Industry Committee on April 26th, 2018

[The Chair, Liberal, Dan Ruimy]

Welcome, everybody, to meeting 103 of the Standing Committee on Industry, Science and Technology. We are continuing our statutory review of the Copyright Act.

Just for everybody's information, we are televised today, so say hi to everybody in TV land and wave.

Today we are joined by the Association of Canadian Publishers, Glenn Rollans, President; and Kate Edwards, Executive Director. From the Canadian Federation of Library Associations, we have Victoria Owen, Chief Librarian, University of Toronto Scarborough; and Katherine McColgan, Executive Director. From the Writers' Union of Canada, we have John Degen, Executive Director. Finally, from Colleges and Institutes Canada, we have Denise Amyot, President and Chief Executive Officer; and Mark Hanna, Associate Dean, the Business School, Humber Institute of Technology and Advanced Learning.

We're going to start off with the Association of Canadian Publishers.

You each have up to seven minutes per organization.

Mr. Rollans, the floor is yours, sir.

[Glenn Rollans, President, Association of Canadian Publishers]

Thank you, Mr. Chair and members of the committee.

I am Glenn Rollans, President of the Association of Canadian Publishers, known as ACP, and co-owner and publisher of Brush Education in Edmonton. I am joined by Kate Edwards, Executive Director of ACP. We acknowledge that we're meeting today on the unceded traditional lands of the Algonquin Anishinabe people.

ACP represents almost 120 Canadian-owned English-language book publishers across Canada, active in print and digital, in all genres, for audiences around the world. Canadian-owned publishers publish roughly 80% of the new books by Canadian authors each year. We are risk investors and creative partners in books. We fill the role in the book world that film producers fill in the film world.

Copyright has immense importance to our businesses, to Canadian creators and creative industries, and to our shared project of being a unique and important country on the earth.

We've been damaged by the Copyright Modernization Act. We're not asking you to turn back the clock. We're asking you now to unleash the unique contributions to Canada that come from our sector. It won't happen if you don't fix our marketplace. That means, first, clarify fair dealing for education by ending unfair copying. Adding education as a purpose for fair dealing crashed an inexpensive, smoothly functioning system. Second, promote a return to collective licensing in the education sector. It works; it's simple. Third, increase statutory damages to discourage systematic infringement. Fourth, ensure that Canada meets its international treaty obligations, and fifth, promote the effective operations of the Copyright Board.

I want to impress on you that this is not a zero-sum contest between copyright creators and copyright users. The rights you protect for me and my colleagues are not taken away from anyone. They are protected for everyone. We want readers, and readers want the works we create and publish. Real balance is when both sides win. That's what's desirable and attainable.

The evidence of what actually gets copied in the education system came before the Federal Court in Access Copyright v. York University. It's come before the Copyright Board. The facts are the facts. Canada's schools, universities, and colleges pay for some of the things they copy beyond legal limits, but not all. Changing practices in classrooms have not changed the fact that they use our works far beyond legal limits, without paying for them beyond those limits. That creates a free zone that we simply can't compete with.

The evidence of whether Canadian publishers are damaged by unfair copying has been tested in Federal Court, and the decision is that we have been damaged. Those facts will not change on appeal.

I need to say as clearly and as bluntly as I can that if you don't intend for there to be damage, you need to take a leadership role in stopping it and reversing it. As a working publisher I'm disappointed that the damage we predicted before the amendment in 2012 came to pass. I'm disappointed that our government then asked us to prove the damage through studies, and when we did, they asked us to await the decision in Access Copyright v. York. And when we did that, they asked us to wait for the results of an appeal. Now we're asked to wait for the results of this review, and we may then be asked to wait for the results of an election.

My colleagues and I are suffering real-time damage triggered by this act. Graduates of Canadian colleges and universities are losing opportunities to make a living in creative professions.

The necessary changes are completely in your power. Much good and no harm will come from them. Fair payment for valuable contributions to their education does not harm Canadian students. It helps secure their future success. Published resources are not driving the high cost of education. Collective licensing, in particular, is probably the biggest bargain in education. It offers the whole world of copyright-protected works for a few dollars a year, avoiding all kinds of other costs.

One more important topic.... I don't have the time or the community authority to properly address the topic of indigenous copyright, but it's important for this group to recognize that indigenous peoples in Canada stress the importance of compensation when it comes to using traditional or community knowledge.

Last, I encourage you to think of Canada's copyright-reliant industries and professions as a sector that should grow and thrive and make its unique contributions to our national project, our national character. We create IP. We support community, culture, and education. We're part of the future. Support us, and we'll contribute far more than we cost.

We look forward to your questions.

Thank you, Mr. Chair.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

Before I proceed, I was remiss. We have a new member here.

Mr. Clarke, welcome to INDU and copyright.

[Alupa Clarke, Beauport—Limoilou, CPC]

I'm very happy to be replacing Mr. Bernier and to hear about these issues, with which I was not familiar.

Thank you.

[The Chair, Liberal, Dan Ruimy]

We also have with us the chair of the heritage committee, Julie Dabrusin. Welcome today, and we look forward to hearing your comments.

We're going to move now to the Canadian Federation of Library Associations. Ms. Owen, you have up to seven minutes.

[Victoria Owen, Chief Librarian, University of Toronto Scarborough, Canadian Federation of Library Associations]

Mr. Chair, Mr. Vice-Chair and members of the committee, good afternoon.

Thank you for inviting us to speak to you this afternoon. My name is Victoria Owen, and I am the Chief Librarian of the University of Toronto Scarborough. I represent the Canadian Federation of Library Associations.

With me is Katherine McColgan, the Executive Director of the Canadian Federation of Library Associations.

CFLA comprises national, regional, and provincial library associations that represent Canadian libraries and archives. Libraries have a societal role to provide equitable access to information and preserve knowledge. In Canada the Copyright Act recognizes the unique function of libraries to achieve the government's public policy objectives around research, innovation, and lifelong learning through the act's exceptions and limitations.

CFLA applauds Canada for steadfastly maintaining the copyright term of life plus 50 years, established in the Berne convention. CFLA also praises Parliament's 2016 amendment for the creation of alternate format works for persons with perceptual disabilities, in compliance with the 2013 Marrakesh treaty.

CFLA is quite satisfied with the fair dealing exceptions in the act. With the 2012 modernization, Parliament confirmed fair dealing and added new purposes for education, parody, satire, and user-generated content.

Decades before the 2012 amendment, the shift to licensed content, rather than purchased, and the massive increase in the use of freely available digital materials was well under way. Some argue that the 2012 amendments contributed to a decline in Canadian publishing. This is a flawed argument.

First of all, the Canadian publishing industry is not in decline. In fact, Statistics Canada reports a profit margin increase from 9.4% in 2012 to 10.2% in 2016. Second, public and academic libraries invest heavily in electronic materials, and the libraries have paid up front for all the permitted uses. For example, at my university, where the licences or fair dealing do not cover use, transactional licences are paid. In 2017-18 the University of Toronto libraries paid more than $285,000 in transactional licences. This is over and above the $27.7 million spent on acquisitions, 75% of which is spent on electronic resources.

Fair dealing promotes innovative interactions that create new works and contribute to the economy.

In the digital environment, content in libraries is acquired under licence. This often means that clauses in a contract override fair dealing uses and other statutory rights. Interlibrary loans may be prohibited, and Canadians may be unable to print an excerpt of a work. The Copyright Act should prevent contracts from overriding exceptions and limitations that undermine citizens' statutory rights and the public policy goals of education and research.

CFLA believes that the principles in the Copyright Act should be applied consistently. The 2016 amendment to ratify the Marrakesh treaty permitted the circumvention of digital locks to achieve access for people with a print disability. Technological protection measures disadvantage digital works. In order to exercise statutory rights, CFLA recommends that the act be amended to exempt exceptions for libraries, archives, and museums from the prohibition on circumvention, including fair dealing uses. The law should be clear that it is only illegal to circumvent digital locks for the purpose of copyright infringement.

With most government information exclusively distributed over the Internet, researchers, libraries, and archives must be assured that making copies of digitized and born digital government works for preservation and dissemination does not violate copyright. Copyright on federal government publications, crown copyright, should not apply to works that the government has freely made available to the public.

Canadian libraries are working toward reconciliation and may hold indigenous knowledge through research, appropriation, or with the participation of indigenous communities and authors. Canada must be consistent with the UN Declaration on the Rights of Indigenous Peoples. CFLA recommends that Canada acknowledge the rights of indigenous peoples to maintain, control, protect, and develop traditional knowledge and cultural expressions within our intellectual property regime, and incorporate access, use, and protection by developing appropriate protocols with indigenous peoples.

Canada has achieved balance in the Copyright Act by granting extensive economic rights and moral rights to creators and copyright owners, and by granting limited exceptions to these economic rights to users, libraries, and cultural institutions. These exceptions serve the public interest, advance public policy goals, and fuel Canada's innovation and economy.

Thank you.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We're going to move right to the Writers' Union of Canada.

John Degen, you have up to seven minutes, sir.

[John Degen, Executive Director, Writers' Union of Canada]

Thank you, and thank you all for serving as part of this review of the Copyright Act.

Canada's authors have been waiting a long time for the Copyright Act to be repaired and it's been a painful and expensive wait for us.

I am an author. I am here representing myself and the 2,100 members of the Writers' Union of Canada. I am also chair of the International Authors Forum in the U.K., which represents close to 700,000 writers and visual artists around the globe. The world's authors are also watching this process with great interest and considerable anxiety.

We now know that the 2012 imposition of education as a category of fair dealing has delivered none of its intended benefits and has caused exactly the kind of economic damage many of us predicted. Students now pay more for their education. Teachers are less able to legally access works, and are much more likely to end up in court. Meanwhile those who provide the work education copies, Canada's writers, have suffered a disastrous income decline. Fully 80% of our licensing income has simply disappeared because schools now copy for free what they used to pay for. These are facts that may be ignored by some, but they're indisputable.

Before the 2012 amendment, Parliament was promised that there would be “no loss of revenue for people who are in the creative economy”, and that “The education system, the sector, pays for licences and copyright, and will continue to do so.” These are direct quotations from educational testimony in 2011.

Authors are regular guests in classrooms across the country, and many have personally witnessed beleaguered teachers photocopying an improvised, free “class set” of materials, sometimes entire books. This is happening. Despite all the education technology promises and vagaries about disruption, open access, and the changing landscape, Canadian students continue to be fed a steady diet of photocopied and scanned excerpts from copyright-protected works.

You've recently heard from educational representatives that they continue to pay copyright licences. To be clear, they continue to pay some licences, mostly for expensive foreign journal content, but they are not paying the reasonable and affordable collective licences of Canada's commercial authors and publishers. Each year in Canada over 600 million pages of published work are copied for use in educational course packs, both print and digital, and the education sector is essentially claiming all of that work for free. That is the real world result of education's copying policies.

Those same policies have been thoroughly discredited by York University's copyright infringement loss in Federal Court, yet are still widely in use by school boards and post-secondary institutions across the country. Canadian schools and education ministries are now actually suing Canadian authors through our collective in a desperate attempt to re-establish the ground they lost in the York case. As a result of all of this, many Canadian authors have simply called it a day and stopped creating works. I ask you: Are these the outcomes Parliament desired in 2012?

Canada's authors embrace the future. We don't fear innovation, disruption, or the natural evolution of the marketplace. We lead those things. We create mobile literatures and cross-platform multimedia work that is stretching and expanding the definition of the word “book” in exciting ways. I, myself, do most of my creative writing on my mobile phone.

But we've all learned a lot about digital disruption in the last six years. The scandalous misuse of private data by online platforms is not unrelated to the crisis of unfair copying of creative content. Both arise from a free culture ethos that counsels taking first, and asking for permission later, if at all. This devalues the work of creative professionals.

Most other nations have wisely resisted the siren call of free culture. Canada, sadly, is the outlier. Right now Canada's writers and publishers have authorized and directed our collective to design a blockchain-enabled rights management system. That is real Canadian innovation, but it won't succeed without a clear, strong law at its back.

Authors are investors in education. Most of us have advanced degrees, we all pay taxes, and many of us are or soon will be paying our children's tuition. My own annual access copyright cheque used to go directly into my kids' RESPs. That's pointless now. Our labour creates the content so often copied by our schools. We do not deserve this unfair dealing.

The solution is simple, and it's truly fair. Remove education as a category of fair dealing and require collective licensing for educational copying.

The word “education” has been in the fair dealing section less than a decade, and all it's done is cause damage and clog the courts. The existence of a reasonable, regulated, collective licensing structure is the access solution favoured by most of our global partners. It should be ours as well.

Thank you very much.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

Finally, we are going to move to Colleges and Institutes Canada, Ms. Amyot.

[Denise Amyot, President and Chief Executive Officer, Colleges and Institutes Canada]

Mr. Chair and members of the committee, good afternoon.

Thank you for the invitation to appear before you today. My name is Denise Amyot, and I am the President and Chief Executive Officer of Colleges and Institutes Canada. I am joined by Mark Hanna, of Humber College, the biggest college in the country.

Mark Hanna is here to provide the practical perspective of fair dealing basically on the ground.

First of all, I want to recognize that we are on the unceded territory of the Algonquin Anishinabe people.

I want to say that we appreciated Mr. Ruimy's remarks of last week when he highlighted the responsibility and role of all stakeholders to contribute to the dialogue during this review. This is a prime example today.

Colleges and Institutes Canada and its members recognize the importance of both creators' and users' rights. This study is an opportunity to build on advances brought forward by Bill C-11, the Copyright Modernization Act, and to further contribute to an innovative economy in Canada by supporting learning, knowledge creation, and strong creative industries.

Colleges and Institutes Canada represents Canada's publicly supported colleges, institutes, CEGEPs, and polytechnics and is an international leader in applied education and innovation. CICan's members offer more than 10,000 different education and training programs to a broad range of one million students comprised of recent secondary school graduates but also adult learners, indigenous learners, new Canadians, international students, and university graduates. Ninety-five per cent of Canadians live within 50 kilometres of a college campus or one of our learning facilities.

In 2012, Bill C-11 and a ruling by the Supreme Court of Canada fundamentally changed the copyright landscape. Although fair dealing existed, in fact, for centuries as a right prior to 2012, the inclusion of education as a fair dealing purpose and the Supreme Court's decision confirmed fair dealing as a much broader right than had been applied by the education sector prior.

To help institutions govern fair dealing copying, our associations collaborated with the Council of Ministers of Education of Canada and Universities Canada to develop fair dealing guidelines. Since 2012, almost 90% of our members, excluding those in Quebec covered by Copibec, have adopted the guidelines or implemented new policies to manage copyright compliance.

Colleges and institutes respect copyright and the importance of compliance. Consultations with our members indicate that they engage their staff regularly in copyright-related awareness raising and training. This has not reduced the purchase of materials. Quite the contrary. Over 70% of our members have maintained or increased licensing expenditures since 2012. Statistics Canada reports that expenditures of print and electronic acquisitions for colleges and institutes have increased by 26% since 2012, and sales of educational titles for publishers in Canada rose by 5% between 2014 and 2016.

The provisions of fair dealing drive knowledge creation by providing students and faculty with reasonable access to the content they need. Colleges and institutes offer a broad range of programming and credentials such as upgrading diplomas, trades, degrees, and post-diplomas to a diverse student population, and they need a vast array of learning materials.

Bill C-11 also provided for the educational use of the Internet, which facilitates distance learning and access to education for rural, remote, and northern communities. Our members report that Internet materials are now the most commonly used educational resources, followed by videos, and then textbooks.

The educational world continues to evolve at a rapid pace, and advances in technology are having a profound impact on how our members deliver their programming. Learners expect quick, flexible, 24-7 access to learning materials. They have multiple devices and learn not just in the classroom but from wherever they happen to be. There is a greater use of learning resources created by and for industry, open access publications, open data, sources such as Creative Commons, and e-reserve systems in libraries.

Industry requires nimble training programs that respond quickly to employer and community needs. Colleges and institutes work closely with business and industry to ensure that the curriculum is aligned with marketplace needs and provides students with work-integrated learning and co-op opportunities.

Copyright legislation impacts teaching, learning, and knowledge dissemination. Confirming education as an explicit purpose of fair dealing and making provisions for the educational use of the Internet contribute to the delivery of a 21st-century education, and also support learning in an innovative economy. The current copyright regime is working well for our constituency, and we believe it strikes a good balance that respects the law and jurisprudence.

In its review, we urge the government to ensure that the legislation not only deals with the realities of today but is also flexible enough to address whatever changes might occur in the future. As an important step towards reconciliation, we also recommend consultation with indigenous communities to work towards the protection of indigenous knowledge.

Thank you for the time you are investing in this important topic. Our association and its members are prepared to assist the committee in its work.

My colleague Mr. Hanna and I will gladly answer any questions.

Thank you.

[The Chair, Liberal, Dan Ruimy]

Thank you very much, Ms. Amyot.

We're going to start with Mr. Sheehan. You have seven minutes.

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

Thank you very much for that excellent testimony. I really appreciate it. It was great to have some discussion here about the different perspectives.

My first question goes to Glenn. I have a number of friends who are in the creative economy, including a sister-in-law who recently published a children's book through a process. It was amazing to see it unfold, and to see how much time it takes for an author to work with the various components, from idea through to writing it, to working with publishers and illustrators, etc. We truly appreciate the need to have strong copyright laws to protect our creative economy and those working in it.

We also want to strike a balance in making sure our educational institutions and students have the opportunities they need.

I'll start with Glenn. You mentioned that you see a number of issues with fair dealing. In the context of the educational sector, what would you see as a reasonable interpretation of fair dealing? You talked about a lot of the problems, but could you delve further into what you might perceive as a solution for me?

[Glenn Rollans]

Thanks for your question.

The solution part is amazingly simple. Over the years, I've grown used to hearing this be presented as a very complex issue. The solution is to relicense. Licences that were in place before the amendment to the Copyright Act were low-cost, and they covered the waterfront, including all the grey areas. They offered a convenient and I would say a moral way for users to make sure that the things they were using were compensating the people who created them.

The thing that makes it so simple is that behaviour hasn't changed. The unfair copying guidelines that were pushed out into the K-12 system and the post-secondary system were based on the licences. Some of the wording was borrowed from the licences. It meant that behaviour by professors, behaviour by teachers, instructors, and students didn't have to change during that transition. The only thing that happened was that compensation dropped out.

Adding compensation back fixes the marketplace, because it means that suddenly, instead of comparing a free system with a system that has a cost attached to it—any cost—you have a balance, as you use the word, between potential uses. Some cost less and use less. Some cost more and use more.

That's the balance we need to talk about, not a balance that suggests that when copyright is protected, that protection somehow damages students. I think that in fact it supports them in their education.

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

My next question would be for John, from the Writers' Union, as somebody who is also an author. I have the same kind of question, if you could delve into it.

In a recent press release, your organization referred to the 2012 amendments to the Copyright Act as “highly contentious and poorly constructed”, resulting in significant declines in educational royalty payments to authors, and it called upon the federal government to “prioritize an immediate fix.”

Do you have any specific suggestions related to that particular statement?

[John Degen]

First of all, that was well quoted. Thank you.

Not to repeat what my colleague Glenn said, the great irony of what happened in 2012 was that Parliament intended, I believe, to save students money, give greater access to professors, and smooth the process. Student costs have gone up since 2012, considerably.

I've done a lot of research on this. Especially in the student press there is considerable indication that course packs, a sample of which I have here today, have in some cases doubled in price. Why did that happen, when there's no licensing and everything is being claimed as a fair dealing? It is because somebody has to assess that fair dealing. There has to be a centralized body within the university to do all of that assessment. It slows down the process.

There were times, certainly early on—and I'm sure it has continued—when professors were not able to get their course packs done in time for the start of class because of that bottleneck of fair dealing assessment. The price went up because the administrative fees were larger than the $26 per student that was being charged through the access copyright licence.

While I'm on the subject of the $26 per student, that's how it's calculated. It's not necessarily how it's meant to be paid. The bill goes to the educational institution. They choose to pass that charge on to the student. That is their decision. I've done a lot of research on university and college budgets across the country, and they can afford a licence. For many of them, it's a fraction of 1% of their budget.

What we're talking about here is an efficiency. Licensing is an efficiency. It's cheaper and it works better than what we have now. To me, that's the solution: go back to licensing.

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

Thank you very much.

The next question is to Colleges and Institutes Canada.

Last week, Paul Davidson of Universities Canada said that the universities are spending increased amounts every year on purchasing content. Is it also the case for colleges and institutions?

[Denise Amyot]

I have some statistics. The amounts are not the same. They differ by about $250, if I recall. I'm trying to find the extra amount.

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

You can just submit that amount.

[Denise Amyot]

Yes, exactly. I'll submit it. In fact, Statistics Canada data shows that college and institute expenditures on library acquisitions, both print and electronic, have increased by 26% since 2011-12. You understand that in the college system we use a variety of materials, as I said.

If I may, I beg to differ with what John and Glenn mentioned earlier, because fair dealing is not the reason for what is being expressed right now. The reality is that the learning landscape has changed, and it has changed tremendously. There is a shift now to the use of digital content. Portals are built and paid for by institutions, and they have faculty group licences to commonly use the resources, with faculty creating and sharing their own resources, including open educational resources, Creative Commons, and publicly available material on the Internet, to create and share resources within the college system.

You know what? Learners—I'll stop here—are demanding access in different ways.

[The Chair, Liberal, Dan Ruimy]

We're a little over time on this one, but thank you. I'm sure we are going to come back to that.

Mr. Jeneroux, you have seven minutes, please.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Thank you, Mr. Chair.

If I may, before I get into my questions, I would like to put on notice a motion, but not to be debated today, because we do have very esteemed guests here before us and we do have a lot of questions on copyright. I will read the motion into the record.

The motion reads:

That the Standing Committee on Industry, Science and Technology undertake a study over a period of four meetings to review the tax revenue losses to the federal government, including but not limited to royalties, personal and corporate income taxes, and levies, as well as review the fiscal impacts, including loss of business and economic activity, resulting from the construction delays of the Trans Mountain Expansion Pipeline, that the Committee review the potential long-term federal benefits, including employment opportunities that the project would generate, and that the Committee would report back to the House and make a recommendation as to whether or not the Government of Canada declare the Trans Mountain expansion project to the national advantage of Canada and invoke Section 92.10(c) of the Constitution of Canada.

This is particularly timely, considering the initiative of funding aid to anti-pipeline activists through the Dogwood Initiative.

Thank you, Mr. Chair.

[The Chair, Liberal, Dan Ruimy]

Thank you very much. We have received your notice, and you can move on with your questions.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Thank you.

Thank you for coming here today, everybody. I appreciate your taking the time to be here.

I want to speak to a line of questioning that I had at the end of the last committee meeting convened on Tuesday. That regarded the digital locks and TPMs. I am hoping to direct those questions to you, Mr. Rollans, and you, Ms. Edwards, and perhaps to you, Mr. Degen, if you'd like to weigh in as well.

Canada is bound by its international obligations under WIPO to prohibit the circumvention of technology and protection measures: TPMs and digital locks. Given that TPMs are a source of some controversy in the education sector, which is protected by fair dealing, how does your organization suggest that Canada can reconcile its obligations in favour of TPMs while ensuring educational institutions can fully exercise their rights under fair dealing?

[Glenn Rollans]

The quick answer to this—thanks for the question—from our standpoint is that TPMs for us were a major issue when we were talking in 2012. They've receded into the background at this stage. I think in many ways they're an issue that has been solved by technology and by relationship. We don't dispute the right of educational institutions to use materials they've purchased within the terms of the purchase, and we support the Marrakesh treaty.

In general, we see TPMs as having a role in protecting copyright. Beyond that, I don't have the technical answer to your question.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Mr. Degen.