HERI Committee Meeting

37th PARLIAMENT, 3rd SESSION

Standing Committee on Canadian Heritage

EVIDENCE

CONTENTS

Thursday, April 29, 2004

¿

0905

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

Mr. Jules Larivière (Official Representative, Association pour l'avancement des sciences et des techniques de la documentation)

¿

0910

¿

0915

¿

0920

The Chair

Mr. Stuart Morrison (President, Canada Law Book)

The Chair

Mr. Stuart Morrison

¿

0925

¿

0930

The Chair

Mr. Stuart Morrison

The Chair

Ms. Grace Westcott (Executive Secretary, Canadian Copyright Institute)

¿

0935

¿

0940

The Chair

Ms. Grace Westcott

The Chair

Ms. Susan Crean (Co-Chair of the Electronic Rights Copyright Committee, Writers' Union of Canada)

¿

0945

¿

0950

The Chair

Mr. Graham Hill (University Librarian, McMaster University; Canadian Association of Research Libraries)

¿

0955

The Chair

Ms. Hélène Messier (Executive Director, Quebec Reproduction Rights Collective Administration Society)

À

1000

À

1005

The Chair

Ms. Christiane Gagnon (Québec, BQ)

À

1010

The Chair

Mr. Stuart Morrison

À

1015

The Chair

Mr. Graham Hill

The Chair

Ms. Susan Crean

The Chair

Ms. Susan Crean

The Chair

Mr. Jules Larivière

À

1020

The Chair

Ms. Grace Westcott

The Chair

Hon. Paul Bonwick (Simcoe—Grey, Lib.)

The Chair

Mr. Stuart Morrison

À

1025

Hon. Paul Bonwick

Mr. Graham Hill

Hon. Paul Bonwick

Mr. Graham Hill

Hon. Paul Bonwick

À

1030

Mr. Graham Hill

Hon. Paul Bonwick

The Chair

Ms. Susan Crean

The Chair

Mr. Jules Larivière

The Chair

Ms. Wendy Lill (Dartmouth, NDP)

À

1035

The Chair

Mr. Jules Larivière

The Chair

Mr. Stuart Morrison

The Chair

Ms. Hélène Messier

À

1040

The Chair

Mr. Jules Larivière

The Chair

Ms. Susan Crean

The Chair

Ms. Wendy Lill

Ms. Susan Crean

The Chair

Mr. Jules Larivière

The Chair

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

À

1045

Mr. Graham Hill

À

1050

Hon. John Harvard

Mr. Stuart Morrison

Hon. John Harvard

Mr. Stuart Morrison

Hon. John Harvard

Mr. Stuart Morrison

Hon. John Harvard

The Chair

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

À

1055

The Chair

Á

1100

Mr. Graham Hill

The Chair

Mr. Jules Larivière

The Chair

Mr. Stuart Morrison

The Chair

Ms. Susan Crean

Á

1105

The Chair

Ms. Grace Westcott

The Chair

Á

1110

Ms. Christiane Gagnon

Mr. Jules Larivière

Ms. Christiane Gagnon

Mr. Jules Larivière

Ms. Christiane Gagnon

Mr. Jules Larivière

Ms. Christiane Gagnon

Mr. Jules Larivière

Ms. Christiane Gagnon

The Chair

Mr. Graham Hill

Á

1115

The Chair

Ms. Grace Westcott

The Chair

Ms. Susan Crean

The Chair

Mr. Stuart Morrison

The Chair

Hon. Paul Bonwick

Á

1120

The Chair

Mr. Stuart Morrison

The Chair

Mr. Graham Hill

The Chair

Ms. Susan Crean

Á

1125

The Chair

Mr. Jules Larivière

The Chair

Ms. Grace Westcott

The Chair

Á

1130

Ms. Grace Westcott

The Chair

Mr. Jules Larivière

The Chair

Mr. Jules Larivière

The Chair

Mr. Graham Hill

The Chair

Mr. Graham Hill

Á

1135

The Chair

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CANADA

Standing Committee on Canadian Heritage

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NUMBER 012

l

3rd SESSION

l

37th PARLIAMENT

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EVIDENCE

Thursday, April 29, 2004

[Recorded by Electronic Apparatus]

¿  (0905)  

[English]

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

    Pursuant to Standing Order 108(2), the committee is conducting a study of the government “Status Report on Copyright Reform”. We are dealing with access issues this week. Today, we will specifically be looking at the issue of interlibrary loans.

    Actually, today we'll conclude the two weeks of hearings that we have had. Next week, the committee proposes to write a report and recommendations, similar to a memorandum to cabinet, to both ministers and the Prime Minister to try to move all of these issues forward immediately. We hope to table the report in the House next week.

    Again to my colleagues, we hope to set aside some time next week to be in camera. If there will be dissenting opinion, we'll need it by Wednesday or Thursday.

    That will be the plan, and hopefully we can work together.

    Without any further ado, let us start with Association pour l'avancement des sciences et des techniques de la documentation, Jules Larivière, official representative.

    Monsieur Larivière, bonjour.

[Translation]

    Mr. Jules Larivière (Official Representative, Association pour l'avancement des sciences et des techniques de la documentation): On behalf of ASTED, I would like to start by thanking the committee for giving us an opportunity to present our views on interlibrary loans, which is obviously an important issue for us.

    At the outset, we would like to mention that ASTED has always been in favour of protecting creators' rights and has always encouraged its members to be proactive in this regard. At every ASTED annual convention, there is always an activity related to copyright matters. In addition, throughout the year, we often have study days during which we ensure that our members are always kept up to date about developments in this field. As well, we encourage our members to always keep library users informed about copyright and related matters.

    Naturally, ASTED is thoroughly convinced that copyright is based on a balance between the rights of creators and the legitimate needs of users. That is the cornerstone of copyright, and for us, it is an extremely important issue. We think that when one group is favoured over another, the balance is destroyed, and the Copyright Act may then be unable to play its role with respect to public policies put in place by governments to encourage both the harmonious development of creative activity in all its forms and the establishment of a favourable, competitive climate for study and research.

    In our view, copyright is good, but too much copyright is bad. We think there should be some exemptions in the Copyright Act, and there are some exceptions—at the moment for the common good of Canadian society. Interlibrary loans is precisely one of these exemptions.

    First of all, interlibrary loans are as old as libraries themselves, because in the same way that individuals cannot own all the documentation they require, it is impossible for libraries to hold all the documents its users need.

    Interlibrary loans are offered in a research context. That is why interlibrary loans happen mainly in university and research libraries. There are few interlibrary loans in college libraries and fewer or none at all in school libraries. There are some interlibrary loans in large public libraries, but in ordinary public libraries, there are almost none. Thus, interlibrary loans are concentrated in university and research libraries.

    Despite their importance, interlibrary loans remain a marginal activity. Just to give you some idea, in 2001-2002, in the 27 Canadian university and research libraries, interlibrary loans accounted for 3 per cent of all loans. So while it is an important activity, it is fairly limited.

    It is also a well-regulated activity based on policies. In all the libraries I know, there are loan policies. There are specific policies as well on ILLs. For example, it is not possible to borrow more than one article from the same issue of a periodical. We also ensure that the request is made in a research context, that the person made the request because he or she is either a doctoral student or a professor, or is doing research work.

    It is important that the committee understand that when we talk about interlibrary loans, we are very far away from the Napster and MP3 phenomenon. There is no danger of invasion and uncontrolled reproduction of periodical articles with the ILL.

    First of all, within the 3 per cent I mentioned earlier, it is very rare that the same article is requested several times, because, obviously, the research is always quite specific and master's or doctoral students work on specific areas. It is quite rare to have the same article requested often.

¿  (0910)  

    Interlibrary loans are also an important collection development tool for libraries, because in all the libraries I know—and I know a lot of them, after a career of almost 40 years in this area—if a periodical is requested too often, the library will notice that it has a gap in its collection and will subscribe to the periodical. Often they obtain the collection of back issues.

    All that to say that ASTED is somewhat surprised, not to say disappointed, at the proposals put forward in the document the committee studied in the context of copyright reform. We think that in order for there to be a solution, there must first be a problem, and as far as we're concerned, there is no problem with respect to ILLs.

    We have been told that the rights holders must absolutely be able to protect their document by ensuring there will be control procedures to prevent multiple reproduction of articles that will circulate among professors, researchers or students.

    I come back to my earlier point about Napster and MP3: we are very far from that. Articles are never reproduced several times. A researcher makes a request, receives his article for his research, works on his research, and that is all. It is very rare that researchers will start distributing articles they receive.

    So we find it rather unfortunate to put in place procedures to control a problem that does not exist. And this gives once again the unfortunate impression, which has been around for years, that libraries are incredible violators of copyright. This is absolutely false.

    In 1997, at the time of Bill C-32, we were told that we would be able to transmit an article electronically, but that we would absolutely have to give a paper copy to the researcher, because we had to avoid having the article distributed electronically and everyone having access to it. Once again, that is not what happens, and second, not everyone is equally interested.

    In 2004, it is important for researchers—and it is very important in a context where we hear a great deal at the moment in Canada about the need to be competitive internationally as regards research—to take into account that in other jurisdictions, such as the United States, Great Britain and Australia, this type of electronic transmission of documents is permitted. These countries allow some exceptions to copyright, without creating any problems.

    In our opinion, introducing extremely complex procedures would create more problems than it would solve, because, once again, in our view there are no problems.

    Finally, with respect to the second proposal, which is to encourage libraries to sign licences for access to documentation, in theory, we have no objection. Moreover, a number of libraries negotiate agreements with periodical suppliers. However, our problem with this is that we wonder what it is doing in the Copyright Act.

    To my knowledge, a licence is a contract. In a contract, the parties make the rules: they agree on clauses, and if there is agreement, they sign; if they do not agree, they do not sign. Of course, in practice, when it comes to large collections of periodicals, negotiations are relatively simple, because you are told what you can take, and if that is not of interest to you, you are told to drop the whole matter.

    It is very difficult to include exceptions in these licences. We are well aware that there are some sets of periodicals whose licences clearly prohibit interlibrary loans: it is stated clearly for certain subscriptions that users have access to the material, but articles cannot be loaned to other libraries. That means the exceptions, which are provided for in the act and which are important, could not be included in these licences.

¿  (0915)  

    In our opinion, we have a Copyright Act in Canada, and that is what we want to reform. We think it would be a good idea to maintain the exceptions already provided for in this legislation and to modernize them. When we talk about modernizing an exemption, that would mean allowing for the electronic transmission of an article in the context of an interlibrary loan. In light of the statistics, in light of the procedures in place, in our opinion this would have no economic impact on the rights holders.

    On this point, as I said at the outset, ASTED has always been in favour of compensation for creators. Every time there has been abuse or problems and economic rights have been adversely affected, ASTED has always been understanding and objected to such practices. For example, ASTED has always been against multiple copies, in principle, because they do have an economic impact. However, there are no such consequences in the case of ILLs.

    In conclusion, if the committee were to recommend that the two recommendations be kept—namely the introduction of control procedures to prevent the reproduction of articles—we feel that you should make very sure at least that the costs involved will be the responsibility of the periodical suppliers, not the libraries. In this way, libraries would avoid incurring expenses to control an activity which does not represent a problem for them.

    With respect to licences, ASTED's view is that licences are one thing, and the Copyright Act another. To talk about encouraging the assigning of licences, as this document does, somewhat denies the importance of the Copyright Act and the exemptions in our view.

    Thank you.

¿  (0920)  

[English]

    The Chair: Merci beaucoup.

    Next is Mr. Stuart Morrison, president of Canada Law Book.

    Mr. Stuart Morrison (President, Canada Law Book): Good morning. Thank you.

    The Chair: I'm sorry, just for the witnesses again, we could have a vote anytime from 10 o'clock on. I will ask each witness to try to stay at eight to ten minutes maximum, so we can get through everybody.

    Mr. Stuart Morrison: That will be done.

    Canada Law Book is a 100% Canadian-owned company. We're primarily a professional publisher of law. Our publications serve the legal profession, government departments, academic institutions, organized labour, and public libraries. We have 240 staff currently. We trace our roots back to 1855, and we publish in a variety of formats.

    In print we publish in loose-leaf, digest, soft-bound, and case-bound formats--law reports, newspapers, and magazines. In digital we publish in diskette, CD-ROM, proprietary databases, and on the web.

    We've been publishing electronic formats since the 1970s. I mention this because our company serves the market as the market changes, and the market is constantly changing.

    Our content includes primary law material, such as legislation and case law, and secondary-authored material that includes expert analysis. Our authors are prominent lawyers, judges, and academics from across the country. They've included Bora Laskin, Chief Justice of the Supreme Court in the past. Currently, one of our leading authors is Eddie Greenspan.

    On the issue of copyright, I take issue with the former witness. Our principal properties and products have dropped some 50% in revenue and unit sales over the last ten years. We see the issue of copyright protection as absolutely fundamental to our continuing well-being.

    Libraries and their patrons are seeking access to copyright-protected material in digital format through interlibrary loans. I'd like to explain what that means to us.

    When we publish a book and some copying is done, the downside is limited. But in digital, it has 400 volumes and is worth somewhere in the region of $25,000 to $30,000. If we move into interlibrary loans of digital material, with the limited safeguards libraries currently have.... Notwithstanding the previous speaker, our experience has been completely the opposite. I recognize that he speaks on behalf of those with master's and doctorate degrees, but in our area, much of our material is photocopied and distributed hundreds of times. If our information is available digitally through interlibrary loans, it will undermine 100% the ability of our company to continue. This will be really threatening to the livelihood of ourselves and our staff.

    We cannot control access technologically, as it stands right now. We are working with American and British suppliers of protection software. It isn't perfect as it currently stands. We've spent $5.5 million dollars converting our print material to digital. The marketplace is demanding digital material. We originally moved from all of those print products I indicated to diskette, which went out the window; then to CD-ROM, which is still operating; then to proprietary database, which is still operating; and now to the web.

    When our customers come to us, they want their information in a variety of print products and in a variety of digital products. We need to have the protection, so we emphasize very strongly the issue of licensing. Our licensing is currently restrictive, because if it were opened up it would just suck everything out of our company.

    The Copyright Act was designed to balance the interests of the copyright owner with the users of information. We have invested very heavily to try to meet the needs of our marketplace, but also to protect our own interests for the long term. We're going through a major transitional period.We are committed to publishing, we're committed to staying with the program, and we're committed to change. But if the type of protection that is currently in place is lifted and access to our digital material is made available through interlibrary loan, what happens to this $20,000 that is protected at the moment? Libraries will not be able to control it; we have problems controlling it. We're investing hundreds of thousands of dollars annually in trying to protect our information.

¿  (0925)  

    We are working with partnering with a variety of other organizations, including Access Copyright, to better serve our customers, but also to protect the digital information as it currently stands. Unfortunately, as you are all aware, technologically speaking, the market area is changing on a weekly or monthly basis, and we are grasping, trying to find a model we can stick with.

    We have followed, over the last 10 or 15 years, all of the varying pricing models in the U.K. and the U.S., and the market keeps coming back with additional change required.

    As a conclusion, we emphasize that licensing is the vehicle we've used to protect our authored material and copyright. If the copying and distribution of digital material to unlicensed end users were allowed to occur through interlibrary loan, it would irrevocably undermine the basis of our publishing program. I'm not sure how we would recover from that.

    I want to emphasize that it's in our interest to service the information needs of the marketplace. We've done it effectively for 150 years. In 1950, if you were a practising lawyer you needed one set of law reports. There are now probably 40 sets of law reports, 400 loose-leaf services, 40 or 50 summaries, 30 or 50 different types of CD-ROM products, and hundreds of different databases.

    We've adapted every step of the way to meet our customers' needs. We've evolved all of the different information structures, all of the variations the customer bases asked for, whether it was loose-leaf products, digest products, full-text law reports, regional law reports, topical law reports. However people have wanted the information, we've addressed the issue and provided it.

    Digital formatting is absolutely no different, it's just newer. As the digital technology evolved and the customer base asked for change, we put in changes to ensure their loyalty.

    That's about it.

¿  (0930)  

    The Chair: Thank you very much. I find myself smiling, because I certainly was a subscriber to Canada Law, but in my day, 30 years ago, photocopying was the only way to go to get those cases.

    Mr. Stuart Morrison: Right. On that point, we do provide a full photocopy service.

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

    Next we have Grace Westcott, executive secretary of the Canadian Copyright Institute.

    Welcome, Ms. Westcott.

    Ms. Grace Westcott (Executive Secretary, Canadian Copyright Institute): Thank you.

    As you said, I'm the executive secretary of the Canadian Copyright Institute. The institute represents creators and publishers in various media, including the print and digital media. Its mandate includes copyright education and the promotion of copyright reform.

    I'm going to start by departing from my original text.

    Since the Supreme Court came down with its ruling on the CCH case, many of us have been wondering what the impact of the court's expanded definition of fair dealing will be on the library exemptions, in particular as the expanded reading of fair dealing by the court pre-empted library exceptions in some ways, those exceptions with their carefully calibrated limitations and conditions. But this is the wrong question. The court has clearly taken some broad policy positions on copyright issues, but this government should not hesitate to seize back the momentum in defining that policy. The question is, what should access policy be?

    Copyright is a creature of statute. The government enacts the statute within the parameters set out by our international treaty obligations. The issues presented by technological change have been preoccupying two departments of this government for many years. Broad and deep consultations with copyright and user communities, of which this is the latest, have been held for years. Policy decisions on copyright should be made by Parliament; the existence of jurisprudential policy-making need not and should not override the responsibility of the government to set that policy.

    Thus, regardless of the effect of the CCH case, which is not clear, I think it's critical that we discuss the issue as framed in this status report, that is, whether the interlibrary loan provisions should be extended to digital or whether it's better to encourage the licensing of such activities. Indeed, it's incumbent on us to arrive at a fair assessment, one that's fair to the rights holder and respectful of users.

    The interlibrary loan provisions we're discussing today are directed in particular at a large and important sector of the publishing industry: the scholarly, scientific, and technical journal market, the professional journal publishing market. The “Status Report on Copyright Reform” notes that the research community seeks digital access to these articles. More broadly, that community seeks digital access for fair dealing purposes to other periodical articles and works for patrons of other libraries doing interlibrary loan. The ILL exceptions, as they stand, permit a patron to receive a paper copy only.

    We all understand; we feel it ourselves, the demand and desire on the part of the public for digital delivery of copies. But this is very much a publisher's market, as Stuart Morrison made quite clear, with a market demand to which publishers are responding.

    Extending these exceptions to permit delivery of digital copies would hurt the periodical market in two important ways. First, it would allow libraries to compete directly with publishers in a developing primary digital marketplace. Second, it would expose those works to the risk of uncontrolled dissemination on digital networks, even supposing the imposition of a requirement that libraries use technical safeguards. I'll return to this.

    First, let's consider the evolving marketplace. The scientific, scholarly, and technical journal market, the professional journal publishing market, is evolving fast. Digital delivery by publishers themselves or by their agents, such as through database producers or commercial intermediaries, is becoming more commonplace. The development of a digital distribution system for scholarly, scientific, and technical journals is changing the concept of a periodical from that of a number of articles sold in a print bundle to the delivery of single articles or chapters over digital networks. The journal subscription market is in flux. A subscription need not be for a collection of journals pre-selected but may--it's evolving this way--be for a set of individual articles or a one-time purchase of a particular article.

¿  (0935)  

    Some publishers in the international marketplace are now offering to deliver individual documents to users or to license libraries to do so, with prices and conditions set by the publisher, including safeguards against further downstream uses by library patrons in order to pre-empt unauthorized further copying and distribution. As for the journal market, digital delivery is increasingly becoming a primary market for their works, a primary market that's likely to become fundamental to the viability of those businesses in the first place.

    If more libraries engaged in the business of digital document delivery, such as by e-mailing attachments of scanned print documents in PDF format, they would essentially be competing unfairly with the developing primary market of the publisher itself. Understanding this is absolutely critical. Libraries would offer a competing service, yet libraries themselves are a key part of a publisher's market. The opportunity to digitally lend copies between libraries would potentially reduce the library market for general subscriptions to one and only one electronic copy, from which an entire library system and its patrons could be served. That surely is an unfair appropriation of a publisher's market.

    The status report also indicates that rights holders are concerned that electronic delivery may result in uncontrolled downstream dissemination of the article or the work; that's so. It also mentions that there have been significant advances in the ability to deliver material electronically to prevent further dissemination downstream, but these are still unproven technologies in a developing technological environment. It's difficult to see, in the context of an exception, who would oversee those safeguards once they were embedded in a regulation; who would keep them up to date and effective?

    This is not a rhetorical question. Rights holders are concerned that the technologies won't work, they won't work for long, and their implementation and maintenance could be improperly overseen. We've seen as well--I understand you were hearing about the TEACH Act earlier this week--that some of the restrictions and requirements for compliance imposed by the TEACH Act, which does in fact provide for technological protection for downstream use, are extremely onerous. It doesn't create a simple system.

    Rather than trying to set conditions by government legislation or regulation, you should consider that a more flexible and fluid approach can be found in the licensing option, which would permit periodic adjustments made necessary by technological advances in the marketplace. We've heard from Mr. Morrison that these things are being developed through Access Copyright and through proprietary publisher licensing as well.

    In considering the extension of any exceptions for access, the government must as well consider our international obligations under our treaties, particularly the three-step tests set out in the TRIPS agreement, to which Canada is a signatory. As you are aware, under article 13 of TRIPS, “Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.”

    There was a case brought in the U.S. against its Fairness in Music Licensing Act, and the ruling created a large exception for small restaurants, small public establishments that used music; they were excepted from having to pay royalties for that. This had been found by a WTO panel to contravene all three of the fairness tests, so this is a provision that has some teeth.

    Notably, in its decision the WTO panel interpreted one of these three tests, that of no conflict with normal exploitation, to say that activities permitted under an exception should not enter into economic competition with the works, because all forms of exploiting the work that have or are likely to acquire considerable economic or practical importance--and I would suggest that would be digital delivery--must be reserved for the authors.

¿  (0940)  

    I think we have to bear this international ruling in mind, and we must, we're obliged, to bear the three-step test in mind whenever we are formulating exceptions.

    The Chair: Ms. Westcott, are you almost finished?

    Ms. Grace Westcott: I am finished.

    The Chair: Thank you very much. I'm getting nervous, looking at the clock, that we're going to run out of time with the bells ringing.

    Next, from the Writers' Union of Canada, Susan Crean, co-chair of the electronic rights copyright committee.

    Ms. Crean.

    Ms. Susan Crean (Co-Chair of the Electronic Rights Copyright Committee, Writers' Union of Canada): Thank you very much.

    I'm a writer myself--I like to think of myself as a full-time writer. But then that doesn't include days like this, although--hold your breath--I may write about it.

    I am here representing 1,700 writers of books in the English language, and I'm here to talk about human rights. I'm here to talk in particular about article 27, paragraph (2), of the UN Declaration of Human Rights, and I ask that you keep that article in mind as you deliberate these issues.

    I'd like to talk primarily about exemptions, and I'd like to start with the one that's on the table today. First of all, I think it's important for me to acknowledge what this process has been over the past 20 or 30 years of copyright reform for individual creators in Canada. That is, it has been a systematic and cumulative dismantling and degradation of our rights.

    Most recently, we've seen this in the very upsetting trend to dealing with any access problems with an exemption. We were promised that there would be a proper review of the changes that came into the act the last time around, and in particular we had hoped that these exemptions and their impact on our communities would be looked at. This wasn't done. But we are here to tell you that with the cooperation of the Department of Canadian Heritage, my community is beginning to do that work and we will be able to tell you more in another three or four months. So what I'm about to tell you is anecdotal.

    This exemption is a very good example of why you don't want exemptions. It's a bit like sticking your big toe in the water, and before you know it, you're up to the top of your head and drowning. This exemption for interlibrary loans, for distribution library to library digitally, now creates a situation where it makes all kinds of sense, it seems normal. I mean, why wouldn't we extend this a step further and make the librarians' lives a little easier and satisfy the patrons at the other end?

    But what looks to librarians and to the good people, including writers, by the way--we use libraries too--to be a quite simple and small thing looks very, very different from the point of view of individual creators--and I think you've heard a bit of that this morning. That is to say, what will happen if you extend this for the convenience of a few librarians and a few of their patrons--and we have to take it on Mr. Larivière's word that it happens irregularly, that huge numbers of copies of these texts are not being made--is that it is a de facto introduction of an electronic version of our work without permission and without even our knowledge.

    The act, in this case, if you were to agree with this change, would of course give permission, but because of what happens in the way exemptions are managed by people who have them under the act...and that's what I want you to think about, what I think you really have to think about if you want to believe that you are in the business of honouring the human rights of creators. Why don't exceptions work? As I said in the first place, you start down a road and you discover that it becomes very difficult to not extend it. What I'm suggesting here is that you have to understand what these extensions mean for different people.

    By having an exemption, you are using public policy as a way of expropriating material from individuals. We are told that the libraries are not in the business of stealing. I tend to believe that they're not, but I do believe they are in the business of expropriating.

    What happens is that as a piece of public policy, we are required, because of the importance of this, to give our work away free. In many instances, we are not against doing that. When these exemptions were brought in the last time, there was a licensing system that was up and almost running. For whatever reasons, your predecessors on this committee and the bureaucrats in the departments involved--primarily in Industry, it's my understanding--decided that our system was not adequate and wouldn't work, didn't believe it would work, and therefore went the route of exemptions.

    I'm here to ask you to roll those exemptions back and revert to a system of licensing. Why do I ask you to do that? Because when you make an exemption in the act, if I understand it properly, you're making an exemption for the economic rights involved. What happens to the moral rights? How can we find out what has happened to our material if we don't know who's using it or when it's being used? We are in the situation, as creators, of having a huge institution on the one hand, which is to say the education industry, demanding that the exemptions in their field be extended to the Internet for everything that's freely available there. When we, as creators, ask them, “How do you know anything is freely available on the Internet?”, they tell us to get a business plan, which means we become responsible for policing the Internet individually--which would probably be a full-time job, never mind the writing.

¿  (0945)  

    What about those moral rights? I will just quote one little example. It's a different exemption from the one here today, but there are exemptions that involve permitting other people to make creative works on top of my creative work, and I'm talking about talking books.

    When talking books are made by the CNIB, artists and creators are not told. We have no way of knowing if our moral rights have been protected in any way whatsoever. We don't know if our books are read by men and women. We do not know if exemptions are made. We do not know how our material is presented to the public. And when I asked the CNIB about this, they actually would not provide me with a copy. It's normal practice in the world, when you make a new edition of anything, that you provide the creators with copies. This is not being done.

    So there is a glibness that happens when you give an economic exemption. You are also giving away our moral rights. We have no way of finding out what is happening.

    Our interest in finding out what is happening is not always to stop it. In fact, I can't tell you of another group of people in this country that wants access to happen more than creators. We've been fighting for decades to get our material into the hands of the public of Canada, and into schools. So this is not about our stopping access. This is about our making access fair.

    That's my problem, that moral rights get trampled in this business, and we have no way of following what they are doing.

    Secondly, what happens with these kinds of exemptions is that you put our material into the hands of other people to look after instead of leaving it to us to do that. How patronizing is that?

    Why is it that we have to leave it to the libraries, which now have, because of the single-copy exemption, control over vast quantities of my work? And just to give you a symbolic example of the degree to which these exemptions are being made for other than the creators involved, it's this title--single-copy exemption. It is not a single-copy exemption except from the point of view of individual patrons. From my point of view, it's a 30-million-copy exemption, and that is so for every creator in Canada.

    Think twice about what you're doing. In our opinion, by giving that exemption to libraries--which was not necessary, given the licensing system--what you are doing, I believe, is in contravention of the Berne Convention. That is, there are now no publications being made of collections of ancient--which is to say more than a year old--copies of our periodical articles. This has a tremendous effect on individuals, like me, who are freelancers. We do not work for newspapers or magazines; we freelance our work.

    So there is no longer any market. The libraries hold this material. What have they done with this material to warrant this gift? Are they making my material and my colleagues' material available to the public in a better way than was being done before, when we published collections of our previous work? I don't know. I don't believe the libraries think that is part of their job. But as they have taken over the care of a good part of our work, I would say that maybe it should be their job.

    Which brings us back to what libraries are doing. Are they now publishers? Are they document delivery services? Exactly what are they?

    Writers do not like to be in a situation where they feel in opposition to libraries, and the reason is quite simple: we depend on them. We need libraries. Libraries are the storehouses of human knowledge. We, as creators, care about a vital and functional public domain, but we do not believe that we, as creators, should be the only people who are singled out by statute to be forced to give our work away free.

    More importantly--and this is the thing I will leave with you--when these exemptions have been introduced into our act, they have almost always been done on the basis of rank discrimination between and among creators and copyright owners. Why is it that the education system and now the libraries should demand our work free when all the other copyright owners--in software, the patent owners in the communications systems you use to distribute the materials--are not required, in the same fashion, to give their work away free to a worthy cause?

    More and more, we are hearing that the reason for this is that those institutions are public institutions and are not profit making. The assumption is that we should not be profit making either, and I'm here to tell you most creators aren't.

¿  (0950)  

    The fact remains that I think this is a very strange piece of public policy. If this institution and those various interests were demanding not only that creators give their work away free but also that software creators give their work away free, and that IBM and Microsoft.... But when was the last time that any sane person would suggest that the moment Bell Canada Enterprises walks in the door of a school or library, they should give away all their intellectual property? But more and more, that's what you're asking creators to do. This is extraordinary. You want to talk about balance; this is a gross imbalance.

    So I would like to ask you to rethink your policy of exemptions, to try to think down the road about who you're doing out of a market, and to please think about licensing. We have gone through tremendous expense and effort in the creator community to set that up so that access could happen. Don't confound us now.

    The Chair: Thank you very much.

    Next, the Canadian Association of Research Libraries, and Mr. Graham Hill, the university librarian of McMaster.

    Mr. Graham Hill (University Librarian, McMaster University; Canadian Association of Research Libraries): Thank you, Madam Chair.

    Madam Chair and committee members, I want to thank the committee for giving the Canadian Association of Research Libraries, CARL, the opportunity to address an issue that is at the heart of what we do.

    Our members—Canada's 27 major academic research libraries, plus the Library and Archives Canada, the Canada Institute for Scientific and Technical Information, CISTI, and the Library of Parliament—exist to facilitate research and the development of innovative solutions for the many challenges we face as a society. Critical to the success of that research effort is timely and efficient access to the vast amounts of organized, peer-reviewed, scholarly information that our libraries own and make available.

    No library can acquire a copy of all works that may be needed. Libraries, therefore, leverage the collections that they own by a system of interlibrary lending, which includes sending surrogate copies of journal articles to researchers who need access to them. Interlibrary loans have long been recognized as an important vehicle to facilitate research and teaching in the academic environment. Indeed, section 30.2 of the Copyright Act sanctions this legitimate practice by allowing libraries to make a copy of an article from a scholarly periodical, for use either by one of the library's own patrons or by a patron at another library. This is a very narrow, but very important, exception, and we do not seek to enlarge it.

    Nor has this practice ever been the subject of an inquiry by a rights holder. A survey conducted last year revealed that no library had ever been asked for a copy of the records that libraries are required to keep under the copyright regulations.

    However—and this is where the problem arises—subsection (5) of the same section, 30.2, goes on to state explicitly that “the copy given to the patron must not be in digital form”.

    Madam Chair and committee members, it is this ban, which was introduced as a stop-gap measure in 1996, that we urge you to drop. In the view of our association, the Copyright Act should provide a regime for intellectual property that is neutral with respect to the medium in which the work is published or copied, and the legitimate exceptions currently embodied in section 30.2 must now be translated into the digital environment. If there may once have been valid reasons for such a ban on the use of digital technology, there are none any longer.

    First of all, prohibiting the transmission of knowledge to the desktop of the user is out of touch with the way research is carried out in today's environment, where everyone seeks to make efficient use of new information and communication technologies.

    Secondly, it causes unnecessary delay for the researchers and additional expenditures of time and money for the libraries, as the latter must tend to the necessary administration, collation, and delivery involved in making a printed copy.

    Thirdly, it puts Canadian researchers at a disadvantage compared with their colleagues in the United Kingdom, the United States, and Australia, where legislation permits a library to transmit an electronic copy to the patron of another library.

    Fourthly, it ignores the larger lending context, in which sending surrogate copies of scholarly journal articles to other institutions, as my colleague Jules Larivière noted earlier, constitutes less than 3% of a library's total circulation.

    Fifth and finally, it ignores the fact that there is now proven software that prevents the recipient of material from forwarding it to others, or from making more than one copy. Secure document delivery is a modern technology, developed by CISTI and the British Library, that uses encryption software to send items securely to the user's desktop. Combined with other software, secure document delivery limits the patron to a one-time viewing or printing, with no saving or downloading of a document being possible. Last year, CARL helped to organize a demonstration of this new technology at the CISTI campus, which some of you may have attended.

    In conclusion, we urge the committee to recommend to the government that section 30.2 of the Copyright Act be amended to permit libraries equipped with the appropriate technological safeguards to provide a copy of an original journal article in any format for the purposes of research or private study. This amendment would maintain the spirit of the law while enabling researchers and libraries to function in a more timely and efficient fashion in today's digital world.

    Before closing, Madam Chair, we would like to add that the licensing approach being proposed as an alternative solution in the case of interlibrary loans, and more generally as a solution to all free access issues identified in the status report, should be rejected. The licensing model would hobble the central goal of copyright, which is to maintain a rigorous balance between the rights of the copyright owner, who is seldom the creator in the case of the academic journal article, and the interests of the user.

¿  (0955)  

    As the Minister of Industry wrote in his letter to this committee in November of last year: “...the Copyright Act has two overriding objectives: recognizing and providing adequate protections for Canada's creative community, on the one hand, and enhancing access to a wide variety of copyright content, on the other”.

    This view was echoed by the Supreme Court of Canada in its decision last month allowing an appeal by the Law Society of Upper Canada, wherein the court moved away from its earlier view that copyright law existed solely for the benefits of rights holders and spoke openly of users' rights and the need to achieve a balance between the interests of both rights holders and users for the good of society as a whole.

    You have heard of different licensing models during the last two weeks, but we are here today to tell you—as I believe our library colleagues did yesterday—that the basic licensing approach, regardless of the variants proposed by one group or another, is inappropriate with respect to interlibrary loan activity, for the following reasons:

    First, it presumes that there are essentially only two groups of opposing stakeholders, producers and consumers, who find themselves in a marketplace situation, whereas in fact there are a wide variety of not-for-profit groups, such as Canada's research libraries, which have just as important a stake in the future of the Copyright Act.

    Second, it diminishes the role of government to that of sanctioning the transactions or contracts between essentially two private parties, whereas in fact that government has a stewardship role to play, actively looking out for the long-term interests of many third parties, some of whom are not easily represented by one voice that could be invited to a negotiating table.

    Thank you, Madam Chair and committee members, for your attention.

    The Chair: Thank you very much.

    Now last, but not least, Hélène Messier,

[Translation]

Executive Director, Quebec Reproduction Rights Collective Administration Society.

    Ms. Hélène Messier (Executive Director, Quebec Reproduction Rights Collective Administration Society):

    Thank you for your invitation, Madam Chair.

[English]

    I know that the clock is ticking, so I will speak quickly.

[Translation]

    As Ms. Bulte said, I represent the Quebec Reproduction Rights Collective Administration Society, better known as COPIBEC, which represents over 15,000 authors and 700 publishers in Quebec. Its members include associations of journalists, writers, visual artists and publishers of books, newspapers and periodicals.

    This week you have heard from quite a few representatives of various organizations regarding issues related to access to works for educational purposes, technology-assisted learning, or, again this morning, the dissemination of copyrighted material to library users. It will be your job to decide between what often seem to be irreconcilable positions which are put forward as such by Industry Canada and Canadian Heritage.

    What if the solution were much simpler than it seems?

    The Copyright Act has two objectives, as has often been mentioned: to promote creative activity and to allow access to copyrighted material. The act must be interpreted as a whole and constitute a consistent whole. The balance must therefore be found in the entire act when it is read as a whole.

    Throughout the various reforms to the act, Parliament has produced a fairly balanced piece of legislation. One conclusion that has been drawn in recent years has been to consider collective management as a way of promoting this balance.

    Does collective management not encourage creation by making it possible to pay creators and other rights holders fair compensation, without which they would not be able to do their creative work? Does it not enable users to have access to works according to the conditions negotiated by the parties? In its wisdom, the Canadian Parliament even gave the Copyright Board the role of arbitrator should any disputes arise.

    That is why any non-essential exemption given to users is a violation not only of the Berne Convention and the WIPO Treaty, as Ms. Westcott mentioned, but also calls into question the whole concept of balance, which was so important to Parliament.

    After all, what is an exemption? An exemption expropriates the work of creators and deprives them of the compensation they require to create new works. Granting an exemption means agreeing to deprive ourselves collectively of a dynamic, diversified Canadian culture.

    Is there such an imbalance in the act that using exceptions—and this was supposed to be a last resort—to foster free access to works can be justified? I do not think so. And I even think that if there is an imbalance at the moment, it works against creative activity, because all new technologies—the photocopier a few years ago and computers now—encourage the mass reproduction of works and their distribution. This makes it more difficult, if not almost impossible, for individual creators to control the use of their works and to be paid fair compensation.

    The most recent Supreme Court judgment on copyright—and it has been discussed a great deal—exacerbated this imbalance, by allowing a generous interpretation of exceptions for users, and by making simple exceptions into rights for users, rights that are to be incorporated broadly and liberally. This is a reversal of the rule of interpretation which has been taught to all lawyers in Canada for decades and which held, until last March, that exceptions in common law should be interpreted restrictively.

    Canadian parliamentarians must therefore remember that any new exception will henceforth be interpreted in the light of this judgment. Consequently, if there is currently an imbalance in the area of copyright, it is working against the creators.

    The status report contrasts the principles of collective management with the exceptions requested by users, or sometimes not at all requested by users, as in the case of extending the concept of fair use for educational purposes, even though the representative from the Council of Ministers of Education of Canada reminded us this week that this was not the type of exception sought by the educational community.

    Given this, we might well wonder why Industry Canada made a proposal that does not reflect the demands of any stakeholder? Perhaps because Industry Canada still holds the attitude whereby balance lies only in exceptions, which completely take away creators' rights, and that any other proposal is seen as favouring creators. In my opinion, there are concepts, such as collective management, which favour both parties, because there is something in it for both.

    Through collective management, creators and other rights holders abdicate their sovereignty and their ability to control individually the use of their works and establish a single window and standardized rates and conditions of use to facilitate the legal, respectful access by users to creative works.

À  (1000)  

    How about if we put an end to the turf war between the departments and get back to the best way of meeting the objectives of promoting both the creation of Canadian works and access to these works, which is the raison d'être of the Copyright Act.

    In the case before us, namely inter library loans, what are people asking for? They are asking for the creation of a new exception. As we explained earlier, exceptions are the worst violation of the principle of creation, because creators are making available free of charge to users the results of their work.

    In order for Parliament to choose this route, the situation must justify it. There must be a serious problem with access to works that only an exception could correct. Is there an access problem? No. As Mr. Larivière said himself earlier, there is no problem with ILLs. Libraries can already transmit a copy of copyrighted material to a library user. I myself used an ILL this session for university research, in order to obtain some documents I needed. I received paper copies, and this did not cause me any problem what so ever.

    What would the exception requested by libraries add? It would add the ability to disseminate copyrighted works electronically so that users could turn on their computer and find a digital copy of the article they want to use. Is there a justification for using such a radical solution as an exception to meet a convenience requirement of users, particularly given that solutions already exist?

    In the library, archives, museum and educational context, the fact that collective management societies work has been broadly demonstrated in the past. Indeed, management societies such as COPIBEC and Access Copyright, in the area of reproduction rights in particular, have entered into a number of agreements with various libraries, museums, archives and educational institutions, which meet users' needs perfectly, while respecting the rights of creators.

    This type of agreement could definitely be applied in the area of new media, and make it possible, through payment of adequate compensation, for users to access works available in digital format. Of course, this would involve negotiations and the payment of compensation.

    We would also point out that the Copyright Board could always intervene in the case of disputes between the parties. Creators should not be dispossessed of their ownership rights to their creations simply to avoid users' having to pay for a resource they need. This is particularly true when the measure is designed specifically to increase convenience for user's, and does not have to do with an essential need.

    Moreover, this exception deprives publishers and authors from developing a market that could provide them with significant revenue sources. For what? For whom? For users who do not want to walk as far as the fax machine to get a copy of an article or who do not want to take the time to go to the library.

    Librarians have suggested attaching conditions to the exception requested such as the destruction of intermediate copies, the use of reasonable technical means to prevent the unauthorized reproduction of the digital copy given to the user, and so on.

    Although Mr. Larivière told us that ASTED was not in favour of that because it felt the cost should be assumed instead, if this were imposed on users, Mr. Hill, for his part, seemed to say that he was prepared to use technical means to prevent unauthorized use.

    However, will all libraries be able to afford to introduce these measures, given that they often lack the staff and resources they require to buy enough books to meet their needs? Will these reasonable technical measures be appropriate? We know that no technical protection measure is infallible. An apparently simple exception will turn out to be a nightmare for librarians to apply, and the risks of failure will be borne by authors and publishers, because they alone will suffer the harm caused by inadequate protection measures.

    For all these reasons, and as you can see, they are numerous, we are opposed to the exceptions requested by users, particularly libraries, to promote access to works. We think this is an exorbitant step, given that there are procedures, such as collective management, which have already proven their worth.

    We are also calling on Parliament, in the light of the recent Supreme Court judgment which supported a very broad interpretation of the concept of fair use, particularly as regards research and private study, to clarify this concept so that any research done for commercial purposes is excluded from the fair use concept. This in fact is the direction taken by the government of Great Britain, which has just amended its copyright legislation to restrict the definition of research to that done for non-commercial purposes.

À  (1005)  

    We think this amendment would restore to the act some of the balance it has lost in recent years.

    Thank you very much.

[English]

    The Chair: We will now begin our questioning.

    Madame Gagnon.

[Translation]

    Ms. Christiane Gagnon (Québec, BQ): In your remarks this morning, Ms. Crean, I heard a cry from the heart of a creator. I too have heard about the court ruling, and as a consumer of creative works, I was somewhat shocked to see that we are being taken further and further away from the concept of the creator.

    What sort of impact have creators had on our society? I think this sends out the wrong message to people. Now, people think that works are free of charge, that they can download compact discs from the Internet, that there is no charge with on-line downloading, and the same applies to written works. As a consumer and as a person who respects creative activity, I am always happy to get things free, but we must also have some thought for the people who create the works. And we are told that our creative artists live below the poverty line.

    There is also the marketing of a work, which is extremely expensive. The same is true in the area of film. Right now, we need to look at giving proper compensation to someone who has produced a work, a document or a film. In our reflections over the several days of hearing witnesses, I think we will have to deal with a philosophical issue and decide what position we are going to take.

    This morning, some of the representatives from libraries we heard from seem to say it was easy to have all this control over the use of works. Earlier, Mr. Hill told us that there are new technologies that protect the use of works and that we can limit the consultation and printing of these works. However, this does not seem to be so clear to other individuals, such as Ms. Messier, Ms. Westcott, Ms. Crean and Mr. Morrison.

    I would like you to give us a few more details. Clearly, the objective we are seeking is compensation for the use of works, so that authors, and those who promote and publish their works, can earn a living. So I would like to hear more from you about protection, because you seem to be saying that it is easy to provide protection, that it is easy to restrict the use of works. However, I am not convinced of this at all. Other witnesses have said the opposite. 

À  (1010)  

[English]

    The Chair: Mr. Morrison, please.

    Mr. Stuart Morrison: I would like to take issue with one of the statements that Mr. Hill made, which I think gets to the crux of the matter. He said, “We own those books”. But we own the copyright, and we're protecting our authors' interests. It is not for Mr. Hill to divest that interest, send it hither and thither, because if he does, he undermines us and he undermines the author.

    Let me give you an illustration of where all this is going. When we publish books and sell them to a community such as the law library community in Ontario, it's 43 libraries, I believe. If each book is costing $10, that's $430. It's distributed between publisher and author. When we license the product, we ensure that licensing is strict for those 43. If Mr. Hill and others along those lines get their way for interlibrary loan by digital means, we place one book, and everything else is available. We get our $10. And we just can't survive on that. This model that is being proposed completely undermines the structure of publishing in Canada. It destroys the industry.

    The other point Mr. Hill made, which I will refute right now, was that he didn't know any libraries that had received requests for information as to what was photocopied. Well, we've made requests and got absolutely nowhere. We publish hundreds of products, and we have hundreds of libraries to deal with. When we try to find out who is stealing our information and we go to a library, we are told, “We need to know exactly the product you're looking for, and you have to make the request in person”. So we have to go to Saskatchewan to find out what is happening in Saskatchewan; we have to go to Manitoba.

    Secure document delivery, according to Mr. Hill, is all wrapped up, everything's fine, no problems at all. Just press a button and our rights are protected. It's rubbish, it isn't true. If it were, we would have invested the money ourselves. We are desperate to protect our financial interests, we are desperate to protect the technology. We have invested $5.5 million in developing digital product, and can we protect it? No. If you go this route, it's washed out.

À  (1015)  

    The Chair: Mr. Hill wants to comment, and then Ms. Crean.

    I would ask you to make your answers short; otherwise, we'll run out of questions. Each questioner only has eight minutes.

    Mr. Hill.

    Mr. Graham Hill: I would like to point out to the committee that what we are talking about is the very narrow exception contained in section 30.2, which is very specific. This applies to scientific, scholarly, and technical periodicals. It specifically does not apply to a work of fiction or poetry or a dramatic or musical work, and it does not apply to books. We are talking about the academic journal market, which is a key part of the research of this country. Our member libraries spend in excess of $200 million a year licensing and acquiring print and digital scientific and scholarly publications. The interlibrary loan exception allows us, as I noted earlier, less than 3% to supply needed research material promptly and efficiently. The secure document delivery technology, which we will be happy to provide further information on to the committee, is simply a means to get past the prohibition on delivering copies to the desktop digitally and the requirement that these be in paper form.

    The Chair: Ms. Crean.

    Ms. Susan Crean: On the business of applying to libraries for information, we try very hard to have information kept by libraries that would be of use to us, as creators, in finding out about things like rights. We're unable to do that, so to a large extent, the information isn't of use to us.

    In response to Madame Gagnon's question about how this looks, it does seem we have created systems where large important institutions such as schools and libraries, the repositories of culture, one would have thought, have an attitude towards creativity that is less than generous and less than respectful. I sat last week, as it happens, with a group of people concerned about arts in education. They have a big problem with the education institutions, which are sending two messages. On the one hand, they're saying art is important and we should study it, and on the other hand, they're saying creativity is not important enough for us to pay for.

    I would like to emphasize here that this is not a bid for us creators to have anything other than an orderly system of licensing. This isn't about us becoming gougers or us trying to hold everybody up at the pass. We're not out there at the Toronto and Vancouver airports with uniforms on, taking money from the travelling public--talking about the fees for improving airports. Creators are not doing that at schools. We're about making this access possible.

    Obviously, we have people in the library system who will never like any licensing system. It's much easier not to have a licensing system. But what I want to impress upon you comes back to the comment about how we send a message that tells people we value this material. Do it by licensing, because that is the one and only way in which the public and creators have a way of negotiating with each other that is fair to both. And we have the Copyright Board to insist that it is so.

    I want to add one more little thing.

    The Chair: Very quickly, Ms. Crean, because we're really running out of time.

    Ms. Susan Crean: If these people are making a demand for an exemption, we have to have a good rationale as to why we should do it, other than convenience.

    The Chair: Monsieur Larivière, and then, very quickly, Ms. Westcott.

[Translation]

    Mr. Jules Larivière: I would like to make a number of points in response to what has been said. First of all, I would like to clarify that libraries do not want to get everything free of charge. Libraries have always purchased their material and their books and they've always paid for their subscriptions; we are not talking about getting everything free of charge.

    Second, it must be understood that libraries are not in business. They do not sell documentary information. Libraries provide their users with documentary information that they have purchased and, sometimes, they provide documentary information to another library that does not have it, for all sorts of reasons. For example, libraries do not subscribe to a periodical if they know that no one will use it. However, at some point, it could happen that a user may need it, and then, the library would subscribe to it.

    Third, interlibrary loans have always existed. Personally, I have a bit of a problem this morning. I understood we were talking about ILLs in an electronic context, but it seems that ILLs are being called into question as an exception to the act. If we are calling into question the entire act, we will draft another brief, because that is a different matter. Interlibrary loans have always existed. I made that point; they are as old as libraries themselves. This practice exists in other countries as well.

    I'm trying to understand why, in the technological area, there's literally an attempt—and I am sorry to use this word—to frighten people by saying that ultimately, with the new technology, Canada Law Book or Carswell will go bankrupt. I do not think that is going to happen.

    Once again, we are not talking about taking a CD, sending it to another library and saying that this library can do whatever it likes with it. We're talking about an article or, in the case of Canada Law Book, a court decision that is loaned to another library for a very specific purpose.

    So I think that we should not be overdramatizing this situation. We are not in a situation—and I repeat this again because it is important—similar to MP3 or Napster. We are in a very specific context. I think this must be clearly understood. People seem to be saying that absolutely horrific things will be happening. Libraries are not against creators.

    I would just like to mention in passing that if creators are having difficulty making a living—and that is something we can understand very well—this is not necessarily because of libraries. Perhaps the percentages given by publishers to creators are not as high as they should be.

À  (1020)  

[English]

    The Chair: Ms. Westcott.

    Ms. Grace Westcott: To correct the record, while scholarly, scientific, and technical periodicals are a centrepiece of the interlibrary loan provision, it is much broader than that, going to printed matter for patron fair dealing, which makes it quite enormous.

    The Chair: Mr. Bonwick.

    Hon. Paul Bonwick (Simcoe—Grey, Lib.): Thanks to all the witnesses.

    I think Mr. Larivière has summed it up. Nobody here is, I hope, opposed to creators or authors. It's, as Ms. Gagnon said, almost a philosophical question. It's about how society values creators. It's really coming down to one thing: it's money. That's what the argument seems to be about. It's not about access; it's about how much money.

    You or some of your colleagues would propose that a certain amount of this should be free. As I said yesterday, I'm curious: do you approach the electrical company with the same sense? Do you approach the guy who repairs your roof with the same sense?

    Mr. Hill, you made mention of $200 million—I think that was the number I wrote down—spent attaining the things the copyright protected. The number doesn't mean much to us unless you present to us how much you actually spend. I'd be curious as to how much you spend on building repair. I'd be curious about how much you spend on buying computers, how much you spend on purchasing software from Microsoft. You have to put it in context for us to give us some sort of appreciation of what your $200 million means in respect to—what is it, a $3-billion budget, a $5-billion budget? We don't know. This doesn't give us a sense of how much you value....

    My concern for the authors is simply that we keep comparing it with the paper industry of yesterday. I don't know that we're recognizing what it's going to be five years from now.

    You are providing what your customers are asking for, Mr. Morrison. Based on your knowledge and the history of the printing business, where is it going to be five years from now? I suspect, as I said yesterday, the creators should be very nervous, because I suspect there will be far fewer paper and far more digital copies being provided. If we do not get the proper protections in place, then you and hundreds like you, and even more importantly the creators, are going to be in deep trouble.

    I'm interested in what your opinions are. Where do you see this going five years from now, from a digitized perspective? I throw that first question out to you.

    The Chair: Mr. Morrison and Mr. Hill.

    Mr. Stuart Morrison: It appears to us we're moving towards an integration of a variety of different forms of data, which we currently have packaged. We are struggling against multinationals and trying to survive as a Canadian company meeting Canadian needs. But we are looking at developing a system whereby you really pay “by the drink”. It's not a model we embrace, but it requires us to develop some products where you only pay for what you want when you want it. In that case we require very strict licensing, because if there is no licensing, the product is gone.

À  (1025)  

    Hon. Paul Bonwick: Mr. Hill, could you respond as well?

    You also made reference to one of the recent court decisions. People have been selectively grabbing things out of it over the course of the last couple of weeks. Let's keep in mind what the true thrust of the decision was. The justice stated that it was really as a result of a lack of copyright protection that Parliament had granted. That was the thrust. They said Parliament didn't get it right, and so based on what is in place right now, this has to be the court's decision.

    If Parliament had got it right, the decision would have been very different. The courts interpret and uphold the law. We're the ones who make it.

    Mr. Graham Hill: Let me respond to the three issues you've raised, Mr. Bonwick. In terms of context, the $200-million figure I used is the approximate expenditure of our 27 member libraries on scholarly journals. We spend an additional $50 million on scholarly books and monographs. Our total enterprise, if my memory serves, is probably half a billion dollars. In my library, I know from certain fact that 50% of our funding goes to the acquisition of material and 50% goes to services, staffing, and infrastructure support.

    In the future you raised—the potential digital future we're now all wrestling with—the problem of the research libraries is that we have acquired over many years a vast amount of printed paper material that will never be economically digitized. To some extent, interloan is sending copies of these older things as well as more recent things in cases where the other library doesn't have a copy.

    I think it is the storehouse of knowledge of Canada that Canada's research libraries contain that is the whole purpose of our collections. If we don't have users, if we don't have current, efficient use, we become a museum. And we are not museums.

    Of course down the road, yes, we do. A big part of the quarter of a billion dollars we spend collectively annually is now for electronic licensing of materials. These are generally and largely now done on a pan-Canadian basis, or at least on a provincial basis, and they're negotiated with publishers consortially. Every library has more and more of the current digital material available directly through licensing already.

    With regard to the Supreme Court decision with respect to the Law Society of Upper Canada, I certainly recognize it is the right of legislators to make legislation. It's my understanding that what we are discussing this morning is this very narrow exception to assist the research libraries to get material that is needed by Canada's researchers to them as efficiently and effectively as possible. It's a very small part of our business.

    Hon. Paul Bonwick: Mr. Hill, let's pretend we're all idealists for a moment, and that you had the appropriate amount of resources necessary; that whichever level of government provides the appropriate level of funding, money wasn't an issue. Would we be having this debate or discussion?

    Mr. Graham Hill: We probably would, because the digitization of knowledge in the scholarly realm is differential by discipline. Science, technology, and medicine typically are leaders in digital information. The humanistic disciplines, the arts and social sciences, are less digital. A lot of their material is still in paper format, and a lot of that material is no longer available to purchase.

    Hon. Paul Bonwick: Mr. Hill, I'm still not convinced you are looking toward the future as opposed to looking toward the past. I'm not naive enough to think we are going to digitize all the writings of the last ten centuries. What I'm concerned about is the next ten. I suspect their product is going to be massively, disproportionately digitized as opposed to bound paper copies.

    My concern is making sure we have the system right, making sure that as we move into this digitized era more and more aggressively, creators are being remunerated. I'm not convinced you're able to do that with these kinds of exceptions in the digitized era.

À  (1030)  

    Mr. Graham Hill: I think the problem, Mr. Bonwick, that I have made clear is the specific nature of the research libraries and the academic writing. We are not talking about creative writers. Typically the researcher or faculty member who publishes a paper gives that copyright away. The creator does not get economic compensation. It's a different reward system.

    Hon. Paul Bonwick: I'm not referring to fictional writers myself. I'm using “creator” in a fairly broad sense. Whether somebody is writing a position on a particular legal case, or somebody is writing on a particular issue in medicine, I still consider them to be creators, in a sense.

    The Chair: We have one minute left. I saw that Ms. Crean and Mr. Larivière had their hands up.

    Ms. Crean.

    I'm sorry to interrupt. It's just that we're going to run out of time.

    Ms. Susan Crean: I simply wanted to point out that things are not as neat and well-defined as Mr. Hill would like. There are many people who are not academics, who are researchers, who are scholars--myself included--who write books that have a great deal of academic work to them, and who occasionally contribute work, usually on the basis of being asked to, to scholarly journals.

    I do from time to time, but I'm always up against a situation--because of the economics you were talking about--where academics, because of the way they've behaved for years on end, have ruined the economy of scholarly journals as a publishing event. It now becomes a totally subsidized event.

    The moment I publish something in, say, the Journal of Canadian Studies, my material can be copied the next day, presumably under some of these changes. There are very often people who are outside the academic system, whose work is used by people who are doing academic studies--particularly if it's in the arts--so a good deal of my material, and that of many other people like me, wanders into that world, and those different rules are imposed upon us.

    The Chair: Mr. Larivière, very quickly.

    Mr. Jules Larivière: As far as the future is concerned, I think it's obvious that there's going to be more and more digitized material, and there's going to be more and more licensing in libraries. The way that the creators or the rights holders will be paid is that the licences will be...if it's on a university campus, they're going to say there are 25,000 students who are possibly users of that material, and that's how the price is going to be settled.

    But to get back to the interlibrary loan issue, there are still going to be odd cases where a library will need some of the material that we own, and it's those cases we're talking about. I think in research libraries it's obvious that most of the current material will be in digitized form, but there are going to be licences for it.

    The Chair: Thank you very much.

    I'm going to go to Ms. Lill, because you had stepped out of the room. Then I'll go to Mr. Harvard.

    Ms. Lill.

    Ms. Wendy Lill (Dartmouth, NDP): We've been listening to some very interesting positions today, but I keep coming back to a refrain that is central to us here. How is it that we are going to be able to sustain creativity, and we're going to have people creating and people publishing five years down the line? Obviously, it's a huge crisis at the present time.

    I hear Mr. Morrison of the Canada Law Book talk about the issue of a Canadian publishing company. That's what you are. You are coming up against multinational publishers.

    We heard yesterday about the impact of the system of licensing in the United States, which has in fact shrunk the number of producers incredibly so that there are now far fewer people in the market. So we are not in the business of reducing knowledge and reducing authors and creators. That is just everything this committee is against and that any kind of cultural policy should be against.

    I hear from someone such as you, as a publisher of law books, I hear from Ms. Crean and people who are in fact representing thousands of writers, and they are saying, we do not want to have our creations appropriated, and that's how it looks. It's straightforward. I hear from Mr. Larivière that in fact it's a very straightforward issue--researchers only get one article and there's really nothing much to that. It's not any kind of massive assault on copyright.

    Why can we not then just go to the licensing? Would that not make it easier for these people who want this one copy? Why not put in place a licensing form that is in fact improved?

    Everyone has talked about some of the problems that exist with access copy, or with blanket licensing. Extended licensing is a possibility. We've heard from Ms. Hebb on that. We in fact have a system that everybody buys into--you included, and you included too, Mr. Hill. You talk about the massive amounts of money that you put into access copy. Why not just extend that? Why not extend it, given what you hear from all of the people who create in this country and the people in the public? It just seems to be the way to go.

À  (1035)  

[Translation]

    The Chair: Mr. Larivière.

    Mr. Jules Larivière: I think that here again it is important to understand that if the intent is to call into question the principle of exemptions in the Copyright Act, that is quite a different matter. Of course, the easy solution is to say that all the exemptions will be removed and that everything will be negotiated between those who supply documents. That is the easy solution. However, there have been debates forever on exemptions, and they were finally included. That is my first point.

    The second—and this is the most important point—is that we are part of an international context as regards research. These exemptions exist in other countries such as the United States, Great Britain and Australia. The electronic transmission of documents for ILL purposes does exist. That means that Canadian researchers would be at somewhat of a disadvantage, because in Canada everything must be licensed.

    Finally, we must not forget that libraries are not in business. Libraries do not sell membership cards. Libraries have no other source of revenue except what is given to them, and at some point, budgets being what they are, there is a danger that creators and suppliers will have to pay, because libraries will no longer have the money they need to sign all the licences that have to be signed.

    So our view is that for the number of cases where this exists,—and I repeat, without creating any economic problems, exemptions for rights holders must remain in place.

[English]

    The Chair: Mr. Morrison and Madame Messier.

    Mr. Stuart Morrison: I'm going to keep emphasizing that it's not about the libraries. It's not about the library budgets. It's about the copyright holders. It's about the authors. It's as straightforward as that.

    As we move to the future, as I mentioned to Mr. Bonwick, it looks as though it's going to be “pay by the drink”. If it's pay by the drink, it's licensing. Because as it stands now, if one of these researchers wants one of our scholarly journals, they can contact us. They don't need to go to the library. If it's digital, they can go to the rights holder. The rights holder can either release it or not.

    I want to keep emphasizing that it isn't about the library budget and the convenience of librarians and an elite group of researchers. The Supreme Court of Canada has designated virtually everyone as a researcher. We're talking about millions of users.

    Canadian companies need protection to the extent that they're looking after their authors. If you allow digital rights to be expanded to the point that libraries can send our product to anyone, how do we sell product other than to one person? Why would it be Canadian? Why wouldn't we go to the Library of Congress?

[Translation]

    The Chair: Ms. Messier.

    Ms. Hélène Messier: Mr. Larivière says that this is a problem in the international context, that this provision does not exist in other countries. But is research in Canada less good because Canadian researchers have access to works on paper rather than digitally?

    Mr. Morrison said that Canadian researchers can have access to digital format if they contact publishers directly who offer digital format. Where is the problem? We're talking about access to works. The works are accessible. So there is no problem of access here.

À  (1040)  

[English]

    The Chair: Ms. Lill, do you have another question?

    Mr. Larivière has another response.

    Mr. Jules Larivière: I want to say one thing. When Mr. Morrison talks about “pay by the drink”, for the law publisher that's probably going to work, because there's a lot of money in the legal community. Elsewhere, in paying by the drink, it might be more difficult.

[Translation]

    To come back to what Ms. Messier was saying, I would like to mention that I have worked in university libraries for a very long time. The fact is that professors and researchers used to tell me daily that it was really quite incredible that they had to go to the library to get a paper copy of their document.

    That does not bother you, but I can tell you at the University of Ottawa, many professors are bothered by this. They tell us they have the equipment in their office and they ask us to send the document to their computer. We must also understand as well that nowadays researchers travel a great deal. They are often outside the country, even to do their research, and they call us to get a particular item. This is something we must bear in mind as well. This is all part of the service provided by libraries.

[English]

    The Chair: Ms. Crean, very quickly.

    Ms. Susan Crean: I want to say, once again, that I think I could begin to have a conversation with you about some of these issues if, again, you weren't singling out a certain kind of copyright material for exemption. I would like to remind you of that. Why is it, when we're talking about this, we're constantly talking about a very narrow kind of material?

    At the same time, I would like to ask you to think twice about what we're being told here. This is all supposed to help the researcher. I'm also a researcher. There are also a lot of other researchers like me. We have to pay a lot of money to get into many of these libraries. They are not that free if you're talking about research libraries. It costs me $40 as an alumni to get access to the U of T library. If I want to have a hold, it costs me $80. So we, as freelancers, are paying the freight both ways.

    The Chair: Ms. Lill, very quickly.

    Ms. Wendy Lill: If you add the amount of money you have to pay to get into Statistics Canada's sites, and so on, research is expensive. As a periodical writer, you maybe dedicate two weeks or a month to writing a paper. I want to follow the money here. How does it work?

    In fact, you do the work and you get paid something, I hope. Then, the next day, it's out there and that's the end of it. In the past, you would publish something, it would begin to move through the system, and you would continue to accumulate moneys from it. It seems to me to be the elimination of income, as we know it, for people in the publishing industry.

    Ms. Susan Crean: The bottom has simply fallen out of the market for any secondary use for periodical articles because of this $30-million copy exemption. That's true.

    Very often, as creators, we are facing double standards. When I write a book about the arts, for instance, I have to clear the rights; I cleared the rights with the owners of the Emily Carr material, who were long gone, etc. Then when I go to public institutions such as art galleries, I have to pay money to reproduce works that are in the public domain.

    The Chair: Very quickly, Mr. Larivière, then Mr. Harvard, and Mr. Lincoln.

[Translation]

    Mr. Jules Larivière: I just wanted to point out that when you say that in the past when a book was published, the author received some money every time a copy of the book was sold and that now, with electronic copying, that would no longer happen. It actually can happen. It is a matter to be negotiated between the creator and the publisher. There must be some control on the part of the publisher over the documents that are loaned. Once again, we're talking here about inter-library loans, not about loans in general.

[English]

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

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

    Believe me, when they say it's not about the money, it's about the money. I didn't author that originally, but it's true and I think it's worth reiteration.

    Mr. Hill, towards the end of your written presentation, you referred to Canada's research libraries as being not-for-profit groups. I'm not challenging that, but I think it reveals a lot about your position or your case. It seems to me you're coming to this committee to plead for privilege because of your status. You're a not-for-profit group. I know you do good work, but I'm not too sure whether we should be providing you with an exemption only because you're a good guy or a not-for-profit group. I don't understand why you should be going to the creators in this country to get a special break. Do you go to Ontario Hydro for a break? Do you go to the heating company for a break? For the people who come around to do your cleaning or your lawns, do you tell them you're a research library and ask for a break or 10% to 20% off?

    It seems to me, when it comes to the creators, you want an exemption, and I'm not prepared to give it to you. I don't know what the government will ultimately say, but I'm not prepared.

    To me, Mr. Hill, and I can say the same thing to Mr. Larivière, the licensing system is like orderly marketing, whereby consumer and producer can come together to establish some kind of fair pricing that is satisfactory to all. Inherent in some of the answers is the concern that if there are no exemptions and creators are going to be paid for everything they do, they're going to begin to charge very high rates. I don't think the creators are that stupid. Are they going to price themselves out of the market?

    They'll understand your wherewithal, Mr. Hill, your means of payment. If they go too far, I gather you won't be able to buy their material, but the law of the marketplace of supply and demand will not evaporate, it will not disappear.

    There is another thing, Mr. Hill. I'm not trying to pick on you, but I thought perhaps Mr. Morrison or someone else would have answered this. When it comes to material that would be distributed between one library and another, you're really talking about a narrow band of material--technical, professional, and intellectual stuff. If it's that narrow, why are you all so concerned? If perhaps it was every possible book ever written and that drove up your prices, I could understand your concern. On the one hand, you say it's narrow, but you're still very worried. Which is it? Is it narrow or, again, is it all about the money?

À  (1045)  

    Mr. Graham Hill: In response, Mr. Harvard, I'll answer your last question first. It is narrow and it is about money.

    Perhaps I might explain that what we are talking about and what concerns the research libraries is that the creators of the journal articles are academics who are on salary, or they're researchers who get their income other than from publishing. They publish for recognition. And if the committee would grant me indulgence, I'd like to give you a metaphor of the way I think about academic publishing.

    My mind goes back to the power blackout last year, and I need a candle so I go to a candle vendor. Now, the candle vendor is a very smart candle vendor, because the candle vendor has gone to all the artisans and candle-makers and said to them, “Have I got a deal for you. You make beautiful candles. We'll make your reputation. Give us your candles and we'll sell them”. And the candle-maker is the academic journal publisher.

    So I go into the shop and I say, “I need one of your candles to see my way”, and he says, “Fine, that's five dollars”. I say, “Fine, if that's the price, we have to pay”. And that is one difference. The academic journal publishers are an effective monopoly. If I don't like my cleaning lady's services, I can find another cleaning lady.

    If I want a specific journal, I have a sole-source supplier. So he says, “It's five dollars, no, perhaps it's ten dollars because we're in the middle of a blackout”. And I say, “Fine”. Now, I happen to be one of those benighted people who still smoke, so I can light my candle. But on the way out I pass, coming in, my colleague from, say, Manitoba or Dalhousie, who wants to buy the candle, and I say, “Light your candle from mine. It doesn't diminish my candle”. And the candle-maker says, “No, I want to charge you two dollars to light your candle”. And that's the way I see the nature of interloan.

    On interloan, everybody, all our member libraries buy the journals. We cannot buy everything. We're talking about a very narrow but important thing. Each interloan transaction among our research libraries costs us approximately $40 in staff time. We would not engage in that if we could acquire the material directly, if the need were there.

    So in a way, yes, it is about the money, I think you're perfectly right, Mr. Harvard, but it is also very narrow. If we bought the candle, charging them to light it, to my mind, is not in the public interest. Air is free and water is free and so should fire be.

À  (1050)  

    Hon. John Harvard: I guess we have to make sure that we outlaw blackouts.

    Mr. Morrison, do you want to answer that?

    Mr. Stuart Morrison: I will do it.

    Well, don't burn the books is what I'd start off with. As far as scholarly and academic is concerned, the suggestion has been that we don't publish scholarly and academic material, but I'm the publisher of Jacob Ziegel. Jacob Ziegel is a professor at the University of Toronto. He has the Canadian Business Law Journal. Jacob phones me constantly and asks me, “What the hell are you doing about sales in Australia, New Zealand, Singapore?”

    Well, I'm looking at the Canadian Business Law Journal. It's dropped 36% in the last 10 years, and a lot of that is because someone in Singapore can just get an interlibrary loan and get the article from Canadian Business Law Journal. It has nothing to do with lighting candles; it's all to do with protecting authors.

    So I hope we can just keep focusing on it. And it is all about the money, that's what Mr. Hill says. If he had the money, it's a non-issue. It's because he feels impoverished that authors should be impoverished in some way. But that's just wrong. We need to protect Canadian authors.

    Canada's academic community does not seem to be suffering to me.

    Hon. John Harvard: I don't like the word “protect”. How about “enable”?

    Mr. Stuart Morrison: “Enable” is fine.

    Hon. John Harvard: I don't want to protect him with an exemption, because to me exemptions are a form of protection in the marketplace.

    Mr. Stuart Morrison: I accept that completely.

    Hon. John Harvard: Good. All right, thank you.

    The Chair: Mr. Lincoln.

    Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): It seems to me that the crux here is whether we extend the exceptions relating to print material into the technological world. That's really what it's all about today.

    I take my colleague Paul Bonwick's point that in five years, ten years, twenty years, as Mr. Morrison pointed out, it's going to be a technological world, where print will be the rare exception. We don't know how prolific this will be, but it will appear in very many ways, some of which were described by Mr. Morrison, including databases, webs, DVDs, and so forth. What we have to decide is whether we think this exception should carry forward to the technological age.

    Now, we were just faced with very articulate points of view on both sides, and I noted, Mr. Hill, that you said we should extend the exception to those libraries equipped to safeguard rights of holders. Who decides which libraries are equipped to safeguard rights of holders? How do we frame that? How do we regulate this?

    I recall Ms. Westcott asking, who oversees the safeguards if exceptions are brought in? Is it the Copyright Board? Is it the government? Is it some sort of new protection system?

    You also made the point, Mr. Hill, that we own the books. Then you brought out the candle analogy, that a book is just like a candle. But then Ms. Crean was asking the question....

    You also own IBM machines and computers, and yet Microsoft and IBM collect royalties and copyright rights, which they will not sacrifice at any cost. You accept that, but it's done through a different system, so we don't actually see it, as with the material you use. So really, what we have to ask ourselves is....

    You make the point that, well, we're only talking about, in the definition of the exceptions, scholarly, scientific, and technical material, but it also talks about newspapers and periodicals after a year. As well, the law says that the Governor in Council can define what this means. So if tomorrow you have a government that is really wanting to protect the user completely, it could redefine periodicals and newspapers and scholarly, scientific, and technical material to mean anything they want it to mean. A government changes, and depending on the philosophy.... If it was a government that really was bent to help the user, that definition could change completely.

    So you can't just take into account that your 3% represents what's going to be the case tomorrow. And even if it were 1%, I think we're talking about rights, and rights apply to 1% or 2% or 3%. I don't think percentages should apply. It's a question of policy.

    Now, I heard Mr. Larivière say in one of his responses that what we want to do is negotiate between library and publisher.

À  (1055)  

[Translation]

    That is what you said when Ms. Lill asked you who would pay if you were given an exemption that allowed you to make deals without going through the collective system. You said that you would like to negotiate, that there was no problem, that you would pay for everything. She asked you who would pay for the copyright, and you replied that there could be negotiations between the library and the publisher.

[English]

    But isn't that what we're talking about in a licensing system?

    And Mr. Hill talks about air and water being free. I suppose we would have to find out who produced the air and water. Some people would say God, and some people would say it's evolution; Darwin would say differently. That's why they don't charge for it. But in the case of authors, surely somebody has created this thing and they want to be paid for their copyright. That's why we have a copyright law.

    So I must admit, after listening to both sides of the argument, I think we would be really taking a risk if we were to broaden the exception in an age when we can't control that exception. It's much easier to control it now with print. So how do we control it? I haven't heard the case that we can control it. How do we sort out the libraries that can safeguard and those that can't safeguard? And if we do give the exception to the libraries, because libraries are special cases and there's no problem, according to Mr. Larivière, then the educational people will say, oh, you've given it to libraries, so give it to education. And other people will say, well, then, the exception there must be carried in our sector as well.

    So I think we have to look at it as one overall case, regardless of libraries or educational universities or whatever. Whether it's literary or whether it's scientific, we have to ask how we protect copyright holders, which is the objective of the law, and give access to users in the best way possible in an age when we don't know where technology is going. I think that's the question.

    Can you tell me, Mr. Larivière or Mr. Hill, what is wrong with a system of licensing? I'm not talking about Access Copyright, or this licensing system, or Madam Messier's body, or the Canada Law Book institution, or whichever. What I'm talking about is the principle itself. What is wrong with a system whereby some collective outfit negotiates with you in advance, takes into account that you only use 3%, and arrives at some sort of fee? If you don't agree, there would be a way doing of it through the Copyright Board or something.

    What is wrong with that?

    The Chair: Ms. Crean had her hand up first, Mr. Hill, but she's deferring to you. Go ahead.

Á  (1100)  

    Mr. Graham Hill: Perhaps I could begin to respond to your point, Mr. Lincoln, and your questions by just reminding the committee, and you, Madam Chair, that an interlibrary loan in academic libraries consists of two things. It consists of lending books, which we've always done. If you want to borrow a book, you can read it and then send it back. You're allowed three weeks to do that. The problem with academic journals in the print format is that they're bound into volumes. We do not send those out, because that may put 50 works out of commission for three weeks. So over the years, and under the current Copyright Act, section 30.2, we've had a system of providing a surrogate copy of the single work that's bound within maybe 40 or 50 other works. That has worked well.

    In fact, that exception sort of addresses the public good. If we could loan it, we would loan it and let them read it. Perhaps that's why I was talking earlier about air and water. Neither of them are free, I would quite agree with you. In fact, it amazes me that we as Canadians are prepared to pay Coca-Cola $3 for a bottle of water, which is more than a litre of gas, and yet we always complain about the cost of gas. So you can find an economic argument in everything.

    I guess my position and my policy, and the policy that I promote on behalf of the research libraries, is that knowledge should be readily available, effectively available. Through xeroxing, through copying in a paper world, we now have a means to make that transmission more efficient.

    In response to your question about how we safeguard that, clearly there will have to be regulations, as there are that govern the current operation, in section 30.2.

    How do you discriminate? Well, I think it would be not too difficult a task to describe regulations that require that kind of encryption software in order for the library to be allowed to transmit directly to the scholar's desktop.

    As my colleague Jules noted earlier, our users, our researchers, our academics, and our students in an age of digitization cannot comprehend why we have to keep giving them paper. They are not interested in diminishing the market for that journal. We have the journal. Anyone can come in and read it.

    I think that responds to some of your points, but maybe Jules would like to follow up on some of that.

    The Chair: We'll hear from Mr. Larivière and then from Mr. Morrison and Ms. Crean.

[Translation]

    Mr. Jules Larivière: Mr. Lincoln, when I answered Ms. Lill, I said that if there were no copyright, everything would be negotiable. That is what I said.

    With respect to exemptions, I repeat again that these exemptions were discussed when the Copyright Act was introduced, when it was reviewed in 1988 and when it was reviewed in 1997. Now people seem to be saying that because of technological considerations, all the exemptions should be removed. I repeat, there must be a very good reason that these exemptions are accepted in the United States, Great Britain, Australia and probably other countries. Why would Canada say that there will be no exemptions for the reproduction of articles from scholarly and technical journals?

[English]

    The Chair: Mr. Morrison.

    Mr. Stuart Morrison: I'd like to make a couple of comments on Mr. Hill's remark that students don't understand why they have these problems. I want to keep emphasizing that it's not about the students and researchers; it's about the copyright holder, the authors, and the publishers. He also said that knowledge is readily available. Absolutely. It's just copyright protected. If you are looking after the rights holder, the author, and the publisher appropriately, it will mean that information has to be accessed through the appropriate source. It can't be just distributed widely on the Internet. It can't be distributed without recompense to the people who created it. That's all we're asking for.

    Personally, I think the issue will address itself because we're moving toward pay for what you drink, and there is a technological development so that even an individual student or academic who wants access to something can contact the rights holder from their desktop.

    The Chair: Ms. Crean.

    Ms. Susan Crean: I don't think this is about money. I think this is about control.

    Mr. Lincoln described very well what the problem is with exemptions, that one leads to the other. How do you stop? If this one doesn't make sense, why doesn't the next one? I think you're right. I think we have to roll them all back and rethink them.

    Part of the reason we have to do that is that we have to take into account the implications for different people. A small part of my work strays into your world. When you ask for an exemption, you're asking me to allow you and your colleagues to manage my moral rights. There is nothing on record that gives me any reason to believe you're going to do it or that it's even part of your mandate to do it. I think we're asking the wrong people to do the wrong thing.

    I noticed that neither of you was able to answer the question, what's wrong with licensing? The reason is that there isn't anything wrong with licensing. It's the one place where the public and creators have a chance to get together and organize things.

    At a certain point, if you don't mind my saying so, you guys are middlemen. You're standing between us and the public. You're preventing us from having any kind of direct control. We tried very hard to get a series of regulations on the 30-million-copy exemption, but you were unwilling--and you have more power than we do--to develop a series of regulations that would be of use to us. So from our point of view, we have lost our work, and we have lost any control over it, not in the sense of wanting to tell somebody how to use our work, but simply to know where it is and to some extent how it's being used.

    At the moment, we have to accept blindly that the CNIB is looking after our work. I think that's too big a responsibility for you to take on. I think that we as the creators should be part of that, and the only way we will be is through licensing. Licensing allows us to provide our work in certain instances free of charge. We will do that. You do not have to pass a law to force us to be charitable.

Á  (1105)  

    The Chair: Next is Ms. Westcott.

    Then I'm going to go to Ms. Gagnon and Mr. Bonwick, and I have some questions as well.

    Ms. Westcott.

    Ms. Grace Westcott: Mr. Hill mentioned that the exemption he's talking about is for the scholarly, scientific, and technical journals. From his perspective, this is the key one.

    I'd add to that medical and professional. These are the journals that are most highly digitized at the moment, because they are ideal for a digitized environment. But they are not the whole story in interlibrary loans, by any means. As Mr. Lincoln pointed out, there are also articles of any description, newspaper or journal articles over a year old. Further, there's an interlibrary loan for a patron's fair dealing in any printed matter at all. So this is extremely broad.

    The narrowly defined scientific and technical journals are the ones we're all agreed are most highly digitized at the moment. The marketplace for digital delivery of documentation is most highly developed right there in the most sensitive area. I think in any analysis of fairness, even going to the Supreme Court's six-point list now, one of the key considerations for fairness is the effect of the use or dealing on the market for that work. It's precisely these works whose marketplace is most digital and would be most severely affected by an exception that would allow a research library to turn itself, without compensation, into a document delivery service.

    As Mr. Hill pointed out, an archive, a library is a critical aspect of our information society. We need these things. It is a repository, in many cases a vast repository and deep in time, of our intellectual legacy. We wish this material to be accessible, but how do we do that? The way to do it would be to recognize that it could fill a service, but license it to do that.

    The Chair: I'm going to have to ask you to wrap up. We've already gone almost 20 minutes on this one. I've been more than lenient here.

    Madame Gagnon, and then Mr. Bonwick.

Á  (1110)  

[Translation]

    Ms. Christiane Gagnon: I would like to understand your position. Perhaps some distinction needs to be made. You are not opposed to digitizing your works, but rather to the fact that this is negotiated by libraries, because it is as though the libraries were the holders of the right to disseminate, which is a right held either by the publisher or the creator. You say that if you were covered by the terms of a licence, you would have no problem, but the fact that a library has the right—

    I think exemptions are privileges you were given when everything was in hard-copy format. At the moment, however, digitization involves a dimension that paper did not. In every field of creative endeavour, the infinite possibilities of digitization via Internet are frightening, whether we are talking about scientific or other material.

    So I would like to ask you the following question. When you do these interlibrary loans, do you inform the creator or the publisher that you are lending out documents you have under a licence you have been given, but that you cannot pass them on to other libraries? You've been given a privilege, but the privilege is almost unlimited if you are told that you can also lend all documents to another library. You know what happens on the Internet: when something is in digital format, copies can multiply. I think that is the fear.

    I would like to hear your views on that.

    Mr. Jules Larivière: Obviously this fear exists and we understand it. However, I also think that with paper... I was somewhat surprised to hear that libraries were between creators and the public. Libraries have always been there precisely to disseminate information. It must be understood that with paper—and I've always said this—if there were no libraries, that would not mean that people who use libraries would go out and purchase the documents. It is not as simple as that. People go to the library because they need information.

    The same is true of interlibrary loans. When there is a request for an interlibrary loan, obviously we do not inform the rights holder—usually the publisher—because at the moment the act allows us to make this loan.

    There is clearly a fear with respect to electronic documents, but I think there's a question of trust that must be established, and even if Mr. Morrison does not agree with me...

    Ms. Christiane Gagnon: I do not think that has been established at this point.

    Mr. Jules Larivière: I come back to the example I was using earlier. When we talk about interlibrary loans for research purposes, we are not talking about popular music. A request for an article on bee reproduction in the north at the library of the Université du Québec en Outaouais is of interest to no one because the subject is so specific! This is the type of material that is loaned between research libraries. That is why I said that there are actually very few loans between public libraries. They happen mainly in university research libraries.

    I have some reservations when people say there is a danger of extending interlibrary loans to all documents. In light of my experience, I would find that extremely surprising.

    Ms. Christiane Gagnon: But electronic information becomes more attractive, because it can be consulted quickly, it can be...

    Mr. Jules Larivière: Music is attractive, Ms. Gagnon, but an article in a technical or scholarly journal is not more...

    Ms. Christiane Gagnon: I'm not talking just about the content of the article, but about the ease of obtaining it. That is what I mean when I talk about attractiveness.

    Mr. Jules Larivière: But there must be an interest in the article at the outset.

    Ms. Christiane Gagnon: Electronic transmission is very fast for all sorts of information; people do not have to go anywhere to get the information. This encourages people more to look into things, if they can get the information immediately. If they have to go to the library, they have to actually get there physically. That is why there was less enthusiasm for this, as you say, but the use of an electronic medium could lead to...

[English]

    The Chair: Mr. Hill, Ms. Westcott, and Ms. Crean.

    Mr. Graham Hill: Thank you, Madam Chair. Monsieur Larivière has already responded.

Á  (1115)  

    The Chair: Ms. Westcott.

    Ms. Grace Westcott: For those libraries in which single copies are minor, the nice thing about a licence is that it's flexible. If the reporting is that there is very slight use, that should be reflected in any sensibly developed licence system.

    The other happy thing about a licence system is that control techniques could be updated and could be agreed upon. All parties around the table in the business, libraries and publishers, are interested in downstream protection and making it actually function on line. So to agree in respect of a licence what that would be and set up some sort of updating and monitoring system together could be a very beneficial thing.

    The Chair: Ms. Crean.

    Ms. Susan Crean: I covered my points about a licence answering the business about changing situations. I'd just like to remind this committee that every time there's been a new technology invented, every time there's a new use invented, we are told by our publishers that it's not worth anything, don't worry about it, or we're told by people like this librarian that this is really small, it's infinitesimal. If there's anything we've learned in this world of interactive technologies, it is that they're not discrete and that what we're talking about here, minor though it is and in a sense picking on the least toxic of these exemptions that are being proposed perhaps, is like letting a genie out of the bottle; you can't get it back in.

    And I have to answer the question about the candle, because this is an analogy that is being used by a great many people now--it goes back, I believe, to Abraham Lincoln--the notion that because it's intellectual property, it doesn't vanish, it doesn't get used up, my book can be bought by somebody else, it takes nothing away from the original book. I think one has to remember at that point that what intellectual property is about and what creators' rights--I do not like using the word copyright--were invented for is a system whereby those of us who create reap enough from the system to continue doing it. So in the end, it does come back to money and to a dysfunctional system that isn't capable of returning just revenues to people who create, and unfortunately, the libraries have got caught in this process.

    The Chair: The last word goes to Mr. Morrison, and then Mr. Bonwick. Then I have questions, after which we need to go in camera.

    Mr. Stuart Morrison: I would just emphasize that in our instance, our authors ask us to ensure that their revenue streams of royalty are protected when their marketplace asks for their product to be developed in digital format. In particular, for David Beatty, who is one of the leading writers for the organized labour market, we spent one or two years negotiating to ensure that our licensing arrangements with end-users would continue his revenue stream, because he sees it as sort of his pension. So in our particular instance, which is a professional marketplace, we are working with our authors to protect revenue for them by developing particular licensing models. But once you have a licensing model, it's infinitely flexible as circumstances change.

    The Chair: Mr. Bonwick.

    Hon. Paul Bonwick: There are a few points that I really want to make sure I clarify. We're sort of getting into an us-and-them kind of thing.

    For those representing the libraries, I want to be very clear on this. We are incredibly grateful for the job that you do. You're absolutely critical to a knowledge-based society. You delivery an incredible service and we're grateful for that. But I believe Mr. Morrison has it right. It's not about you, it is about the creator. It is about establishing a set of principles, a direction about how we foster creativity in this country and how we continue to support and encourage that kind of thing.

    Mr. Harvard made mention, of course, that because of your status as a non-profit or a not-for-profit, there should be a different set of rules. We're struggling greatly with that.

    Madam Chair, you'll remember, likely, about a year and a half ago when somebody sat down at the table and one of the observers asked the witness, “What are you doing here?” The person said “Oh, I'm a writer”. They were just having sort of a relaxed conversation, and the observer said to the writer, “What do you do for a living?” It was just generally accepted, of course, that this person couldn't possibly support themselves financially because they identified themselves as a writer. There's some humour in it, but I think it's unfortunate that we've moved in that direction.

    Digital access, in my opinion, is going to be absolutely fundamental to a competitive economy--absolutely fundamental. I said it yesterday; I think e-learning is going to revolutionize education as we know it, is going to revolutionize learning as we know it.

    My concern is that we don't know how this digitized era is going to unfold. As Mr. Lincoln mentioned, you're asking about exceptions in something that nobody fully comprehends at this point in time.

    Ms. Crean made a statement about why are we so opposed, or why was there no position against the licensing aspect of it.

    I'm very, very nervous. I'm very excited about this digitized era that we're heading into and the ability for people to access vast amounts of knowledge where they didn't have that five years ago, but I'm concerned about the creators. If they're not being rewarded today and yesterday, by God, what's going to happen to them tomorrow if we don't have some pretty clear and transparent rules in place to enable them to derive their living?

    So I'm going back to asking, where are we going five years from now, and do you not agree that we had better have some very clear enabling legislation, if I can use Mr. Harvard's terms, to make sure that the environment is good for creators?

Á  (1120)  

    The Chair: Mr. Morrison.

    Mr. Stuart Morrison: The answer is emphatically yes. We do need to have a structure that enables authors to know they'll be rewarded on the basis of their own creation.

    As far as where we're going is concerned, it's very difficult at the moment to determine from one year to the next. We've gone through five digital formats in a 10-year period. One of the statements we say to people is that we're prepared to beam the information in holograms from space if that's where the technology goes, but we always have to do it in a model that ensures that our authors are protected and that we can sustain our publishing business. The only model that is in effect at the moment that allows us to do that is licensing, because it protects all of us.

    The Chair: Mr. Hill.

    Mr. Graham Hill: I wish I could see the future and respond to some of those questions.

    I think certainly it is the case for our libraries that the journals we currently subscribe to, especially in the STMarena, are digitally licensed. They're pan-Canadian. That licence includes a licence to allow the reader to read, access, and print a copy of those journal articles. So on a go-forward basis, much of the literature we deal with, which is science, technology, and medicine in digital right now, is licensed for use and printing and downloading.

    I think the problems will remain for a very long time, though, with keeping the research moving as fast and as efficiently as possible to the researcher who needs it. That's really the focus of our submission, that the exception that currently exists simply be translated into the digital empire, not the rule.

    The Chair: Anyone else?

    Ms. Crean.

    Ms. Susan Crean: You asked where things are going. I can't give you the technological answer, but I can probably give you an answer about what's going to happen to creators if this trend continues.

    What's going to happen is that we are going to continue to raise new generations who will make art in some fashion, but what we have not succeeded in doing is creating a system that can sustain a reasonable group of people through an entire lifetime. So what we're finding is that people--and I'm talking across the board, not just writers--have to have day jobs, mostly, and if they don't have day jobs, they very often end up, quite frankly, in poverty. We know of a few cases like that, but we don't actually keep statistics on individual artists' incomes in this country. It might behoove us to do that properly.

    So what I'm saying, in other words, is that this is a big, huge global issue, which I think is where we started this morning. We are very uncomfortable in the creator community that we are being forced to go through this copyright reform in a piecemeal fashion, precisely because of these issues and because they are so profound and important, because we're being asked to make these decisions very often in a situation where we don't have enough time to do it or we don't have enough research.

    We need to know more specifically what the impacts of the exemptions have already been in order to properly convince you that this has not been a route to go, that we have to roll back and we have to think about--and I come back to this--why it is that libraries and educational institutions are the big guns in this. Why is it that it's only our material they're after? How can we not read that message as anti-intellectual, as anti-creative?

    I'm very profoundly disturbed, and have been for years, that when I come to these kinds of meetings, I have to be talking against librarians. My life depends on the existence of libraries, so why are we as creators the ones who have been targeted by libraries over the years? They've fought to the bitter end against payment for public use and we had to change the term to protect their sensibilities--“public lending right,” we now call it.

Á  (1125)  

    The Chair: Very quickly, Mr. Larivière.

    Mr. Jules Larivière: I'm almost tempted to say that I think you should abolish all the exemptions in the Copyright Act and have licences negotiated by libraries in order to improve the situation, the financial situation of creators. I think it would be interesting to sit again, all together, in 10 years and see if the financial situation of the creators has really improved.

    It leaves me the impression this morning that the libraries are responsible for the poverty of the creators, and I'm not convinced of that.

    The Chair: Thank you.

    Now I have a number of questions. I'm going to give them all, and then perhaps you could respond.

    We heard discussion today at one point that we are talking about a very narrow exception. I look at section 30.2 and I see the exception for scholarly, scientific, or technical, newspapers or periodicals, what doesn't apply. But I'm still going to go back to Ms. Westcott.

    You're still talking that it's very broad. I guess I'm missing the point that you're trying to make there, so could you just expand on that?

    Ms. Grace Westcott: Yes.

    The Chair: Allow me to go through all the questions. You can think about them while I ask them.

    Both Mr. Hill and Monsieur Larivière talked about there being less than 3% that deals with a specific exception. If it's just 3%, what's the problem with the cost there? I'm going to turn it around, back to you. If you're talking about only licensing 3%, what's the big deal, and how is it going to be so atrociously expensive?

    Mr. Larivière, you spoke about the need to have trust and confidence. I heard from Ms. Crean and also from Mr. Morrison that when you make inquiries of libraries, you actually have to physically show up. Where is the trust and confidence there? Surely the Government of Canada is not going to start regulating how you both deal with each other. It's ridiculous. You have to get together—yesterday—and work these things out. I'm hearing “trust and confidence”; unfortunately, the real world doesn't work like that, with trust and confidence.

    Again, Mr. Larivière, you opened up by talking about the common good. We were talking this week about the public right. Who's going to define that? Is this committee going to start defining what is a public good and a public right? We've heard in testimony earlier this week it's impossible to figure out what is a public good. If you have a definition for “common good”, I'd be pleased to hear it.

    You said in your paper, Mr. Hill, “If there may once have been valid reasons for such a ban on the use of digital technology,there are none any longer.” Well, please expand. I think if there was ever, it is now, because what we're talking about is evolving business models and taking away those evolving business models. Both of you quote the Minister of Industry. I say I can't believe the Minister of Industry would stop or want to prevent evolving business models from happening.

    Last but not least, you also put in your paper: “...it puts Canadian researchers at a disadvantage compared to their colleagues inthe United Kingdom, the United States and Australia, where legislation permits a libraryto transmit an electronic copy to the patron of another library.”

    We've heard Ms. Westcott say about the TEACH Act that it's very complicated, but the United States deals with totally different concepts—fair dealing, fair use: different concepts are there. We've heard about the TEACH Act part of it. It's quite difficult.

    If you want to throw out international stuff, then let's look at the international obligations Ms. Westcott was speaking about. How do you address those? You can't have it both ways. You can't say, it's that way; their systems are quite different. Show me a system like Canada's that we can actually look at importing as the best system.

    Those are my questions.

    Ms. Westcott.

Á  (1130)  

    Ms. Grace Westcott: First, section 30.2 operates in three parts, really. The first says a library can make copies for a patron, for that patron's fair dealing. The second part really takes it out of fair dealing and says, if you want a whole copy of an article, you can do it provided you follow these constraints. The third part is where interlibrary loan comes in.

    Interlibrary loan applies to both patron fair dealing, which is completely broad—any work—and the STM articles. Interlibrary loan means that on behalf of another library, you can make a copy—they confined it here to a copy of a printed work—for that other library's patron's fair dealing and you can make a paper copy of an article for that other library. That's interlibrary loan.

    One part of it is the articles; the other is any fair dealing with a printed work. That's broad.

    The Chair: All right.

    Let's hear Mr. Larivière and Mr. Hill on the 3% and trust and confidence and the common good.

    Mr. Jules Larivière: All right.

    Let me just say to Mr. Morrison that if you had come to the University of Ottawa law library you would have gotten all the information you need. I cannot talk for my other colleagues, but as far as we're concerned, we've always had all the figures.

    I think one of the things you said was that it's difficult for you to travel around the country to get all those figures. But as I said, if there has been one library that has refused to provide you with the information, that's different. As far as we're concerned, we would have provided you with all the information you need.

    The Chair: About the 3% costs...?

    Mr. Jules Larivière: As far as the 3% cost is concerned, if you put that cost on an annual basis, it becomes an issue as far as our budgets are concerned. But basically for us—at least for ASTED, I mean—it's a matter of principle: that there's an exception that is accepted in other countries. Why would Canada be different? That's basically the position of ASTED as far as the ILL is concerned.

    The Chair: Our laws are quite different as well.

    Mr. Hill.

    Mr. Graham Hill: If I could just pick up on the 3% issue, I think it goes back to a comment I made earlier, that the purpose and policy of interloan is to get the work to the user so that the user—he or she—can read it and use it and learn from it. We got into making surrogate copies of periodical articles simply to provide that surrogate copy, which we were not in a position to loan because they were bound up with 50 other works. This is really all we're talking about. It is a small portion, but why should the format—book or journal article—distinguish whether a person can have ready access to it or not?

    On the other issue you raised from my presentation, about the valid reasons and their no longer being there, my reason for saying it is that this encryption software was developed by CISTI in the British Library during 2003, but was not available at the time the 97 revisions were made to the act. CISTI now has it in production as of, I believe, December 2003. All I meant by that was that there now is that way to encrypt the delivery and not require that it be printed onto paper and intermediate copies.

    The Chair: Yet we've heard Mr. Morrison say they've invested all this money in new tech and haven't found a technology. Yesterday, I believe, there was an author—Ms. Warwick, I think it was—who talked about how difficult it was to encrypt your own work. I bring that up.

    Just using international examples again, it's convenient to use one to say “these countries have legislation”, but not also deal with the international obligation.

    Mr. Graham Hill: Yes, it is true. Each regime in each country is different. Sometimes the approach is different. It is my understanding--and I am not a lawyer--that there is nothing involved in endorsement of WIPO treaties that would preclude the inclusion of exceptions locally.

Á  (1135)  

    The Chair: Right.

    I'd like to thank you all very much for your testimony and for coming. We've had a very active morning and active discussion. Ms. Crean, thank you for your passion. Don't ever lose it. It's what motivates us and what is, as far as I'm concerned, the key to our innovation agenda and creativity.

    Thank you very much. I'd like to suspend for one minute and then go in camera. Please, committee members, don't leave.

    [Proceedings continue in camera]