Libraries.

The Canadian Association of Research Libraries, or CARL, is the national voice of Canada's 31 largest research libraries, 29 of which are located in Canada's most research-intensive universities.

With me today is Mark Swartz, a visiting program officer at CARL, and copyright manager at Queen's University.

Research libraries are deeply committed to enabling access and use of information, to fostering knowledge creation, and to ensuring a sustainable and open Canadian scholarly publishing system.

Our remarks today will focus largely on fair dealing.

The use of fair dealing in the post-secondary context follows an extensive body of Supreme Court guidance on its correct interpretation. Since 2004, the Supreme Court of Canada has made it clear that fair dealing is a user's right, and that this right must be given a “large and liberal interpretation”.

With three supportive Supreme Court decisions on fair dealing since 2004, and the 2012 changes to the Copyright Act, Canada has achieved well-balanced legislation and jurisprudence, landing between the more restrictive version of fair dealing in the U.K. and the more permissive fair use approach of the U.S. The U.S. approach, in place since 1976, applies explicitly to purposes such as, and here I quote, “teaching (including multiple copies for classroom use), scholarship, [and] research”.

In the interest of maximum flexibility and future-proofing, we think Canada could look to add the words “such as” to the fair-dealing purposes given in section 29 of our act.

We wish to stress to the committee that the current application of fair dealing in the post-secondary context is responsible, informed, and is working.

Canada's university libraries recognize that educational fair dealing is a right to be respected, used, and managed effectively. Universities have invested substantially in copyright infrastructure. They have expert staff dedicated to copyright compliance and to actively educating faculty, staff, and students on their rights and responsibilities under the act.

The Supreme Court ruled in 2015 that Copyright Board tariffs are not mandatory, and university libraries are working under this assumption. I note that the Federal Court's controversial 2017 decision in the Access Copyright v. York University case appears to be contrary to the Supreme Court's ruling. However, the York decision is under appeal, and will hopefully be reversed.

Research libraries are often responsible for administering copyright clearances on campus. Increasingly, the works copyright offices deal with are open access scholarly content, in the public domain, openly available on the web, or already library-licensed for use in learning management systems. This leaves a relatively small portion of works that will either be shared under fair dealing or will require a one-time licence. We routinely seek such licences when the test for fairness is not met.

It is clear that mandatory tariffs are not necessary to good copyright management. Choice is important to us. For some institutions, blanket licences, assuming they're based on reasonable rates, are practical. For others, active local management with transactional licensing as needed is the preferred route.

Some parties are portraying fair dealing as the cause of diminishing revenues for creators. This is a fallacy. The shift from paper to electronic delivery of educational content over the last 20 years has fundamentally changed the way that works are accessed and used, and such shifts inevitably impact how rights holders are compensated. They don't necessarily impact how much rights holders are compensated. Despite these pressures, Statistics Canada reported last month that the profit margin of the Canadian publishing industry is a healthy 10.2%.

We believe that direct support outside of the copyright system, such as grants to creators and publishers, is more appropriate in this time of transition. The public lending right program administered by Canada Council is one example of an alternative form of support.

Our final point is that there are forward-thinking changes that should be considered in this review.

We urge you to clarify that technical protection measures can be circumvented for non-infringing purposes. Likewise, we urge you to add language so that contracts may not override the provisions of the act and prevent legal uses.

These, and suggestions related to crown copyright, indigenous knowledge, and some other areas, will be included in our forthcoming brief.

In conclusion, research libraries support the concept of balance in copyright, which dates right back to the original Statute of Anne in 1709.

Fair dealing in the Copyright Act is serving its intended purpose, enabling fair portions from works of creativity or scholarship to be drawn upon within learning environments, thereby stimulating innovation and the creation of new knowledge.

Merci. We look forward to your questions.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We are now going to move to the Canadian Research Knowledge Network. Ms. Shepstone, you have up to seven minutes.

[Carol Shepstone, Past Vice-Chair, Chief Librarian, Ryerson University, Canadian Research Knowledge Network]

Thank you for the opportunity to join you today. On behalf of the members of the Canadian Research Knowledge Network, I want to thank each of you for your work on this important statutory review. My name is Carol Shepstone, and I am past vice-chair of the board of the Canadian Research Knowledge Network or CRKN.

CRKN is a partnership of Canadian university libraries from across 10 provinces and encompassing two official languages. The 75 institutions that currently participate in CRKN include all research universities as well as the vast majority of teaching universities. We collectively serve over one million students and 42,000 faculty. Twenty-nine of CRKN's members are also members of the Canadian Association of Research Libraries, and all our members are also member institutions of Universities Canada.

Through the coordinated leadership of librarians, researchers, administrators, and other stakeholders in the research community, CRKN undertakes large-scale content acquisition and licensing initiatives in order to build knowledge and infrastructure as well as research and teaching capacity in Canada's universities. As such, CRKN provides an important voice in understanding the evolving scholarly creation and communication landscape within higher education in Canada.

The members of CRKN support a balanced copyright law that recognizes both the rights of copyright owners and the fair-dealing rights of our users. We are pleased to add our voice to other higher education sector stakeholders, including Universities Canada and CARL, in supporting the preservation of fair dealing, particularly as it pertains to educational uses.

Leveraging the purchasing power of all universities in Canada, CRKN negotiates and manages licences for digital scholarly content on behalf of its member libraries at an annual value of $125 million. The vast majority of this scholarly journal content is authored by faculty as part of their academic research expectations. In the current scholarly publishing model, faculty as creators typically provide these research outputs to journals for no financial compensation, and then journal publishers sell this research output back to universities through library subscriptions such as those licensed through CRKN.

CRKN negotiates licences that ensure access and terms of use that are valuable to students and faculty, including the ability for universities to use this material in course packs and e-reserve systems, as well as permitted uses that fall within the Canadian Copyright Act.

As the national licensing consortium in Canada, CRKN facilitates investment in key Canadian scholarly publications across a variety of disciplines. Through subscriptions to journals and purchases of e-books, CRKN members provide faculty and students with valuable Canadian content. An annual investment of $1.3 million includes a subscription to Canadian Science Publishing journals and access to the e-books of the Association of Canadian University Presses. In addition, CRKN members have made one-time investments of more than $11 million to secure perpetual access to the Canadian Electronic Library e-book collection, and $1.5 million for access to digital, historical Globe and Mail content.

CRKN also partners with Canadian publishers to advance new models of open access scholarly publishing. Through our long-term relationship with the Érudit Consortium, which began in 2008, students and faculty have access to Canadian French scholarly content. This has evolved into a collaborative partnership including both Érudit and the Public Knowledge Project, and in 2018 the Coalition Publi.ca initiative was launched as a model of sustainable Canadian scholarly production. CRKN members have committed more than $6.7 million to support this initiative over the next five years.

Through our support of and now merger with Canadiana.org, CRKN members have also facilitated the digitization, access, and preservation of Canadian heritage materials. Members currently invest nearly $1.3 million annually, and have made one-time investments totalling $1.8 million to support this unique historic content.

Overall, CRKN university members are annually committing $2.9 million to Canadian content licences, and over CRKN's 19-year history have made $15 million worth of one-time investment in purchasing Canadian content.

These investments demonstrate a commitment to Canadian scholarly publishing and to a robust and healthy research infrastructure in Canada. CRKN members support scholars as creators and authors, respect the rights of copyright owners, and at the same time ensure that students and researchers, as users, have access to essential international scholarly content.

Thank you, and I look forward to your questions.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

The last presentation will be by Mr. Dubois, of the Union des écrivaines et des écrivains québécois.

[Laurent Dubois, General Manager, Union des écrivaines et des écrivains québécois (UNEQ)]

I will give my presentation in French.

Mr. Chair, vice-chairs, members of the committee, to begin we would like to thank you for the opportunity to address you today and present the brief prepared by our association, which represents 1,650 writers in Quebec.

My name is Laurent Dubois and I am the General Manager of our association. With me is Ms. Suzanne Aubry, who in addition to being our association's President is also a writer and scriptwriter herself.

We will use the five minutes allotted to talk about the economic situation of professional writers in Canada, which we consider alarming. We will also alert you to how the situation has worsened as a result of the introduction of numerous exceptions in the 2012 Act.

In the brief we have submitted and that was provided to you, we make recommendations for the act to evolve in everyone's interest in the coming years. At the end of our presentation, we will of course be pleased to answer any questions you may have.

In our opinion, a copyright law should not be limited to technical aspects. It should above all be part of a clear political vision with specific goals. We would like the committee to use this opportunity to answer the questions that are on our minds.

Does the government want to foster Canadian cultural expression, encourage creativity, and offer its citizens access to a rich, diverse culture that enhances the quality of life of Canadians, their independence of thought, and their understanding of the world?

Or would the government rather reduce the quality of writing to the lowest common denominator, and let Canadians believe that they can access all cultural content free of charge, modify it as they wish, and allow the Hollywood and Silicon Valley steamroller to dictate their commercial laws to us while impoverishing local artists? We hope these questions will inform you in the difficult task that awaits you over the coming months.

It is important to remember that the concept of copyright is not merely an economic one. There is copyright and the economic right to royalties, but there is also the idea of moral rights that we would like to put on the table today. This concept seems to be missing from the current act. We would like to discuss it.

Moral rights refer to the idea that an artist has the right to grant or withhold permission for their work to be used, disseminated or even altered. With its many exceptions, the 2012 act has stripped many artists and writers of their income.

I do not want to be more dramatic than necessary, but I will just give you some figures. In Canada, the average annual income of a professional writer is $12,879. In Quebec, the median income was $2,450 in 2008, and about the same right now. As a result, professional writers in Canada could be an endangered species.

[Suzanne Aubry, President, Union des écrivaines et des écrivains québécois (UNEQ)]

Thank you, Mr. Dubois.

I would like to mention first that my father was the head of the Ottawa Public Library for roughly 30 years. If he were here today, we would have a good discussion because we obviously do not share the libraries' position, and I will now explain why.

Writers provide a significant part of the raw material for the education system, raw material that Stephen Harper's Conservative government wanted to make available to users, free of charge, based on so-called “fair dealing” as defined by the Supreme Court in 2014. The absence of a clear requirement for educational institutions to pay authors for the use of their works has been unprecedented. Under section 29 of the act, it is legal to use a copyrighted work provided that it is used for one of the purposes mentioned in this section. I do not want to put you to sleep, so I will not list all the uses mentioned in this article, but there is no definition of the portion of a work that may be used without copyright violation.

As expected, this vague wording has led to litigation involving the relationship between creators and users. The number of court cases has multiplied in recent years, including the Université Laval case, which decided of its own accord and without approval from the courts or the act that fair dealing allowed them to reproduce a short excerpt of up to 10% of a work or an entire chapter. Its policy states that “every time one intends to use a short excerpt, it is important to take the greatest advantage of the possibilities on offer.”

These multiple, vague exceptions have reduced collective management revenues for writers and publishers by $30 million since 2012. Payments from secondary licences accounted for up to 20% of writers' income before the educational exception was introduced.

These exceptions are numerous and very prominent in the 2012 act. They have significantly reduced revenues for creators.

While the introduction of specific measures for the education sector seems commendable to us, and we certainly support education and access to works, that access must be clearly defined. The integrity of works is no longer guaranteed, artists' moral rights are violated, and piracy is encouraged in a sense, through section 29.21, for instance, which allows users to use or modify copyrighted content for non-commercial purposes. Further, the act's sanctions for violations are so weak that they are not a deterrent.

I will let Mr. Dubois finish up.

[Laurent Dubois]

In closing, as you may expect, we hope that this review will be an opportunity to put forward a clear policy that defines copyright and the way the government wants society to evolve in this regard in the years ahead.

Thank you for your attention. We will be pleased to answer your questions.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We will start with you, Mr. Longfield. You have seven minutes.

[Lloyd Longfield, Liberal, Guelph, ON]

Thank you, Mr. Chair.

Thank you, everybody, for coming. We have a large panel today. We're trying different formats in this study to get as many diverse opinions in front of us as we can, and sometimes on the same panel, as we've seen today.

I have some questions. I'm going to start with Ms. Shepstone, because you were talking about new forms of delivering material. I've been looking at the copyright review that was just completed in Germany. Australia is in the process of completing a similar review. They're comparing themselves to other countries.

Something that comes up again and again is the new delivery format and whether current legislation is changing quickly enough to address that. In a previous meeting I asked about Cengage as one of the forms of delivery. Could you maybe speak to what new forms of delivery we need to look at in our study and how we could try to make sure we cover the proper legislation around that?

[Carol Shepstone]

I could do my best.

What might be really valuable is to continue to consider a very flexible act that can adapt to changing technology and changing forms of delivery. I think that would add some longevity, most certainly.

If I recall correctly, your question was regarding Cengage, wasn't it?

[Lloyd Longfield, Liberal, Guelph, ON]

Yes, Cengage.

[Carol Shepstone]

I think that's a really interesting model. As I understand it, it's a way for students to access directly a whole collection of textbooks. I think some of the challenges within our institutions or within universities are around the assignment of those textbooks. It would need to be in a fairly collaborative model, I think, with our faculty instructors certainly.

[Lloyd Longfield, Liberal, Guelph, ON]

Along those lines of having the policy of proving that you have purchased course material in order to get your mark statements, Michael, you might have an opinion on that or anybody else cross the table.

[Michael McDonald]

Indeed, I would have an opinion on that. As it's currently laid out, and this includes textbooks, you have no mandate to have to purchase that textbook. There are models that individuals can adopt, whether that be shared or working with another colleague, or going to the library and very often checking out a textbook, that we think are essential for ensuring, again, that post-secondary education remains accessible to anybody from whatever income background they may have.

Broadening the question to something like a Cengage model, if you're improving educational outcomes, and especially when the content is delivered in a more effective fashion, then we're definitely interested in going down those kinds of routes.

Where we have some concerns are with bundling policies, where you end up in a situation where a textbook and the course materials to be used in an instructional way become tied together, which increases the prices of the materials. Very often this prevents the resale of a textbook that might exist.

These are problematic and we think, again, it's a mechanism that is trying to prop up a textbook that may not be as valuable anymore because some of the intellectual material in it may have been reproduced in an open educational resource. We do think those other options must remain at the disposal of any kind of professor or instructor who's determining those courses.

But this is promising. We think there is good new content.

[Lloyd Longfield, Liberal, Guelph, ON]

Great. Thank you.

It strikes me that we have librarians in the room or people who represent librarians, and that there are studies out there that might help to inform our study. When we talk about the U.K. model, you have mentioned some of the differences in restrictions.

Are there some graphics, like some Venn diagrams or something like that, we could ask the universities for to show us where we are at, and the difference between Canada and some of our trading partners, and some ideas of where we could be in the future?

[Susan Haigh]

My sense would be that we would be very happy to provide such a thing. We can certainly do our best to research it and provide it, because I think the clarity of where we fit in the international picture is very important for the committee for sure.

[Lloyd Longfield, Liberal, Guelph, ON]

Great.

There was a report published in Australia in March 2018 that started off with that. I found that very helpful, but one of the missing pieces was Canada, of course, because we weren't part of their study.

Going back to Ms. Aubry, you were talking about being specific in our language of exemptions. Germany was also facing that question and said that they have to be very specific on percentages of use before someone has to pay for use, the types of use, and exactly what types of people would have access to that.

When we're developing legislation, we need to keep in mind the creators and to make sure they are compensated and that the rules are fair. Do you have anything you could expand on when you were talking about being specific?

[Suzanne Aubry]

Thank you for your question.

We have very carefully worded the exceptions currently in the 2012 act.

I could read them out to you, but our brief provides all the details, section by section, along with our requests to clarify and repeal certain sections. That is all clearly laid out in our brief. It has also been translated into English. You received the English version at the same time as the French version.

Would you like me to say anything further in this regard?

[Lloyd Longfield, Liberal, Guelph, ON]

I just thought you might have something you wanted to add to what you have given us. There was a lot information in a short period of time, but I'm trying to get an overview of where the worst parts are for us.

Mr. Dubois or anybody else.

[Suzanne Aubry]

I will read out the recommendations because they are very specific and they will probably give you a very clear idea of the approach we would like you to take in your review of the act.

Our first recommendation, roughly translated, is as follows:

That Canadian Heritage define in advance precisely under which political and social project the act falls and that it measure the impacts.

[Lloyd Longfield, Liberal, Guelph, ON]

Thank you.

The heritage piece was something that flashed for me, because we do have to make sure we're protecting Canadian heritage. I think you both said that.

I'm going to turn it back to the chair. There was some French language stuff that I'd like to bring forward, but maybe next time.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

Mr. Bernier, go ahead for five minutes.