Industry Committee on May 10th, 2018

[The Chair, Liberal, Dan Ruimy]

I call the meeting to order.

Welcome, everybody, to meeting number 112 of the Standing Committee on Industry, Science and Technology as we continue our study on the legislative review of the Copyright Act.

If you've been following along, you've probably seen that we've already had quite a few witnesses. This is day four of our road trip, and it's been very successful. The questions that we're asking can be pretty tough sometimes, but we need to be able to get good answers so our wonderful analysts on this side here can make a fantastic report.

We are going to get started.

Today we have with us, as an individual, an author, Patricia Robertson.

From the Association of Manitoba Book Publishers, we have Annalee Greenberg, Editorial Director, Portage and Main Press.

We have, from the University of Manitoba, Naomi Andrew, Director and General Counsel.

Finally, from the Winnipeg School Division No. 1, we have Sherri Rollins, Chair of the Board of Trustees.

I will say that if you are not using your headpiece, keep it away from the microphone because it can go “pop” pretty loudly.

We have translators in the booth over there, some good supporters. It's not Quebec, so I can say “translators.” Everything that we're doing is being recorded and translated. It's all for the record, so take your time. Don't rush through your testimonies. You will each have up to seven minutes because we managed to add an extra couple of minutes. After all the presentations are done, we will go to our questions.

We're going to start with Patricia Robertson. You have up to seven minutes.

[Patricia Robertson, Author, As an Individual]

Thank you very much, Mr. Chair. Thank you for this opportunity to present in front of the committee.

My name is Patricia Robertson. I'm a writer of short fiction, novels, poetry, essays, and literary journalism. I've published two books and co-edited Writing North: An Anthology of Contemporary Yukon Writers. I hold an M.A. in creative writing and I've taught creative writing at the university level for over 30 years in Vancouver, B.C.; Whitehorse, Yukon; and now in Winnipeg. I've held writer-in-residence positions across the country in libraries and universities in B.C., Ontario, and Manitoba.

I'm also a professional editor, primarily in non-fiction and educational materials, and I've worked with a number of Canadian publishers and organizations. I've been a member of the Writers' Union of Canada, and I served two years on its governing council.

I'd like to sketch a brief portrait of my income as a writer—that is, writing-related income, excluding teaching and freelance editing.

Last year my writing-related income totalled $10,353. I was fortunate to receive $10,000 of that total from a Manitoba arts grant. I also received a grand total of $40 in book royalties and approximately $250 from the public lending right fund, administered by the Canada Council. Finally, I received $63 from Access Copyright, the agency that disburses funds received under the copyright tariffs.

A few years ago, before the educational sector decided on their own interpretation of “fair dealing” under the Copyright Act, I received about $500 a year, so you can see there's been a huge drop. I'm now receiving about 13% of what I used to receive per year.

My husband is also a writer. He is a poet with four published books. Together, we used to receive about $1,100 per year from Access Copyright. We now, together, receive about $100 per year as payment for the reproduction of our work. That's a drop of about 90%.

These amounts may sound very small to the committee. I can assure you that as two independent self-employed writers, my husband and I, for us $1,100 per year is a significant amount. The loss of that income is painful, and it's particularly painful to be exploited by a sector that ought to understand the need to fairly compensate Canadian writers who, after all, provide the content that the educational sector uses.

I work in the educational sector as a university instructor, and I want to be able to use a wide variety of materials in the courses I teach. I also want to be sure that the creators of those works are compensated for the use of their work in a course pack. Like many instructors, I rely on a company called Canadian Scholars to assemble the materials I select, verify their copyright status, and arrange for payment to the authors. I'm now told that Canadian Scholars is also more and more relying on the educational sector's interpretation of the Copyright Act and is therefore not compensating authors.

To be absolutely clear about what writers earn from their publishers and to clear up any misconceptions, most of us are not J.K. Rowling, or even Margaret Atwood, for that matter. A bestseller in Canada is about 2,000 copies. I'm talking about fiction now. The author's portion of that, assuming that the book is priced at $30, is 10% of net, or $1.80. That's a total of $3,600 for what may have been three or four years of work.

That's a best-case scenario. Most books are not bestsellers, and some of those 2,000 copies are promotional and author copies or damaged. Those 2,000 copies may take years to sell. Meanwhile, the author is working on the next book, subsidizing it through whatever freelance work or day job they can.

I'd like to finish by pointing out that large corporations, including universities, take all possible steps to protect their own intellectual property, yet apparently Canadian writers, who provide the imaginative and creative work that Canadian students read, are expected to essentially underwrite the educational sector for free.

When school boards are buying one copy of a book and photocopying a classroom set with no compensation to the writer whatsoever, there is something deeply wrong with the support of the cultural sector in this country.

Thank you.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We're going to move to the Association of Manitoba Book Publishers.

Annalee Greenberg, you have up to seven minutes, please.

[Annalee Greenberg, Editorial Director, Portage and Main Press, Association of Manitoba Book Publishers]

You gave me two extra minutes that I don't have—

[The Chair, Liberal, Dan Ruimy]

You don't have to use them.

[Annalee Greenberg]

Okay.

I'm Annalee Greenberg. I am co-owner and Editorial Director of Portage and Main Press, and I am here today on behalf of the Association of Manitoba Book Publishers, or the AMBP. That is an organization that represents 14 publishers, producing a wide variety of books in English, French, and several indigenous languages. We want to acknowledge today that we are on Treaty No. 1 territory, home of the Métis nation.

Our primary concern is that the fair dealing section of the Copyright Act needs to be clarified. Adding education as a purpose for fair dealing has caused immense harm to Canadian and Manitoba publishers and has decimated the educational book sector. The changes affect both copyright royalties and book sales.

I know that you've heard from others in the publishing community, including the Association of Canadian Publishers, so I'll not repeat what you may have already heard, but I will provide some examples of how the changes have affected publishers here in Manitoba.

For instance, before 2012, Access Copyright royalty payments to Fernwood Publishing were enough to support a full-time employee. Now the payments might support a one-third-time worker. Several Manitoba publishers have reported drops in copyright revenues of between 75% and 90%. Creative sector jobs and Canadian content are both at risk of being lost.

When the education sector devised its own guidelines without consulting publishers, it ultimately led to litigation. The case of Access Copyright versus York University in the Federal Court in July 2017 illuminated the shortcomings of the education sector's interpretation of fair dealing.

In addition to the loss of copyright revenues, publishers are also seeing decreases in sales of books, as educators copy instead of purchase.

Within a year of the changes to the copyright law, Les Éditions du Blé experienced a 35% decrease in overall sales because of copying, and sales of its educational material continued to decrease year after year. In 2016 it completely ceased publishing on the education side because it was unsustainable. This was a move that disappointed many educators, as Les Éditions du Blé was one of the few publishers of French material outside Quebec. Translators, scholars, and K-to-12 educators who had been employed on the educational side were casualties of this decision.

Portage and Main Press, the company I am affiliated with, was also affected. With educators buying fewer books because of copying, author royalties have diminished. These diminished sales are not being balanced with K-to-12 copying tariffs, however, which at Portage and Main are down 88% from what they were in 2013. Our authors are facing a substantial drop in income as a result of those lost royalties, the means by which they are paid for their work. In some cases, they've taken other jobs, as writing no longer supports them.

We have reconsidered publishing textbooks and other curriculum materials, as revenues no longer cover the costs necessary to attain the quality standards expected by Canadian educators and that our company has become known for. I brought a few samples of textbooks that we and du Blé have published.

The educational component of Fernwood's publishing program has decreased from over 70% of its sales to about half. In time, there will be little or nothing produced by local writers and publishers that reflects regional and national narratives for schools and teachers to copy.

One publisher reported that it may now receive orders for a single copy of a textbook for an entire school or school division, which is clearly an unsustainable business model.

We do have some recommendations.

We recommend an immediate end to unfair copying, which in itself helps to clarify fair dealing. We'd also like to see clarity around fair dealing provisions that take into account purpose, character, amount of copying, alternatives, effect of the dealing, and nature of the work, as emphasized in the ruling on the Access Copyright versus York case.

We'd like to see educators and independent Canadian publishers work together to develop fair dealing regulations that are mutually beneficial. Manitoba publishers are ready to come to the table. We'd also like to see collective licensing reinstated in the education sector, as it is proven and affordable.

With publishers no longer developing high-quality, uniquely Canadian materials, teachers will have to find other resources for their classrooms. It may be a challenge to find such materials, because quality costs and expertise must be compensated. Ultimately, Canadian students are the losers.

Thank you.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

Now, from the University of Manitoba, we have Naomi Andrew.

[Naomi Andrew, Director and General Counsel, Office of Fair Practices and Legal Affairs, University of Manitoba]

I'd like to thank the chair and committee members for inviting me and my colleagues to appear today on behalf of the University of Manitoba and for granting us this opportunity to take part in this first Copyright Act review process.

We acknowledge that we are on the lands of Anishnaabe, Cree, Oji-Cree, Dakota, and Dene peoples, and on the homeland of the Métis nation. We respect the treaties that were made on these territories. We acknowledge the harms and mistakes of the past, and we dedicate ourselves to moving forward in partnership with indigenous communities and in a spirit of reconciliation and collaboration.

The University of Manitoba will be submitting a written brief. However, we would like to highlight a few areas in our submission today. These are that the university is a content creator; it also supports the Canadian creative economy by being a content user, and it supports maintaining the fair dealing exemption. The university's library acquisitions have increased; however, there has been a corresponding shift toward acquiring more digital content.

As well, the copyright revisions need to support reconciliation and the mandate of the National Centre for Truth and Reconciliation.

The University of Manitoba is the largest university in the province, with a community of over 30,000 students and 9,000 faculty and staff. Our community members are both content creators and content users. As content creators we contribute significantly to the Manitoba creative economy through cultural productions, academic publications, and research projects. In 2017 over 3,000 publications included University of Manitoba affiliation.

In particular I'd like to point out that the University of Manitoba supports Canadian content, authors, and publishers through various initiatives, although sometimes through new acquisition models involving intermediaries. Also, our libraries have two long-standing programs for monograph acquisitions, focusing on Canadian literature and Canadian studies.

The University of Manitoba strongly supports maintaining education as a fair dealing purpose and stresses that this exemption is providing measured access to content for students and academics just as intended, as a reasonable complement to, not replacement for, purchased content. The perceived decline in profits attributed to the educational exemption may be more related to a change in our preference for licences and e-formats. Therefore, creators may see new revenue streams from these licences that reflect the dominant way in which we now acquire and make available scholarly content. Correlation does not necessarily equal causation.

Over the past decade, university members have increasingly expected digital access to materials, and our acquisition trends reflect this. In speaking with my colleagues prior to this presentation, I noted that all my 11-year-old son's textbooks are online. That's the expectation as students move through the system.

The majority of our library acquisition expenditures now go toward subscriptions to license electronic academic journals, but I should also point out we continue to purchase and license scholarly monographs, both in electronic and in print formats. For example, from 2012 to 2018, our overall acquisitions expenditures that went toward e-subscriptions increased from 49% to 73%. During the same time period, e-books increased from 14% of annual monograph purchases to 77%. Thus, we are paying less in transactional fees and individual print copy purchases but significantly more to publishers for licences.

Universities are not in a position to acknowledge how publishers are compensating creators under the digital licences we are increasingly purchasing, but we urge caution that the Copyright Act should not be revised in a way that may inequitably shift the impact of the digital disruption from the publishing industry to the education sector.

I would like to end by speaking about copyright as it relates to the National Centre for Truth and Reconciliation. The NCTR is hosted at the University of Manitoba and is home to approximately five million documents relating to the history of Indian residential schools. As with most archives, we do not own the copyright or the majority of archival documents and images.

The Copyright Act serves as a barrier when NCTR is contacted for permission to use archival images for purposes that clearly support reconciliation. Only the original creator of the photograph can permit its reuse if a copyright exemption does not apply. Because of the history of Indian residential schools, the requirement for an individual, such as a survivor, to have to contact a creator for permission is a very real barrier to youth and reconciliation. We propose that fair dealing be expanded to include an exemption permitting the use of full historical, archival, and museum content for reconciliation purposes.

While the University of Manitoba believes that the Canadian Copyright Act has strong provisions that benefit both creators and content users, we urge growth in terms of how reconciliation is treated under the Copyright Act. We will be elaborating on these issues further in our forthcoming brief.

Thank you.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

Finally, from the Winnipeg School Division, we have Sherri Rollins.

[Sherri Rollins, Chair of the Board of Trustees, Winnipeg School Division]

Thank you, Chair.

On behalf of the Winnipeg School Division, I would like to thank the members of the Standing Committee on Industry, Science and Technology for the opportunity to provide feedback on the potential impact to student learning as a result of any revisions to the Copyright Act, specifically the requirements of section 29 on fair dealing.

It is my understanding that the framework for the review should include the educational needs and interests of indigenous peoples as part of reconciliation, as well as supporting Canada’s two official languages, French and English, in terms of access to materials in all forms, as identified in the Copyright Act. The Winnipeg School Division has some very key information to share to that end.

The members of the board of trustees are concerned that revisions to eliminate the fair dealing provisions would have a severe and negative impact on the ability of our teachers to provide our students with extensive and complete classroom resources, both digitally and in print, due to the inability to incur additional costs to access materials for—similar to the University of Manitoba—our 33,000 students throughout 78 schools.

Winnipeg School Division is one of the largest employers in the province, and the largest and oldest school division in Manitoba. The division provides educational programs and supports for more than 33,000 students, from nursery school to grade 12, including adult programming.

The demographics of the Winnipeg School Division are in exhibit A as provided. The division serves a significant number of families who live in poverty: over 50% of the families have incomes below the low-income cut-off. Indigenous families, such as my own, represent approximately 27% of all families with children in the division. Almost 50% of all immigrants who arrived in Winnipeg in the past five years live in the division's footprint, and 42% of elementary and 44% of secondary enrolment in the division experience high student migrancy levels.

We’re proud to offer educational programs and related services to students from nursery to grade 12 in regular elementary and secondary classes as well as alternative, advanced, and language programs. We have a wide variety of programming in place for students with special education and behavioural needs. We're committed to lifelong learning and offer programs that allow adults to continue to learn and enrich their lives and adolescent parents to succeed as parents and as learners. New Canadians and students and families from a variety of diverse cultures are also supported with programs in the Winnipeg School Division to help ensure success in our schools and our communities.

Student wellness and development is another priority that is evident in programming, such as school therapy and counselling services.

We've implemented a wide variety of initiatives to support indigenous education for both students and our staff. Indigenous programming and curriculum education initiatives are woven throughout nursery to grade 12, across curricula, across the Winnipeg School Division. Some examples include elders in schools, including our traditional knowledge-keeper and divisional elder; programs that include indigenous music, visual arts, dance; indigenous games, athletes, and role-model studies; star blanket math, and I could go on.

We also offer a number of language programs such as French immersion, but also bilingual Cree and Ojibwe programming, and bilingual Hebrew, Ukrainian, and Spanish. We also, of course, have English as an additional language to over 7,113 students.

The primary responsibility of our board of trustees is to ensure that all students receive the highest-quality education possible in our schools. As you can appreciate, in order to achieve these goals and foster academic, physical, social, and personal growth, teachers require access to a variety of educational materials to create engaged learners. For example, teachers need to incorporate current resources on human rights, poverty, equity, and sustainable development, including reconciliatory actions, and these resources might only be available online, in news media, or in digital formats.

Students need to be able to synthesize and present their discoveries using digital and video technologies and to express their viewpoints through creative arts and performances.

Students also need to be able to manipulate and reformat resources, as allowed within the Copyright Act, for educational purposes.

Along with this overarching responsibility, our board of trustees must provide responsible stewardship of the financial resources entrusted to it and must work in partnership with families, communities, and other organizations in ways that impact positively the overall well-being of children and youth. The federal government must be a partner, not a barrier, to this work.

As the division serves a very diverse and unique community in which education is critical for the success of youth, many programs and services are provided that are not currently funded by the Province of Manitoba. The costs for the various programs and services that our division is not required to provide within the Public Schools Act total over $14 million, and that is provided to you in exhibit C.

The division relies on the revenues raised from property taxation to offer unique programs and services for students. Of our funding, 60% is provincial government; the other 40% is raised through property taxation in Manitoba. In an urban indigenous city like Winnipeg, the Winnipeg School Division also has a story to tell this committee on the impact of the federal government's chronic underfunding on reserve, the pressures that this segregated system has had on our school, and the history of colonialism. Thanks to Murray Sinclair, our proud independent senator, there is an increasing public awareness of the deplorable living situations on reserve and a growing awareness of the impacts of poverty, poor housing, sanitation, and five generations of the Indian residential school, and we're only beginning to realize the costs on school systems, such as the one I represent in the Winnipeg School Division.

Many increased costs in school divisions' operations are beyond the control of school boards. Changes in student populations and enrolment due to immigration or refugee crises, for instance, changes in needs and expectations, as well as new provincial policy directions and legislation, arbitrated salary awards, and inflationary increases for services and commodities have significant financial impacts for school board budgets and implications for property tax levels.

The Winnipeg School Division recognizes and values the provisions of the Copyright Act, as expressed in federal law. Our commitment to honouring the rights of copyright holders is a priority for educators. We have done our part. We promote copyright provisions and invest funds annually through licences, ensuring copyright holders are compensated for use of work for SOCAN, the National Film Board of Canada, and Re:Sound, etc.

I am hopeful today that the information shared will demonstrate that substantial revisions to the Copyright Act and the principle of fair dealing would have a devastating impact on a school division like ours and the ability of our teachers to provide students with current extensive teaching resources, especially in digital and non-traditional formats.

[The Chair, Liberal, Dan Ruimy]

I'm going to have to cut you off there.

We're going to move on with questioning.

Mr. Jowhari, you have seven minutes, please.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Thank you, Mr. Chair.

I welcome all the witnesses. Thank you for taking the time and sharing your insights and your positions and for making recommendations.

Ms. Robertson, you indicated that the revenue you've had from publishing and Access Copyright has drastically been reduced. You mentioned $63, but can you give me a comparison between 2012 and 2018?

[Patricia Robertson]

Yes. I believe I mentioned that I was getting about $550 before 2012, when the educational sector, as I said, unilaterally decided to reinterpret fair dealing. That's the base amount. With Access Copyright—and again I'm speaking for writers—all the monies are pooled, so all tariffs they receive from the educational sector will come into this pocket of money, which is then distributed to all writers across the country. As a result, even writers like me who are not writing directly for the educational sector will still receive that base payment. There will be top-ups if your particular work has been adopted for a classroom or—

[Majid Jowhari, Liberal, Richmond Hill, ON]

How much of that $550 was the top-up? How much of it was—

[Patricia Robertson]

The top-up would be above that $550, and really, it would vary for each writer. I have never received a top-up, so I'm speaking about the base amount that every writer registered with Access Copyright would have received.

[Majid Jowhari, Liberal, Richmond Hill, ON]

You indicated that your income, as it relates to publishing, has now gone down about 90%.

[Patricia Robertson]

Yes.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Ms. Greenberg, you touched on digital, but I want to go back and ask a question around it. How much money are you spending on digital or earning on digital, as opposed to print?

[Annalee Greenberg]

I'm afraid I don't know how much we're spending on it, but virtually for every book that we publish, we publish an e-book. A book like this has added features, such as live links to archeological sites.

I'm not sure. I can find out for you. Let's just say that the expected sales for e-books are minimal.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Let me try to approach it in a different way. What impacts has the digitalization of publishing had on you, on your members?

[Annalee Greenberg]

Frankly, not a lot. We have produced e-books.

Do you guys have any numbers on how many e-books you sell? There are some other publishers here. I'm just wondering.

We create them, but very, very few people indeed buy them. I can find actual numbers.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Yes, could you find that and submit it?

This question is also to you, Ms. Greenberg. You made four recommendations. One of them was around clarity. You recommended that the purpose, the character, and other elements need to be further identified. Can you expand on that one quickly?

[Annalee Greenberg]

I took that directly from Judge Phelan's judgment on Access Copyright.

[Majid Jowhari, Liberal, Richmond Hill, ON]

How is that going to help the creative economy?

[Annalee Greenberg]

It's because right now they are strictly looking at the amount,10% per book.

I have another statement here from someone who has had course packs developed. To me, a course pack is basically republishing. For example, another publisher contacted me about publishing an essay from this book. We found out where they were going to publish, the rights that they wanted, the geographic location, and the duration, and we came up with an amount for that permission.

What's happening at the university level is that universities are essentially creating their own publications, and I consider “publish” to mean “to make public for a number of people”. I don't know if I'm answering your question, but if indeed a student is doing an essay on the Delgamuukw case and wants to use that chapter in their private study in order to work on their paper or something like that, to me that is fair use, but republishing is not.

When I say the purpose, if it's not private study and it's not someone's own educational research, that's taking it into a different realm. I hope that answers it.