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37th PARLIAMENT, 3rd SESSION

Standing Committee on Canadian Heritage

EVIDENCE

CONTENTS

Wednesday, April 28, 2004

1535

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

Mr. Gary Schellenberger (Perth—Middlesex, CPC)

The Chair

Mr. Don Butcher (Executive Director, Canadian Library Association)

1540

The Chair

Mr. Steve Wills (Manager, Legal Affairs, Association of Universities and Colleges of Canada)

1545

1550

The Chair

Mr. Ross Mutton (Member, Association for Media and Technology in Education in Canada)

1555

1600

The Chair

Ms. Jacqueline Hushion (Executive Director, Canadian Publishers' Council)

1605

1610

The Chair

Mr. Ken Weber (As Individual)

1615

The Chair

Ms. Marian Hebb (Legal Counsel, Playwrights Guild of Canada)

1620

1625

The Chair

Mr. Jim Abbott (Kootenay—Columbia, CPC)

Mr. Steve Wills

1630

Mr. Jim Abbott

Ms. Marian Hebb

1635

Mr. Jim Abbott

Ms. Marian Hebb

Mr. Jim Abbott

Ms. Marian Hebb

Mr. Jim Abbott

Ms. Marian Hebb

The Chair

Ms. Jacqueline Hushion

Mrs. Christiane Gagnon (Québec, BQ)

Mr. Ross Mutton

1640

The Chair

Mr. Steve Wills

The Chair

Ms. Jacqueline Hushion

1645

The Chair

Ms. Marian Hebb

The Chair

Mr. Ken Weber

The Chair

Mrs. Christiane Gagnon

The Chair

Mr. Steve Wills

The Chair

Hon. Paul Bonwick (Simcoe—Grey, Lib.)

1650

Mr. Steve Wills

The Chair

Mr. Ken Weber

The Chair

Hon. Paul Bonwick

The Chair

Mr. Ross Mutton

1655

The Chair

Ms. Jacqueline Hushion

The Chair

Hon. Paul Bonwick

Mr. Ken Weber

The Chair

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

1700

Mr. Ross Mutton

Mr. Clifford Lincoln

Mr. Ross Mutton

Mr. Clifford Lincoln

Mr. Ross Mutton

Mr. Clifford Lincoln

1705

Mr. Ross Mutton

Mr. Clifford Lincoln

Mr. Ross Mutton

Mr. Clifford Lincoln

The Chair

Mr. Steve Wills

The Chair

Ms. Wendy Lill (Dartmouth, NDP)

1710

Mr. Ross Mutton

Ms. Wendy Lill

The Chair

Mr. Don Butcher

Ms. Marian Hebb

1715

The Chair

Mr. Steve Wills

The Chair

Ms. Wendy Lill

The Chair

Mr. Don Butcher

The Chair

Ms. Jacqueline Hushion

1720

The Chair

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

The Chair

1725

Mr. Steve Wills

The Chair

Ms. Marian Hebb

The Chair

Mr. Don Butcher

Hon. John Harvard

Mr. Steve Wills

Hon. John Harvard

Mr. Steve Wills

The Chair

Ms. Marian Hebb

1730

The Chair

Ms. Jacqueline Hushion

The Chair

Ms. Jacqueline Hushion

The Chair

Mr. Ross Mutton

1735

The Chair

Mr. Steve Wills

The Chair

CANADA

Standing Committee on Canadian Heritage

NUMBER 011

3rd SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, April 28, 2004

[Recorded by Electronic Apparatus]

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[English]

The Chair (Ms. Sarmite Bulte (Parkdale—High Park, Lib.)): Good afternoon, ladies and gentlemen. Welcome to the Standing Committee on Canadian Heritage.

Pursuant to Standing Order 108(2), we are continuing our study ofthe government status report on copyrightreform. Today we're going to be dealing with access issues and technology-enhanced learning.

You should know that we are hoping to have some kind of report prepared next week that we can table in the House. So we look forward to hearing from all of our witnesses.

Mr. Schellenberger, you had said that you wanted to address the committee before we started.

Mr. Gary Schellenberger (Perth—Middlesex, CPC): Thank you very much, Madam Chair.

I'm very interested in all of the submissions that are going to be made today, but I have to apologize that I will be leaving at around 4 o'clock, as I have to meet a flight. So I look forward to hearing as much of the presentations as will be given. I take very great interest in this cause.

Thank you.

The Chair: Thank you.

Let us start with the Canadian Library Association, and Mr. Don Butcher, the executive director.

Welcome.

The clerk has reminded me to ask all of our witnesses to keep their statements to about eight to ten minutes, so that we have time for questioning.

Mr. Don Butcher (Executive Director, Canadian Library Association): We've timed it at eight minutes, so we'll see how well I deliver it.

Madam Chair and committee members, the Canadian Library Association is pleased to have this opportunity today to address the issue of technology-enhanced learning and the use of copyright material.

I'm here for the libraries and the library users in your community—it's as simple as that. Individuals, libraries, and public libraries in particular, in your communities and ridings are the people who I'm representing here today.

In its recent budget, the government made clear its support for lifelong learning. It pointed out how, for individuals and their families, learning provides greater opportunities for better jobs and for upgrading their skills and capacities to fit new social, as well as economic, conditions. For society as a whole, learning is the key to enhanced equality of opportunity, increased social mobility, and greater social cohesion. Last but not least, learning provides the necessary foundation for the active participation of all Canadians in a progressive and democratic society.

Libraries have a crucial role to play, if we are to realize all those opportunities. At every stage of the lifelong learning process, libraries are at hand, providing assistance in literacy and early learning projects like Read to Me!, or lis-moi une histoire, programs in public schools; in post-secondary institutions; in upgrading skills to get good jobs in a knowledge-based economy; and in integrating new immigrants into the labour market.

In the majority of cases, the library's role in the learning process is the result of being part of an educational institution. In many other cases, like in public libraries, it is the result of the library itself offering a program of an educational nature or partnering with an educational institution, as in Brantford, Ontario.

With the advent of new technology, the role of libraries in facilitating, and even making possible, the learning experience has become more important than ever. The library's role in overcoming the digital divide is well recognized. Libraries are also playing their part in extending the learning experience beyond the physical confines of the traditional classroom. This is especially important in a country as vast as Canada, and it is especially important in a country that strives for social inclusion.

Now, this committee has heard a lot from interest groups with monetary concerns; it is time now to examine the provisions of the Copyright Act in light of social concerns. Do the words of the act constitute barriers to the fair and reasonable use of material that educators and librarians have rightfully acquired for the purposes of learning?

Curriculum content already paid for must be exempt from any further copyright liability; it must be able to circulate freely among those engaged in pursuit of education and training. For this reason, the CLA urges the committee to recommend to the government that the act's fair dealing provisions be clarified to encompass the use of new technology as a medium for delivering curriculum content.

The policy challenge that you face, Madam Chair, is how to define a realm of exemption. Under the rubric of fair dealing, you have to map out an environment made up of three elements: the training and education purposes of not-for-profit institutions, which are so fundamental to a free society; the acquisition, preservation, and sharing of information resources by libraries; and the amazing extensions, or reaching out, made possible by new information and communications technologies.

In thinking through these three elements together and defining a realm of exception from copyright, you will be making a positive contribution to the wise and fair development of Canada's human resource and the broad-based participation in the knowledge economy.

We should add that technological safeguards now exist that can prevent any abuses occurring from the communication of learning material to students.

We would also like to make it clear that in the CLA's view, licensing is not the solution. Instead of giving consideration to different licensing models, as suggested in paragraph (b) of section 42 of the status report, the CLA would urge the committee to adopt what we call a public interest approach to solving this and the two other access issues.

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Here are some of the reasons why CLA favours a public interest approach over a licensing approach.

First, it recognizes that authored works are much more than commercial products. They have an independent intellectual life that cannot be appropriated or consumed like ordinary products. From the nature of these works arise a realm of exemption. Take for example Margaret Atwood's 1996 novel Alias Grace. In her acknowledgments at the back, she specifically names a dozen archivists and librarians who have helped her put together this work at no cost to her. Artists and creators need the free access to the research to be able to learn and to be able to create.

Second, this public interest approach calls on government to play a much more active role than that of simply being the referee between two competing commercial interest groups. Rather, government has a fundamental stewardship role to play in that it must act in the interest of the many not-for-profit groups--among them creators, transmitters, intermediaries and users--who also have a role to play in the knowledge economy and, therefore, a stake in the provision of the Copyright Act.

Third, it reaffirms the principle that literacy and learning are public goods that all members of society should have equal access to. Modern technology should be introduced into society wisely and equitably, in such a way as to overcome traditional barriers and expand the public realm, not to impose new ones and diminish the public realm.

In conclusion, Madam Chair, we urge the committee to recommend to the government that it amend the act to exempt educational institutions from any copyright liability arising from their use of new technology as a medium for delivering curriculum content. And also, with your permission, we would like to leave behind with the clerk a brief that addresses four of the other short-term issues identified in the departments' “Status Report on Copyright Reform” of March 24, 2004.

Thank you for your attention. I look forward to any questions you may have.

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

Now we will hear from Steve Wills of the Association of Universities and Colleges of Canada.

Mr. Steve Wills (Manager, Legal Affairs, Association of Universities and Colleges of Canada): Good afternoon, Madam Chair and members of the committee. My name is Steve Wills. I'm manager of legal affairs at the Association of Universities and Colleges of Canada.

I'd like to thank the chair and committee members for giving AUCC the opportunity to appear before you today to comment on the government “Status Report onCopyright Reform”, and in particular on the issue of technology-enhanced learning.Before turning to the issue of technology-enhanced learning, I'd like to make a few contextual remarks.

AUCC's member institutions are both significant creators and users of copyright works. Accordingly, over the past decade, we have consistently advocated the principle that Canadian copyright law should represent a balance between the need to provide appropriate remuneration to creators and other rights holders for the use of their works and the public interest in maintaining limited exceptions to infringement for purposes such as teaching, research, and the dissemination of knowledge.

We were pleased that the Supreme Court of Canada recognized these two goals and the need for balance in two recent cases. In a 2002 case called Théberge, the court stated that:

— the proper balance among these and other public policy objectives lies not only in recognizing the creators' rights but in giving due weight to their limited nature.... Excessive control by holders of copyright may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.This is reflected in the exceptions to copyright infringement in ss.29 to 32.2 [of the Copyright Act]....

In its recent decision in the Law Society of Upper Canada case, the Supreme Court also stated that “the fair dealing exception, like other exceptions in the Copyright Act, is a user's right”.

I raise these decisions because some rights holder organizations that have testified before this committee over the past several months have argued that exceptions to infringement are essentially illegitimate or unjust. They have, at times, used inflammatory language to describe exceptions such as expropriation, theft, or piracy. These characterizations are in clear conflict with the rulings of the Supreme Court that I have cited. Limitations on the rights of copyright owners, as expressed through exceptions to infringement for public policy purposes such as education, are not only legitimate, they are a necessary part of the balance required in our copyright laws.

The question of balance is also important because some organizations have urged the government to proceed with immediate ratification of the 1996 World Intellectual Property Organization treaties irrespective of whether the government is prepared to proceed with access issues. The Ministry of Industry's 2002 report entitled “Supporting Culture and Innovation: Report on the Provisions and Operation of the Copyright Act” identified WIPO treaty issues as part of the short-term reform agenda along with educational and access issues. The report stated that education and access issues are “pressing because of Canada's commitment to lifelong learning, innovation, and access to culture, and the need to preserve balance in the Act”. AUCC is not opposed to ratification of the WIPO treaties. However, in light of the Supreme Court decisions I described and the findings of the Minister of Industry's report, we urge the committee to recommend that the government proceed with near-term copyright reforms in a balanced manner that addresses not only ratification of the WIPO treaties but also access and educational issues.

Turning to technology-enhanced learning, a 2003 Industry Canada study on the impact of copyright reform on technology-enhanced learning found that educational institutions have been increasingly taking advantage of new learning materials and advanced information and communication technologies in their efforts to develop instruction that's better tailored to the needs of different types of learners and to the demands of a knowledge-based economy. Some examples would be using the vast resources of the Internet to supplement course curriculum and making works of various kinds available through course websites. In conjunction with the growth of new information and communication technologies, the nature of the student population is changing. Universities are now attracting many older students with time constraints and family commitments that necessitate asynchronous access to course instruction and materials, while today's younger students have strong expectations about the availability of online course materials.

Unfortunately, our copyright law has not kept pace with these changes. As a result, whether we're talking about a distance-education student or an on-campus student wishing to review course materials through his or her home computer, a student located outside of the classroom cannot see, hear or read works that were displayed or performed in the classroom because the provisions in the Copyright Act that allow such activities were designed before the digital age and do not permit their communication through the Internet.

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Paragraph 42 on page 10 of the “Status Report on Copyright Reform” suggests two approaches that are being considered to address this issue. In our view, these two approaches are not mutually exclusive. We urge the committee to support the recommendation in paragraph 42(a), that the Copyright Act be amended to permit the use of new information and communications technologies as a medium for delivering course curriculums.

Such changes would go some way in helping Canadian universities keep pace with U.S. institutions that have benefited from the 2002 Technology, Education and Copyright Harmonization Act, or TEACH Act, which allows electronic communication of classroom displays and performances.

We also recognize that the development of new licensing models as described in paragraph 42(b) may also play a role in this area. As in the print world, however, licensing should supplement educational exceptions in the law, not replace it, if we are to maintain a balanced copyright law.

This measure by itself, however, would still leave Canadian professors without all of the tools available to their U.S. colleagues in respect of the use of new information and communications technologies as a medium for delivering course curriculum. For example, a professor in a U.S. university, utilizing fair use for the purpose of teaching, may take a digital image or a limited excerpt from an audiovisual work and, without the need to obtain permission from a rights owner, make it available to students asynchronously on a restricted access course website. A Canadian professor cannot do so without seeking permission from the rights holders and paying any required fee, because the fair dealing provision in Canadian law does not include teaching as a permitted purpose. AUCC urges the committee to recommend that the government amend the fair dealing provision in the Copyright Act to include the purpose of teaching.

My final comments relate to licensing. Some rights holder groups claim that current licensing regimes, or some new forms of licensing such as compulsory or extended licensing, will resolve all of the problems facing educational institutions. Without doubt, current licensing systems do leave much to be desired in many areas. The Industry Canada study on technology-enhanced learning noted that various factors, including the cost of obtaining permissions, the complicated pattern of ownership rights, and the difficulty and lengthy processes involved in obtaining clearances for some types of works have discouraged the use of new information and communications technologies as a medium for delivering course curricula.

Even if the government were to consider new licensing approaches, such as compulsory or extended licensing--and I should say that we are in favour of voluntary licensing, not compulsory or extended licensing--there is a practical reason besides the concern for balance to ensure that our law will contain reasonable education exceptions to facilitate technology-enhanced learning.

A high percentage of the course materials and library resources used in Canadian universities are of foreign origin, and in particular of U.S. origin. In addition, the Industry Canada study indicates that only about 3% of the content on the Internet is of Canadian origin.

Is it sound public policy to maintain copyright laws that are stricter than those in the U.S. if the result is that Canadian educators must pay royalties to U.S. rights holders to use portions of their works in course curriculum, while U.S. teachers can use the same works and course curriculum without permission and without charge? Such a policy would handicap Canadian educational institutions in a competitive educational market and lead to a net outflow of royalties from Canada.

In conclusion, we urge the committee to support the recommendation in paragraph 42(a) of the “Status Report on Copyright Reform”, that the Copyright Act be amended to permit the use of new information and communications technologies as a medium for delivering course curriculum. We also urge you to recommend that the fair dealing provision be amended to permit fair dealing for the purpose of teaching.

Before I conclude, Madam Chair, as you know, in the session on the educational use of the Internet yesterday, only one educational organization had been invited to appear, and there were five rights holder organizations. AUCC is requesting that the committee give us five minutes or so, either at the end of my comments or after everyone else has had a chance to speak, to put our comments on the record with regard to some of the issues that were raised yesterday to perhaps assist the committee in getting a broader view on the educational use of the Internet.

Again, I thank you very much for the opportunity to appear before the committee.

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The Chair: Thank you very much. I will take your request under consideration.

Next we have the Association for Media and Technology in Education in Canada, Mr. Ross Mutton.

Mr. Ross Mutton (Member, Association for Media and Technology in Education in Canada): Good afternoon, committee members. I am Ross Mutton, and I'm the director of instructional media services at Carleton University. I'm a member of AMTEC, and I represent the board on copyright issues.

AMTEC has followed and been seriously involved with proposed amendments to the Canadian Copyright Act since the late 1980s. AMTEC's members come from the educational sector, including both K-to-12 and post-secondary, as well as the commercial and training sectors. We have a strong interest in the use of media and media technology in education and training, and have long argued that access to materials is paramount, respecting the rights of both educational use and fair compensation for creators.

Our members, many of them in media centres and media libraries, are positioned between educational end-users and suppliers of materials. They are often responsible for interpreting the copyright law, educating users, and applying associated practices.

We are concerned that the copyright reform movement in Canada needs to protect the public domain and needs to ensure that fair dealing is extended to the digital environment. Reasonable access is the cornerstone of the partnership, recognizing fair value for the use of copyrighted works while at the same time encouraging fair dealing, protection of the public domain, fair educational access for students and teaches in all educational domains, and access to all alternate formats for people with perceptual difficulties.

Information and communications technologies have become an integral part of teaching and learning in Canada. Instructors use ICT to enrich the classroom experience. They develop course websites providing resources and copies of their course materials. They use digital materials provided with course textbooks. Students share electronic documents while working in online discussion groups. Students at a distance have access to course and library materials online. Electronic mail and online chat rooms have become integral to instructor-student and student-student communication.

The Association of Universities and Colleges of Canada has estimated that 50% of courses offered at the university level in Canada make some use of educational technology. So when we talk about reaching students beyond the physical limits of the classroom, this does not only apply to students taking courses at a distance. In fact, these technologies are used more often to reach students who do meet in physical classrooms and also access course resources outside of classroom time for review and study. The majority of post-secondary students have Internet access from home, and a significant number of those have high-speed access. The future promises an increased capacity for transmission of audio and video files.

Course management systems such as WebCT and Blackboard provide an environment in which only registered students can access a course website and the associated resources. The software facilitates course announcements, electronic mail between instructor and students, student online work groups, course resources, and online quizzes and tests. These systems are used for education at a distance. However, they are more frequently used in conjunction with classroom courses, because students expect courses that combine classroom and online resources, such as class handouts, PowerPoint presentations, and Internet links.

The Internet is often used to provide current and relevant information to students in the classroom. Examples include up-to-date satellite imagery, current affairs via online newspaper sites, and images from art galleries. Information technology has significantly changed what takes place in the classroom and reflects what students of today expect in the classroom.

Those students have a high familiarity with media. We work with them to develop critical thinking and analytical skills to evaluate the wide range of information available 24/7. Students are encouraged to be media literate--that is, to critically evaluate the information available via the Internet, television, radio, and print media. The use of examples and clips from those media is integral to such study and learning.

For an effective instructional setting in the 21st century classroom, we need access to a wide range of media that is relevant, timely, and reliably accessible. The digital world makes that possible in a technical fashion and facilitates the use of very current and relevant material. Rights issues need to be predetermined or instantaneously resolved to permit timely, relevant educational access.

Many instructors and students have an incomplete knowledge of copyright issues, and often confuse the fair use provisions of the U.S. act with the fair dealing provisions in Canada. Many are astounded that the use of media in the Canadian classroom is more restrictive.

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Those who thoroughly investigate the Canadian act find it confusing and out of date on digital rights for both creators and users. The bottom line is that instructors and students want to make use of digital technology to assist them in delivering and taking courses, and we need methods that work within the educational context.

I'd like to leave you with four points. Current fair dealing and educational exceptions need to include the digital world. Beyond the classroom is more than distance education. We need to consider including classroom teaching in fair dealing. When rights need to be cleared, the process must be rapid, affordable, and straightforward.

The first step is to clearly determine that fair dealing applies to digital works. Users continue to need the right to access information and scholarship, particularly in our emerging knowledge economy, to foster creativity and a competitive knowledge base. This country will be strengthened by the furthering of knowledge and development of strong critical minds to secure our national position in the knowledge information era of the global economy.

We submit that the government should seriously consider expanding fair dealing to include classroom teaching so we remain competitive, particularly with our American neighbours who have such a provision through fair use and the TEACH Act. Such a provision would facilitate the limited use of works to support the teaching enterprise. Fair dealing in Canada currently only applies to private study and research, and does not include teaching in the classroom. Examples not covered under fair dealing are the use of clips to analyze the media and news reporting, the use of clips in student presentations, or the use of a chart from a book as a teaching reference.

In addition, classroom teaching must take into account the use of digital means of access outside the physical classroom. Material that can be legally displayed in the classroom should be available outside of class time for review and study. Learning is not restricted to the face-to-face meetings with students and instructors. The course management systems referred to provide safeguards for access and distribution. It is important that we harmonize the accessibility for in-classroom and outside-of-classroom hours to learning materials.

Beyond fair dealing, it is vital that the rights clearance of digital materials to support teaching and learning be a straightforward process, timely, and affordable. A centralized service would be an ideal objective, but we have several problems with current models. Current rights clearance organizations do not represent all rights holders. Sometimes it's because of the multitude of rights associated with a work; other times it's because of restrictions to signatories to a collective. As a result, we find ourselves having to maintain our own services to clear rights or transfer the responsibility to the instructor.

When we compare clearing rights through a collective agency to clearing rights directly with the rights holder, there is evidence to support that the direct method is faster, cheaper, and simpler. That's not how we would prefer it. We would prefer to deal with a centralized, streamlined, efficient, and cost-effective contact point. That is not the track record of our current collectives, such as Access Copyright and the ERCC.

Educational users must have the freedom to make use of portions of works to critically evaluate and understand issues. Examples include exploring gender bias in television commercials, examining popular culture, analyzing news reporting, and critiquing art. Information communications technology facilitates all of the above and makes it more relevant to students because of the breadth of material one can bring to the classroom. It is also continually up to date because of the nature of the material. However, the rights issues associated with the act are preventing us from moving forward and are affecting the quality of instruction for our students.

In the end, we must strike a balance that supports the distribution of commercial educational materials but also takes into consideration the rights and needs of the users, who are our students learning about our country and our world. Information communication technology and the Internet have had a fundamental effect on what we can bring to the classroom, particularly in the Canadian context. Works that before could not be affordably delivered to a Canadian audience because of our small market size are now achievable. This has created excitement for both our teachers and students.

The work of SchoolNet over the past decade has broadened the world for the classroom. The Internet has expanded from a research network to a classroom, course teaching, and learning resource in the post-secondary world. We need a workable and affordable rights management system that lets teachers and students get on with what they value most--teaching and learning. They are our future.

Thank you, Madam Chair.

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

Next is Jacqueline Hushion, executive director of the Canadian Publishers' Council.

Welcome.

Ms. Jacqueline Hushion (Executive Director, Canadian Publishers' Council): Thank you, Madam Chairperson and members of the committee, for inviting the council here today. I am pleased to appear before you again. I am still the executive director of the Canadian Publishers' Council.

As you know, we are a trade association founded nearly 100 years ago, and when I read our minute books, with the beautiful penmanship from those days, I see the word “copyright” on every page.

Our members are publishers of elementary, secondary, post-secondary, and post-graduate works; scholarly works; professional journals; fiction and non-fiction for both youth and adults; legal publications in print format, and online direct from databases; and more.

The aggregate sales of our members' works represent more than 80% of the total value of annual book sales in Canada. That includes original Canadian-produced books and imported books. Among our members are the four largest educational Internet publishers in the world.

Copyright policy seeks to enable rights holders to provide access through positive commercial exploitation of their works. Internationally recognized principles define when exceptions are appropriate. These exceptions must not prejudice creators' interests. I think that's the bottom line for our community.

Authors and publishers alike must be paid for use of their works. There is no difference in this concept between the print and the digital environments, and the Internet is just another delivery channel in many respects. We respect and understand copyright users' concerns that legitimate access to works could be inhibited in the digital environment. Preventing customers' access to works that publishers introduce in the commercial online market is the antithesis of good business. Our members' objective is to meet customers' intellectual property needs in a fluid, flexible, and affordable way. I'll come back to that.

As Mr. Mutton said, the current models for technology-enhanced learning are educator managed. They simulate the classroom experience. They employ, for example, WebEx, NetMeeting, and PowerPoint. Access is allowed only by signed-on students with passwords. They are currently supported by publishers and by Access Copyright and have an administrative framework.

Then there's the model of the pure handout. These are normally PDF files that are delivered digitally to the student in a physical classroom. The situation is precisely the same for the distance student. There is distributed learning using web-based applications such as WebCT and Blackboard, to which Mr. Mutton also referred.

This methodology of delivering education to the distant student is completely controlled by technological protection measures. The student must be registered for a course and must have an assigned password. In this model, interestingly, there are many questions of ownership. Does the ownership of the content belong to the publisher? Does it belong to the professor, who is also an author? Does it belong to the university that asked the professor to create the course? Is it work for hire? It is not just the publishing community, in the strictest sense of the word, that is interested in protecting its intellectual property interests in the online environment.

There is also web delivery, such as the Athabasca College model.

Mr. Wills referred to the U.S.TEACH Act. It is an extremely low-level and narrow exception that, to our understanding, frustrates a lot of people in the U.S. who are having to work within it. It has very little flexibility. It affords very little freedom to those who work within it, and it requires certain documents. Every university has to develop a distance learning and intellectual property manual in order for the TEACH Act to be appropriately used in the university.

In fact, licensing is more flexible than a narrow exception like the TEACH Act, because licensing is expandable and expansive.

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There were 13 graduates from Concord Law School in October 2003. It doesn't have a campus, it doesn't have a building, it's 100% virtual, and it's managed by licensing. Capella University has a different course, according to the New York Times last Sunday. It trains employees for 1,400 North American corporations and government organizations. It was founded by presidents of three post-secondary institutions, one in Canada, two in the U.S. It has no campus. The University of Phoenix has 91 learning centres, with 99,457 full-time online students. This progress is guaranteed by statutes that recognize and protect intellectual property, and it is managed by licensing.

The government should encourage Access Copyright to provide the same broad service in a digital environment that it does in a paper-based one. Access Copyright has already been granted digital rights in many genres, and more will follow, certainly from the client members I represent, if an extended licensing regime is implemented. That regime will give them the confidence to grant those rights to Access Copyright, so that the kinds of statistics I just gave you can become Canadian statistics. Exceptions are equated with market failure. There is no failure here. We cannot know what precisely is being granted when an exception is given. Who knows what the business model will be in two years? Who knows what it will be in two months? We could be pulling the rug out from under the creator/producer community in swift order.

Licences can be amended quickly to address new user needs. If in fact the balance tilts away from the users, of course, the very people who designed content for users would want to address their issues. Statutes cannot be amended as quickly as licences. Rights holders want to know where their works are being used and for what purpose they're being used. But rights holders often provide permission without a fee. Access Copyright and other collectives may also be in a position to waive fees in certain instances. All of this is negotiable. As Don Butcher said, this is not all about money.

With respect to section 42 of the report, we do not support an amendment that exempts educational institutions from additional copyright liability for the use of ICTs. We see licensing of ICT use of copyright material for educational purposes as a good beginning, but before they embark on extensive and expensive programs designed to create and distribute distance learning centres, an intellectual property audit should be performed by every university and all understandings should be in writing, with questions of ownership and rights to exploit being resolved.

Isn't it just more sensible and far simpler to implement extended licensing? If then somehow we bump up against market failure, we will have no choice but to address it, but I don't believe that will ever happen.

Thank you.

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The Chair: Thank you very much.

Mr. Weber.

Mr. Ken Weber (As Individual): Thank you very much, Madam Chair and honourable members.

Indeed, I am that peculiar anomaly on the list, an individual. I represent no organization whatsoever. I am an emeritus professor of the University of Toronto, a teacher of over 40 years' experience in elementary, secondary, and university. Rather than representing an organization, I'm a Canadian who is very much affected by copyright in every way. I'm a user of copyright educational material. I'm a creator of copyright educational material. I currently have four scholarly texts and 15 elementary or high school texts in print. I also own a modest publishing enterprise.

When a professor opens his mouth, usually 50 minutes comes out. I will confine myself to 10. I want to add my voice to those who appreciate the desperate need for collective licensing in the digital world. I have considerable experience with what went on for years and what is going on in the print world.

My field is special education. When I began 41 years ago, special education was literally a wilderness. There were no precedents, there was no infrastructure, and most damaging and frustrating for all of us, there were no materials. There was absolutely nothing for us to use with high-needs young people. Most of us spent huge amounts of time crafting material amateurishly, running it off on those old-fashioned ditto machines. A questionable side benefit, of course, was that in my behaviour classes they always liked to sniff the ink after it came off the ditto machine, fortunately with limited results. Gradually, publishers came through for us and began to provide materials that were smaller, focused, manageable--materials that we needed.

Let me give you one example and describe also its fate. I may be one of the few in here old enough to remember black-line masters in education. They were simply single-sheet packages put together that could be run off on a ditto machine, with focused, very small items that were tremendously useful for the teachable moment. In fact, special education was very much responsible for creating the notion of teachable moment, now called learning moment. In a sense, black-line masters were not unlike a licence, because they ran out. You could only use them for a certain period of time, so you paid for limited use. The creator got paid, the kids benefited, and so did the educators. It was a very worthwhile enterprise. There were several other kinds of publications like that, and I won't try to list them here.

Photocopiers came in shortly afterwards and blew this away entirely. Photocopy machines became very sophisticated and highly developed, and of course, they were available in all schools. Because of mass confusion among teachers about what constitutes an exception to copyright law and what does not, there was a mass photocopying. As a consequence, all these valuable little publications we had simply disappeared. The publishers quite reasonably stopped producing, since there was no compensation. Once again, we were back in the wilderness, for a second time in my career.

It was shortly after this--not soon enough--that Access Copyright was established, then called CANCOPY. Through their work, they rescued much of the education field I'm familiar with by making it possible for users to gain access to material legally and for creators to get the compensation they needed, so they would continue to produce the material. In print, at least, the system works, and it works very well for all of those three elements, the publishers, the producers, and emphatically, the users. My concern is that if a similar system is not established for the digital world, the users particularly will be back in the wilderness again, because creators and publishers will simply shut down.

º (1615)

I want to show you an example that I brought with me. This is one of my books. The title is Special Education in Ontario Schools. You might find it interesting that it's used in six other provinces, despite that title, and it's very popularly used in distance education. The book is a distillation of 40 years of practical experience in special education. It's very popular. It also comes out at a very reasonable cost, because I'm compensated. This is the fifth edition. The fifth edition came out only two weeks ago. I brought out the fifth edition because I continue, as I said, to be compensated for the production. Because it's used a great deal in distance education, by the time a sixth edition is being considered, there's very little doubt that the impact of the digital world will have to be taken into account, and it's quite likely that it will have a major impact on whether there is a sixth edition. I can say quite frankly that if there's no certain means for compensation, such as collective licensing, there simply won't be a sixth edition. It is material that teachers obviously want, judging by the fact that it's used in six other provinces.

In sum, what you will do by establishing a collective licence for the digital world is protect creators like me and, at the same time, benefit users like me by assuring that materials will continue to be developed.

Thank you very much.

The Chair: Thank you very much.

Last, but not least, we have Marian Hebb from the Playwrights Guild of Canada. Welcome again before the committee.

Ms. Marian Hebb (Legal Counsel, Playwrights Guild of Canada): Thank you, Madam Chair, and thank you, honourable members.

The Playwrights Guild of Canada represents professional playwrights writing predominantly in the English language. The guild, certified as an artists' organization under the Status of the Artist Act, has close to 400 professional members and 100 associate members, together constituting most of the professional playwrights writing in Canada in languages other than French.

Our members belong as well to Access Copyright, which licenses the copying of portions of plays that have been produced in print form. So far this copying has been reprographic copying, the copying of text from a printed page to another piece of paper, but our members also want Access Copyright to grant licences for digital copying of their work. If this doesn't happen, there will be many people who help themselves to a writer's work wherever they find it, perhaps on the Internet--probably on the Internet. There will be some who, if they can't find a work already digitized, undertake to scan it themselves and use it without permission; others will pick up their digital copies, and so on and so forth.

It is difficult enough to protect an author's rights in the print world today, but the difficulty increases multifold when an author's work is available on the Internet. It is only possible for authors to maintain significant control through the intervention of collective societies through licensing, through monitoring, and through enforcing their rights. Our organization, like Access Copyright, is a collective society; it administers rights that are not administered by the members themselves or by Access Copyright.

The Playwrights Guild has been distributing Canadian plays since its beginnings in 1973. We license the work of our members for performance use. We are particularly proud that over the last three years we have developed a new business model and recently have begun digital delivery of plays. We have a website that will provide more and more supplementary material that will interest students and others who are interested in literature and theatre. We've put an enormous amount of time, money, and other resources into making scripts available online. This has been done in partnership with our Quebec sister, AQAD, and Access Copyright. It would not have been possible without substantial financial help from the Canadian government and its commitment to making Canadian cultural material available electronically.

The entire catalogue of plays of guild members is available for online browsing, and plays that are not yet available digitally are still distributed in hard copy. If you find a play you're interested in, you can check to see if it's available digitally, on digital format. If it is, you can read the first five pages. If you want to read more, you register and you log into our system to read the rest of the play. If you wish to purchase a licence to print one or more copies, you register and log into Access Copyright's rights management system. To purchase a play--to do more than read it--and to print it out, you have to agree to the terms of the licence. Payment depends on the number of copies you are buying, but there is no charge for reading online.

Our intention is eventually to digitize and make available all of our scripts, which number over 3,000. The guild has a very valuable resource that exists in few other countries. It's probably the most comprehensive collection of plays written by a nation's playwrights anywhere in the world, and this is now becoming available to anyone who has access to the Internet and a printer.

This is promising but also frightening. Playwrights want to see their works reach more audiences both in Canada and elsewhere, but they do want to maintain reasonable control over their work and receive fair compensation. The guild's delivery service holds out the promise of increasing income to our members, but we are seriously worried by the prospect of proposed revisions to the Copyright Act, that is, exemptions from copyright, requested mainly by educators.

Technology-enhanced learning is a wonderful tool for students in schools and universities, especially for those students who can only participate through distance learning programs and also for those who want to learn outside regular institutional environments in so-called lifelong learning. We share the enthusiasm of educators for the opportunities that have arisen because of digitization and the Internet. We want our plays to be read and performed, and playwrights want to earn a reasonable living from this, but most don't. The average professional income of a playwright in this country is less than $10,000.

º (1620)

The guild is a collective society. It's in a position to deliver what is wanted, where appropriate, under blanket licences that would allow educators and their students to immediately access copyright materials as and when desired. Access Copyright is in a position to do the same thing for the reprographic and some digital uses of our members' works.

The Berne Convention, to which Canada belongs, says:

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not interfere with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

The TRIPS agreement, which is an annex to the world trade agreement to which Canada also adheres, has wording very similar to this, permitting some limitations and exceptions to authors' rights, as indeed does article 10 of the WIPO Copyright Treaty, which Canada signed in 1997 but, regrettably, has not yet ratified.

We submit to you that an exception with respect to technology-enhanced learning would conflict with our legitimate interests, with our ability to be able to exploit our works in the context of the business model we have developed for the delivery of our copyright materials online, whether these are scripts or supplementary materials being developed. They might be something like interviews with authors or current bios of authors. There is no need for an exception to provide access.

We think the price is right. For example, $4 is given to a playwright when the first copy of a whole play is downloaded and printed. If there is disagreement with respect to the amount of the payment, the Copyright Board has jurisdiction to make changes to the royalties we charge. There is no need for an exception for technology-enhanced learning. Our members are willing and able to license their works.

Our guild likely represents over 90% of the professional playwrights working within our jurisdiction, but we do acknowledge that there are some gaps in our repertoire. There are always going to be gaps in the repertoire of a collective society, and this was mentioned by the representative from AMTEC. We therefore support the introduction of an extended collective licence, which would allow us to license and give the public access to the works of those playwrights we do not represent, who have not formally signed up with us, including playwrights in other countries. Individuals would be free to opt out of the system, but the experience of collectives in other countries is that very few individuals ever do.

Our members have already been dealt a real body blow. A 1997 amendment to the Copyright Act greatly reduced our members' ability to license their works for live performances in schools. That was responsible for considerably less income coming to playwrights.

In conclusion, we would submit to you as legislators that it would be inappropriate and it would undermine the spirit of Canada's international commitments to do anything that removes from authors and other rights holders the ability to get paid for their work where they have shown concretely that they are ready, willing, and able to meet the reasonable demands of users.

Thank you very much.

º (1625)

The Chair: Thank you very much.

We're going to open it up to questions now.

Mr. Abbott.

Mr. Jim Abbott (Kootenay—Columbia, CPC): Thank you.

I have a feeling we don't have unanimity on our panel.

I really don't know where to start, because I don't want to put the cat in the chicken coop here. I'm sure that during the course of our questioning you'll all have an opportunity to get out your particular perspective.

Mr. Wills, you mentioned one of the things that are of interest to me, what I classify as the idea of some symmetry with the U.S. law and regulations. I'm just wondering, because of course we're all concerned about the place Canada has in the world and the importance of our maintaining our own law, how you would recommend we work that out. In other words, just because we have a particular set of laws and regulations in...a dominant provider of culture to the world, where do we draw the line between just saying, okay, that's what we're doing, so this is what we're going to do...? That is not meant as a criticism; it's meant to say, help us as legislators to come up with reasonable boundaries and parameters.

Mr. Steve Wills: I would say I'm not raising the U.S. for the purpose of saying that we have to mirror everything they do. I raise the U.S. in part to suggest that they have made a policy choice, looking at the needs of education in the digital world; they have made legislative change to facilitate TEL because they understand the importance of the changing nature of education and the need for the laws to adapt to it.

Look at, for example, the use of new information communication technologies. Ms. Hushion talked about those types of technologies in the Internet and effectively said they're just another delivery mechanism.

What we're talking about are exceptions in that respect that already exist in the act. There has been a policy decision that these particular activities should be excepted from infringement, and all we're saying is that the law should knock down the walls; that it's not fair, because of the changing nature of the student body, because of the changing nature of technology, that students who happen to be located outside the classroom are unable to benefit from the same instruction as those inside the classroom. We think the approach the United States has taken in this regard is something Canada should consider, something, in our view, that we should look to do in our law.

I'll make an additional comment with respect to international obligations. Some have a concern about respecting and complying with our international obligations. The very WIPO treaties that rights holders are very anxious to have implemented do have in them a provision relating to limitations and exceptions. The agreed statements on the WIPO Copyright Treaty, for example, make it quite clear that the parties to the treaty foresee that current exceptions can be adapted to the digital environment and new exceptions can be created and specifically designed for the digital environment.

I would add that the Berne Convention, which is probably the principal document governing international copyright relations at the present time, does have the three-step test for exceptions. As Ms. Hushion described, you have to be concerned about whether or not you're interfering with the normal exploitation of the work, etc.

WIPO commissioned a study on limitations and exceptions that was produced about a year or two ago. Unlike the proposition that was put forward during one of the presentations that you have to have market failure before you can have an exception, the author of that study indicated that you have to factor in public policy considerations and make a determination of whether or not the rights holder should have the right to control a certain activity, not whether they could control that activity. I think that's an important factor to bear in mind when we are looking at what to do with our law.

Last, I'd say as well that the Berne Convention also contains a provision in paragraph 10(2) that specifically provides that works can be used for the purpose of teaching as long as the use is conducted in accordance with fair practice. In essence, I view that as providing guidance to national jurisdictions, indicating that if they wish to, for example, as we've suggested, allow fair use or fair dealing for the purpose of teaching, that would be permissible.

º (1630)

Mr. Jim Abbott: Ms. Hebb, when you used the word “collectives”, my attention was really drawn, because there are many issues there--not directly related to this arena that we're talking about, but many others. I need a little clarification.

Maybe I misunderstood. It seemed to me what you were saying was that a collective could collect money from people. Explain that part to me again, that the collective could be collecting and distributing. I'm really confused by what you were saying.

Ms. Marian Hebb: A collective organization, of course, represents a large group of rights holders. When the collective society has signed up a significant number of rights holders, the provision in the law, which we are hoping you will consider to be appropriate, is that you would extend the authority of that collective society to cover all of the rights holders who are working within that genre or in that way. This mechanism has been used for many years in the Scandinavian countries.

If media artists or some group of rights holders have not signed up, the collective would have no authority to deal with the rights of those people. Probably the Copyright Board would decide whether or not a collective... I guess it's whether the national rights holders, the authors in that particular area or the producers in that particular area... whether the collective has enough credibility that a large number of its national authors, rights holders, have signed up with it. The Copyright Board would decide that the collective has shown it has enough responsibility, enough good management, to in fact represent every rights holder working in that particular area.

º (1635)

Mr. Jim Abbott: Help me out. I'm concerned that this is kind of Big Brotherish.

Ms. Marian Hebb: Well, a rights holder can opt out.

Mr. Jim Abbott: Why would they?

Ms. Marian Hebb: I don't think they would.

Mr. Jim Abbott: No, I don't think so either--it's free money. I mean, it's not free money; I don't mean that they haven't earned it. But if the collective has gone out and collected, and they're shipping it to them, they're not going to say, “No, no. I really don't want it.”

That isn't going to happen, is it?

Ms. Marian Hebb: Perhaps not, but look at the organization I was speaking on behalf of. We think we represent over 90% of the playwrights working in this country. A collective society working for rights holders is always endeavouring to sign up more and more people. When Access Copyright, for instance, collects money for people who aren't currently in their repertoire, they write to those people and say, “Somebody has copied your work. Would you like to belong to the collective? We've collected some money that is yours, which you're entitled to”. And that person, I think 99 times out of 100, joins the collective society.

They wouldn't have known about the collective society before; they would have had no idea. And they probably had no idea in that instance that somebody was using their work. And if you think about how it works internationally, you have the problem of people in Canada copying the works of people who may be in Germany or some other country. They would have no idea that somebody in Canada was photocopying their work. They'd have no way of knowing their work was being copied and absolutely no way of collecting on it.

I mean, the income of artists and authors in this world is abysmally low.

The Chair: Ms. Hushion, did you have a point you wanted to make?

Ms. Jacqueline Hushion: Marian has made my point, thank you.

[Translation]

Mrs. Christiane Gagnon (Québec, BQ): Welcome. This afternoon, you have sketched out possibilities that we heard less about yesterday because we heard more artists and associations representing authors.

They are very worried. Their view is that, between fair dealing and protection for artists and authors, in the digital universe or that of fair dealing, they are less and less well defended and protected.

You said earlier, Mr. Mutton, that there was a perception problem. You stated that the system is so complicated that it prevents some users from having access to works and that this should perhaps be reviewed.

Could you explain in greater detail what you meant by that?

[English]

Mr. Ross Mutton: The question is about what difficulties we face in getting access to works, and I guess it's on two fronts.

The first is a technological one. There are a wide variety of works that aren't represented by collectives, most in the new media. So when we talk about Access Copyright, we're talking about print works, but we have great difficulties when we want to deal with audiovisual works such as clips out of films, clips off television, music and radio clips, etc.

We have formed a collective called the ERCC to deal with television rights, and quite frankly, it's just been an abysmal failure. We haven't gotten anywhere with it whatsoever. The rates were set at a level such that nobody has signed on to it. So effectively, we aren't anywhere with that one at all.

That's the first aspect of it.

The second part of the problem is dealing with getting digital rights through existing rights management systems such as Access Copyright, which has a digital rights management system. Users are telling me that they find the system complicated, slow, and somewhat costly, and that because of the arduousness of the process, they're finding it's just as simple to do it directly with the rights holders as it is to work through the collective.

We also encounter issues where the cost of clearing digital rights is considerably more than it is for the same print rights. For instance, I was told that it costs somewhere in the range of $2 a student to provide an article electronically to a student at a distance, and we could actually mail it to them for 70¢ a copy. We're unclear about why there's a difference in cost when we start clearing digital rights.

We also find that when we go directly to the rights holders, we often receive the rights more reasonably or sometimes at no charge, compared to going to a collective where it costs money. Quite frankly, at the end of the day when we're trying to look at the cost of education and what students are paying for access to education, we have to be mindful of trying to find the most affordable way of doing it.

So we want something that's affordable, straightforward, and workable, and something that works quickly, because the average time it takes right now is about 25 days to clear rights. That's fine if you're clearing it before the course starts or early in the course. But if you're clearing it in the last month of the course, or trying to...because faculty don't always prepare well ahead. We need to be able to clear it quickly or we can't even use it for that particular course.

º (1640)

The Chair: Mr. Wills, did you want to comment on the discussion?

Mr. Steve Wills: Thank you very much, Madam Chair.

Just to add to the comments made by Mr. Mutton and to the discussion yesterday about cost and willingness to pay, I should make it clear, first of all, that educational institutions currently do pay very, very significant amounts for licensing. Access Copyright is one example. It receives almost $27 million a year. The technology-enhanced learning study that was commissioned by Industry Canada indicated that in 2001 72% of those funds came from educational institutions. And we do have other licensing agreements, with SOCAN, for example, to allow the public performance of music in theatres, football fields, arenas, gymnasiums, and site licences to permit the showing of feature films, etc. So it's not that there's not a willingness to pay; we're already paying very significant amounts.

But yesterday, as well, there was a suggestion made during Ms. Levy's presentation that perhaps an extended licensing regime to provide access to the Internet might cost a dollar or two per student. Well, what she didn't mention was that her organization, Access Copyright, has filed a tariff with the Copyright Board for the years 2005 to 2009 seeking $12 a student, simply for reprographic copying—that's photocopying. Based on what we see in the technology-enhanced learning study by Industry Canada, which suggests that the costs of digital permissions are significantly higher, and based on the feedback I've received from my own member institutions, that the cost of permissions for digital works are higher, I suggest to you that the costs of a license that would include digital copying, whether it be an extended license or any other license, are significantly higher. Let's not forget that we're dealing not just with text but also with other types of works, such as photos, audiovisual works, and recorded music, etc.

So when someone suggests that the cost of a license to allow access to the Internet, for example, might only be a dollar or two a student, I think we have to look at that suggestion with a great deal of skepticism.

The Chair: Ms. Hushion.

Ms. Jacqueline Hushion: I just wanted to respond to one of Mr. Mutton's points.

You identified that sometimes the producers or publishers are in fact a bit more generous about giving permission and waiving fees, etc. I did address that in my remarks and said that Access Copyright could do that. That's what I mean when I said, “All of this is negotiable”. In fact, if your group or any other group, or if the user community at large representing education, has found that to be its experience, then that can be discussed with the publishers. And the publishers who retain the right to grant the right could say to Access Copyright, we want you to let them do these things for free. Access Copyright wouldn't make the decision, but the publisher would make the decision. Access Copyright is the third party or intermediary. It is the creator or the publisher who would be setting the tariff in the digital world, and Access Copyright would be charging that tariff on their behalf. So if we know what those areas are, and if they're rated at zero, then we can talk about that.

º (1645)

The Chair: Ms. Hebb, very quickly.

Ms. Marian Hebb: Yes, I would just like to respond to the suggestion that the tariff for electronic rights would be so much higher. In fact, the tariff for the school would be negotiated as a single thing. So what is happening in the schools now is that they're using less photocopying and using more digital; so in this transition, as digital copying goes up, photocopying goes down. So I think that what Ms. Levy was saying yesterday is that it was probably going to make the tariff a little bit higher than it is now. So maybe a school will be paying a dollar more than whatever they're paying now.

The higher fee is on a transactional basis. When somebody makes an individual request, it's much more expensive to clear that request than if in fact it's done by collective licensing on a blanket basis, which would normally be the case for its use in schools.

The Chair: Mr. Weber, on this point.

And then, Madame Gagnon, a quick question.

Mr. Ken Weber: Thank you.

I want to draw attention again to something that Mr. Mutton brought up, which is the issue of ease of access and the fact that it may be quicker to go directly to the rights holder than go through an agency. In my experience as a user, I find the opposite to be true; it takes significantly longer if you have to seek out the rights directly from the rights holder.

To put yet another hat on, as the holder of some rights, I can tell you that it's far more complicated to be receiving calls from a variety of sources, rather than having these automatically going through an agency.

The Chair: Madame Gagnon.

[Translation]

Mrs. Christiane Gagnon: It is all right.

[English]

The Chair: Very quickly, and then we're going to have to move on.

Mr. Steve Wills: Just very quickly, in response to the comments of Ms. Hebb, the technology-enhanced learning study commissioned by Industry Canada gives one example of, in fact, a blanket licensing permission sought by the Open Learning Agency to produce electronic versions of course packs. So this was not a one-off transactional thing; this was an effort to get a blanket licence to produce electronic course packs.

The study suggests that they were informed that the cost of doing so was three to four times the cost of getting permission for a paper version of course packs, and that as a result, they decided against it. It was just not viable.

So to suggest that the cost of digital licensing might just be an incremental bit above what is being charged for paper, I think, flies in the face of the feedback I've received and what I'm reading from the study on technology-enhanced learning.

The Chair: Mr. Bonwick, and then Mr. Lincoln.

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

I should have bought stock in Tylenol before we started these sessions.

I don't think we can over-emphasize the importance of this e-learning digital era. I really believe the advent of e-learning will have impacts on this century comparable to what the industrial revolution had on the last one.

I am convinced that with the doubling of knowledge every five years now, there is only one way that will be useful. There is only one way that the masses will have access to that, and that is through a digitized format. So I say, creators beware.

We seem to be looking at things in the rear-view mirror and comparing it to how this is working out in the paper industry. We have to start looking 10 years down the road, and I think Mr. Weber has clearly done that. He's recognizing that as creators are producing, they're not going to be producing 50,000 or 100,000 bound copies of their reports; they're going to be producing a digitized version or a digitized copy. And if we don't get this right, I think it will have an absolutely tremendously negative impact on creators.

Mr. Wills, regarding your reference to the recent court decision, I'm disappointed in that particular justice, but I think I have to hold our government to account as a result of that decision, to a large extent. I don't think Parliament, or Canadians in general, believe the courts should be determining what level of support the country should be providing its creators. I think they look to Parliament to do that, and I would suggest that is exactly what we are doing right now. So I'm hoping we don't use justices' opinions to determine whether or not we should be supporting our cultural sector.

If I understand your argument properly, you should not be paying for things like computers, for software, for electricity, or for anything else, for that matter, because I can only assume that you value the content that you're providing by way of your curriculum every bit as much as you do the Microsoft software you're buying, or the computer you're buying, or the electricity you're purchasing that allows you to deliver that.

In fact, if I were to keep going down that road, I would suggest that maybe you shouldn't be charging for your courses, or you should only be charging a portion for your courses.

I'm very, very nervous about not getting this right, making sure we have a good structure in place to make sure we can deliver the money in a digitized era five years from now, to make sure that we have the appropriate levels of support for creators, because you, as educators, are going to have a very difficult job in providing course material if nobody is producing it.

So I'm interested in where you see things going five years from now, where you see things going 10 years from now, as we recognize that this doubling of human knowledge.... It's difficult for me to even comprehend this. The last 25,000 years is now being repeated by human knowledge every five years, and it will likely accelerate beyond that. Where do you see this going 5, 10, or 15 years down the road if we do not have collective licensing to support our creators?

º (1650)

Mr. Steve Wills: Mr. Bonwick, I'm certainly not arguing that we should not have collective licensing. I think it would be a false premise to say that, because there are limited exceptions in the law that it precludes collective licensing. Our position all along, and what we have been suggesting today, has been that they can coexist. If you look at comparable jurisdictions, you'll see that most of them have much broader exceptions than we do. If you look to the U.S. as an example, that's really the heartland in some ways of cultural creation. Their cultural products are all over the world. Yet they have fair use for the purpose of teaching. They have broader exceptions for educational and library uses, and the sky has not fallen.

Where do I see things in five years? Collective licensing will improve and hopefully we will be into digital collective licensing for certain uses. But there is also a place for limited exceptions for educational institutions and libraries.

The Chair: Mr. Weber.

Mr. Ken Weber: The experience of print is that exceptions lead to disaster. Nobody can interpret exceptions properly. I think the issue is to begin without exceptions, establish the collective licensing, and then allow investigation for exceptions.

The Chair: Mr. Bonwick.

Hon. Paul Bonwick: With regard to Mr. Wills' comments, I'm not trying to create misimpressions, Mr. Wills, and if I did, I apologize. What I'm doing is garnering impressions and sharing them with you, and that is my impression.

The Chair: Mr. Mutton and Ms. Hushion wish to comment.

Mr. Ross Mutton: I just wanted to say that we look forward to more and more materials being available digitally. Whatever way we can do it legally is important to us. I'm encouraged by a faculty member telling me recently that many more textbook publishers are now producing textbooks with materials that are designed to go on either a blackboard or a course website. This faculty member was discounting textbooks that didn't have that feature and was only considering ones that did have the material that could be used in conjunction with a course to put on a website. So as the publishing industry and the creators work more with us on the kinds of materials we're trying to use, we will make progress.

With regard to exceptions, we need some very limited exceptions to deal with some very specific kinds of issues where we want to be able to be critical in the classroom. Labatt isn't necessarily going to give us permission to make use of their commercials when we're going to be critical about how they're using commercials to market their product. So we need some limited exceptions to be able to do that without just talking about it. We need to be able to do some things visually and orally.

º (1655)

The Chair: I would ask the witnesses to try to make their answers shorter. Otherwise, we'll run out of time, and I know that Mr. Bonwick has another question.

Ms. Hushion.

Ms. Jacqueline Hushion: I have three quick points. First, the problem we have with the idea of a limited exception is that what the education community is asking for is not limited.

Second, when we look to the States, we see what the impact of the CONFU guidelines is. That's the Conference on Fair Use. They have fair use, we have fair dealing. They're very different. In fact, in the States there is no collective licensing of elementary and secondary school materials and university materials. The reason is that much of that industry has been guided by the fair use guidelines and the fact that so much may be taken without permission. Fewer than a dozen major houses that are educational publishers are left in the United States, which is a country 12 times our size.

Mr. Mutton referred to SchoolNet. SchoolNet has been a fabulous project in this country. But, interestingly, SchoolNet itself was very concerned about whether or not it was in compliance with the Copyright Act and whether or not what it was doing was legal. It went to Access Copyright and asked for help in determining that. So Access Copyright effectively has been doing an audit of SchoolNet-promoted and -sanctioned activities.

The Chair: Mr. Bonwick.

Hon. Paul Bonwick: Mr. Weber, do you, as a person on each end of the pole, so to speak, consider exceptions in the digital world a reasonable proposition?

Mr. Ken Weber: Ultimately, yes, but the technology is accelerating at such a rate that we really don't have a handle on what those exceptions may be as we go further down the road. To create legislation that will not establish protection before we know what those exceptions are could again lead to the kind of situation we had with print, where there was misinterpretation of exception. It was always widely believed that education was okay, you could photocopy anything, because it was for education. I suspect that with all the developments in technology, we'll have the same thing down the road if we don't establish clear collective licensing now and work possible future exceptions from there.

The Chair: Thank you.

Mr. Lincoln.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): As one of the members who will make recommendations to the government about how to deal with the next phase of copyright legislation to pick up digital material and the digital system, I find it extremely frustrating, because it seems to be a rerun all the time. You get two sides, very polarized. On one side you can almost see before you come what is going to happen. The creators, publishers, the people from the cultural milieu don't want any exceptions. They believe in the collective system, because they feel that's their survival, and I understand it fully. On the other side, the educational people, the distributors, the commercial people always want a broadening of the exception of fair dealing and don't like the collective system, or will tolerate only the least amount of the collective system. Invariably, the people who want the fair dealing will mention Industry Canada reports and balanced argument to justify it.

We are caught in this polarization. What I am trying to find, as one member, is some opening that seeks some sort of consensual position or compromise that we can work on.

I was encouraged in a way. Mr. Mutton wants a broadening of exceptions and feels that to deal with learning materials of the technological world, you need it. At the same time, I sensed from what you said and what I read of your report that you want two things. First, you want a broadening of the description of learning materials from the technological system, so that it will be as broad as possible. Second, you said you wanted to deal with a streamlined, centralized, and effective system. Putting aside Access Copyright, which you don't like, and the cost question, which is debatable, doesn't your position admit the possibility of some sort of collective association that would negotiate with you for a broad understanding of what learning materials of a technological nature are and would be a collective central point that would be effective, centralized, and streamlined? Aren't we talking about the same thing in a different way? I hope so.

» (1700)

Mr. Ross Mutton: I hope so too.

I don't want to give the impression that we want to vastly open up exceptions to the act for educational purposes.

Mr. Clifford Lincoln: But without opening the exceptions at all, would that be so--

Mr. Ross Mutton: Okay. So you don't want to talk about that.

Mr. Clifford Lincoln: Just looking at your paragraph there about beyond fair dealing, you say it is vital that we.... If we exclude fair dealing for a minute, don't you describe a collective system in any case? Maybe you don't like the collective system that is now in place, maybe you think it is too restrictive in the amount of material they allow, but if there is to be a kind of collective system, isn't that a collective system you're describing in your paragraph?

Mr. Ross Mutton: Yes, because I see a need for trying to clear rights for educational use in certain instances, particularly when you're using significant portions of works, particularly when you're engaged in broad distribution of material. We're already paying a lot of money to a collective for those kinds of purposes.

Where I have problems with the collective is when I see things like a doubling of the cost for the production of course packs over the next five years, which will probably result in our seriously reconsidering whether we even produce course packs, when I see that it takes too long to get the rights for the material, so that we've lost the opportunity within the delivery of the course to use that special teaching and learning moment, because we're haggling over the rights issues. We also need to make sure we don't get burdened--and we're starting to get to the process of being burdened--with record-keeping through a collective process.

I think we need to look at how we're using collectives, and we need to improve upon how we are currently working with collectives. If we do that, we have something. We want it to be simple and easy, we want the money to go to the rights holders at the end of the day. If it becomes too complicated, too laborious, and too inefficient, we'll probably end up just dealing with the rights holders ourselves and not working through the collective, and I don't think that's the way we want to go about it. I think we want a collective system that works.

Mr. Clifford Lincoln: Surely you're talking about process here, you're not talking about policy. What I'm talking about is a policy question as to whether we have a collective system or rely on exceptions. So there's one or the other. We can't have a mixture of both, as is suggested in one of these. Obviously, the creators don't want exceptions at all, and you want the least possible collective system. But if there were a collective such as you describe, where negotiations were taking place with all these various creators, which would include a broadening of the description of materials to be used at what you believe is a fair cost, and we have a board that judges these things, wouldn't that be what we are all trying to reach? Would that satisfy you, then, without going to the exceptions?

» (1705)

Mr. Ross Mutton: I haven't seen a collective system to date that has dealt with the issues we work with under exceptions.

Mr. Clifford Lincoln: I'm not talking about collective systems as they exist today, I'm talking about policy and principles. Surely that can be invented if it's not there. Surely it's not impossible to invent the kind of thing you're describing yourself or amend what exists to make it better, so that it complies with you. You don't have any objections in principle, do you?

Mr. Ross Mutton: I'm all for making it better.

Mr. Clifford Lincoln: Thank you.

The Chair: There's the solution.

Very quickly, Mr. Wills, because we're at full capacity today and everyone needs to have the ability to ask questions.

Mr. Steve Wills: As chair of the AUCC team that negotiated the last licence with Access Copyright, I can tell you this is the second round of negotiations in five years in which we've sought blanket digital licensing, and they were unable to provide it.

Second, the reason they don't have collectives in the U.S. is the same reason Canada didn't have them until 1988: they are basically anti-competitive creatures. In 1988 the Government of Canada made a policy decision to exempt collectives from the application of the Competition Act. It's not because the industry in the U.S. has been gutted by exceptions, it's because of fears about the anti-competitive nature of collectives.

I have one last quick comment. Mr. Weber, as a former academic, has particular views on the issue of exceptions. I can tell him that the Canadian Association of University Teachers, representing university professors, and the Canadian Teachers' Federation, representing K-to-12 teachers, support the idea of exceptions in the law.

The Chair: Ms. Lill.

Ms. Wendy Lill (Dartmouth, NDP): Thank you.

I'm hoping we can get somewhere here. I'd like to extend the kind of questioning both Mr. Bonwick and Mr. Lincoln have brought up.

Are you not worried about having trouble getting course materials 10 years down the line if no one can afford to produce it? Ms. Hushion makes the point that in the United States, given the system they have in place, the number of producers has shrunk dramatically. That seems to be a case in point. I find that the idea that a collective is somehow an anti-competitive creature flies in the face of that particular fact. When we see the inability of people to actually produce material any more, because it is not worth their while economically or they can't sustain their livelihood, we do see a shrinking of content, and that's what we are very concerned about as the heritage committee, the shrinking of knowledge. Canadian content is another thing.

I guess the idea from Mr. Mutton of a centralized service would be ideal for clearing collective rights. You've said that, everybody seems to say that, but there seem to be problems with the existing collective system. Ms. Hebb has mentioned the idea of having this new extended licence. Would this ease the way, in your estimation, for some of the people who are suffering from the complexities of the system as it exists?

Further, with this business about how it's so onerous going through a collective, I don't know. If there is a playwright out there, say, who gets 100 requests in the course of a week for plays to be put on at different universities or high schools, how long does it take to get through to that person? I think that sounds like an incredibly onerous task. Would it not be a lot easier just to call up Access Copyright and say, we want to do this person's work, and have that done? I'm just questioning the idea that clearing things individually would somehow be easier. Why would it be?

» (1710)

Mr. Ross Mutton: I agree, I think it should be simpler through a collective. Unfortunately, that's not what we're finding. We're finding that in some cases it's actually simpler to go straight to the rights holder than to work through the collective. The process is not any faster working through the collective; it's at least one to two months to get an answer back. In that process, we end up having to keep all sorts of records and submit material. We seem to be doing a lot of the record-keeping work that one would have thought the collective itself would be doing. I know they're trying to get as much money through the collective and into the rights holders' hands as possible, but maybe they should re-examine how much money they put into their overhead.

We are finding that because of the Internet, we are able to sometimes deal directly with the rights holders. One example that was given to me concerned getting material from a website out in Alberta. They were able to get most of the material at no charge, because the rights holders were absolutely thrilled that the educational community was interested in making use of it . We find that more and more Canadian material is being made use of by libraries and educational institutions that otherwise would not necessarily even see the light of day.

So we need to work with everybody, but we need a way to make this happen logically, quickly, and effectively, and the collective should be the way to do it.

Ms. Wendy Lill: So it's just a matter, really, of clearing up the glitches within the collective structure, which we're all in favour of. We would like to somehow figure out how we can make that work better.

The Chair: I have two other people who wish to speak, Mr. Butcher and Ms. Hebb.

Mr. Don Butcher: Maybe the problem isn't that we haven't got licensing to work, maybe the problem is licensing. The alternatives are exemptions and exceptions, going back that way. That would seem to avoid this whole issue of extended licensing, which is basically negative-option billing. We've refused to accept it in cable TV billing; why should we force people to give up their rights? I don't understand that one at all. We don't seem to have the right model for licensing, so maybe the conceptual issue Mr. Lincoln was talking about is with licensing, and we should avoid that side of the argument.

Ms. Marian Hebb: I think this problem is solved by the extended collective licence, because then you don't have to look for the rights holders; you either have them signed up already in your collective or in fact the licence is extended to cover them. So in fact Access Copyright or the Playwrights Guild could give that licence immediately to the person who asked for it. They then deal with finding the rights holder and making the payment to the rights holder.

This relates to the question of cost as well. The reason these digital licences are so much more expensive is that when Access Copyright is trying to give the licence to you, if the person isn't signed up already with Access Copyright.... Recently, in fact, practically all the affiliates with Access Copyright have given it digital rights, which wasn't true three years ago. The cost of licensing in the digital world comes down because it isn't a transactional thing. If you ask Access Copyright for a licence for a particular work and that person isn't signed out, Access Copyright has to go and sign it, and that is why the cost is so high.

And when we're talking about cost, the $12 mentioned by Mr. Wills is in fact the tariff that was asked for by Access Copyright. It is currently being negotiated by CMCC and Access Copyright. It's far from certain that it will be the tariff. It's before the Copyright Board--except I understand that the parties are now trying to negotiate something that's acceptable to both of them. If you have the rights all there in one bucket, then the costs of licensing are considerably less.

» (1715)

The Chair: Mr. Wills, very quickly.

Mr. Steve Wills: Thank you.

With regard to licensing, we are in favour of voluntary licensing. There was a lot of discussion yesterday about market solutions to this issue. We view voluntary licensing, in conjunction with limited exceptions, as being a market solution. Any exceptions that are in our act have to pass the Berne three-step test, as I mentioned, the WIPO treaty test, which essentially says they don't unreasonably prejudice the rights of the rights holder. All the exceptions in our current act that we want to see put forward into the digital environment pass that test, as do the exceptions I've mentioned in the U.S.

But there's another aspect of this that I think perhaps is being ignored. We can't look at this whole issue solely from the perspective of those who create works with the intent to receive compensation for them, i.e., those who create works solely with a commercial purpose, and this flips back to the discussion of the Internet. I'd like to read a quick quote, one line from the study on technology-enhanced learning: “A policy to facilitate access cannot effect creative incentives where works have been produced without any expectation of compensation, which is the situation for the vast majority of works available on public websites”.

This is our concern. If I could use a very brief analogy, we view those works that have been created without expectation of compensation as being like a large public park. And as Ms. Levy said yesterday, there are two other types of works: works for which compensation is expected, and those in the grey zone. We view this public park as being bordered by property owners who want compensation for their works. What they're asking the government to do is legislate that we have to pay them a $20 fee to cross over their land to get into the public park, and this is what we have a hard time coming to grips with. The suggestion that, all right, we'll take into account that there is a public park on the other side of our land and we'll just lower the fee for crossing our land to $16—we still find that principle problematic.

The Chair: You may comment very quickly, Ms. Lill, because I still have Mr. Harvard and we have a vote. And I have some questions myself.

Ms. Wendy Lill: I'm concerned about this whole idea that we have the Internet and people have a right to all of the material that's on there. I think people are willing to pay--and do pay heftily, a rising amount every month--for their Internet and their web and their e-mail and all of that. Is the idea of people paying a certain amount of money for content really so far beyond the pale?

That's just a little bit of a reflection at the end of this. I think we do it all the time. I think it's also an issue of our being conscious of how it is that you sustain creation. Material does get created, but it dries up if there isn't a source of remuneration--witness Professor Weber's very eloquent example of his whole cycle through learning and teaching as a special education teacher.

The Chair: Mr. Butcher.

Mr. Don Butcher: But educational institutions and libraries do pay for content; you keep forgetting that. They do pay for content. We're saying, once we have paid for it, don't make us pay for it again and again and again.

The Chair: Ms. Hushion.

Ms. Jacqueline Hushion: We talked about the public park analogy. If there is material on the Internet that is freely available and also available for free--and that isn't always necessarily the case--that's the public park. That would be taken into account when factoring the tariff that Access Copyright would charge, so the tariff would be discounted by the value of the public park. It is the perimeter of the public park in your analogy, the private property, that would be paid for.

Maybe we should all lock ourselves in a room, put the lock on the other side of the door, and not come out until we have some sort of resolution.

But the truth is...Mr. Butcher says we have extended licensing or, as an alternative, we have exceptions. I beg to differ. The alternative, if you have exceptions, will be a downturn in the publishing industry, a downturn in content production. We're not forcing people to give up their rights. The Scandinavians and the Nordic countries love what we call the deemed-to-be provision. If you're not out, if you haven't officially, formally signed yourself out of any extended licensing, then you're deemed to be in, and you get money for it. They love it.

» (1720)

The Chair: I'm going to have to move on to Mr. Harvard, because we do have a vote coming.

Hon. John Harvard (Charleswood St. James—Assiniboia, Lib.): I don't think Mr. Wills is going to be surprised by where I'm coming from.

A voice: To my left.

Voices: Oh, oh!

Hon. John Harvard: Look, I have a lot of sympathy for educational institutions. I certainly have a lot of sympathy for libraries. You provide a very important role in society. But it seems to me that Mr. Mutton is looking for a kind of relief from the mechanics of the licensing system.

When I listen to you, Mr. Wills, you're looking for some financial relief in addition to some relief from perhaps the mechanics of the system. You may be able to make a fairly good financial case, but why should this relief come from creators? They're only one part of the chain. They should be able to charge whatever the traffic will bear. That, to me, should be their inherent right. I think you're looking for subsidies, in a way, through legislators, but look at the subsidy system around the world and see what it has done. It has distorted markets all over the place. I don't want to go down that road.

When I listen to you, it sounds as though you're coming into the category of a special pleader. It reminds me of the churches: I'm selling salvation, so give me a tax break. You're saying, I'm selling education, so give me an exemption. That's what you're asking for, and you're asking for this special support from the creators.

It seems to me that if the licensing system is to work without exemptions, without any exception at all, and if there is an impact on you, Mr. Wills, then you're going to have to go to your benefactors--taxpayers, governments, whomever--and you're going to have to plead your case before them.

I remember during the free trade debate--and by the way, I was against the free trade agreement as suggested--the people in the wine industry suggesting that if we had free trade with the United States the wine industry would just go to hell. Well, here we are now, fifteen years later, and I don't think the Canadian wine industry has been so strong.

So sometimes when I hear this... because inherent in what you're saying, Mr. Wills, is a kind of gloom and doom story.

I would say this. We politicians should be concerned about outcomes. Let us set up a licensing system without exemptions, none whatsoever, and perhaps five or ten years down the road we will see some serious flaws, some serious outcomes. Perhaps at that time we legislators will have to address that, if the market doesn't somehow deal with it. If somehow you people can't work it out with the Copyright Board, with the licensing system, maybe there will have to be something done as you turn to politicians. But up front, I just have too much regard for the creators. I think Mr. Weber was absolutely right on, that if you more or less put pressure on the creators, you'll find that their creative works will dry up. And that's what I'm worried about.

I think we have been too quick in this country to say, oh, there's the library, there's the educational institution; they're good boys and girls, we have to give them some help. But sometimes we forget...and it's the politician who very often is not prepared to go into the taxpayer's pocket for some extra stipend, saying instead, oh, in this case we'll pick on the producer, we'll pick on the creator. And I don't think that's very fair.

What do you want to say?

The Chair: Mr. Wills.

» (1725)

Mr. Steve Wills: Just to respond to that, I think the kind of system you're proposing, where we have licensing without any exceptions, is based on a faulty premise, in my view. We do not live in Europe. We do not have a continental approach to copyright law. Our Supreme Court was quite clear that copyright law is a balance, and that balance is reflected in limited exceptions to rights.

I would refer you to Professor David Vaver, a well-known Canadian author on copyright matters, who once indicated that he objected to the use of the term “exception” because it implied that those who create have an inherent right to the total basket of rights of any use of their works in any way. He said it was in fact false, because what they have is a statutory right, a limited right. They have whatever right the government agrees to give them, and that's it.

All we're saying is that, in line with what the Supreme Court has said in terms of describing our law, the kinds of limited exceptions we're asking for, which, by the way, are much... What we have currently in our law is much less broad than what exists in other jurisdictions. We're asking for the same kind of exemptions that the Supreme Court has deemed to be an integral part of the balance in our law. We don't think this in any way implies disrespect. We still have collective licensing. We will have collective licensing in the future. We pay an awful lot of money to rights holders through collective licensing. We just believe the two concepts can and should coexist.

The Chair: Ms. Hebb and then Mr. Butcher.

Ms. Marian Hebb: I just wanted to echo what Mr. Bonwick said earlier, that it is the legislators who decide what the law should be, not the courts. The courts and the Supreme Court of Canada actually picked up their language and their concepts in these cases from David Vaver's book. I consider that book to be a rather popular book, a rather jocular and amusing book, but that is where those ideas have been crystallized and picked up by the court.

I do implore you that you as legislators should not be looking at how the court has interpreted the law we now have. Please give us the law we need.

The Chair: Mr. Butcher and then Mr. Mutton.

Mr. Don Butcher: When I sat in front of this committee last November, I tried to make the case that you shouldn't put this into the libraries versus creators argument. Libraries support creators, as I've amply demonstrated.

One possible outcome of the scenario that you suggest is actually less Canadian content. It would take more money out of the schools and libraries into the creative community perhaps, but it would go to the most popular authors. As the heritage committee, I think you would need to be concerned about ensuring the widest dissemination of Canadian culture and Canadian content. You would have to be very careful about building a system that benefits...pardon me, but the Margaret Atwoods and not so much the smaller creators like the Donald Belfalls, who don't do it for the money.

Hon. John Harvard: May I ask you one more thing, Mr. Wills? In your presentation, I think you mentioned that the institutions you represent paid out $27 million in royalties. Is that right?

Mr. Steve Wills: No, not our institutions, but educational institutions as a whole paid out... We don't know what proportion of the $27 million it is, but in the TEL study commissioned by Industry Canada, they have 2001 statistics from Access Copyright. At the time, the fees were something like $22 million or $22 million and a half, when educational institutions provided about 72% of that revenue.

Hon. John Harvard: I see. Well, I guess the only comment I would make on that is whether it's $22 million or $25 million, unless it is given in some kind of context or some kind of reference point, it makes no sense to me at all. I don't know how to assess it.

I guess the other thing I would say, though, is that if we can pay a hockey player $5 million a year and all the creators the institutions use get paid $22 million or $23 million, it doesn't sound like a lot of money to me.

Mr. Steve Wills: Can I just make one quick point?

The Chair: Ms. Hebb first.

Ms. Marian Hebb: I just want to say that when Margaret Atwood's works are copied, she gets paid exactly the same amount as any other writer does. The reason she might get more, if she does--I don't know if she does or not--is if her work is copied more, which is a choice of the teachers.

The same goes with an earlier comment that was made about money going to the States. If Canadian teachers choose to teach Canadian materials, then more money will go to Canadian creators and producers. In fact, a small amount of money goes to foreign countries in comparison. We were very delighted to find out that in fact most of the money stayed at home, and that's because Canadian teachers are making good choices and teaching Canadian works.

» (1730)

The Chair: I have some questions now.

Ms. Hushion, I want you to explain to me why it is that in the United States licensing seems to work. You use The New York Times example that all those... So the e-learning or the e-business is being done by licensing. That's one thing.

And Mr. Wills—you may be saved by the bell--you said in your opening comments that you seem to have some trepidation, and maybe this is my misunderstanding, about the WIPO treaties, about ratifying them. If that was incorrect, please let me know, because one of the things yesterday that Ms. Peacock, who came from the motion picture industry...

So it was interesting, Mr. Mutton, when you talked about the television rights, that it isn't working. How do you think you're going to get rights from the motion picture people, especially that huge association she represents? They're pretty powerful. I'd say they're more powerful than the collectives you have. Her concern was that we hope this doesn't encompass cinematographic work. Let's talk about that a little bit too, when you're using the television.

And Mr. Wills and Mr. Butcher, you're talking about how we are going to somehow affect commercial models or hurt them. Again, I would see that the commercial models are still evolving. We don't know that a person has put something on the Internet right now for a look and see, but if there's a commercial model to be made of something like that, why would we preclude them? That would be counter-industry. That's counter-prosperity. That would be anti-competitive.

Anyway, Ms. Hushion, and then Mr. Wills.

Ms. Jacqueline Hushion: I think the reason licensing works in the States in the context of the Internet and the delivery of distance education is that people want it to work, because it is so flexible.

Let's assume that you are teaching a course on the Internet. You want to deliver to 4,000 students. You go to any number of producers and/or creators and you say, “I want this content from you, and I want that content from you”. You buy licences, and they have what they call shrink wrapping. There are various different packages in which the licences come. It's very flexible.

The next term you say, “That wasn't perfect; this term we're going to do it this way. We're going to tweak this over here. We're going to get rid of that content altogether. We're going to have a licence for this content. It's going to be a different kind of licence. It's going to be a multi-site licence, and we're going to do some more interactive work among the students”. So a new model is developed.

The reason it works in the States is that producers are able to give better prices to educational institutions than they would give in the print environment, because costs are different. The business model is different. Where they bear their costs in the chain of costs is different. The institutions love it because it's the ultimate flexibility.

The Chair: I have to ask you to make your answers a little bit shorter, just because we do have a vote.

Mr. Mutton.

Ms. Jacqueline Hushion: Sorry.

The Chair: We're under the gun because we have to be in the House to vote. It's not that I don't want to hear more.

Mr. Mutton.

Mr. Ross Mutton: I assume you want me to talk about cinematographic works and the motion picture association, and so on.

What really burns my toast is that in the United States you can play back a video from Home Box Office, or whatever, in the classroom at no charge. In Canada, we have to pay for that right. So actually we are probably subsidizing the U.S. motion picture industry in Canada more than they are in the U.S., and Lord knows, they don't need subsidies.

What also really aggravates me is that, the way the act is going in the U.S., this material will never come into the public domain. I have sympathies for Disney and Mickey Mouse, but quite frankly, extending the length of time and the complications of a motion picture, of when it would ever come into the public domain, is problematic for us.

For use in the digital world, we don't even go there. I had a faculty member who wanted to use a short clip, less than two minutes, of a motion picture to make a point in the course, and we just decided it was going to be far too complicated and we'd probably all be old and grey before we got the rights, so we didn't even try it.

» (1735)

The Chair: Thank you, Mr. Mutton.

Mr. Wills.

Mr. Steve Wills: Briefly, in response to your question about the WIPO treaties, no, we have no trepidation about implementation. Our concern is simply that we want the implementation to be accompanied by the limited exceptions we're proposing.

One of our greatest concerns is that we not have a repetition of the so-called phase one and phase two approach to reforms in which rights holders got a great deal of benefit under phase one. Those in educational institutions and libraries were promised that they would shortly receive something to compensate for that, and it took 10 years. We don't want a repetition of that process.

Second, very quickly, with regard to a market solution, we don't think it is a market solution to legislate extended licensing and by law create one gatekeeper for all of the works within a particular category of works. We think a market solution is voluntary licensing. What we propose in relation, for example, to the educational use of the Internet is that rights holders should make their intentions known. If you need to install TPMs in some way--and they can control either access or use--please do so, and that will signal your intention that you don't want to be covered by this provision, and we are quite fine with that.

On the idea that was floated yesterday that all this is so expensive, Bob Schad, who is with the University of Regina and who is in the audience today, conducted a short survey of a number of Internet service providers and in fact discovered that some of them will actually do this for you for free, or they'll do it at very minimal cost. When someone claims they can't possibly get involved with the use of technological protection measures, that's just not correct. It's not too expensive. It can be done at reasonable cost.

Thank you.

The Chair: Again, I'm sorry that I have to stop the discussion right now. However, if there are any additional things you wish to comment on, please get your comments in this week, because next week we propose to write a report and get the report finished by the end of the week.

I see Ms. Lill is here.

We'd like to look at the draft report on Tuesday so if we're going to have a dissenting opinion on something, we're going to need it in by Wednesday next week. I'm just giving you notice. We're finishing tomorrow.

Again, if you could get in whatever kind of additional materials, anyone, please feel free to do so. If we've heard testimony that you didn't have a chance to talk to, again, if you could get that information in to the clerk by the end of the week, that would be great.

Thank you all for coming.

The meeting is adjourned.