Thank you for inviting me to address you this afternoon and for leading the review of the Copyright Act.
I am the director of collections and membership services at the Toronto Public Library, and I'm going to talk about interlibrary loans, technological protection measures, and equitable access to e-books.
Public libraries have long played a role in assisting people to undertake personal research and study. Since it is recognized that no library can be entirely self-sufficient in fulfilling this role, the Toronto Public Library is an active participant in the interlibrary loan process, in which library materials are lent to and obtained from other libraries to fill customer requests. As the largest public library in Canada, and the owner of unique materials, we welcome the opportunity to share our collections and to support the work of researchers outside Toronto. We regularly lend and provide about 4,500 books and copies of documents a year.
These services rely on the current fair dealing framework, primarily the exception for research and private study and the exception for libraries to copy material for customers. This balanced and flexible framework is critical to the future success of resource-sharing between public libraries, which extends access to library collections across Canada. Therefore, the current fair dealing provisions that support this use and exceptions for libraries should be retained unchanged.
However, as electronic materials make up more of our collections, our ability to lend those materials is often restricted by the contract provisions in our licences. This means that we cannot lend digital material to other libraries that cannot afford expensive digital resources. Contract language is complex and difficult to interpret, so librarians err on the side of caution and do not lend or copy digital material for other libraries. To be able to provide equitable service, regardless of format, we recommend amending the act to explicitly state that contract provisions cannot override fair dealing and library exceptions. This would allow us to provide interlibrary loan services in the digital age.
Second, technical protection measures, or TPMs, on materials such as e-books can prevent the library from non-infringing sharing that would otherwise be recognized as a fair dealing exception. For example, if a library customer wants to make a copy of a small portion of an e-book for private study or research, the TPM prevents this, even though it is allowed under fair dealing. Publishers see TPM as the way to protect digital books against copyright infringement and piracy. However, many researchers dispute this.
According to a 2017 study by Britain's Intellectual Property Office, 17% of e-books read by U.K. customers are illegally downloaded, and there is no reason to believe that Canadians are any different. For example, as Mr. Setzer alluded to, in its 2017 report, the International Intellectual Property Alliance kept Canada on its watch-list, stating that online infringement remains widespread in Canada.
Briefly, TPM appears to have little effect on e-book piracy. It's fairly easy to crack e-book encryption, and there are thousands of illegal sites to choose from. Publishers are spending a great deal of money on TPMs, and in the meantime, are blocking users from legitimate sharing of content. Many see TPM-free e-books as the obvious solution, and this is gaining ground in the academic world. However, we simply recommend that the act be amended to allow for non-infringing circumvention of TPMs to allow libraries to lend and customers to copy within existing exceptions, regardless of format or TPM applied.
Last, I want to speak about the challenges libraries are facing in building e-book and e-audio book collections. In 2016, Toronto and Ottawa city councils, at the request of their library boards, adopted a resolution to, “request the Department of Canadian Heritage and Industry Canada to investigate current e-book pricing practices of multinational publishers as part of any upcoming statutory review of the Copyright Act”. This was also endorsed by the Federation of Canadian Municipalities.
In the last five years, the use of digital formats by Toronto Public Library customers has risen by 200%, to over 4.5 million uses in 2017. This is great news, but we, like public libraries across Canada and around the world, are dealing with multinational publishers that may charge us four to five times what consumers pay for a licence that allows customers to access one copy of an e-book. Furthermore, three out of the five multinationals require that we repurchase these licences after a set time or number of uses. This is an unsustainable licensing model, and despite repeated efforts over six years to discuss a reasonable model with publishers, there has been little movement.
Canadian libraries have also been unable to access the same titles as American libraries, although we share the same vendors. We have been told that this is because Canadian rights have not been negotiated, and some of these titles are Canadian.
We submit that the book importation regulations may offer a model to address the lack of availability and the excessive pricing faced by libraries in the digital era.
Thank you for the opportunity to speak.