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37th PARLIAMENT, 3rd SESSION

Standing Committee on Canadian Heritage

EVIDENCE

CONTENTS

Tuesday, April 27, 2004

0910

The Chair (Ms. Sarmite Bulte (Parkdale—High Park, Lib.))

Ms. Roanie Levy (Access Copyright)

0915

The Chair

Mr. Michel Beauchemin (Coordinator, Droit d'auteur, Multimédia, Internet, Copyright (DAMIC))

0920

0925

The Chair

Mr. Roger Doucet (Deputy Minister, Department of Education (New Brunswick), Copyright Consortium of the Council of Ministers of Education, Canada)

0930

0935

The Chair

Ms. Liz Warwick (Vice-President, Periodical Writers Association of Canada)

0940

0945

The Chair

Ms. Susan Peacock (Vice-President, Canadian Motion Picture Distributors Association)

0950

0955

The Chair

Ms. Susan Peacock

The Chair

Ms. Susan Peacock

The Chair

Mr. Gerry McIntyre (Executive Director, Canadian Educational Resources Council)

1000

1005

The Chair

Mr. Gary Schellenberger (Perth—Middlesex, CPC)

The Chair

Ms. Roanie Levy

Mr. Gary Schellenberger

1010

Ms. Roanie Levy

Ms. Susan Peacock

The Chair

Mr. Roger Doucet

The Chair

1015

Ms. Roanie Levy

The Chair

Ms. Christiane Gagnon (Québec, BQ)

Mr. Michel Beauchemin

The Chair

Mr. Gerry McIntyre

1020

The Chair

Ms. Christiane Gagnon

Mr. Michel Beauchemin

Ms. Christiane Gagnon

The Chair

Mr. Roger Doucet

Ms. Christiane Gagnon

1025

The Chair

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.)

Mr. Roger Doucet

Mr. Clifford Lincoln

1030

Mr. Roger Doucet

The Chair

Ms. Roanie Levy

The Chair

Ms. Liz Warwick

1035

The Chair

Hon. John Harvard (Charleswood St. James—Assiniboia, Lib.)

Mr. Roger Doucet

Hon. John Harvard

Mr. Roger Doucet

Hon. John Harvard

Mr. Roger Doucet

Hon. John Harvard

1040

Mr. Roger Doucet

Hon. John Harvard

Mr. Roger Doucet

The Chair

Mr. Michel Beauchemin

The Chair

1045

Ms. Christiane Gagnon

Mr. Roger Doucet

Ms. Christiane Gagnon

The Chair

Hon. Paul Bonwick (Simcoe—Grey, Lib.)

Mr. Roger Doucet

Hon. Paul Bonwick

1050

Mr. Roger Doucet

Hon. Paul Bonwick

Ms. Roanie Levy

Hon. Paul Bonwick

1055

Ms. Roanie Levy

Hon. Paul Bonwick

Ms. Roanie Levy

Mr. Roger Doucet

Hon. Paul Bonwick

Mr. Roger Doucet

Hon. Paul Bonwick

Mr. Roger Doucet

Hon. Paul Bonwick

The Chair

Mr. Roger Doucet

The Chair

Mr. Roger Doucet

1100

The Chair

Mr. Roger Doucet

Ms. Roanie Levy

The Chair

Ms. Susan Peacock

Hon. John Harvard

Ms. Susan Peacock

The Chair

Ms. Susan Peacock

The Chair

Ms. Roanie Levy

1105

The Chair

Mr. Gary Schellenberger

The Chair

Mr. Clifford Lincoln

Mr. Roger Doucet

Mr. Clifford Lincoln

Mr. Roger Doucet

Mr. Clifford Lincoln

Mr. Roger Doucet

1110

Mr. Clifford Lincoln

Mr. Roger Doucet

Mr. Clifford Lincoln

The Chair

Mr. Gary Schellenberger

The Chair

CANADA

Standing Committee on Canadian Heritage

NUMBER 010

3rd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, April 27, 2004

[Recorded by Electronic Apparatus]

¿ (0910)

[English]

The Chair (Ms. Sarmite Bulte (Parkdale—High Park, Lib.)): Order, please.

Ladies and gentlemen, welcome to the Standing Committee on Canadian Heritage.

Pursuant to Standing Order 108(2), this committee is conducting a study of the government status report on copyright reform. This week we are going to be dealing with access issues. Today we're looking at the issue of the use of Internet material for educational purposes.

Welcome to all the witnesses. There are a number of you here today with us, so we would ask you to try, if possible, to keep your remarks to about eight to ten minutes, which would then allow us a number of rounds of questioning from committee members.

In no specific order, let's start with Access Copyright and Ms. Roanie Levy.

Welcome.

Ms. Roanie Levy (Access Copyright): Thank you, Madam Chair.

I'm here today to represent Access Copyright, the Canadian copyright licensing agency, but it is not only Access Copyright that I speak on behalf of. Access Copyright represents the interests of the Canadian creator and publishing communities, so today I am also the voice of more than 6,400 individuals and businesses that will be most impacted by the decisions you will make on access issues.

In preparing this presentation, I asked myself, what is the role of government? Perhaps you're asking yourself the same question. Permit me to suggest some elements of an answer.

One of the crucial roles of government is to support an efficient and fair marketplace. That means, for example, facilitating the creation of limited liability entities, as well as legislating, implementing, and revising statutory regimes such as competition rules, labour laws, criminal laws, and intellectual property legislation. The objective is to support an environment where both providers and consumers of goods and services are provided with opportunities to prosper. When people can make and sell their widgets efficiently, everyone benefits.

I'm here today to show you that in the marketplace of copyright, an extended collective licensing regime is the most efficient and effective path to such prosperity for users and creators.

I respectfully submit that it is not the role of government to decide when someone should be forced to give work away for free. Everyone has a right to make a living. We do not insist that certain workers--farmers or bus drivers, for example--not be paid a day a week for the benefit of the education system. That is why we have a taxation system to address the reallocation of revenue—it is the most efficient and fair way of funding our education system—not copyright exceptions that target a specific class of workers.

Exceptions are extreme measures that should only be resorted to when addressing extreme circumstances, such as when access cannot be provided by any other means. I will come back to this in a moment. First I'll go back to the role of government for a moment.

When I refer to an efficient and fair marketplace, I talk about a place where buyers and sellers can come together to mutually agree on exchanges. Such mutual agreement frees the government from having to unnecessarily and unfairly put the legitimate interests of one group, the education community, ahead of another group, the rights-holder community.

In the context we are dealing with today, we are talking about rights holders coming together with the education community to mutually agree on how copyright-protected works on the Internet can be exchanged or accessed for fair and reasonable compensation.

Do we have an efficient and fair marketplace?

The sellers, publishers, and creators of copyright material have organized themselves through collective societies to better service the buyers—the education community. They have invested millions of dollars in Access Copyright and COPIBEQ, our sister organization in Quebec, to develop a first-class rights management system that can track rights information on millions of domestic and foreign works, license the use of these works online in real time, and efficiently distribute royalties to thousands of rights holders. This is only the beginning. They plan on doing more, much more, and they simply ask to be provided an efficient marketplace to do so.

The important marketplace framework we are dealing with today is the Copyright Act. It ensures that intangible creations can be transacted. Section 70.1 and onwards of the act provides for the establishment of collective societies and the Copyright Board. Collective societies and the Copyright Board are like the Corporation Act and the Competition Bureau of the corporate world. Their regular review and update is absolutely essential to an efficient and fair marketplace.

Collective societies allow rights holders to come together and offer services to copyright users that they cannot offer on their own. For an efficient marketplace, the rules surrounding the establishment and liability of collective societies have to be in line with the types of service that rights holders want to offer and users demand. The digital environment challenged and continues to challenge the collective society framework in our Copyright Act.

[Translation]

With this in mind, the Department of Canadian Heritage commissioned two important reports that examined collective societies. The first report, issued in August 2001, recommended the examination of the possibility of establishing an extended collective licensing regime in Canada for certain purposes. One of the purposes that the report specifically referred to was the use of copyright protected works on the Internet—the access issue being discussed today.

The second report, issued in June 2003, examined the application of an extended collective licensing regime in Canada. It concluded that the introduction of such a regime was to everyone's benefit—users, represented rights holders and non-represented rights holders.

[English]

Access Copyright and the rights holders it represents agree with the reports' recommendations. I implore you to closely review these seminal reports. Extended collective licensing would allow the buyers and sellers to come together and mutually agree on how copyright-protected works on the Internet should be used. Extended collective licensing promises to be the cornerstone of an efficient and fair marketplace that both creators and users want and absolutely need in the digital age.

We have taken the reports one step further and have prepared draft legislation for the introduction of such a regime in Canada, which I have left with the clerk for you today for your consideration. We respectfully submit that amending the Copyright Act so that copyright-protected works can be efficiently licensed in today's digital environment is the role of government. Implementing an extended collective licensing regime will go a long way toward achieving that role.

Licensing, particularly collective licensing, can meet all of the legitimate needs of users. Since tariffs are either negotiated or set by the Copyright Board, they would take into account the expected value for the use of the work, including those that are meant to be for free. Unless there is evidence of an inability or of abuse by the rights holders, the government should not resort to exceptions.

In summary, we recommend that you provide for an efficient and fair marketplace by introducing in the Copyright Act an extended collective licensing regime, and then let the market do the rest. I am convinced that once a proper regime is in place, the market forces will work together to ensure that the access needs being discussed today are met. But should the market still not be able or willing to organize itself and provide users with what they legitimately need and at a reasonable price, faced with such a market breakdown, then, and only then, would the government be justified in considering intervening by introducing exceptions or other measures.

We are not faced with such a market breakdown. I believe that the creator and copyright owner witnesses that you will hear in the next three days will tell you in their own way their desire to meet the needs of the user community. In fact, I am sure some will tell you that is the very reason they exist. I know that is the reason why Access Copyright was created 15 years ago: to meet the needs of the education community for easy and affordable access to works. We did it in the analogue world, and we will do it again in the digital world, if you give us the opportunity.

Thank you.

¿ (0915)

The Chair: Thank you very much.

[Translation]

The next witness is Michel Beauchemin, of Droit d'auteur Multimédia-Internet Copyright.

Mr. Beauchemin.

Mr. Michel Beauchemin (Coordinator, Droit d'auteur, Multimédia, Internet, Copyright (DAMIC)):

Good morning. Thank you for inviting us here today. I would like to give you a brief overview of our organization. DAMI© is an ad hoc group, one might say, of professional associations, creative artists and interpretative artists, as well as collective copyright societies in a variety of fields, including the performing arts, visual arts, audiovisual arts, radio, television, film, literature, art trades and music recording. We bring together artists' associations as well as the collective societies that those associations have formed. DAMI©, one might say, is home to about 40,000 to 50,000 artists and copyright holders. This morning, I will be speaking on behalf of those organizations.

We have often had the opportunity of putting our views forward in a number of briefs. So this morning I will just speak briefly, on the basis of a concrete experience, the experience of AQAD—the Association québécoise des auteurs dramatiques—with exceptions to works protected under the Copyright Act.

In 1995, the Act to amend the Copyright Act established new exceptions for educational institutions. Under section 29.5 of the act, the live performance in public of a work, primarily by students of an educational institution, did not constitute copyright infringement. What the Department of Canadian Heritage explained after the fact was that this exception had been included in the legislation to promote copyright payment by educational institutions by limiting the use of dramatic works protected under the Copyright Act.

We were told it had been observed that schools were not complying with the Copyright Act. Thus, the hypothesis underpinning the new legislation was this: if we set some limits, if we specified what the exceptions were, we would encourage educational institutions to pay for non-exempt uses. But in fact, in Quebec, the result was radically different. The new provision led to a 15 to 25 per cent drop in the royalties paid to Quebec drama authors by the Quebec Department of Education under a financial agreement between our association and the Department of Education.

To make a long story short, in the past every school would declare all theatrical performances given in the schools, and pay $100 per performance. With the exception in place, all performances that were solely before teachers and students were excluded from the agreement. Authors therefore lost out—with some 150 to 250 performances declared each year, and at least $100 paid for each performance, the losses to Quebec playwrights amounted to $15,000 to $25,000 a year.

Moreover, the exception has made the system more complex to apply. In theory, we say that exceptions are designed to facilitate the use of works. But in this case, the exemption has made things more complex. Before the exemption, schools knew that they had to declare all performances. Now, we keep having to explain to the schools that they don't need to pay for some performances but they do need to pay for others. The system is more complex, both for users and for the rights management association, which for us is SoQAD.

This morning, we would invite the government not to play sorcerer's apprentice with exceptions. The government should not claim that it will make works easier to use by broadening the protection or exemptions granted to educational institutions. There are two reasons for this: you are of course aware that the Supreme Court of Canada, in its ruling on the Law Society of Upper Canada vs. Thompson Canada Limited, considerably broadened the concept, or scope, of exceptions by establishing these exceptions—which were previously considered privileges—as users' rights. Now, the Supreme Court invites us to say that as soon as we grant an exception, we are in fact giving the user in question a right that should be viewed broadly by the courts and interpreted in favour of the user, not the [Editor's Note: Inaudible].

We would therefore ask you to be cautious whenever you consider broadening the concept of exceptions, particularly since the Supreme Court ruling considerably broadens the concept of equitable use of works as well. There is a real broadening of access for researchers, teachers and other people under so-called equitable use provisions. So we have to be cautious, because recent jurisprudence clearly favours users. As a separate issue, we would also invite you at a later date to consider the scope of recent jurisprudence and its impact on rights users.

¿ (0920)

We also need to deal with the issue of exception in the WIPO Copyright Treaty, including those set out in article 10. For example, we should limit exceptions by providing that exceptions can be provided for in national legislation in some special cases where they do not affect normal use of the work, nor unjustifiably undermine the legitimate interests of authors, or other rights holders.

At present, the legislative climate for extending exceptions is extremely dangerous in Canada. There seem to be more and more exceptions, and we creative artists are finding that the Copyright Act is providing less and less protection for authors' rights and is increasingly concerned with the rights of authors and users, based on the principle that there should be a balance between the two, and that balance in recent years has systematically undermined creative artists.

In speaking of the status report on copyright reform, Ms. Susan Bincoletto said, while expressing great concern for protecting the interests of creative artists and rights holders, that she was also greatly concerned with enabling educators and their students to use publicly accessible Internet material for educational purposes, without putting them in a position where they would infringe the legislation or infringe copyright, thereby committing an illegal act. So while claiming or stating that her department is indeed concerned with defending the rights of creative artists, she implicitly, in our view, pleaded for greater scope in the exception granted to educational institutions, by broadening or amending the definition of equitable use for material accessible on the Internet.

We therefore feel that the Department of Industry wishes to extend access for educational institutions, and this is something we consider very dangerous in the light of recent rulings by the Supreme Court, as I stated earlier. We therefore urge you to be very careful.

We are also critical of the current approach taken by the Department of Industry's Copyright Office, for two reasons. First of all, we have always maintained that it is complicated for educational institutions to control the use of works that are easily accessed on the Internet by teachers and students. Yet in recent weeks, the media have spotlighted educational institutions' huge concerns about plagiarism. It seems that more and more students are using cut-and-paste magic to appropriate long excerpts from texts that they use without identifying them as quotations, presenting these excerpts as their own work. Educational institutions are extremely concerned about these cases of plagiarism, and have purchased software to monitor what their students do on the Internet. It therefore seems that educational institutions are finding the means to control Internet use in the educational process, and monitor the input—if we can call it that—that students and teachers can access on the Internet.

It is somewhat paradoxical that educational institutions—though I do not think that is what they intended—are implicitly defending the moral rights of creative artists by requiring that their students cite authors whose works they use, and use only small portions of those works. Educational institutions are defending moral rights, in this case, but when it comes to exploiting those works, they are, oddly enough, no longer able to control use.

We question whether it is genuinely difficult to control students' use of material protected under the Copyright Act on the Internet, or if their concerns are not financial ones. At the end of the day, do they not simply wish to save money by not having to pay royalties?

Obviously, we believe that there is an alternative to extending the exception and broadening the right of educational institutions to use anything that is accessible on the Internet, even when it is expressly stated that content is protected by copyright and that it may not be reproduced. As Access Copyright so clearly explained, this is an issue of collective licensing, and collective management.

I will not bore you any longer by trying to explain what Access Copyright has already explained rather well. However, given the existing conditions under which artists work, we feel we have to lean not towards broadening exceptions, but towards collective management, an approach that can be instituted very well indeed.

¿ (0925)

On the Internet, we have established a virtual bookstore that provides free access to all works, or at least many works, in Quebec's theatrical repertory. Schools are free to use this site.

In addition, in cooperation with Copibec and Access Copyright, we have provided for an easy method to collect royalties for use. We believe there are ways of giving schools and other educational institutions access to works. There are also easy ways of paying royalties, provided users are willing to do so.

Thank you.

The Chair: Thank you, Mr. Beauchemin.

We will now hear from Roger Doucet, who is Deputy Minister of the Department of Education in New Brunswick.

Mr. Roger Doucet (Deputy Minister, Department of Education (New Brunswick), Copyright Consortium of the Council of Ministers of Education, Canada): Thank you, Madam Chair.

[English]

I appear before the Canadian heritage committee today representing the Copyright Consortium of the Council of Ministers of Education of Canada. Thank you for inviting the consortium back to provide our evidence on what is a crucial issue for the education sector and for future learning in Canada.

Let me first explain that the CMEC copyright consortium is a member of a greater group of national educational and cultural associations that have reached a consensus on the important issue of Internet access for educational purposes. In speaking about this significant consensus, we speak for 13 national organizations representing the K-12 and post-secondary education sectors: teachers, school boards, colleges, universities, and professors, as well as national groups representing museums, libraries, and archives.

This is a unique group, because together the members of these organizations play a major role in furthering education, learning, research, and social, cultural, and economic development in Canada. They also function as key partners in the provision of public access to Canada's educational, cultural, and heritage resources.

I will focus my comments in this opening statement on the consortium's main objective. We seek, in the public interest, to guarantee that students and teaching staff may enjoy reasonable legal access to digital material. In the next few minutes I will review an option for an education amendment to the Copyright Act, a reasonable and beneficial option for Canadians. The consortium and its partners were very disappointed that this option did not appear in the government's status report.

Since the copyright reform process was launched, the consortium has strongly advocated that the Copyright Act needs to be modernized and amended to allow students and teachers to fully harness learning opportunities afforded by digital technologies. We have worked with officials in the Department of Canadian Heritage and Industry Canada and met with many groups representing creators' and copyright owners' interests to elucidate our proposed education amendment, its content and intent.

For Canadian students and teachers, reasonable access to Internet resources is a critical necessity for learning and teaching. As members of this committee are aware, Canada's current Copyright Act makes it illegal for students and teachers to participate in routine classroom activities where they download, save, and share Internet text or images that were intended to be freely downloaded and distributed. There's a problem here that needs to be addressed as soon as possible. Therefore, we're pleased to see that the educational needs relating to access to the Internet are being considered as a priority issue for the government's short-term legislative agenda.

Copyright infringement is a concern to educators and authorities across the country. The education sector believes that clarity and balance in the Copyright Act must be vigorously championed such that copyright infringement is eliminated and every student and teacher can be assured of timely and fair access to Internet materials.

It is from this appreciation of copyright that the consortium and its national partners propose an education amendment. We are proposing an amendment to permit the educational use of publicly available Internet materials, one that is intended to address educational needs and ultimately clarify and enhance respect for copyright ownership on the Internet.

The consortium and its partners propose an amendment that has specific conditions. It is not a broad, unconditional exemption to the rights of creators and copyright owners. The proposed amendment is limited in scope in two significant respects.

First, it exclusively applies to participants in a program of learning under the authority of an educational institution. For example, the proposed amendment would permit students to use publicly available Internet materials by incorporating text or images in homework assignments, performing music or plays online for their peers, and exchanging materials with teachers or peers.

Second, it applies strictly to the use of publicly available material on the Internet. Publicly available materials are those posted online by content creators and copyright owners without any technological protection measures such as passwords, encryption systems, or similar technologies intended to limit access or distribution. These materials, intended to be widely accessed and shared, may include text, images, musical recordings, or instructional demonstrations.

The proposed education amendment will ensure it is legal for students and educators to reasonably access and use publicly available Internet material. However, the education amendment will not exempt institutions from paying for digital material such as purchasable CD-ROMs, subscription databases, licensed software, online courses, and other curriculum material for which a fee is intended.

¿ (0930)

Copyright owners who wish to sell or otherwise limit access to and distribution of their digital and online materials can continue to do so through subscription, password, and payment technology. The proposed education amendment will not apply to materials that are not freely accessible, which allows content creators and copyright owners to continue to sell and receive payment for their work, as has been explained.

There is a misconception that the proposed education amendment will harm creators or copyright owners. This is not true. The fact that this amendment will not harm creators or copyright owners was a clear conclusion in the recent report Assessing the Economic Impact of Copyright Reform in the Area of Technology Enhanced Learning prepared for the Marketplace Framework Workshop Policy Branch of Industry Canada. This report concludes that “all of the proposed reforms for extending exceptions to distance learning and expanding the list of education exceptions are likely to produce significant benefits and have negligible economic costs.”

There is also a fundamental argument that this amendment will greatly benefit creators and copyright owners. By making it legal to use publicly available Internet-based materials, educational institutions and teachers can credibly take a forceful position on intellectual property and the rights of creators to expect payment for their works. Ultimately, for Canada's copyright law to be effective in its enforcement in an educational setting, it must be structured in such a way as to allow students and teachers in schools or universities to truly understand what materials are permissible for educational purposes. The law must be clear as to what materials we must supply copyright on and must pay fees to use. With this, teachers will be able to model and teach appropriate respect for intellectual property.

It is with this line of thinking that the consortium strongly argues that effective copyright reform will need to make the distinction between Internet materials that are free for use and those to which fees apply. Thus, the Copyright Act needs to be modernized to include rights and exceptions that would be applicable accordingly.

Further to this, we continue to point out that the amendment is limited in its application to materials that are free. This means the amendment can coexist with copyright protection for materials that are subject to fees and for which fees should be respected and awarded. The distinction between fee and material that is free is one that reflects the notion of balance between rights and exceptions. I will hasten here to add that the distinction between fee and free also reflects the reality of what is happening in the Internet medium.

We can all agree, I am certain, that rapid advances in technology-enhanced learning demand a modernized Copyright Act. The consortium contends that this new act should serve the public interest in permitting reasonable access to and use of Internet materials for purposes such as education, teaching, research, innovation, and the dissemination of knowledge. Should the government impose limitations on the access to and use of tools as valuable as the Internet, as suggested in the government status report currently before the committee, it would ultimately compromise the quality of education in Canada.

While we make mention of the government's status report, let me say that we find two options presented in the report unacceptable. These options place a fee on Internet materials that are otherwise accessed free. This is not reasonable.

In closing, I make this observation. Provinces and territories have long maintained that a modern and balanced copyright framework would protect the public interest. The need for such a framework has never been more important than now. All levels of government are investing in connecting Canadians and promoting on-line skills development and innovation. In our global competitive world it is becoming increasingly important to foster a knowledge-based economy and nurture a skills set that takes full advantage of the Internet medium. By enacting balanced copyright legislation addressing the needs of students and teachers, promoting access for publicly available Internet materials, Canada has an extraordinary opportunity to enhance learning opportunities for generations to come.

¿ (0935)

The consortium and its partners are requesting reasonable access for educational pursuits. We are proposing an education amendment that is conditional. We are providing a solution that respects the rights of the creators and copyright owners and, at the same time, provides for the educational needs of Canadian teachers and students.

[Translation]

Thank you, Madam Chair.

[English]

The Chair: Thank you very much, Mr. Doucet.

Next we have Liz Warwick, vice-president of the Periodical Writers Association of Canada. Welcome.

Ms. Liz Warwick (Vice-President, Periodical Writers Association of Canada): Good morning. Thank you for the invitation to be here.

I'm here on behalf of the Periodical Writers Association of Canada, most often know as PWAC. We serve and represent more than 500 independent writers across Canada. PWAC is an active member of the community of Canadian creators and a leader in developing policies and instruments, such as Access Copyright, that contribute significantly to our nation's intellectual, artistic, and political capacity.

As you might expect from our name, PWAC members produce written content for Canada's newspapers and magazines. However, we also do much more, writing or contributing to non-fiction books, novels, children's books, text books, corporate publications, government publications, radio, television, and motion pictures. I'm a pretty typical PWACer, in that I write for a variety of publications and clients, who, to my great delight, pay me for my words. However, when I submit an article and receive payment for it, under most circumstances, I have not sold the piece per se; I have instead allowed someone, a magazine or a publisher, to use it under specific circumstances, say for their April issue. Should they then wish to put my article on a website, for example, they must come back and negotiate with me, usually for an additional fee. In short, I license them to use my work, but I retain ownership and control over it. This is really the heart and soul of copyright, which is why PWAC cannot and does not support exceptions to the copyright law.

Exceptions hurt creators. First and foremost, they hurt us financially. For freelance writers, our bread and butter is quite literally the control over who uses our words and how much we are paid for them. But more fundamentally, exceptions strike a blow to the value that should be applied to creative works.

What are we talking about when we talk about Internet content? We're talking about articles that people like myself have struggled long and hard to write, trying to find the right words. We're talking about photographs for which someone took the time to go out and light and shoot and develop. This may be content, but it is someone's creation. Under Canadian copyright law these creations rightfully belong to and should be controlled by the creator. It is illegal most of the time to copy them without payment or permission. As you know, Canada's licensing agencies, Access Copyright and its Quebec sister Copibec, provide simple, affordable, and legal mechanisms for gaining access to copyright material.

Streamlined, hassle-free licensing of copyright works for corporate, government, library, and educational use exists and is in practice in Canada today. To introduce more exceptions would be to reverse all the good work creators and publishers have done over the past two decades to build a system that provides access while maintaining the value of copyright. Exceptions strike at the raison d'être of copyright law, which is to provide artists with the right to benefit commercially from the work they do.

I'd also like to address an issue that has been brought to this committee, the question of balance. You certainly heard about the need to balance creator rights with access to information. I can assure you that as a writer, I want nothing more than to have my work seen by as many people as possible. However, I and my colleagues in PWAC are troubled by the idea that in order to achieve this balance, exceptions must be made to Canada's copyright law. Yes, we live in a digital age, but that doesn't change the facts that digital content is the property of the creator and that licensing can provide users with excellent access.

We've assembled today to discuss the use of materials available on the Internet for educational purposes, specifically in response to educators' demands for exceptions to the copyright law. Contrary to all established economic custom and tradition, students, schools, and libraries are requesting free access to private property. It is as though the use of the words Internet and digital magically changes the fact that we are discussing use of material. Material is property. Someone worked hard to create it, someone else invested money to publish or produce it. According to Canadian copyright law, this material we are talking about belongs to somebody, and it is, let us not forget, the basis for the livelihoods of real people. Why, then, should there be any exception to the traditional economic mechanism of payment for use?

PWAC members respect and value Canada's educational institutions, and we try to understand the economic challenges facing this sector. However, there is a certain irony in finding ourselves in conflict with educators over payment for property and services. Many of us have paid high tuition fees and struggled financially to pay for the education and training necessary to become accomplished professional writers.

¿ (0940)

Now we are being asked to turn over the economic product of that expensive education for free. That is why we strongly support blanket licensing by the collective society.

As the parent of a child in a public elementary school, I find this irony even more profound. When I walk into my child's classroom I see all sorts of products and materials that have been bought--desks and chairs, computers and audiovisual equipment, software, CDs, DVDs. The school buys sports equipment for the students and office supplies for the administration, and pays contractors to paint the parking lot and fix the security lights. The school also buys insurance, and pays its teachers and administrators to come to work every day.

None of these people are expected, under the force of law, to give away their services for free, yet that is exactly what PWAC members will be forced to do under an educational exception to the copyright law.

PWAC is also not trying to throw up roadblocks, particularly when it comes to the education of our children. We also don't want the many wonderful and talented people who work in Canadian schools to face additional paperwork, hassles, and headaches. That is why we want to see blanket licensing.

Access Copyright is perfectly positioned to provide licences for digital use by educational institutions. What's more, Access Copyright is working on digital delivery systems that will make accessing and paying for copyright material as simple as clicking a mouse. With these mechanisms in place, everyone can then go back to the business of educating our children, writing new stories and articles, and ultimately growing our knowledge economy.

The overriding question freelance writers ask about proposed exceptions to copyright law is why. Why introduce an exception where no exception is necessary, and where such an exception will do harm? I'd really like to be clear about this: exceptions to copyright law are harmful to the growth of the knowledge economy. The legislators who created copyright law understood that in order for quality material to be created, artists must be able to benefit from it economically.

Licences for use of digital material protected by Canadian copyright law are simple to negotiate, and affordable. In Access Copyright, Canada has a highly efficient clearinghouse for both rights management and content delivery. Burdening an already complicated legislation with exceptions, no matter how noble the rationale behind it, is at best unnecessary, and at worst terminally damaging to an entire cultural sector.

Writing and publishing in Canada is a challenge under normal circumstances. Writing and publishing in Canada where no payment is provided for the service is simply impossible. As professional content providers, we support the principle of hassle-free educational access to our content. We simply ask that you do not expect us to provide that access for free.

¿ (0945)

The Chair: Thank you very much, Ms. Warwick.

Next is Susan Peacock, vice-president of the Canadian Motion Picture Distributors Association.

Ms. Susan Peacock (Vice-President, Canadian Motion Picture Distributors Association): Thank you.

Good morning, everybody.

Many of you have seen me before, if not in this room then in other rooms, talking about copyright revision. But I'll repeat for the record that the Canadian Motion Picture Distributors Association's members are Columbia, Disney, MGM, Paramount, 20th Century Fox, Universal, and Warner Brothers. They are producers and distributors of what the Copyright Act calls cinematographic works, and what we call movies and television programs.

I'd like to start with some comments of a general nature that apply to all the access issues you're going to be considering this week. First of all, I think that considering new exemptions, including compulsory licences, is premature until the actual text of the WIPO-related amendments is settled.

The minister's status report says, for example, that new exemptions related to the use of Internet material for educational purposes must contain adequate technical safeguards, and that new exemptions for technology-enhanced learning must contain appropriate safeguards for works to which new exemptions would apply.

In the digital world, safeguards cannot be appropriate or adequate without the WIPO amendments. The WIPO treaties require that those amendments provide adequate legal protection and effective legal remedies against the circumvention of technological measures, and adequate and effective legal remedies against tampering with rights management information.

One thing that everybody seems to agree on is that rights holders do not have that protection and those remedies now. Until they do, how can new exemptions include adequate safeguards?

There are several instances in the status report section on exemptions that suggest the solution is to encourage licensing to schools and libraries. As long as “encourage” is not a secret code for “compel”, CMPDA agrees. We urge you to agree with us that the best way to encourage access is through voluntary licensing, and particularly secure, convenient, competitively priced licensing for all users, not just educational institutions and libraries. The best way to encourage that is to ratify the WIPO treaties.

Our next point of a general nature is that exemptions drafted before we know the text of the WIPO amendments may well conflict with those amendments and have to be rewritten. As experience has shown, that's likely to be a lengthy process, and a lot of mischief can occur in the meantime.

With respect to the superficially attractive solutions of compulsory licensing, and to a degree extended licensing, I'd like to say a bit from my experience of managing a copyright collective for 15 years.

As some of the committee members have heard me say before, a compulsory licence is effectively an expropriation, and nothing in the officials' evidence suggests there's any need for such an extreme step, especially with respect to movies and television programs.

Whether we're talking about a compulsory licence or an extended licence, owners of small repertoires will be difficult for the collective to find, and those that can't be found won't be paid. Extremely large repertoires require the use of sampling for the collective to effect royalty distribution. This tends to give an advantage to owners of large repertoires, whose works are much more likely to be in the sample.

The owner of a work for one use in one place may not be the owner of that work for another use or in another place. The person who owns a work today may assign it to somebody else tomorrow. The result for collective managers is that it is difficult to identify and locate copyright owners. This is the problem that is supposed to be solved by collective managing, but it's only solved for users.

Compulsory licensing and extended licensing are heavily weighted in favour of users, and owners do not benefit when they can't be found, when their works aren't in the sample, or when they are paid a royalty that is artificially low. That can happen in two ways.

The Copyright Board must set a rate that is affordable by the users, even if it's substantially below fair market value. The collective may be unable to enforce the tariff because they can't find those who should be paying royalties but aren't. The collective may not have enough money to justify a compliance program or a fair distribution scheme. In the worst case, the most minimal administration expenses may be greater than the collective's revenue.

¿ (0950)

I have specific comments now with respect to the proposed educational exemptions being considered today. The status report, on its face, causes us a number of specific concerns, which may be due to the lack of detail, and nothing more. I am encouraged by some of the evidence given by the government officials to this committee since March 25, which suggests that the intent is to limit the proposed exemptions in ways that would cause no concern for us.

I can state our position very succinctly. The CMPDA is strongly opposed to any new exemptions or compulsory licences for cinematographic works. We have some misgivings about extended licences, as well.

In addressing today's topic, Mr. Stockfish told this committee on March 25 that the educators' concern was primarily with respect to literary works. Furthermore, the status report itself frames this issue as “How to facilitate the use for educational purposes of material which is publicly available on the Internet”, meaning material for which the owners do not expect to be paid.

If it were clear that this exemption, whatever its form, would only apply to text and only to works made available without expectation of payment, we would have no further comment. It wouldn't concern us. However, it is not clear from the status report that option A or option B are limited in this way. It's also not clear what uses are contemplated.

Option A would expand fair dealing to encompass “teaching and study”. The Supreme Court's recent very, very broad interpretation of fair dealing with respect to research, coupled with the fact that the status report does not say that this exemption would be restricted to literary works or to material that is publicly available, is of great concern to us. The Supreme Court has decided that under the existing fair dealing exemption, lawyers can copy legal writings and others can provide a reproduction and distribution service for them without the consent of the copyright owner.

What else would they want to do with these works, and who else would want to use them? The only protected uses that ordinary users might want to make are fair dealing, according to the Supreme Court of Canada, and that's the ultimate authority. So it gives me concern that the one idea that's being considered is to add “for the purpose of teaching and study” to the fair dealing exemption.

The second part of option A is confusing. It provides for the payment of royalties under a compulsory licence for the use of materials that the copyright owner did not intend to be paid for, when the use is not fair dealing. Given the Supreme Court's recent decision, I don't know what use educators could make of such works that would not be fair dealing if this exemption were extended to “teaching and study”.

Option B is actually two options—a compulsory licence or an extended licence. It says nothing about restricting these options to literary works that are publicly available.

The status report says about option B that “This licensing regime would recognize that certain types of copyright material may be posted or accessed on the Internet without expectation of payment.” I think this means that publicly available material would not attract royalties under a compulsory licence or an extended licence. In other words, option B sets out an elaborate and questionable way of dealing with works that are not publicly available, even though the status report itself frames this issue as making works available that are publicly available. The great part of option B relates to works that are not publicly available.

Finally, I would remind you that sections 29.6 and 29.7 of the Copyright Act already allow an educational institution to copy material available on the Internet for use in the classroom.

If I can have 30 more seconds, I'd like to make one brief comment about the proposed exemption for inter-library loans, as I will not be appearing on the day when you consider that.

Option A would remove the prohibition from providing digital copies, but the heading in the status report is somewhat misleading. Option B is not just about inter-library loans, but also about permitting libraries to make digital copies for their patrons, copies that would leave the library's control.

¿ (0955)

Even so, we would have no comment, as long as the restrictions that are in the exemption—being considered broadened here—were maintained. The status report doesn't say whether they would or would not be. But the current restrictions make the exemption apply only to “printed matter” consisting of certain newspapers and periodicals, and not to a work of fiction or poetry, or a dramatic or musical work. It permits only one copy for each patron.

That concludes my submission.

Thank you for the invitation to appear today.

The Chair: If I might, just before we go on to the next speaker, can you tell us the difference between your words, “compulsory licence” versus “extended licence”? Can you educate us as to what you mean by those?

Ms. Susan Peacock: Sure.

Let me add one more, to make it more complex before I make it easier.

There's also voluntary licensing, which is what Access Copyright does. Copyright owners get together and form a collective and make their works available, and so on. No problem.

A compulsory licence is where all of the works that are described in the exemption are maybe used without the permission of the copyright owner for a royalty stipulated by the Copyright Board.

An extended licence is in the middle. It's not exactly voluntary. It's a kind of negative option, where all works owned by all owners are deemed to be in the collective's repertoire, unless the copyright owner opts out of the scheme.

As I understand it, that's the fundamental difference between an extended licence and a compulsory licence; there's this opting out possibility.

The Chair: Where do they opt out of?

Ms. Susan Peacock: They would opt of the collective. There are a number of ways it could go. The exemption might stipulate that there's one mandatory collective, or it might be possible that there would be a number of collectives, perhaps representing different kinds of works.

The Chair: Thank you.

Last but not least, Mr. Gerry McIntyre, executive director of the Canadian Educational Resources Council.

Mr. McIntyre, welcome.

Mr. Gerry McIntyre (Executive Director, Canadian Educational Resources Council): Thank you, Madam Chair and members of the committee.

Unlike my predecessor, I am not a familiar face before this committee, so I perhaps require some introduction, as does the organization I represent.

The Canadian Educational Resources Council, CERC, is the trade association whose members include the major publishers of educational resource materials for the kindergarten-to-grade-12 market in Canada. We comprise an industry that accounts for some $200 million in annual sales in Canada. Our members design, publish, and market Canadian materials to meet the varied and continually changing curriculum requirements of ministries of education across Canada. To complement these products, our members also offer teacher training materials and produce assessment materials.

CERC advocates on behalf of its members in the formation of policy and legislation affecting the educational publishing industry, including such important policy areas as copyright, book publishing, and the evaluation and funding of learning resources in each province. We work with key government decision-makers to ensure that adequate resources are provided for classroom learning materials and that copyright law and policy is adhered to by ministries of education, school boards, and individual schools.

CERC has a strong interest, obviously, in several of the copyright policy issues on which the standing committee is deliberating. Our members are publishers of educational resources, primarily print-based materials and textbooks, but increasingly including a larger proportion of online digital works, CD-ROMs, computer programs, audio, audiovisual, and new media. As such, we are actively engaged in researching the marketplace for digital educational tools and working with our clients--the boards and provincial ministries of education--in developing digital materials to meet their needs. The Internet will have an increasing role as a channel for the delivery of these products and services.

We see a market for online digital educational resources, and we are seeking to develop product and delivery mechanisms for that market. The March 24 “Status Report on Copyright Reform” indicates that active consideration is being given to extending certain educational exceptions into the networked environment and to creating a new exception specifically for digital educational uses, with little apparent regard for the fact that there is a developing online commercial market for digital educational resources. We are seriously concerned that such an amendment would undermine the marketplace, a marketplace for which our members, at great expense, are developing products in response to the needs of the educational community. The development cost of specialized Canadian digital educational online resources is considerable. If that market is rendered unviable, such resources simply cannot and will not be produced. Government policy should encourage the development of the digital market for educational product, or there will be no such product.

Today you are looking at access issues--specifically, the use of Internet materials for educational purposes. Our industry has worked with representatives of the education sector over the past several years in examining ways to address this matter. We share the goal of finding measures that support effective use of the Internet as part of a program of learning by teachers and students.

The first approach described in the status report as currently under consideration gives education publishers cause for grave concern. This approach, an amended definition of “fair dealing”, would have huge negative implications for publishers. While the status report says that such an expanded fair dealing exemption would be narrow, it appears to imply that distinctions would have to be made between exempt material, publicly-available material that might be subject to a statutory compulsory licence, and material that was not publicly available, for which, presumably, normal licensing requirements would obtain. Such an approach, which involves as many as three potential layers of distinction, strikes us as being too complicated by far to be viable.

The second approach described in the status report involves requiring educational institutions to have a blanket licence in order to use copyright material on the Internet. An approach based on licensing, we believe, holds greater promise of being able to accommodate the education sector's need for access and the rights holders' need for protection.

À (1000)

Clearly, educators and students need to access and use works on the Internet. Canada needs a model that can be easily understood and applied by teachers and students at all levels. That model must also support and stimulate innovation and investment in the development of those works.

CERC asks the committee to support extended licensing as the way to provide this access. To proceed by a course of exceptions and exemptions would be both awkward for users and destabilizing for the producers of Internet materials.

The experience of other countries appears to demonstrate that exceptions and exemptions are not the way to go. Rather, a licence-based approach has worked in Denmark, Finland, Norway, Greece, Australia, Spain, and elsewhere.

Our members, in concert with other rights holders, have an established mechanism in the form of access copyright, which facilitates access for the education sector to such material. Its original focus, when established some 15 years ago, was on licensed photocopying, but rights holders, working collectively, have refined this licensing mechanism to ensure that it can continue to provide for and serve an evolving marketplace.

Educational publishers believe licensing can provide the education sector with the required access to Internet material in a simple, flexible, and affordable fashion, while providing creators of intellectual property with the protections necessary to ensure that there is continued development of those high-quality resources that will be needed to serve students in Canada's schools.

We recommend that the committee adopt a course that ensures the establishment of appropriate framework legislation that supports the licensing of works in a digital environment.

Madam Chair, thank you for this opportunity to speak to the committee.

À (1005)

The Chair: Thank you very much, Mr. McIntyre.

Thank you very much to all our witnesses appearing before us. And now we'll start our first round of questioning.

Mr. Schellenberger.

Mr. Gary Schellenberger (Perth—Middlesex, CPC): I don't have a lot of questions at this time, but I found the presentations so far very interesting. My biggest thing and my concern is that as a writer, as a creator, as education people, you could create or write the greatest book in the world, but if you put it in a closet, no one would ever get to read it and would never realize the effects or the quality of that work.

So my thing is to come up with that proper way that our students and our educators have the ability to access those things, I can't say “freely”, but of free will, no matter how they do it. I know it's very complicated, because we've heard three different ways that things should be regulated. My big thing is to come out with the right answer so as not to restrict creators and educators, especially in the medium in which they work.

I don't know, other than making that statement, if anyone has a comment. We've heard those three different views. Which is the best way? I guess I'll sit here and try to adjudicate some of the things that are said.

The Chair: Ms. Levy.

Ms. Roanie Levy: I don't know if there was really a question there, but perhaps I could say a few words as well.

I think one thing that's important to remember when we look at the access issue is to see whether or not those who hold the rights to the works are willing to provide that access.

If you have a situation where the creators and the publishers of the works are standing before you and saying “We want to provide that access; that is the reason we create those works and that is the reason we exist,” then perhaps what you need to do is to simply ensure that they're provided with the tools that allow them to provide that access.

If, once you've given them the tools, they're unable for whatever reason--whether it's incompetence or something else comes up and the desire is no longer there--to provide that access and to provide it in a reasonable way at a reasonable price as well, then you could start intervening and coming up with other measures, such as exceptions.

Mr. Gary Schellenberger: There's just one other thing. I've heard at previous meetings that some creators get on the Internet to get their word out, and they don't look for any remuneration. There was some talk that these people would be remunerated whether they wanted to be or not. That was always confusing to me; if I didn't want the message to get out, I wouldn't put it on the Internet, number one. Again, I look at it as a publisher. If I were a new publisher, maybe I wouldn't mind putting something out on the Internet so someone would say, hey, this person has some ability. Then they might look for my name the next time my book came out, which wouldn't happen if I accessed copyright.

À (1010)

Ms. Roanie Levy: As you correctly point out, there are different reasons people put things out on the Internet. At this point in the development of the Internet and e-commerce, a lot of the things that are out there are out there for adverting, for marketing. But that may not be why people put things out there tomorrow. The business models will evolve and there will be mechanisms for people to be paid for the use of what they put out there. Part of the reason it's only advertising today is that there aren't efficient mechanisms, so we've heard a lot of discussions about different business models, being able to pay one cent at a time, micro-payments, etc.

My point is just to say that the rights holders, those who put the works out there, need to be able to decide why they put it out there; it is not for the government to decide why they put it out there. CMEC talked about the concept of “publicly available”. I have a problem with that because I'm not sure I know what it means, and I don't think that because someone has put something on the Internet, it's automatically publicly available. There is no big PA sign that is put on websites.

What there are on websites, you will find if you look closely, are a heck of a lot of copyright notices, and if you dig a bit deeper, what you'll see attached to the copyright notices more often than not--and more often as we move forward as people develop new business models--are detailed terms and conditions of use. If you start reading those terms and conditions of use, you will realize that most of the time the only thing the person who put it up there wanted you to do with their work is read it for personal use, not for educational purposes or other purposes. At the end of the day, what appears to be publicly available is truly not publicly available, and certainly not publicly available for educational purposes.

Ms. Susan Peacock: May I just say something about the exemption that exists already? I think I said sections 29.6 and 29.7. It's an exemption that's been there for a few years, and it allows educational institutions to make a copy of any work at the time it is communicated to the public. It doesn't say “when it's broadcast”. Originally that's what we thought it meant, and we called it the off-air taping exemption. As it turns out, because of the broad, technologically neutral language of the exemption, it includes material that's made available on the Internet. So we already have an exemption that allows educational institutions to copy that, put it on a slide, project it, and let the whole class see it at one time; that sort of thing is there already.

The Chair: Yes, Mr. Doucet.

Mr. Roger Doucet: Merci.

I just want to add that right now the education sector is actually paying for copyright, and our contention is about not paying for rights of owners and so forth. As was just stated, some work may be put there without the intent for it to be used. Nevertheless, we all know the Internet, and much of the content is there with the intent to make it available for use.

Actually, departments of education do own content. We do have content there to help parents address bullying, address learning challenges for families, and so forth. We do have content, such as our biographies of members of Parliament and members of legislative assemblies, we want widely used...access for educational purposes there. What we're saying is that with the amendment, we would make sure that what is intended to be free would not be charged back to the school system. We do not want to pay for what should not be paid for.

For all the rest, we can find mechanisms, we can work with copyright owners, and we want to be partners there to make it happen, but we're not for freely accessible documentation and material on the Internet; that's our issue. A global licensing that would charge our kids for the use of what is clearly intended for them.... And much of that content is something we've developed using tax dollars and was intended to be made available for the public.

The Chair: Ms. Levy, very quickly, before I move on.

À (1015)

Ms. Roanie Levy: In the proposal we're putting on the table we do not intend to charge for the type of content Mr. Doucet is referring to. That content, which is intended to be used for educational purposes for free, would not be charged for.

[Translation]

The Chair: Ms. Gagnon.

Ms. Christiane Gagnon (Québec, BQ): Thank you for giving us a few more details on the copyright issue.

As both a member of Parliament and a politician, I can tell you that the direction chosen will, for all intents and purposes, be a political one. Your positions are contradictory and reflect the side that you represent. It might not even be possible to agree on what is fair for those who use the work as well as for those who produce it. It will not be an easy task.

Mr. Beauchemin, you said that there had been a 20 per cent drop in costs related to the use of the works, because of certain exceptions. I would like you to tell us more about that. What accounts for this percentage? How did you determine that it was 20 per cent lower, and how long has that been the case?

Mr. Michel Beauchemin: Through an agreement signed with the Quebec Department of Education, creators now receive a fair share of royalties. Once they realized that the works were being used without any payments being made—which was unfair to the authors—the Department of Education expressed its willingness to enter into a financial agreement for the use of copyright material with the Quebec copyright collectives. All of the educational institutions, the preschools, elementary and secondary schools in Quebec are covered by these agreements. That is the general context.

The AQAD therefore signed a framework financial agreement covering all plays that were presented within a school environment. For example, it would apply in the case of a teacher whose students perform a play by Michel Tremblay. This agreement, in fact, is quite similar to what is called a broader licence. The AQAD, which has demonstrated that it represents the majority, not all of the authors, has signed what is called a general licence with the Department of Education.

Therefore, all of the public and private institutions of learning in Quebec, whether at the preschool, elementary or secondary level, have access to an inventory of Quebec, Canadian and international plays. The only restriction is that, in exchange, the Quebec government provides an annual lump sum for the use of these works. In that context, the schools must report any plays that they have performed. For example, for four performances of a Michel Tremblay play, the author would receive $400, plus the sales taxes.

Our general assessment is based on the following facts. We have noted that in each school where a play was produced, it was performed at least once during a school assembly, for the students, their peers and the teaching staff. There is an exception for performances given to an audience where fewer than 50 per cent are from outside the school; if 49 per cent of the people in attendance are parents, for example, then no royalties are paid.

We receive an average of 150 to 250 reports per year. We know that in the past, because of the exception, at least one of the performances in the school was paid for. This allowed us to determine that, for each report, at least one of the performances was not accounted for. There might have been two or even three of them, but we are only talking averages. This figure was derived from the fact that for each of the reports that we received, at least one predated 1997, the year when the act took effect in Quebec.

Therefore, since 1997, we automatically assume that for each report we receive, the author is losing at least $100. From that we have determined that one performance out of 150 represents between $15,000 and $25,000 for a total of $65,000 paid by the Department of Education.

This is only an estimate, particularly since, with increased information and advertising in the schools, a larger number of school boards have been sending in their reports. It is difficult to determine exactly what the effect has been. Whatever the case, we know that there is always at least one performance for the student assembly.

[English]

The Chair: Mr. McIntyre, did you have a comment?

Mr. Gerry McIntyre: Thank you, Madam Chair.

I just want to say, by way of complementing my colleague's observation, that the point here surely is that, as I suggested in my remarks, the route of exceptions is a route that essentially complicates and confounds the marketplace environment, and makes it very difficult for rights holders to achieve the stability we're looking for.

To pick up on another point, it is not by any means the intention that by having the right to license material one then proposes to charge a fee for material that is essentially freely available. The point is that, to me, to go in a direction that does not respect the opportunity to bring to the marketplace in a reasonable way and make available, in this new technology, the materials that several of the people who have spoken this morning have said represent investment--that's investment of personal time, and of money in the case of companies--and to destabilize that marketplace by introducing the notion of exception is to go in a very perilous direction. And this is particularly if one remembers that the notion of making distinctions now, in an environment of exception, presumably falls on each of the individual users to distinguish between what within the exception is appropriate to be licensed and what is in some other category.

So that is the fundamental concern of the industry I represent.

À (1020)

The Chair: Thank you.

Madame Gagnon.

[Translation]

Ms. Christiane Gagnon: In the United States, there is an exception for what is called fair use of a work. Did you take a look at what is happening in the United States to determine the impact of such an exception on the fair compensation of authors? Should this committee consider that option?

Mr. Michel Beauchemin: We do know that the American fair use provision, to use their term, provides an exemption for schools, on the one hand; we will admit to that.

On the other hand, what you must realize is that in the analysis of the American market, which represents 300 million consumers, the size of the market means that the amounts lost to the field of education were insignificant when compared to the total usage of the works. With that in mind, I would say that this type of thing does not seem to be an issue in the United States.

But if we compare that to the Canadian francophone market, with 6 million consumers, it certainly does represent a loss, if only $200, $300, $400, or $500, for a Quebec author whose annual average income is, according to our study, according to our calculations—not necessarily the total income but the average income of a Quebec playwright—$6,000 per year; this is a considerable loss.

That is how we should see the Canadian market when we compare it to a market with 300 million consumers.

Ms. Christiane Gagnon: Thank you.

[English]

The Chair: Monsieur Doucet.

[Translation]

Mr. Roger Doucet: Thank you, Madam Chair.

In my opinion, when you consider the global market available on the Internet, then the market represented by our Canadian schools, regardless of the language, is not a very big one.

What I would add is that we agree with what these two gentlemen have just told us, that is, that we must devise clear mechanisms to identify what must be paid and ensure that payment mechanisms are available. I would simply reiterate that we agree on that point.

I will repeat, what we need is to have material that is available free, and without that exception, at this point in time, the act states that the material is not legal, even though it is made available for use on the Internet without charge.

Therefore, what we are suggesting is that we find some clear way to identify what should be paid for on the Internet, and some mechanism to identify these works and remit the payments or compensation for same.

If we target without any exception, what will happen is that the schools could end up paying, while in the private homes, etc., people will continue to have access. What we want is to ensure that all Canadian Internet users are better informed, more likely to pay when payment is required, without saying that in the absence of an exception, the schools will be paying for their free materials.

Ms. Christiane Gagnon: But in the homes there are individual users. The scope of the use is not as broad as it is in a school. The number of users is increased by a factor x, because works are accessible to a larger group of people. A household pays for the services provided by an ISP. We pay for that. But there might only be two or three people living in that home, so the proportions are not the same.

How large a market do the schools represent?

À (1025)

[English]

The Chair: Very quickly, because we need to go on to the next round.

Okay.

The Chair: Mr. Lincoln and then Mr. Harvard.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): I must say, I've heard this for quite a while now. When I was chair of this committee, I met with some people from the educational network, and Mrs. Noel, about the possibility of broadening the exemption. So I was listening with a very open mind today.

I must say, Mr. Doucet, I feel a bit sorry for you. You seem to be the odd man out, the underdog, and I feel a lot of sympathy. At the same time, I must say, if I'm to be a Solomon today, I didn't find your argument as convincing as some of the others. In fact, what you were saying last of all seemed to confirm what the others were saying, it would seem to me.

Can you explain to me what is wrong with a system of licensing? Let's leave compulsory and extended; let's say you had blanket licensing that would be agreed to, which would take into account that some of these works, as pointed out by Mrs. Levy, and that some of the systems....

You mentioned as an example MPs' bios, which, I agree, are not worth very much.

Voices: Oh, oh!

An hon. member: Speak for yourself.

Mr. Clifford Lincoln: Yes, maybe I should speak for myself.

At any rate, I think that was a really good example, because I don't think the licensing system would not take into account the fact that some of the work is not to be charged for. So in setting the fee, the fee would take into account that a lot of the work is copyrighted. As Ms. Warwick was saying, you pay for parking and you pay for everything else, so why shouldn't you pay for authors' copyright rights?

What is wrong with a system that would take into account that some of this work should be free, so that the fee would compensate for that kind of work? What is wrong with that?

Mr. Roger Doucet: My concern is that this is not defined at this point. As I say, as the law is, everything is illegal. For a licensing fee to take this into account, our concern is that it's not defined; we don't know. It has to be clear what is free and what is not, and how it's being accounted for, rather than a blanket licence fee that charges the school system and the overall education system over and above what the actual content on the Internet is. And a lot of it is free. A lot of it is there for pay. In the grey zone, we feel that a school would be unduly impacted by having to pay for that unless there were clear mechanisms to define that.

Mr. Clifford Lincoln: You see, there are two options before us, as set out by the two ministries. One is a broadening of the fair dealing exemption plus some form of compulsory licensing. The other one is some form of blanket licence.

I understand the reservations that Mrs. Peacock brought forward, but there are two different approaches, you might say, one backed by Industry Canada and the other one clearly by Canadian Heritage, which favours more the creators and the cultural component.

Now, if you look at these two systems, we have to find out which one is the best--the fairest and the easiest to apply. You are arguing that the system of compulsory licensing would lead to a bit of uncertainty in regard to how you define what is freely available, which, to my way of thinking, could be taken care of in the rate charged.

In my view, the other way is far more difficult. As was pointed out by Mrs. Levy, how do you define publicly available material? Do you have a section of the law that is five pages long and that defines this and that and the next thing? And technology changes. The Internet changes. It's almost impossible to define anything.

So does that not speak against your option?

À (1030)

Mr. Roger Doucet: The way I see it, a lot of the Internet is a communications network. We can see it as a place where you put products, but it's an environment like other environments. We use the Internet environment in schools for teaching. We actually offer courses online, and so forth. So it's more than just a repository of copyrighted material. That's part of it, but much of the use we make is on communications and on documentation, and so forth.

Again I repeat myself: that is intended to be there. We have very good examples of business models where copyright owners, creators, and so forth would use the Internet as a business model to do business. It actually works quite well. I do all my Internet banking and so on....

There are tools, there are mechanisms to make it a business environment. We believe it should be handled that way, and then when we use it in the school system it's clear. When we deal with producers of content, we know it's a business endeavour. We buy products. We ask to have content developed. We need that, we need the quality.

When we go on the Internet, if it's an online course, and so forth, it should be clear so that we can use that area for what it's intended for in terms of communications, learning opportunities, learning spaces, but not only considered as a business environment, where we are going against the law every time we want to use content that's there, and so forth.

To me, that's the risk we're imposing on the school, to consider it as all protected material that has to be paid, and the onus is given on the school, where they collect it or license it. Unless we can prove to the contrary, we have to pay for everything and then come up with people who are putting stuff, with no intent to be paid.... The onus would be on them and on us to try to figure out what is not a business model. The Internet, I think, is the opposite.

The Chair: Ms. Levy wanted to say something, and Ms. Warwick.

Ms. Roanie Levy: Perhaps one of the fears that underline the CCCMEC's position is what a licence would actually cost for the use of works on the Internet. And I think it's important to keep in mind what the paper licence costs today, which is not very much. At the K-to-12 sector, for example, it costs $2.30 per student for the entire year.

What we've seen in other jurisdictions is that the use of the digital component of such a licence--the one that allows them to go online and download information--is usually a fraction of what the paper licence is, and that's between 20% and 30%. So we're probably talking about under a dollar per student per year, so not very much.

In the draft legislation that we've tabled with you today, we subject the whole regime to the control and the supervision of the Copyright Board. The ideal situation would be for the parties to negotiate the tariff, and that way the parties can agree. But let's say the parties cannot agree, and that happens sometimes. Then the parties could go to the Copyright Board, and the Copyright Board would sit as an adjudicator to determine what should be free, what should not be considered in the establishment of the tariff, and those works that should be considered in the establishment of the tariff.

The Chair: Ms. Warwick.

Ms. Liz Warwick: I was very concerned when Mr. Doucet began talking about having material that was either publicly available or was in some way protected.

Right now, for an individual writer to put a piece up and say this is protected, either through password or some sort of encryption, is costly just in terms of technology. I consider myself fairly technologically savvy, but it would be difficult for me to know, or I would have to do a great deal of research if I wanted to find out what the best ways are for me to put my material up there and ensure that it is protected and that it cannot be used by anyone who wants to do it.

I think that puts a huge burden on individual creators--financial costs both in terms of time and in terms of keeping up with the technology. And the bottom line is, we don't even know what those technologies might be in the future. So we're asking to put something in the law for a technology that may change five years down the road, because everything is very much in evolution. I think that's a huge burden for creators, and I think it's also a huge burden for the legislators.

À (1035)

The Chair: Mr. Doucet, you had your hand up. I'm going to have to move on, so maybe it could wait until the next round.

Mr. Harvard.

Hon. John Harvard (Charleswood St. James—Assiniboia, Lib.): Thank you, Madam Chair.

First of all, I want to declare up front a bias: I'm on the side of the creators. I found Ms. Warwick's testimony particularly compelling.

I think my questioning will have to go to you, Mr. Doucet, because you're sort of the odd man out. Don't take any possible criticism or critiquing from me in a personal way; you just happen to be perhaps on the wrong side of the argument this day.

It seems to me, Mr. Doucet, when I listen to you that you're trying to get something for nothing. You would like to carry out an operation of yours though exemptions or exceptions, really, on the backs of the creators. I don't think that's very fair.

When you raise the point about asking the question of what is to be paid for and what shouldn't be paid for, in a sense you're asking the government to do that. I don't know why the government should be faced with that task. Leave that to the marketplace. Leave it to the creators and the users to decide how that's going to be done, and let all of you come together. You know, it's called supply and demand.

I am worried for the creators. I'm worried that if we don't have any exemptions at all--and that's really the way I want to go--if we go into that kind of environment and leave it to the marketplace, you can be almost sure that over time it will be the creators who will find themselves screwed quite often. It will be the distributors and the publishers, the middlemen and women, who will somehow take control of the environment for their own advantage.

We see it in agriculture all the time. I mean, what is a farmer? He's a creator; he's a producer. And is he the strongman in the chain? Of course he's not. Is it perhaps the retailer or the consumer? It certainly isn't the consumer. It's those middle people who get in there and take control.

But getting back to you, Mr. Doucet, why should you have any exemption at all? Tell me, if you can, why you should have any. Just take your chances in the marketplace. I'm sure in some cases you'll get things on the cheap; you may even sometimes get something for nothing. Other times you may have to pay a pretty good tariff.

What would you say to that?

Mr. Roger Doucet: First I'd like to say we're not trying to get things for free. For example, running the school system, we do pay creators; we do have artists and so forth coming in. So we are a payer.

Hon. John Harvard: So why do you need the government then?

Mr. Roger Doucet: What we say here is that because in the content of the Internet there is much that is free, intended not to be paid for, we don't think that should be part of a market when it's not a market product. That's all we're saying. The only exception we want is to recognize that some of the content on the Internet is there free, with no intent to charge, and we don't think that our kids--

Hon. John Harvard: But isn't that really the concern of the creators? Creators may put material out there in the public domain, and they may not care that Clifford Lincoln uses it for whatever purpose, right? Yet they see you, you know, not necessarily with deep pockets, but you do have some pockets, and you have students, and the supplier, the creator, says there's a part of the market that can pay something. So they're going to get you. They're going to let Lincoln off, but they're not going to let Doucet off.

That happens pretty well all the time in the marketplace in one way or the other. What's wrong with that, Mr. Doucet?

Mr. Roger Doucet: My concern is in the case of free material. I don't think we should be paying a licence to a middleman or middle organization collecting fees on what should be free. That's our only concern. The rest, as I said, we'll abide with, we'll find a solution, we'll come in there. But why should there be a licence for free material, and paid to a middle body?

Hon. John Harvard: If there were no exemptions and you had to pay a tariff on most things you use, would it drive you out of business? Would it bankrupt you? Would it drive up the taxpayers' bills? What would happen to you?

À (1040)

Mr. Roger Doucet: Well, we don't know, and that's a good question. We stated--

Hon. John Harvard: Well, don't we just cross that bridge when we come to it?

Mr. Roger Doucet: We mentioned the $2.30 cost, but from what I hear, the request for payment in the next round was close to an 800% increase. I don't know what the board will say, but to us that's a concern. The school system cannot afford to fall into the realm of these high prices for free material. If it's not free material, if it's copyrighted, then we'll make a decision. We'll say okay, with the money we have, this is what we can afford and the rest we will limit.

We should do that, because we should respect copyright. We want to respect copyright. So depending on how much it costs, we'll make a decision on what we can afford in the schools. We will say here are the rules now, and here's what we'll pay for licensing. But why do it for free material? That's our only point.

The Chair: Mr. Beauchemin had a comment.

[Translation]

Mr. Michel Beauchemin: As far as we're concerned, we have objections at two levels to the request being made by the education sector.

The first objections is this: the Conference of Ministers of Education specifies that anything that is not “encrypted”, which means specifically protected, is deemed to be freely available to the public over the Internet, whereas, as we know, in many cases, there is wording to the effect that any reproduction is prohibited, and that the material is there for consultation or reading only.

What the Conference of Ministers of Education is asking us to do is to often say no, we won't take that into account: it is not encrypted, the student is not intelligent enough to read that, the professor even less so and in that case we can allow its use. That's how free access is defined.

Clearly, many authors or people will say that reproduction is allowed, that photocopies are allowed and that use at large is allowed. That poses no problem for us. We're not asking to be paid for that. But when someone expressly says that all reproduction is prohibited or that it's for private use only, that means that the work, from the viewpoint of the creator or the person putting it on-line, is protected by copyright.

I agree with what the member was saying earlier. The question is as follows. If, for example, and I'll still use the AQAD site, a major portion of the site has to do with copyright, how to calculate it and use it, the whys and wherefores, the history of copyright, offences, Victor Hugo and the public domain. There's a mass of information on that site. Clearly, in our eyes, this mass of information is made available to individuals for private use, not for schools to publish the publication and use it as a school manual because there are books in the trade that serve that purpose and therefore will not be bought or sold by the schools.

So there's a distinction between private use and the fact that schools have a tendency to appropriate material that is there for purposes of information and transmute it into school books that substitute for things that would have been purchased or should have been. Thus, we say that a distinction has to be made between private copying and commercial use for a group, to a certain point, which the school system might engage in. That's why we consider that in that case, if copyright or private use only are mentioned, then the schools should go by that. That's when you should have a licensing mechanism so that those materials could be used legally and provide income for the association, because it costs a lot of money to create that website and it also costs a lot of money to keep it going.

We're not handing out that information for free. Besides, it is harmful to the publishers of school materials and books who make an effort to publish and try to sell those books in the schools and who are going to be paying the authors a percentage of the sales price.

So I think we have to stick with that notion, which is to know what should be considered as free and not free on the Internet. The definition given by the Conference of Education Ministers, in our opinion, is far too broad. I know this from experience because we set up a virtual library/ bookstore where we put 500 plays on-line and I can tell you it cost at least $1,000 to define the read-only and encrypting mechanisms to protect those works.

We can't ask a small publisher or a small creator to use such heavy and technologically complex measures that you then have to defend and adapt because hackers regularly try to break in. So there's a lot of work that we think the Conference of Education Ministers does not take into account.

[English]

The Chair: Madame Gagnon, and then Mr. Bonwick.

À (1045)

[Translation]

Ms. Christiane Gagnon: You answered my question, Mr. Doucet, because I actually wanted to know what a free or freely-available offer meant. How are our creative people going to be able to earn a living if their work is given up for free? That wasn't the idea I had. I think we have a lot of educating to do if we want the public to purchase the works. We should buy books and stop making photocopies. Even I have to discipline myself in that area because it's showing respect for the creator. I would like the creators to earn a proper living and not have them living in poverty.

As Ms. Warwick was saying before concerning her works, she paid, she studied, she found the right word. We're all looking for the right word today. I think it's important to preserve that balance in order that the author may earn a living with the work created and be shown some respect for what was created.

In any case, as far as I'm concerned, that will be my guideline when I have to make a choice concerning things I've heard about here this morning.

Thank you. I'm in a bit of a rush because I have another meeting scheduled for eleven.

Mr. Roger Doucet: Very quickly, Madam, I would like to say that I support fully everything you've just said. All the works of authors that we can and want to support, that we want to motivate... In fact, we are creating tomorrow's creators in our schools. We want to inform them about their rights and their writing potential. So, as I was saying, I fully support what you're saying.

However, there is still a lot of content on the Internet available for free, and a global licence forces the education system to pay a third party for material that was never put up there to be paid for in any way and that has nothing to do with copyright or creation at that level. It's simply and solely that distinction that we want. But I quite agree with you and everything you've said.

Ms. Christiane Gagnon: You'll have to convince us and give us proof.

[English]

The Chair: Thank you.

Mr. Bonwick.

Hon. Paul Bonwick (Simcoe—Grey, Lib.): Thank you, Madam Chair.

Thank you very much to all the witnesses. You've done a wonderful job presenting your various positions.

There are some common themes here, and one of them is that you're all there to support a better, more vibrant, educated society. It's just trying to jig it right.

I do see some contradictions, quite frankly, Mr. Doucet, in your arguments. I don't think anybody here wants to create unfair barriers for students to secure higher education, but I think the balance has to be reasonable. If my one of my kids becomes a writer, I hope he will be remunerated for his skill. Because certain people in the education system feel they might be able to use that information to offer education, which of course they're paid for, it seems to be a contradiction. You're charging for education, and yet you're not necessarily prepared to pay for the input to offer that education to the end user. I see a bit of a contradiction in that regard.

You've mentioned that you're helping produce the creators of tomorrow. I see a contradiction there as well, because in helping to mould the creators of tomorrow, we would hope you are providing an environment where they can eat. I think that's a critical element to it.

You had some wonderful quotes. The only one I took exception to maybe was that your amendment would not hurt creators or writers. It reminded me of when my dentist talks to me. I guess the pain is all in the eye of the beholder, or the user in this particular case.

I'm wondering if you can clarify for me--I'd like this first question to go to Ms. Levy and Mr. Doucet--first how you see a collective licensing system charging for things you've identified, things like our bios, content that was intended for free public use. I'd be interested in both your answers, and I have a supplementary as well, if I have time.

Mr. Roger Doucet: Thanks for your comments.

First, my son is at university in performing arts, so I do want him to live, and I would pay to go see him and his friends and so forth. So it's not that issue.

What I think we should do is identify clearly what is content that is intended to be free, the bios and so forth, for which the exemption would say that content is not part of a licensing fee. For everything else we would have a clear payment mechanism for every item of content that's there. I think that should be provided.

Hon. Paul Bonwick: I know what you want to do. I'm asking how collective licensing creates charges on things that were fully intended as no-charge public content. I understand what you're asking for, but I'm asking you to explain to me how you're going to pay for those things that were intended to be free under a collective licensing system.

À (1050)

Mr. Roger Doucet: From what I understand, the overall licensing fee would charge schools for any content we download or copy from the Internet, whether it's free content or not. As the law stands right now, anything we copy from the Internet is subject to copyright, even if it was intended for free use. So the law doesn't allow for this exception to be there.

Hon. Paul Bonwick: Ms. Levy.

Ms. Roanie Levy I think the last part of Mr. Doucet's comment is quite interesting, because that is really not how we operate. It is true that everything is protected by copyright, but different things have different values. An MP's bio is protected by copyright, even though some may think it is not worth much, so it would get in the marketplace less than perhaps a poem would. Copyright protection and value are in some ways two separate concepts. Of course, if there's not copyright protection, you can get no value, so in that way they're not completely disassociated, but the fact that it's protected by copyright doesn't automatically mean that it will catch a certain value.

We deal with this issue today in the paper world, and we would deal with it similarly in the digital world. I'll give you a paper world example so you can see how it works every day. Ideally, in the paper world, when we try to establish a tariff, we survey the person we're licensing. We get a second copy of everything that they photocopy, and we take that copy and try to determine a value. In a negotiation we pre-establish that a page of a textbook will be worth, let's say, five cents, but a page of a newspaper article will be worth two pennies, because a newspaper article is worth less than a page of a textbook. A page from an academic journal or a scientific journal is worth twelve cents, because a scientific journal is more expensive to produce than a page of a textbook. This is how, irrespective of the fact that they all have copyright protection, the value associated with them will differ.

We would do the same thing in the digital world. We would download the activity of a certain number of universities for a certain number of days, hiring a statistician to make sure it's representative, and then we would look at what was accessed and downloaded. Some things we would put in a category as clearly without payment. Perhaps it's a government website, perhaps it's some other site that clearly indicates, when you go into the copyright notices, that this can be used for any purpose, with no payment or authorization required. We would have a second pile of items clearly for payment, where it is clear on the website that no use other than personal use, for example, is permitted; no downloading is permitted, no re-use in a classroom is permitted. Then we would arguably have a third category of greyer items. Based on those categories, we would come up with a tariff.

Hon. Paul Bonwick: At the end of the day, do you have confidence that the market would sort itself out, that five years from now there is not going to be some massively disproportionate amount of billing being shifted over to the educators as compared with other users?

For the committee's purposes, I phoned a superintendent in my riding last spring on this particular issue to try to get a sense, because it clearly, from my perspective, was coming down to that almighty dollar. That was the crux of the argument. I asked about the impact on the schools, and he very clearly put it into terms I could understand. Whether it was $1, $2, or $2.50, I didn't know what that was going to be; I assumed it would be a negotiation, and asked how that would affect his school. He put it into perspective for me, suggesting that a school of 400 students would spend a couple of thousand dollars on snow removal, that a school of 400 students might spend several thousand dollars on janitorial services, that a school of 400 people might spend several thousand dollars on food and drink. He was giving me a comparison of $5 and $15 per student for those kinds of things, as opposed to $1 or $2 for things of a creative nature, things that are truly going to enlighten the student. I guess it's about value on one thing more than the other from the educator's perspective.

I'd be interested in knowing if you think this thing will balance at the end of the day. I'm interested in both your opinions, quite frankly.

À (1055)

Ms. Roanie Levy: I think the market is wise. If I make chairs and a chair costs me $50 to make, I would like to sell it for $1,000, but I suspect I will not be able to sell it for $1,000. I suspect, at most, I'll be able to sell it for $100. I'll try for a while, but eventually, the market will bring me down. I do not think we will be able to charge more than what the value of the work is.

Hon. Paul Bonwick: That's certainly the history for creators. I don't know a whole bunch of wealthy ones.

Ms. Roanie Levy: Yes. So at the end of the day, I think the market will sort itself out and we will not see these exorbitant rates for the use of Internet material or for any other use.

Mr. Roger Doucet: I agree. In terms of copyrighted content, again, the school is paying for it. We're negotiating the prices. We want to pay a fair price and I'm okay with that.

I'm still concerned about the fact that exploring the Internet...is a space in itself. It's not like counting photocopies in books and so forth. So it's unclear in that sense. Also, many of our students make use of our own government websites, and if we have them going there, then we want to be assured that this is free material. It should not be counted. It should not be part of a licence because it's content we've paid for.

Hon. Paul Bonwick: Wouldn't you have to pay for that, if you wanted to go visit your own website?

Mr. Roger Doucet: That I don't know. As part of an overall licence, it would all be part of it. Then we'd have to make the analysis and so forth.

Hon. Paul Bonwick: It's called negotiation.

Mr. Roger Doucet: Or exception.

Hon. Paul Bonwick: Okay.

Thank you.

The Chair: Thank you.

I have a couple of questions, and I know Mr. Lincoln wants to speak, and maybe Mr. Schellenberger.

Ms. Peacock has said that there's an educational exemption already. I saw her shaking her head, Mr. Doucet, when you said it needed to be amended. Tell me again why it needs to be amended. Why doesn't the current educational exemption help you?

Mr. Roger Doucet: What we need amended is simply to recognize that material that is free or publicly available on the Internet should not be charged to the school system. That's the amendment we need.

The Chair: Now, if you go to Mr. McIntyre's brief, he says that their concern lies in knowing what is publicly available and what is not publicly available. Then Ms. Levy, herself, has said that she's not quite sure what's publicly available and what's not publicly available. And if she's not sure, then.... I was actually relieved to hear her say that because that was going to be my question: what is publicly available?

Do tell us, Mr. Doucet, how you or the council defines this term or makes that distinction. We are having a terrible time dealing with it here. What is your definition?

Mr. Roger Doucet: I think everyone is trying to define it. The Internet is an area that's still unclear, still in development. We have tried to define it by saying that material is publicly available if there's no clearly identified requirement for payment and no payment mechanism or access code. As the Deputy Minister says, if someone puts his book or her book or some content on the Internet, where it is freely accessible, without any mechanism at all for anyone to figure out how to access the author, that would be publicly available material.

Now, again, we talked about symbols, une nomenclature universelle, some signals that would help educate people and inform them as to whether or not the material is publicly available.

We agree that we have to clarify this. It's not clear now; but until it is, the other solution would not be to ask the school system to pay a licence for material that has been publicly available without any fee.

Á (1100)

The Chair: Both Ms. Peacock and Ms. Levy talked about the process of sampling that is done, which takes into account material that is free or not free. What's the problem with that?

Mr. Roger Doucet: I don't know. If we go to government websites and our own material, would that be considered sampling? Is that possible on the Internet?

Ms. Roanie Levy: Actually, what's interesting is that the government has not put their works in the public domain. In fact, you have to pay for government stuff, unfortunately, except in Quebec. Most provinces require payment for the use of government publications. But that's just an aside. The truth is, if a work is meant to be free, there would be an allocation of zero to that work, in terms of establishing the tariff. It would not be paid for.

What we should remember as well is that, if there's a feeling that the parties cannot come to an agreement on their own, there is the Copyright Board. It was created precisely to deal with these situations and operates fairly well. I would suggest that the Copyright Board, in the instances where the parties cannot come to terms as to whether X or Y website should be paid for, could actually adjudicate and determine that.

The Chair: If I could go to Ms. Peacock for help, the B option you presented had two possibilities within it--the compulsory and the extended licensing. How does voluntary licensing fit into that, or does it at all?

Ms. Susan Peacock: Voluntary licensing would not require an exemption. It would not require a change to the Copyright Act. Under the current act, all works can be licensed through blanket licensing administered by collectives.

Hon. John Harvard: So that's the free market.

Ms. Susan Peacock: Yes, it's a free market. It does tend to commodify the works a bit. Rather than saying this work is worth $1.12 and that work is worth $2.85, the way the market does for books, for example, it would tend to smooth things out. It's a little rougher. But it has the benefit of letting many small users have access to many works. It's an efficient way to do things, but it requires the consent of the owners.

The Chair: Did I understand you to say, Ms. Peacock, that you are not in favour of collective societies?

Ms. Susan Peacock: No, I'm not in favour of compulsory licences. Voluntary collectives, terrific.

The Chair: Ms. Levy.

Ms. Roanie Levy: Without getting into too many details, maybe I could say a few words on the differences between voluntary licences, voluntary collectives, extended collective licensing, and compulsory licence, and when you move from one to the other.

Essentially, Access Copyright in the paper world operates under a voluntary licence. So we are not forced to come together and offer licences. We do it voluntarily. We ourselves determine what the terms and conditions of use are going to be and what the tariff is going to be. That's a voluntary system. A voluntary system works well when you can identify all of the rights owners. So it works very well in the music world and the motion picture world, where it's much easier to identify who the rights owners are.

In the text world and in the visual images, such as photographs and graphic designs, the number of rights owners is limitless. At no point in time will you ever have all of the rights owners under one roof. That is why in these types of situations, particularly when the type of licensing is maybe high risk, such as digital licensing, a regime of extended collective licensing, which is a limitation in some instances to a voluntary licence--the negative option is a good way of describing it--is beneficial for a country. So in Canada, where for a lot of the works, which number in the millions, particularly for those on the Internet, it's difficult to identify the rights holders, partly because a lot of them are foreign, a regime of extended collective licensing works very well, while at the same time allowing the rights holders to determine when, how, and for how much the works are going to be licensed. So the market still plays a part.

On compulsory licence, it's essentially an exception with remuneration. The rights holder doesn't determine when and for how much. It's often set in legislation, which means it's difficult to adapt to the changing needs of the users, etc.

So those are the distinctions between voluntary, extended, and compulsory.

Á (1105)

The Chair: Thank you.

Mr. Schellenberger.

Mr. Gary Schellenberger: I'd like to make a couple of statements. Two things have been mentioned here: one was to negotiate, and the other was the Copyright Board. I think the rights holders should negotiate. If there is a dispute and a decision can't be made, you go to the Copyright Board. That's just my observation.

The Chair: Mr. Lincoln.

[Translation]

Mr. Clifford Lincoln: Back to you, Mr. Doucet. We hope to try to find an acceptable compromise here. Such is our work.

I listened very carefully to Mr. Beauchemin when he told us about the difference between some clauses in the documents or on the Internet saying, for example, that any and all reproduction rights are prohibited. For example, I've just received a document sent to me by someone saying that

[English]

e-mail and any files transmitted with it are confidential, intended solely for the individual recipient.

[Translation]

To your mind, is that some sort of protected copyright? If there were no inscription but only “All rights reserved”, in your opinion, would this constitute protection of copyright in the field of education?

Mr. Roger Doucet: I believe—and that's the challenge with a document over the Internet—that what you have just described constitutes an effective identification, yes. I'm not at all a legal expert, but it is a clear identification of the author's intent to present his copyright. The problem over the Internet is to find a way to ensure that this idea is transferred everywhere on all pages because you can navigate and get in through the back door, the side door and the challenge is often to find, as you said, a way of putting that sentence or symbol on all pages so that the young people, at some point, don't wind up in the middle of a document by using a key word. So, for us, you have to examine that indication and find mechanisms within the websites to make sure that that idea is clear and specific, no matter the spot where the young people get in through the Internet, so that they know that.

Mr. Clifford Lincoln: But aren't you in fact proving what Mr. Beauchemin and others maintain? If you say that this must be on all pages, and that a well-intentioned author put it on the first page but forgot to put it on the tenth page, you're making a distinction between the first page and the tenth page. Yet the author's clear intention is to protect his work. So in fact, you are really proving the view of those who maintain... What you are saying is that if this is not on every page, the work is not protected.

Mr. Roger Doucet: No, we are saying that we have to find a way of working with authors to ensure that these mechanisms are clear, so that we can properly educate young people and teachers about the importance of respecting copyright, and by clearly indicating copyright.

Mr. Clifford Lincoln: The system you suggest seems very complicated to me. We would have to explain which works are public, we will have to explain that there is a difference between concepts that are on all pages and concepts that are only on a single page, and so on. I'm asking the question because, when I asked you earlier whether you believed a reasonable cost would be acceptable, you said no. But as I see it, we're going to see an 800 per cent increase here. If a collective licensing system could be achieved at reasonable cost to the educational sector, if you knew in advance that the cost would be reasonable, would you accept a less comprehensive licensing system?

Mr. Roger Doucet: CMEC's position is that we always want a reasonable cost for any material that must be copyrighted, but we consider it is never reasonable to acquire a licence for material that should be free on the Internet. That is still our position.

Á (1110)

[English]

Mr. Clifford Lincoln: We seem to be in a log-jam, because they are saying, as I understand it, the cost would take into account that this material was for free.

Mr. Roger Doucet: That's what we have to better understand.

Mr. Clifford Lincoln: I think you should get together and sort it out.

The Chair: Mr. Schellenberger.

Mr. Gary Schellenberger: I just want to again thank the witnesses here this morning. Talking about education, I've had a good education here this morning. Thank you.

The Chair: Thanks to all of you for coming, and thank you to the committee members.

The meeting is adjourned.