Industry Committee on May 24th, 2018

[The Chair, Liberal, Dan Ruimy]

Good afternoon, everybody. What a gorgeous day it is.

Do I hear a cellphone? Are all cellphones off? Thank you.

Welcome to meeting 117 of the Standing Committee on Industry, Science and Technology, as we continue our legislative five-year review of copyright.

Today we have with us, from the Canadian Teachers' Federation, Mr. Mark Ramsankar, President; from the Canadian School Boards Association, Cynthia Andrew, Policy Analyst; and from the University of Calgary, Dru Marshall, Provost and Vice-President, who we'll save for last.

We're going to start with you, Mr. Ramsankar. You have up to seven minutes.

[H. Mark Ramsankar, President, Canadian Teachers' Federation]

Thank you, Chair.

My name is Mark Ramsankar. I'm the President of the Canadian Teachers' Federation, but first and foremost, I'd like to suggest that I'm a schoolteacher. I've had the opportunity throughout my career to teach all grades and to also work as a consultant with the school board in Edmonton. I've been a special ed teacher as well as an administrator, so I'm speaking from the perspective of the entire K-to-12 education system over my 25 years in the classroom.

As the national voice for Canadian teachers, I represent here today a quarter of a million teachers in the K-to-12 system in every province and territory in the country. We have a part in and strong connection to Education International, which represents over 30 million teachers across the world. We are a long-standing member of the education coalition of national education organizations. We advocate for the rights of teachers and students in the federal government's copyright reform process. We work very closely with the education coalition partners to develop education materials for teachers on matters relating directly to copyright.

We believe very firmly in protecting the legitimate interests of creators and publishers by ensuring there is no copyright infringement when teachers are copying materials for use in their classrooms and for students. We also believe that the current fair dealing provisions maintain a very strong balance between user rights and creator rights. We view this as very strong public policy. Even our global organization, through Education International, holds that the Canadian Copyright Act as it stands is held in very high regard.

Teachers are professionals who respect copyright, and we also teach our students to respect copyright when they do research. Teachers will not copy materials if there is any doubt. They do not copy whole textbooks. It infuriates us throughout the profession when somebody says something such as this, that there is a teacher who is blatantly stepping on copyright rules.

Over the last decade there's been a dramatic shift from print-based materials and resources such as textbooks to digital resources. In our classrooms today, as challenging as they are, teachers find effective ways to teach through these evolving technologies. They are creating their own resources and materials. They're using collaborative approaches to content in creation and are engaging students so that they can learn through online resources as well as more traditional print material. As professionals in the K-to-12 system, teachers want their students to have access to the very best educational content available.

Speaking directly to copyright, it is an important issue, and it's a subject that has been raised with teachers by the Canadian Teachers' Federation. We speak about compliance, and we take part in the awareness of consequences to infringing on copyright. We also engage in a comprehensive awareness program in our efforts to ensure teachers are aware of copyright and the limits of the law when they are preparing for their classes.

Teachers are professionals. Anecdotal stories of whole textbooks being copied are isolated incidents. I speak directly for the K-to-12 system in education, and that is public education. I don't stand here to represent extended or private education. For the CTF, it's not about the money. From our view, it's about students. It's about providing the best for their learning experience in our system and for their futures.

I came today to witness for and represent Canadian teachers, and I'm urging the standing committee to maintain the current fair dealing provisions, which balance the protection of both creators and users.

I also ask you to consider your decisions. Consider the fact that a quarter of a million teachers work with children every day in this country. The decisions made as we go forward in regard to copyright will have very damning effects on classrooms across the country, and every student in the K-to-12 system will be affected by the decisions that are made in the outcome of these hearings.

Thank you very much, Chair.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We're going to move right to Cynthia Andrew from the Canadian School Boards Association.

You have up to seven minutes.

[Cynthia Andrew, Policy Analyst, Canadian School Boards Association]

Thank you, Mr. Chair, and good afternoon, everyone.

My name is Cynthia Andrew. I appear before you this afternoon representing the Canadian School Boards Association, whose members are the provincial school board associations, which represent just over 250 school boards across Canada and serve slightly less than four million elementary and secondary school students across Canada.

I am an employee of one of those provincial associations, the Ontario Public School Boards' Association. I am the key staff person for school boards both in Ontario and within CSBA on all matters relating to copyright. I am pleased to appear before you this afternoon to speak about copyright and school boards.

Copyright law affects all of Canada's school boards and is reflected in policies and practices in school board administration and in classrooms across the country. As a result, CSBA has been attentive to and active in issues related to copyright reform since the 1990s.

CSBA works closely with other national educational organizations on copyright-related policy development. That is why you will notice that many of our supporting materials are the same as those materials you have already seen from other witnesses who have come before you on this issue, for example, the fair dealing guidelines and the “Copyright Matters!” booklet.

CSBA recognizes the importance of copyright awareness in the K-to-12 education community, and we do our part, along with our provincial affiliates and our education partners, to impart the need to foster greater understanding and compliance within our schools and our classrooms. CSBA provides advice to local school boards through its provincial association members.

The provincial ministries and departments of education can exercise greater authority, making certain policy requirements of school boards. You heard from them earlier this week, I know, through the CMEC Copyright Consortium. CSBA works co-operatively with the CMAC Copyright Consortium and other national educational partners to ensure that consistent information about copyright compliance and copyright rights and responsibilities is consistently shared through our provincial school board associations with all of the school boards and their employees.

This decision to educate school board employees consistently across Canada was made late in 2012 and was only partially a result of the amendments to the Copyright Act that passed earlier that year. Significantly, the decision was also a result of the 2012 Supreme Court decision that found it was fair for teachers to copy short excerpts of copyright-protected works for their students. It is that Supreme Court decision that prompted national education associations to establish the fair dealing guidelines.

CSBA supports the fair dealing guidelines. It supported the establishment of them and worked with its provincial affiliates to ensure that directives from their respective provincial ministries were implemented effectively. CSBA believes that the fair dealing guidelines provide school boards and their employees with clear copyright policy guidance, ensuring that educators are aware of their rights and their responsibilities under the Canadian copyright law. The fair dealing guidelines ensure consistent application of the Supreme Court's decision across the country. The guidelines are aligned with copyright law around the world so that our teachers and our students are on a level playing field with those from other countries.

CSBA further believes that fair dealing for education purposes is good public policy that supports student learning and ensures effective use of taxpayer dollars. The Copyright Act balances rights between copyright owners and copyright users, and the fair dealing provision in the act is an important right for Canadian educators. Fair dealing for the purpose of education allows teachers to access a wide range of diverse learning materials and thereby enriches students' learning experiences.

The Supreme Court decision and the fair dealing guidelines have established a stability that CSBA supports and wishes to see maintained. Teachers are now certain when they're selecting materials for their lesson planning and when seeking those supplemental materials necessary for teaching individuals who may be more challenged with the lessons.

CSBA is aware that publishers and Access Copyright have been vocal in their claims that fair dealing has caused them economic hardship. To date, they have not been able to present sufficient evidence to support this claim beyond anecdotal examples. The other gap that is evident from the testimony to date is the degree to which the success or decline of publishers and Access Copyright reflects what is fair remuneration to creators. Will restoring tariffs and increasing tariff payments help those writers and those creators?

CSBA does empathize with the challenges currently facing the educational publishing industry. The industry is struggling to stay current with advancing technology and new perspectives about teaching and learning. Textbooks, once the primary learning resource available to educators, are now just one in a series of choices that school boards and teachers have available when preparing classes for their students. School boards spend their learning-resource dollars on digital-content repositories, subscription-based databases, online libraries, provincially developed or locally developed electronic resources, apps, and, of course, the Internet. Again, the true value of the educational use of fair dealing is that educators now have the flexibility to adapt their materials to the specific needs of each class, or even each individual student, in ways that were unimaginable just a few years ago.

While CSBA as an organization is not directly involved in any of the legal or quasi-legal actions that have occurred around copying in schools, some of our member school boards, those in Ontario, are directly involved. Other provinces' school boards are indirectly involved as their ministry is involved. While CSBA itself might not be directly involved in these matters, we certainly have an ongoing interest in ensuring that the Copyright Act continues to balance the rights of both creators and the educational users.

The fair dealing provisions in the act provide balance in both rights and responsibilities. Proceedings of the Supreme Court and other courts, which are playing themselves out today, are providing the definitions and the clarity around fair dealing. There is a new normal in K-12 school communities, which educators are adapting to, which publishers are adapting to, and which teachers and students are benefiting from, that is about access to enriched learning material. CSBA asks MPs to not be tempted to apply legislative amendments to what is already a fair and balanced approach to copyright in our schools.

Thank you.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

Finally, Ms. Marshall, you have up to seven minutes.

[Dru Marshall, Provost and Vice-President, University of Calgary]

Good afternoon. I'm Dru Marshall, provost and vice-president, academic, at the University of Calgary, and chair of the copyright committee there. I want to begin by thanking members of the committee for their support for the post-secondary sector. Investments in our campus through the post-secondary strategic investment fund and through the previous knowledge infrastructure program have had a transformative effect on research and learning spaces on our campus. We also really appreciate the significant federal investments made in support of Canada's research ecosystem.

I'm pleased to be here today to make recommendations to the committee and to speak about the University of Calgary's approach to copyright. First, I want to emphasize that the University of Calgary supports the retention of the fair dealing exception for education in Canada's copyright regime. As both creators and users of copyright material, universities must have a balanced approach to copyright and to the issue of fair dealing.

Fair dealing helps ensure a high-quality educational environment for students, and contributes to innovation in teaching by enabling an instructor to use a variety of examples in their lectures, exposing students to the most recent cutting-edge research. The speed at which textbooks and traditional print books are produced and distributed often does not allow for inclusion of these types of examples.

At the University of Calgary, we take a measured approach to fair dealing, ensuring it is used to supplement or complement purchased material, not to replace it. We do not apply fair dealing to print course packs, because while the university produces course packs on a cost-recovery basis, the institutional printing contract with a third party printer includes a commercial element. We also do not apply fair dealing to compilations of works such as literary anthologies. Instead we look for original sources of these works, and in most cases purchase transactional licences for them. Indeed, the university applies fair dealing to a very small proportion of course materials used in classrooms today. In a sample of 3,200 learning items, such as book chapters, articles, and Internet resources used by instructors in our winter 2017 semester, fair dealing was applied to only 250 items, or less than 8%. We most commonly applied fair dealing in instances where a chart, a graphic, or tables from a book or academic journal articles were included in the materials for a lecture.

I'd be happy to walk the committee through a detailed example of how fair dealing is applied to a specific course during the question period of today's meeting.

At the University of Calgary we also strongly discourage introducing any measures to harmonize tariff regimes, imposing statutory damages, or introducing mandatory licensing into Canada's copyright regime. Doing so would remove or threaten a university's ability to choose how to manage copyright, compel them to purchase blanket licences, and result in a university paying twice for the ability to reproduce most of its copyrighted content. This move would be a fundamental change to copyright law and should be studied very closely for all the unintended consequences that would flow from it, especially the cost implications for public institutions.

We understand that in recent government consultations on reforming the Copyright Board of Canada, Access Copyright proposed statutory damages in the range of three to 10 times the royalty for even the smallest case of infringement, with no discretion for the courts to vary from this. We also understand that Access Copyright is currently pursuing royalties, at a rate of $26 per FTE student for the university sector, through rate-setting proceedings at the Copyright Board of Canada. This rate has not yet been confirmed by the board, but if it were, this would mean statutory damages for a university, hypothetically, in the range of $78 to $260 per FTE student at the institution. That scenario would be difficult for any publicly funded institution.

Our opposition to this measure is in line with the University of Calgary's decision to opt out of the Access Copyright interim tariff in September 2012. This decision to opt out came after considerable consultation with our university community, and was driven by significant cost implications stemming from both the increase in the tariff and the limits in the repertoire offered by Access Copyright. The Access Copyright tariff applies only to the copying of print materials within the repertoire, and the details of the specific materials included were not sufficiently transparent.

As a growing proportion of library materials is digital, the university increasingly found itself paying twice for the same resource, paying the Access Copyright fee for print copies and also paying for the licence for digital copies preferred by the university community.

This preference and the greater cost-effectiveness of digital resources drive a growing proportion of library acquisitions. We have a digital first policy, and approximately 90% of acquisitions by our library in 2017-18 were digital, just over 10 million dollars' worth, making print-based collective licences less useful.

When we opted out of the Access Copyright tariff in 2012, it was because we recognized that we could implement institutional copyright policies that would be both more cost-effective and, importantly, responsive to the needs of the University of Calgary community.

At the U of C we take copyright compliance extremely seriously. We educate our faculty, staff, and students about copyright. For example, we recommend all course reading lists be submitted to the copyright office to ensure compliance. We have a copyright officer who attends and presents at new faculty orientation sessions and who holds regular information sessions for instructors, staff, and students on copyright. In 2017, that copyright officer gave over 22 presentations and workshops to our community.

Our learning management system includes reminders about where to seek advice about copyright issues and about the appropriate use of materials.

We provide copyright compliance assistance services. We have a copyright office that employs four full-time employees, and they processed over 7,800 requests in the winter term of 2017. The same office negotiates transactional licences and clearances on behalf of our instructors and professors.

In 2012, we became one of the first post-secondary institutions in Canada to adopt a policy on acceptable use of materials protected by copyright, which applies to the campus community. This policy includes sanctions for non-compliance.

We have a copyright committee that meets quarterly and that includes students, administration, and staff, and we have developed a rigorous, we think, and comprehensive approach to managing copyright.

In conclusion, we urge the committee to take a balanced, measured, and fair approach to copyright, one that respects the rights of both creators and users.

Again, we appreciate the opportunity to appear before you and look forward to questions.

[The Chair, Liberal, Dan Ruimy]

Thank you very much for all of your presentations today.

We're going to move right into questions starting with Mr. Sheehan.

You have seven minutes.

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

Thank you, Mr. Chair.

Thank you, presenters, for the very informative information you have provided.

I was a school board trustee many years ago, and I come from a family of teachers. In fact, my father used to be president of OSSTF. I'm mentioning that because he's in Ottawa today too.

I'm going to start out asking you a question I've been asking various people across the country and here. It's about copyright as it relates to Canada's indigenous people. Canada's indigenous people feel the copyright laws as they exist do not serve their traditional culture and their methods of communicating that.

We've heard from various people, whether on the oral tradition or otherwise, about how we engage. Obviously, in your schools you have indigenous children, indigenous teachers, indigenous trustees, indigenous professors, and whatnot.

Could you provide to this committee your thoughts on how we could improve copyright as it relates to Canada's indigenous population?

Anyone can start. It's for all three of you.

[H. Mark Ramsankar]

I will give it a start. Knowing that the indigenous population traditionally passes on knowledge through oral communication makes it difficult to put any kind of copyright on these types of learning environments.

When we're looking at a school per se that is addressing the needs of indigenous children through printed stories and materials, those are made available in classrooms, and students would traditionally be able to borrow such items through libraries or from teacher resources.

When we're talking about building the culture, it goes far beyond just whether or not it's a piece of printed material, because the experience I've had is that in schools right now it goes far beyond taking a piece of paper and putting it in the hands of the students. It's more of a lived cultural experience that has a lot more to it.

[Cynthia Andrew]

My experience in this matter is limited, but with respect to the purchasing of materials, there are some issues we're thinking about. If we're talking about printed materials, I think we could look at some arrangements where materials are printed or published with different parameters around them, such as between the publisher and the creator. That's something about which the publishing industry would be better informed than I, but I do know that when a creator gets their works published, their compensation depends greatly on what their contract is with their publisher. That is one thought I have.

With respect to materials that are not printed published but are oral or other things, I know that a number of school boards across Canada participate in a program that brings indigenous creators into their school to talk to all students about indigenous art. They participate in art-creating days and indigenous storytelling. By doing that, and by promoting artists in the school who come from indigenous backgrounds, we're making our students more aware of the stories and the art and the culture than they currently would be. There are often benefits to that for the community.

[Dru Marshall]

I would say that the current Copyright Act does not afford indigenous people protection for their copyright material. Part of it is the way in which those materials are produced.

We have just spent a significant amount of time putting together an indigenous strategy. I'll give one example. During that strategy, it was apparent that a written document would not tell the story we were trying to create. We wanted to use indigenous symbols to tell the story. Of course, one of the issues is whether or not you are absconding with cultural property if you use those symbols. We spent considerable time with the community. One of our Kainai elders gifted us a series of symbols that we could use, and helped put those symbols together so that an indigenous community could pick up our document and essentially read it in their language without having to read the written word.

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

You asked permission.

[Dru Marshall]

We did ask permission. I think any Copyright Act moving forward should include this type of piece within it.

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

How much time do I have, Mr. Chair?

[The Chair, Liberal, Dan Ruimy]

A minute and a half.

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

Okay.

When it comes to mandatory tariffs, you're going to have to expand on this one, although I don't think with a minute and a half we'll be able to get there. This is with regard to the decision in Access Copyright v. York University and the undoubted appeal that's coming. Do you feel that the dispute between departments of education across Canada and the school boards in Ontario is in particular on whether the tariffs put in place by the Copyright Board are mandatory? Do you believe that tariffs should be mandatory, yes or no, and why?

[Dru Marshall]

I'd be happy to start on that, if you'd like.

I don't think tariffs should be mandatory. To speak from a university perspective, I think there are options for tariffs and for ways to clear copyright. Right now Access Copyright is but one collective. There are a variety of different ways that you can gain licences.

We had some issues with Access Copyright in terms of transactional licences, for example. We're not able to obtain them. It was an all-or-none approach to licensing, so we found that we were paying for licences twice. Furthermore, we also found that their repertoire was not transparent. It was difficult to know exactly what we had paid for.

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

Thank you.

[The Chair, Liberal, Dan Ruimy]

I'm sure we can get back to that one.

Mr. Bernier, you have seven minutes.

[Maxime Bernier, Conservative, Beauce, QC]

Thank you, Mr. Chair.

Hello and thank you for being with us today.

My question is for several of you.

Representatives of various organizations have told us about the fees charged for the right to use authors' copies and about the fair dealing exception. I have some questions for you in this regard.

Access Copyright and Copibec asked our committee not to give too much weight to the data showing that spending on acquisitions and licences and on reproduction rights can be excessive. According to Access Copyright and Copibec, in our digital era, we have to make a distinction between acquiring an educational work and reproducing it.

Do you make the same distinction between acquiring a work and reproducing a work? The costs that people incur are primarily for the right to acquire licences and not to reproduce excerpts of works. What is your position on the distinction between acquiring licences and reproducing works?

[H. Mark Ramsankar]

I will open by suggesting that Access Copyright isn't in today's classrooms. Today's classrooms are complex. To simply say that a blanket licence for acquiring material is one way to build a resource to work with the complex needs of students in a classroom is unfounded.

In terms of the separation between acquiring information and then being able to disseminate it, there is a very clear distinction on it. I do know that blanket licensing, when you look at the public system across the country, K to 12, is in various forms. To have a single way that this is how we should be accessing information, and we either have a licence or we don't would be doing a disservice to areas that don't necessarily have the same type of access.

We have all sorts of remote areas in the country. Getting access to material is part of it, but then building and using that material to meet the complex needs of a variety of children in a classroom becomes of greater significance to the teachers who are working with children.

[Maxime Bernier, Conservative, Beauce, QC]

With regard to your position on fair dealing, you said in your testimony that you don't think we need to change that. The interpretation from the court is okay in terms of the criteria to use the material, and it's a fair deal for the authors of these productions.

[H. Mark Ramsankar]

Well, in the interpretation as it stands, that's been working. CTF has gone to great lengths to educate teachers across the country. We use our material—such as this—for our members; in fact, in my own school this is hanging right above the copy machine.

We have materials going out in publications. I brought two of them today from across the country. Articles appear on the use of materials and the gathering of materials and on how to deconstruct a purchased piece of material for use within a classroom that does not go outside the copyright laws. The interpretation as it stands right now is something that we're in favour of.

[Maxime Bernier, Conservative, Beauce, QC]

You don't think there's a need for us, as legislators, to change the definition of the use of fair dealing.

[H. Mark Ramsankar]

At this point, no.