Industry Committee on May 22nd, 2018

[Frédérique Couette]

That is a vision that we share with Access Copyright. We see it the same way. In our opinion, we should emulate the current provisions in England, the United Kingdom, and New Zealand. It is the same process. Provisions apply from the time a licence is granted.

Section 2 of the Copyright Act defines the term “commercially available”. It is already used to limit certain exceptions for education, but that could be extended to section 29, which essentially defines fair dealing. Under section 2, once that applies and after reasonable research, if a licence is available at a reasonable cost and within a reasonable time frame, the concept of fair dealing should not available. That would limit this recourse and we would end up exactly—

[Frank Baylis, Liberal, Pierrefonds—Dollard, QC]

We are talking about educational institutions, though, and not students.

[Frédérique Couette]

Exactly. That would give us a way to allow students to meet their personal research requirements for their homework, for instance, whereas all institutional aspects would be covered by the licence.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

Mr. Bernier.

[Maxime Bernier, Conservative, Beauce, QC]

Thank you very much.

I will share my speaking time with Mr. Jeneroux.

My first question is for you, Ms. Couette.

Do you agree with Ms. Levy about the way the university uses copyright for library copies in general, on the one hand, and what students do in class, on the other? Do you share her view?

[Frédérique Couette]

Are you referring to the relative share of acquisitions and licences?

[Maxime Bernier, Conservative, Beauce, QC]

Yes.

[Frédérique Couette]

Since our licence agreements are with the universities, we receive a declaration from them that covers 80% of the books. What they declare is essentially books.

The licence does not cover international publishers. Moreover, the amounts we pay those international publishers are peanuts to them. Where a considerable drop in licence revenues has really been felt is by local publishers, our national publishers in Canada and Quebec.

[Maxime Bernier, Conservative, Beauce, QC]

So you also agree that, when universities claim they are paying more and more for copyright, that is true on the one hand. On the other hand, you say your revenues are dropping, for the reasons you just explained. Is that correct?

[Frédérique Couette]

Absolutely. What the universities are telling you is really that they are paying more for acquisitions, while what they pay us for is reproduction.

[Maxime Bernier, Conservative, Beauce, QC]

Okay, perfect.

As to the solutions, you said earlier that you really like the regime in the United Kingdom, among other countries. Should Canada's Copyright Act retain the concept of fair dealing for education? If so, does it need to be more clearly defined? Or should we go back to the previous version of the act that did not include that concept for education?

[Frédérique Couette]

The concept of fair dealing has always been in Canada's act. It is an integral part of it, just as the collective societies are. It is part of the balance.

The real problem is the way the universities are interpreting fair dealing for education today. If we adopt provisions similar to what we see in Great Britain, New Zealand or Australia, but in another form, that would balance out the situation and secure royalties for institutional and systematic mass reproduction.

[Maxime Bernier, Conservative, Beauce, QC]

So the criteria have to be tightened up rather than relying on case law or the interpretation of the act by various courts. Is that correct?

[Frédérique Couette]

As to the interpretation by the courts, what Ms. Noel said refers to the 2012 interpretation in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright). This decision did not say that up to 10% of a work or a full chapter could be reproduced. The decision referred to four pages and a half per year per student. That is far from 10%.

I have some figures from declarations by educational institutions. For Quebec, we are talking about 47 million pages for universities and 22 million pages for Cegeps. We survey just 10% of elementary and high schools, and that amounts to 3.6 million pages. Multiplied by 10, that is 36 million pages. So that is very far from the four and half page quota.

I would point out that the Supreme Court ruled that a portion does indeed meet the fair dealing criterion, and I think that amounts to 17 million pages, but that the schools have to pay for the rest. They no longer pay for the rest, however.

[Maxime Bernier, Conservative, Beauce, QC]

Okay, thank you.

I will hand it over to my colleague.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

I'll pick up on some of my colleague's line of questioning.

You heard Ms. Noel's comments earlier. I'll give you both a chance to comment on what she said. In particular, take us back to 2011. We have the testimony, and you read some of it into the record, Ms. Levy. Are you then suddenly blindsided by a letter from Ms. Noel on this?

Take us back to before December 5, 2012.

[Roanie Levy]

When creators and publishers came before the legislative committee in 2011-12 looking at the Copyright Modernization Act, we were very concerned that the addition of education was going to lead to exactly the situation we're in today, with the education sector abandoning all the licences.

The education sector time and again came to the committee and essentially said that the creators and publishers in the collective were fearmongering; that in fact this was not at all what was intended. It was really for these other uses of other works, which are not covered by the licence, essentially, and that the licence would continue to remain whole and they would pay it.

Are we completely blindsided? We were always concerned that we were going to get to this point, so we were not completely blindsided, but we are a little bit surprised that they did such a quick turn on their position.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Madame Couette, do you have any comments on Ms. Noel's earlier testimony?

[Frédérique Couette]

We were in the same situation. In our case, it was not the end of licence, but as of July 2012, Quebec universities asked us to renegotiate the licences. We had just completed the negotiation in May or June 2012. They were adopted at the end of the month and the Supreme Court issued its decisions in July. The Quebec universities wanted to renegotiate, with the result that the licence decreased from $25.50 in July 2012 to $21 in January 2013. So we were in the same position after the measures were adopted.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

Mr. Masse, you have six minutes.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

Thank you for your testimony today.

I want to get clarification with regard to the illegal copying that's taking place. I've heard different numbers. What exactly are they and where do the numbers come from? Those have also been used by several witnesses prior to today's testimony. I think they're all using these numbers, the 600 million, as well as some other ones. Where do they come from?

[Roanie Levy]

There is a document, which I distributed earlier, that has some of the key numbers in it and explains where they come from. You'll see where the “600 million pages of published works copied every year” comes from.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

For the record where exactly does that come from?

[Roanie Levy]

It comes from a couple of places. The first place is the Copyright Board decision in the elementary/secondary school sector. There were 380 million pages copied there per year.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

How did they come to that conclusion?