Industry Committee on May 7th, 2018

[The Chair, Liberal, Dan Ruimy]

Welcome, everybody, to meeting number 106 of the Standing Committee on Industry, Science and Technology. Pursuant to the order of reference, we are continuing our study of the Copyright Act, a statutory review.

Today we have with us, from the Council of Atlantic University Libraries, Donna Bourne-Tyson, chair of the board of directors and university librarian from Dalhousie University. From the University of New Brunswick, we have H.E.A. Campbell, president and vice-chancellor. From Nimbus Publishing, we have Terrilee Bulger, co-owner. From the Association of Nova Scotia University Teachers, we have Teresa Workman, communications manager.

Thank you very much. You'll each have five to seven minutes to do your presentation, and then we'll go into questions from the members. With that, we are going to get started with the Council of Atlantic University Libraries.

Take it away.

[Donna Bourne-Tyson, University Librarian, Dalhousie University, Chair of the Board of Directors, Council of Atlantic University Libraries]

Thank you, Mr. Chair and committee members, for the invitation to appear today.

We acknowledge that we are in Mi'gma'gi, the traditional territory of the Mi'kmaq people.

My name is Donna Bourne-Tyson. I am a university librarian at Dalhousie University and chair of the Council of Atlantic University Libraries, or CAUL. Joining me today is Andrea Stewart, director of libraries and educational technology for the Nova Scotia Community College and the CAUL board representative for our standing committee on copyright.

CAUL is the collaborative partnership of 18 university and college libraries in Atlantic Canada serving a combined population of almost 97,000 students. CAUL member libraries spend over $27 million annually on print and electronic publications. As a regional consortium, we engage in the licensing of electronic resources—e-books, online journals, and streaming media—that complement content negotiated on a national level through the Canadian Research Knowledge Network.

Today we share with you a regional perspective, one that supports points previously articulated by our colleagues representing the national affiliated library, student, university, and college organizations.

CAUL believes that it's paramount to maintain expanded user rights for education. The educational use of material on the Internet, short excerpts of copyright-protected materials, and video content supports innovative and topical teaching and learning activities. We also agree with statements that have been made during this review related to technological protection measures for non-infringing purposes: protecting fair dealing exceptions from contract override; revisiting crown copyright; acknowledging and protecting indigenous knowledge; and, retaining the current life plus 50 years copyright term.

CAUL institutions value fair dealing and respect its limitations. When the six-factor fair dealing test is applied, as established in the landmark 2004 Supreme Court of Canada CCH decision, if it is determined that a work cannot be copied under the exception, we seek copyright clearance and pay royalties, either directly to the publisher or through a transactional licence.

Our members had serious concerns with the Access Copyright blanket licence model. The repertoire is limited and print-based. The agreement required institutions to pay for material they didn't use or need. Licences purchased through CRKN and CAUL resulted in duplicate payments to Access Copyright for use of the same copyright-protected material, and there was no option for transactional licences.

CAUL believes in a balanced approach for copyright. Since 2012, increased compliance mechanisms and policies have been deployed to ensure our communities are aware of their user rights and that they meet their responsibilities under the act and the fair dealing guidelines. CAUL members provide copyright education and outreach in areas such as fair dealing and alternative licensing options—such as Creative Commons—open educational resources, and the tri-agency open access policy. It is our experience that this has resulted in a much more informed faculty, staff, and student body.

The bulk of the material purchased by university and college libraries is academic in nature. Universities Canada has estimated that 92% of the content in libraries is produced by academic authors. Our libraries spend the bulk of our collections budgets on the content most in demand: namely, electronic journals, e-books, and streaming media licences.

The post-secondary libraries in Atlantic Canada are committed to supporting Canadian authors and creators. Our institutions purchase thousands of copies of books to support community reading initiatives, host local author readings, literary events, and authors in residence, and fund province-wide literacy programs. For preservation and access purposes, our libraries are print repositories for all of the literature published in the Atlantic provinces and by the small presses across Canada.

Finally, for the committee's consideration, we would like to raise issues related to new technologies. There is a growing demand by researchers to create large new datasets derived from the mining of existing digital content. This text- and data-mining use is not acknowledged in the act, and use is currently secured with licences. Rights granted in the Copyright Act must be flexible enough to respond to emerging technology. For example, implementation of a blockchain could disrupt user access rights. It is critical that users' rights not be undermined or overridden by contracts, digital locks, or other technological innovations.

In conclusion, CAUL endorses a balanced approach for copyright, one which respects creators and the rights of users under the educational fair dealing exceptions in the Copyright Act. As a long-established right for all Canadians, fair dealing for education helps support our faculty to teach and conduct research and our students to learn.

CAUL strongly encourages the committee to recommend that user rates remain in the act as they are now written, and that tariffs remain optional, allowing educational institutions the independence to decide how best to invest in resources to support our learning communities.

Thank you for the opportunity to speak to you today. We welcome your questions.

[The Chair, Liberal, Dan Ruimy]

That wasn't so bad. It was five minutes and 25 seconds. Thank you very much.

We're going to move on the the University of New Brunswick. Mr. Campbell, you have up to seven minutes.

[Dr. H.E.A., Eddy) Campbell (President and Vice-Chancellor, University of New Brunswick]

I, too, would like to thank the Chair and members of the committee for the invitation to appear in front of you here today.

My name is Eddy Campbell. I'm the president and vice-chancellor of the University of New Brunswick. With today is Lesley Balcom, who is the dean of our libraries at the University of New Brunswick. I'll say just a few words about us to begin.

We are the province's largest university, doing 75% of all the publicly funded research done in New Brunswick. We help drive the New Brunswick economy. We contribute $1.2 billion per year to the provincial economy, which is just over 5% of the GDP. Our emphasis on entrepreneurship and innovation has helped launch more than 100 start-ups in the province since 2010. The vast majority of those have been led by our students, who we encourage to participate in that activity.

I am here today, as my colleague Donna has already suggested, in support of the statements you have heard already from Universities Canada, the Canadian Association of Research Libraries, the Canadian Alliance of Student Associations, and others. We are speaking in favour of the preservation of fair dealing for education. I am here because this issue is very important to our university. I thought it might be interesting to you—and relevant to your work—to hear from a particular university about the kinds of activities that we have undertaken in order to be compliant with the legislation.

We are committed to the responsible sharing of copyrighted materials. Our system of compliance is led by our UNB libraries copyright office, which was created in 2009. The focus of this education is fair dealing assessment and transactional purchasing. Our full-time copyright officer, Joshua Dickison, is in the audience over here behind us. His job is to work directly with our faculty to build understanding of copyright, and to promote a culture of respectful use. The bedrock of this relationship is UNB's course reserves delivery system. This is embedded, in turn, in our learning management system, which ensures the responsible sharing of materials. It operates at the course section level, restricting access to materials by term and by course registrant. One of the important things it allows us to do is identify material that we should purchase through targeted transactional licences.

Here are some of the numbers that we have to offer. There are 1,000 courses vetted through the system. We have 6,000 items placed on reserve each year. There are about 1,000 scanned documents that will be reviewed for whether or not they're fair dealing, or whether or not we require a transactional licence to use them. We have a budget of some $5,000 a year to purchase transactional licences. When we discover that material is going to be used more than once, we add it to our collection for course reserve. About $7,000 a year is processed in that particular way. The total cost of copyright support at our university is some $200,000 a year.

Like all of the universities in the country—ours, in particular—we feel we have a strong responsibility to the creative community. We have a significant creative community at the university, and we support a significant creative community within the province. We have a creative writing program, for example, that ranges from the undergraduate to the Ph.D. level. Almost all of these people are published in some form or other during the course of their careers at the university. We also support the local literary community in New Brunswick. As the University of New Brunswick, we have a responsibility to purchase multiple copies of materials that New Brunswick authors are producing. We also have a responsibility to celebrate and promote their accomplishments. We do this on a regular basis. It is very important to us.

Our investment in library resources is increasing every year. We spent $3.5 million on acquisitions in 2009. Today that's $5.2 million. Although we have made every effort, we have lost access to some very valuable resources over that particular time. We view the pressure on library spending to be very intense.

In conclusion, I'd just like to say that we believe we are responsible. We pay for what we use. We actively support our creative community. We invest heavily in ensuring that our students have access to the materials they need to be the leaders of tomorrow. Fair dealing for education is an important part of that landscape.

Thank you.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We will now go to Nimbus Publishing.

Ms. Bulger, you have up to seven minutes.

[Terrilee Bulger, Co-owner, Nimbus Publishing]

Thank you.

First, I too would like to acknowledge that we're meeting on the unceded lands of the territory of the Mi'kmaq, in Mi’gma’gi.

I'm the co-owner of Nimbus Publishing, the largest English-language publisher east of Toronto. We publish approximately 50 new titles a year. We focus mainly on books that are for and about Atlantic Canadians.

I'd like to begin by stating that Canadian publishers have been significantly impacted by the 2012 changes to the Copyright Act—namely, fair dealing. In a recent study completed by PricewaterhouseCoopers, it was found that the royalties received have decreased by almost 90% since 2012, representing a loss of $30 million per year in licensing revenue for Canadian publishers. As I'm sure you're aware, the impact of this has been proven in the Federal Court of Canada, which recently found that York University's copying policies have caused economic harm to the sector. These policies are identical to those adopted across the education sector. However, the court found that the policies are arbitrary and unfair, and have resulted in a wealth transfer from the creators to the educational institutions. These policies have also led to systemic copying of copyright-protected works.

I've heard it stated at some of these that Canadian publishers have a healthy operating margin. While that might be true, the reality is that the operating revenue of Canadian book publishers is down. According to Stats Canada, the book publishing industry's operating revenue was down by 0.6% from 2014 to 2016. Therefore, in order to achieve these profit margins, operating expenses have had to decrease. This means that salaries, wages, commissions, and benefits have decreased as well, by $7.4 million, or 2%. As I'm sure you can imagine, this represents a significant decrease in jobs for the creative economy.

There is also a direct correlation between sales and royalties paid to authors. A decrease in sales for a publisher means that less money goes into the pockets of our Canadian authors. Speaking from our own experience, last year we received a licensing cheque of approximately $3,000 from Access Copyright. As a publisher, we've published over 1,200 books in the 40 years we've been publishing. For a publisher like us, we should be receiving about eight to ten times that amount. Unless we make up that amount by selling to other markets, at least one job loss is necessary. I can't even imagine how this would be impacting Canadian academic publishers—surely much more.

Publishers like us have been able to increase earnings by doing distribution for other publishers. In 2016 it was found that 52% of book companies were involved in publishing only. This is a decrease of 5% from the previous year. The number of publishers who both publish and distribute for other publishers increased by 7% since last year. These stats prove that it's necessary for publishers to diversify their revenue. However, doing so takes staff time away from producing and selling our own in-house books. At the same time, it increases the competition for our own books.

Stats Canada also reports that export sales have increased by 11.8% since 2014. While this might sound like a positive thing, it means that publishers have had to adapt their book publishing programs in order to sell to markets outside of Canada. Regionally specific books won't sell to export markets. Therefore, books that are uniquely Canadian or reflect our Canadian heritage and culture are less likely to be produced.

Book publishing in Canada is not an overly lucrative business—trust me. We are a large country with a large population, and there are huge differences between our regions. For example, publishing a book on the Mi'kmaq heritage is difficult, as the market is very small. Conversely, as a regional publisher, shipping books across the country has its own problems. We lose money on every small order we ship to British Columbia, for example. We need our educational institutions to support our work if we are to continue to do the kind of publishing that preserves our Canadian heritage.

Collective licensing is good for publishers, writers, students, and educators. Selling small, individual licences is time-consuming for all involved. It requires a lot of back-and-forth. Having Access Copyright handle this administration is beneficial to publishers, authors, and those who access the content.

We believe that is an effective and affordable way to ensure learners have access to the material they require, and for creators and publishers to receive compensation for that material. Through collective licensing, the highest fee is $26 per student. I believe for that fee access to quality Canadian content is a bargain. Canadian educators and students currently benefit from a wide variety of Canadian-specific materials that meet curriculum objectives and support academic achievement.

We believe that the authors of those books should be able to make a living and continue to write them. We should all be in this together.

Thank you.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

Finally, from the Association of Nova Scotia University Teachers, we have Ms. Workman.

[Teresa Workman, Communications Manager, Association of Nova Scotia University Teachers]

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

My name is Teresa Workman and I'm here on behalf of the Association of Nova Scotia University Teachers, ANSUT for short.

We appreciate the effort you are making to hear from people all across Canada, and thank you for the invitation to appear today. I welcome you to Halifax.

ANSUT represents over 1,400 full-time faculty, librarians, and contract academic staff at eight universities across Nova Scotia. Our mission is to bring their voices forward in support of post-secondary education.

With respect to copyright, a big part of ANSUT members' jobs as teachers and librarians is to gather and share knowledge with students. Another part of our members' jobs is to write. In this capacity, university faculty collectively creates thousands of articles, books, manuals, and other written works each year. These two roles, providing access to the works of others, but also creating works ourselves, means that copyright is an always-present factor in our working lives, and one that must balance the interests of both users and creators of work.

This afternoon I wish to bring three issues to your attention in this regard. The first is fair dealing. As you know and have heard from other speakers, it provides a limited right to copy literary and artistic works without permission from, or payment to, the owner of the work. In a series of decisions dating back to 2004, the Supreme Court of Canada has repeatedly reaffirmed the central importance of fair dealing to the structure of the Copyright Act and ruled it be given a large and liberal interpretation. In 2012, the federal Parliament codified existing educational fair dealing jurisprudence and practice into the Copyright Act.

To ensure the success of the law, the education community has created guidelines to assist teachers, researchers, and students with its implementation. Within this framework, fair dealing is working, providing librarians and professors with an important additional tool to make learning resources available to students and each other for teaching and research.

As I'm sure you are aware, not everyone has been happy with fair dealing, and you have doubtless heard critiques of it. One of the critiques is that it has led to rampant free copying and a refusal to pay licence fees. This is incorrect. Fair dealing is just a small part of the way knowledge is exchanged in the post-secondary education environment, and most of the material subject to fair dealing has been produced within the academic community to start with, for example, journal articles. Moreover, with respect to money changing hands, the education community continues to pay as much as, or more than, it ever has to the private sector for licences and other purchases of content.

The Canadian Research Knowledge Network, CRKN, is one place a lot of money is going. CRKN is a partnership of Canadian universities that collectively licenses research and teaching resources for universities across Canada. Those licences alone cost $120 million last year. The total expenditure across Canada is upwards of $300 million each year.

To conclude on this point, fair dealing makes a small but important contribution to teaching, learning, and research, and it has not led to an overall drop in expenditures on content. Please ensure that it continues to benefit Canadians.

The second issue concerns circumventing digital locks for non-infringing purposes. Many content owners attach digital locks to their content to prevent illegal copying. The Copyright Act currently makes it illegal to circumvent these protections. The difficulty with prohibiting circumvention is that while digital locks can prevent illegal copying, they can also prevent the exercise of fundamental rights such as fair dealing, accessing work from the public domain, archival presentation, and library lending. Fortunately there is a simple solution to this problem: amend the Copyright Act to allow the use, manufacture, or importation of devices capable of circumventing digital locks in cases where the circumvention is carried out for non-infringing purposes.

The final issue I bring to you is copyright of indigenous work. The Truth and Reconciliation Commission of Canada has called upon Canadians to engage with indigenous communities and be leaders in reconciliation. The review of the Copyright Act presents an opportunity to do this by recognizing the unique relationship between indigenous communities and the creative works they produce, and the conflict between western and indigenous notions of intellectual property. We support all efforts the committee can make, in consultation with first nations, Inuit, and Métis organizations, to advance, explore, and develop specific legal frameworks to protect the knowledge and culture of indigenous communities.

Thank you again for the invitation to appear today.

[The Chair, Liberal, Dan Ruimy]

Thank you very much to all of our panellists.

We're going to jump right into questions.

Mr. Jowhari, you have seven minutes.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Thank you to all the presenters. It is great feedback to us to start.

Before I start asking a line of questions, I just want to quickly make sure that I understand where your position is vis-à-vis copyright and fair dealing.

May I start with Mr. Campbell? Can you tell me if you are supporting fair dealing, or are you supporting—

[Dr. H.E.A. (Eddy) Campbell]

We are in support of fair dealing.

[Majid Jowhari, Liberal, Richmond Hill, ON]

You mean as is; do not change. Okay.

Ms. Bulger.

[Terrilee Bulger]

We are not in support of fair dealing.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Okay, that's fair enough.

Teresa.

[Teresa Workman]

We are in support of fair dealing.

[Majid Jowhari, Liberal, Richmond Hill, ON]

That's with a minor amendment, correct?

Donna.

[Donna Bourne-Tyson]

We are in support of fair dealing, with the additional request that contract overriding not be possible.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Okay.

Let me go back and start with Donna.

Can you tell me what the overall spend was on copyright material as far as the library at Dalhousie is concerned?

[Donna Bourne-Tyson]

I would have to look up that figure and provide it to you later.

We spend over $7 million a year on library acquisitions.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Okay.

Based on what you shared with us, about 92% of that is going to the authors who are developing those materials, or where is that $7 million going, roughly? Let's assume it's $7 million.

[Donna Bourne-Tyson]

Of the $7 million, we spend over 90% on licensed material, mostly through CRKN, the Canadian Research Knowledge Network, and that is primarily the large five publishers—Oxford, Cambridge, Wiley, Springer, and SAGE—and then the remaining 10% we spend on books and small press journals, things that can't be licensed electronically.

[Majid Jowhari, Liberal, Richmond Hill, ON]

I'm just going to quickly jump back to Ms. Bulger.

You mentioned, as a Canadian publisher that is focused on Canadian heritage material, that you're actually seeing a decrease, and you're a publisher. Can you help me balance between a lot of money, $7 million, going—

[Terrilee Bulger]

Yes, I can't balance that. As I said, our cheque from Access Copyright this year was $3,000. We receive almost no orders directly from any university. We don't receive any transactional licensing directly from the universities, so I don't.... We're an Atlantic Canadian publisher, and maybe they're not buying Atlantic Canadian works. I'm not sure.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Okay.

Let me go to Mr. Campbell. You also talked about the jump from $3.5 million to $5 million spent on copyright material. Can you tell me where the majority of this amount is going?

[Dr. H.E.A. (Eddy) Campbell]

I'll defer to my colleague, Lesley.