Thank you, Mr. Chair and committee members, for the invitation to appear today.
We acknowledge that we are in Mi'gma'gi, the traditional territory of the Mi'kmaq people.
My name is Donna Bourne-Tyson. I am a university librarian at Dalhousie University and chair of the Council of Atlantic University Libraries, or CAUL. Joining me today is Andrea Stewart, director of libraries and educational technology for the Nova Scotia Community College and the CAUL board representative for our standing committee on copyright.
CAUL is the collaborative partnership of 18 university and college libraries in Atlantic Canada serving a combined population of almost 97,000 students. CAUL member libraries spend over $27 million annually on print and electronic publications. As a regional consortium, we engage in the licensing of electronic resources—e-books, online journals, and streaming media—that complement content negotiated on a national level through the Canadian Research Knowledge Network.
Today we share with you a regional perspective, one that supports points previously articulated by our colleagues representing the national affiliated library, student, university, and college organizations.
CAUL believes that it's paramount to maintain expanded user rights for education. The educational use of material on the Internet, short excerpts of copyright-protected materials, and video content supports innovative and topical teaching and learning activities. We also agree with statements that have been made during this review related to technological protection measures for non-infringing purposes: protecting fair dealing exceptions from contract override; revisiting crown copyright; acknowledging and protecting indigenous knowledge; and, retaining the current life plus 50 years copyright term.
CAUL institutions value fair dealing and respect its limitations. When the six-factor fair dealing test is applied, as established in the landmark 2004 Supreme Court of Canada CCH decision, if it is determined that a work cannot be copied under the exception, we seek copyright clearance and pay royalties, either directly to the publisher or through a transactional licence.
Our members had serious concerns with the Access Copyright blanket licence model. The repertoire is limited and print-based. The agreement required institutions to pay for material they didn't use or need. Licences purchased through CRKN and CAUL resulted in duplicate payments to Access Copyright for use of the same copyright-protected material, and there was no option for transactional licences.
CAUL believes in a balanced approach for copyright. Since 2012, increased compliance mechanisms and policies have been deployed to ensure our communities are aware of their user rights and that they meet their responsibilities under the act and the fair dealing guidelines. CAUL members provide copyright education and outreach in areas such as fair dealing and alternative licensing options—such as Creative Commons—open educational resources, and the tri-agency open access policy. It is our experience that this has resulted in a much more informed faculty, staff, and student body.
The bulk of the material purchased by university and college libraries is academic in nature. Universities Canada has estimated that 92% of the content in libraries is produced by academic authors. Our libraries spend the bulk of our collections budgets on the content most in demand: namely, electronic journals, e-books, and streaming media licences.
The post-secondary libraries in Atlantic Canada are committed to supporting Canadian authors and creators. Our institutions purchase thousands of copies of books to support community reading initiatives, host local author readings, literary events, and authors in residence, and fund province-wide literacy programs. For preservation and access purposes, our libraries are print repositories for all of the literature published in the Atlantic provinces and by the small presses across Canada.
Finally, for the committee's consideration, we would like to raise issues related to new technologies. There is a growing demand by researchers to create large new datasets derived from the mining of existing digital content. This text- and data-mining use is not acknowledged in the act, and use is currently secured with licences. Rights granted in the Copyright Act must be flexible enough to respond to emerging technology. For example, implementation of a blockchain could disrupt user access rights. It is critical that users' rights not be undermined or overridden by contracts, digital locks, or other technological innovations.
In conclusion, CAUL endorses a balanced approach for copyright, one which respects creators and the rights of users under the educational fair dealing exceptions in the Copyright Act. As a long-established right for all Canadians, fair dealing for education helps support our faculty to teach and conduct research and our students to learn.
CAUL strongly encourages the committee to recommend that user rights remain in the act as they are now written, and that tariffs remain optional, allowing educational institutions the independence to decide how best to invest in resources to support our learning communities.
Thank you for the opportunity to speak to you today. We welcome your questions.
I, too, would like to thank the Chair and members of the committee for the invitation to appear in front of you here today.
My name is Eddy Campbell. I'm the president and vice-chancellor of the University of New Brunswick. With today is Lesley Balcom, who is the dean of our libraries at the University of New Brunswick. I'll say just a few words about us to begin.
We are the province's largest university, doing 75% of all the publicly funded research done in New Brunswick. We help drive the New Brunswick economy. We contribute $1.2 billion per year to the provincial economy, which is just over 5% of the GDP. Our emphasis on entrepreneurship and innovation has helped launch more than 100 start-ups in the province since 2010. The vast majority of those have been led by our students, who we encourage to participate in that activity.
I am here today, as my colleague Donna has already suggested, in support of the statements you have heard already from Universities Canada, the Canadian Association of Research Libraries, the Canadian Alliance of Student Associations, and others. We are speaking in favour of the preservation of fair dealing for education. I am here because this issue is very important to our university. I thought it might be interesting to you—and relevant to your work—to hear from a particular university about the kinds of activities that we have undertaken in order to be compliant with the legislation.
We are committed to the responsible sharing of copyrighted materials. Our system of compliance is led by our UNB libraries copyright office, which was created in 2009. The focus of this education is fair dealing assessment and transactional purchasing. Our full-time copyright officer, Joshua Dickison, is in the audience over here behind us. His job is to work directly with our faculty to build understanding of copyright, and to promote a culture of respectful use. The bedrock of this relationship is UNB's course reserves delivery system. This is embedded, in turn, in our learning management system, which ensures the responsible sharing of materials. It operates at the course section level, restricting access to materials by term and by course registrant. One of the important things it allows us to do is identify material that we should purchase through targeted transactional licences.
Here are some of the numbers that we have to offer. There are 1,000 courses vetted through the system. We have 6,000 items placed on reserve each year. There are about 1,000 scanned documents that will be reviewed for whether or not they're fair dealing, or whether or not we require a transactional licence to use them. We have a budget of some $5,000 a year to purchase transactional licences. When we discover that material is going to be used more than once, we add it to our collection for course reserve. About $7,000 a year is processed in that particular way. The total cost of copyright support at our university is some $200,000 a year.
Like all of the universities in the country—ours, in particular—we feel we have a strong responsibility to the creative community. We have a significant creative community at the university, and we support a significant creative community within the province. We have a creative writing program, for example, that ranges from the undergraduate to the Ph.D. level. Almost all of these people are published in some form or other during the course of their careers at the university. We also support the local literary community in New Brunswick. As the University of New Brunswick, we have a responsibility to purchase multiple copies of materials that New Brunswick authors are producing. We also have a responsibility to celebrate and promote their accomplishments. We do this on a regular basis. It is very important to us.
Our investment in library resources is increasing every year. We spent $3.5 million on acquisitions in 2009. Today that's $5.2 million. Although we have made every effort, we have lost access to some very valuable resources over that particular time. We view the pressure on library spending to be very intense.
In conclusion, I'd just like to say that we believe we are responsible. We pay for what we use. We actively support our creative community. We invest heavily in ensuring that our students have access to the materials they need to be the leaders of tomorrow. Fair dealing for education is an important part of that landscape.
First, I too would like to acknowledge that we're meeting on the unceded lands of the territory of the Mi'kmaq, in Mi’gma’gi.
I'm the co-owner of Nimbus Publishing, the largest English-language publisher east of Toronto. We publish approximately 50 new titles a year. We focus mainly on books that are for and about Atlantic Canadians.
I'd like to begin by stating that Canadian publishers have been significantly impacted by the 2012 changes to the Copyright Act—namely, fair dealing. In a recent study completed by PricewaterhouseCoopers, it was found that the royalties received have decreased by almost 90% since 2012, representing a loss of $30 million per year in licensing revenue for Canadian publishers. As I'm sure you're aware, the impact of this has been proven in the Federal Court of Canada, which recently found that York University's copying policies have caused economic harm to the sector. These policies are identical to those adopted across the education sector. However, the court found that the policies are arbitrary and unfair, and have resulted in a wealth transfer from the creators to the educational institutions. These policies have also led to systemic copying of copyright-protected works.
I've heard it stated at some of these that Canadian publishers have a healthy operating margin. While that might be true, the reality is that the operating revenue of Canadian book publishers is down. According to Stats Canada, the book publishing industry's operating revenue was down by 0.6% from 2014 to 2016. Therefore, in order to achieve these profit margins, operating expenses have had to decrease. This means that salaries, wages, commissions, and benefits have decreased as well, by $7.4 million, or 2%. As I'm sure you can imagine, this represents a significant decrease in jobs for the creative economy.
There is also a direct correlation between sales and royalties paid to authors. A decrease in sales for a publisher means that less money goes into the pockets of our Canadian authors. Speaking from our own experience, last year we received a licensing cheque of approximately $3,000 from Access Copyright. As a publisher, we've published over 1,200 books in the 40 years we've been publishing. For a publisher like us, we should be receiving about eight to ten times that amount. Unless we make up that amount by selling to other markets, at least one job loss is necessary. I can't even imagine how this would be impacting Canadian academic publishers—surely much more.
Publishers like us have been able to increase earnings by doing distribution for other publishers. In 2016 it was found that 52% of book companies were involved in publishing only. This is a decrease of 5% from the previous year. The number of publishers who both publish and distribute for other publishers increased by 7% since last year. These stats prove that it's necessary for publishers to diversify their revenue. However, doing so takes staff time away from producing and selling our own in-house books. At the same time, it increases the competition for our own books.
Stats Canada also reports that export sales have increased by 11.8% since 2014. While this might sound like a positive thing, it means that publishers have had to adapt their book publishing programs in order to sell to markets outside of Canada. Regionally specific books won't sell to export markets. Therefore, books that are uniquely Canadian or reflect our Canadian heritage and culture are less likely to be produced.
Book publishing in Canada is not an overly lucrative business—trust me. We are a large country with a large population, and there are huge differences between our regions. For example, publishing a book on the Mi'kmaq heritage is difficult, as the market is very small. Conversely, as a regional publisher, shipping books across the country has its own problems. We lose money on every small order we ship to British Columbia, for example. We need our educational institutions to support our work if we are to continue to do the kind of publishing that preserves our Canadian heritage.
Collective licensing is good for publishers, writers, students, and educators. Selling small, individual licences is time-consuming for all involved. It requires a lot of back-and-forth. Having Access Copyright handle this administration is beneficial to publishers, authors, and those who access the content.
We believe that is an effective and affordable way to ensure learners have access to the material they require, and for creators and publishers to receive compensation for that material. Through collective licensing, the highest fee is $26 per student. I believe for that fee access to quality Canadian content is a bargain. Canadian educators and students currently benefit from a wide variety of Canadian-specific materials that meet curriculum objectives and support academic achievement.
We believe that the authors of those books should be able to make a living and continue to write them. We should all be in this together.
Good afternoon, Mr. Chair and members of the committee.
My name is Teresa Workman and I'm here on behalf of the Association of Nova Scotia University Teachers, ANSUT for short.
We appreciate the effort you are making to hear from people all across Canada, and thank you for the invitation to appear today. I welcome you to Halifax.
ANSUT represents over 1,400 full-time faculty, librarians, and contract academic staff at eight universities across Nova Scotia. Our mission is to bring their voices forward in support of post-secondary education.
With respect to copyright, a big part of ANSUT members' jobs as teachers and librarians is to gather and share knowledge with students. Another part of our members' jobs is to write. In this capacity, university faculty collectively creates thousands of articles, books, manuals, and other written works each year. These two roles, providing access to the works of others, but also creating works ourselves, means that copyright is an always-present factor in our working lives, and one that must balance the interests of both users and creators of work.
This afternoon I wish to bring three issues to your attention in this regard. The first is fair dealing. As you know and have heard from other speakers, it provides a limited right to copy literary and artistic works without permission from, or payment to, the owner of the work. In a series of decisions dating back to 2004, the Supreme Court of Canada has repeatedly reaffirmed the central importance of fair dealing to the structure of the Copyright Act and ruled it be given a large and liberal interpretation. In 2012, the federal Parliament codified existing educational fair dealing jurisprudence and practice into the Copyright Act.
To ensure the success of the law, the education community has created guidelines to assist teachers, researchers, and students with its implementation. Within this framework, fair dealing is working, providing librarians and professors with an important additional tool to make learning resources available to students and each other for teaching and research.
As I'm sure you are aware, not everyone has been happy with fair dealing, and you have doubtless heard critiques of it. One of the critiques is that it has led to rampant free copying and a refusal to pay licence fees. This is incorrect. Fair dealing is just a small part of the way knowledge is exchanged in the post-secondary education environment, and most of the material subject to fair dealing has been produced within the academic community to start with, for example, journal articles. Moreover, with respect to money changing hands, the education community continues to pay as much as, or more than, it ever has to the private sector for licences and other purchases of content.
The Canadian Research Knowledge Network, CRKN, is one place a lot of money is going. CRKN is a partnership of Canadian universities that collectively licenses research and teaching resources for universities across Canada. Those licences alone cost $120 million last year. The total expenditure across Canada is upwards of $300 million each year.
To conclude on this point, fair dealing makes a small but important contribution to teaching, learning, and research, and it has not led to an overall drop in expenditures on content. Please ensure that it continues to benefit Canadians.
The second issue concerns circumventing digital locks for non-infringing purposes. Many content owners attach digital locks to their content to prevent illegal copying. The Copyright Act currently makes it illegal to circumvent these protections. The difficulty with prohibiting circumvention is that while digital locks can prevent illegal copying, they can also prevent the exercise of fundamental rights such as fair dealing, accessing work from the public domain, archival presentation, and library lending. Fortunately there is a simple solution to this problem: amend the Copyright Act to allow the use, manufacture, or importation of devices capable of circumventing digital locks in cases where the circumvention is carried out for non-infringing purposes.
The final issue I bring to you is copyright of indigenous work. The Truth and Reconciliation Commission of Canada has called upon Canadians to engage with indigenous communities and be leaders in reconciliation. The review of the Copyright Act presents an opportunity to do this by recognizing the unique relationship between indigenous communities and the creative works they produce, and the conflict between western and indigenous notions of intellectual property. We support all efforts the committee can make, in consultation with first nations, Inuit, and Métis organizations, to advance, explore, and develop specific legal frameworks to protect the knowledge and culture of indigenous communities.
Thank you again for the invitation to appear today.
Thank you, Mr. Chair, and thank you, everyone, for coming today.
My first line of questioning will be for Ms. Bourne-Tyson at the libraries. I'm sure the publishers appreciate the work the libraries do, especially when they purchase copies. I think that's an essential part of the market.
In our current age, we're not back in the day when photocopiers were thousands of dollars, and only public institutions could afford them and monitor them. We have personal scanners, we have digital scanners, personal photocopiers, and we know these things are readily acceptable.
How are you able as an institution to regulate copyright infringement? For example, if I were to go to your library, and take a book out, and go to my own home, and scan a copy or photocopy something digitally or in hard copy, would you be able to prevent me from infringing on copyright?
I'd like to continue with my line of questioning. I'm going to make the assumption that everything I've heard is correct. I do believe you've all told me what you believe to be correct: that it's about $300 million, and out of that maybe, say, 10% has disappeared, in whatever way, from the publishers; and that the libraries and universities want to support our Canadian content creators. That's all I'm hearing about. I don't really care about content creators outside of Canada.
I'm also going to allude to what I hear from the libraries and universities, that you want to support them but you don't believe fair dealing is the right vehicle to support them. If you do want to support them—you'll all get a chance to answer the question—buying two books is not a serious way of supporting them. Let's call that truthful, too.
When I went to high school, I had to buy a lot of Canadian books, Canadian authors to read. Quite frankly, my class of 30 people had to buy 30 books, one class alone. If we want to support them, I'd like to hear from you now—and each one of you will have a chance—about how we can support our Canadian content creators in a meaningful way. If it's going to cost about $30 million, what's your share and how can it be done?
I'll start with you, Mr. Campbell.
Thank you very much for the opportunity to be here today.
As you mentioned, my name is Dave Westwood. I'm the current president of the Dalhousie Faculty Association, and we represent 950-plus academic staff, librarians, and professional counsellors at Dalhousie University. We are the largest research-intensive university in the Atlantic region.
Our interests—what I'll be speaking about today—align, of course, in the academic realm with two fundamental aspects of our mission, which are teaching and research, primarily guided by the notion of the public good. Our interests are in the area of accessing content and producing and protecting content. Both are a key part of our role at the university.
We support a balance of rights for users and producers primarily for those reasons. We respect the need for content to guide our scholarly work, and we also appreciate the need to access materials for the purpose of educating the leaders of tomorrow. We support a continuation of the 2012 Copyright Modernization Act.
Our specific interests would be in preserving the fair dealing exception that is in effect today. We believe it is necessary and fundamental for the education of Canadians, and we believe it strikes a good balance between the needs of those who access content and content producers.
Many of my speaking notes are in alignment with the Canadian Association of University Teachers, CAUT. I believe they have already spoken or will probably be speaking at a panel in the future, and so many of our points are simply a reflection of their interests.
We believe that aboriginal peoples' rights need to be recognized and reconciled with current copyright legislation. Of course, aboriginal ways of knowing differ in many ways from European ways of knowing, and the notion of ownership and sharing are quite different between the dominant culture and aboriginal culture. We believe that needs to be reflected in whatever version of the legislation comes next.
We believe digital locks have a place, of course, but we believe that not indicating the conditions under which those locks need to be and should be broken puts the quality of education at risk. We think to enforce or to take advantage of the fair dealing rights, sometimes digital locks need to be circumvented, and we believe there should be better indication of the conditions under which that is appropriate.
We believe in maintaining copyright term of life plus 50 years. It strikes a good balance again between the rights of the families of those who produce content and the need for and the benefit of accessing that content for the purpose of education and keeping education current with issues that are of recent interest.
We don't believe that crown copyright serves a good educational purpose in the sense that many of those works were funded already by the public purse and paying for them again doesn't, in our view, seem to make much sense.
As I said, our primary belief is in the emphasis of balancing rights, and we believe the current Copyright Act serves those purposes quite well.
I'd like to raise a number of additional issues that go beyond those that CAUT would be speaking about. One is to recognize the new challenges posed by the digital era. One issue in particular that comes up is how taking advantage of fair dealing rights in the performance of a research piece, like a dissertation, can become complicated when the dissertation is released online as a part of policy because then it becomes available to others who may not be using it for fair dealing. We believe that's an important issue that needs to be given some thought.
Of course the issue of multilateral trade partnerships is front and centre in extending the lifetime of copyright, and those are complex issues. Unfortunately, I don't have much to say about that today, but just recognizing that will be a challenge, of course, for copyright legislation.
The challenges of open access models are very real. These are exciting times for us in academia with the ability to pay up front, take copyright, and make the work freely available to everybody, but of course challenges are posed by that as well. I believe it's time to take that into consideration in copyright legislation.
One issue of particular concern for many of our members is online crowd-sourced platforms where things like our own lecture notes, test materials, and recordings of our lectures are now being released online without our permission. You can see that we have a vested interest, as well, in protecting our own works from inappropriate use.
Issues around academic fraud are also a part of the copyright equation, to some extent. Things where people are paying others to author works that will be submitted for course credit overlap in the area of academic integrity and copyright, and I believe some of those issues may be of interest to your panel.
Thanks for the opportunity to testify before the committee today.
The music industry has transformed itself into a predominantly digital industry, and to achieve this the music industry has worked tirelessly to adapt, innovate, and invest to drive a new digital age for music. However, for this positive development to be sustainable, there must be a fair digital marketplace for all participants playing with the same fair rules.
The sustainable and balanced growth of the digital content market continues to be undermined by a fundamental flaw in legislation underpinning the market that has created a value gap, a mismatch between the value that online user uploaded services, such as YouTube, extract from music, and the revenue returned to the music community. It is currently the biggest policy challenging the music industry today. For music to thrive in a digital world, those who are creating and investing in music must be able to negotiate fair commercial terms for its use.
Furthermore, digital music services that are licensing music on fully negotiated terms must be allowed to compete on a level playing field, something they currently do not have in Canada.
The Canadian music community is united in its call to fix the value gap, and it's advocating for a legislative solution. The government needs to look at the laws that were put in place at the dawn of the Internet that were designed to help the Internet flourish in the early days. Today those laws are hurting creators. In many cases, they mean that creators are subsidizing some of Canada's largest vertically integrated corporations. Today, the consumption of music has reached record-breaking numbers, yet our creators are worse off financially than they were in the 1990s.
Canada's creators urgently need the government to act because the laws in place now are preventing digital success stories from being shared with creators. Changes to the Copyright Act would create a functioning marketplace where artists are paid when their work is commercialized by others.
I'm sure most of you are aware of the term “value gap”. To summarize, the value gap describes the growing mismatch between the value that user uploaded services—again, such as YouTube—extract from music, and the revenue returned to the music community, to those who are creating and investing in music. The value gap is the biggest threat to the future sustainability of the music industry in Canada.
To fix the value gap, copyright reform must include the following.
Number one is an examination on the effects of safe harbour laws and exceptions. Safe harbour hosting provisions were introduced into copyright law around the world in the late 1990s and early 2000s to protect technology companies that were investing in developing the infrastructure needed to move content around the Internet from copyright infringement liabilities. Again, these provisions were introduced in the early days of the Internet, to help technology flourish at the time. In return for this protection, these companies were required to removed content only if they were notified of copyright infringements.
Years later, a number of platforms now exist that actively provide content rather than simply host it. These include video-sharing platforms, digital locker services, and user-generated content sites that are often generating vast revenues off the backs of creators' work, yet who maintain, at best, a partial liability for the content they provide.
The Canadian music industry believes that companies should only benefit from safe harbour defence if it is truly providing only technical, automatic, and passive service. Some companies are exploiting safe harbour positions, depriving creators of a fair value for their endeavours, and undermining legitimate music services in what is an increasingly important revenue stream for creators. Legislative action is needed to ensure that laws on copyright liability are applied correctly and consistently, so that online user uploaded content, services making music available, must negotiate their licences to do so with creators instead of riding freely on the backs of creators with these safe harbour privilege liabilities.
The music community is united in calling for policy-makers to take action.
Number two is the removal of the $1.25 million radio royalty exemption. When the Copyright Act was amended in 1997, every commercial radio station in Canada was exempt from royalty payments on their first $1.25 million in advertising revenue. Since then each of the nearly 700 commercial radio stations, regardless of their size or revenue, were only required to pay a nominal $100 to artists and recording companies on the first $1.25 million in advertising they earn. This is outdated and unjustified, and simply a cross-subsidy paid by artists and their recording industry partners to large, vertically integrated, and highly profitable media companies. Annually, the exemption costs rights holders an approximate $8 million, and since 1997 until 2017, it has resulted in losses to artists and labels of nearly $150 million.
These losses are contrasted to the fact that the radio industry has experienced steady growth and net profits before income tax from approximately $3.6 million in 1995, when the exception was first proposed, to approximately $437.5 million in 2016.
What should be done? Repeal subparagraph 68.1(1)(a)(i) of the Copyright Act. This will give power back to the Copyright Board and to stakeholders to come to a fair, market-based tariff, one that is set on a sliding scale and takes into account station revenues, use of commercial music, and ability to pay.
Number three is the amendment of the definition of “sound recording”. The current definition of “sound recording” in the Copyright Act is worded in such a way that performers and record labels are excluded from receiving royalties for the use of their work in television and film soundtracks. This exception is unique to television and film, and does not apply to composers, songwriters, and music publishers. It is inequitable and unjustified, particularly in light of the profound role that music plays in soundtracks. It is estimated that artists and recording labels lose $45 million annually to the current definition of “sound recording” in the Copyright Act as it stands now.
What should be done? Part II of the Copyright Act should be amended to allow for sound recordings used in television and film to be eligible for public performance compensation, pursuant to section 19 of the Copyright Act.
In summary, the Canadian music industry recommends the following changes: one, examining safe harbour provisions for companies that corner business as provision of content; two, eliminating the $1.25 million radio royalty; and three, changing the definition of “sound recording” in the Copyright Act.
At the outset of the digital era, creators were promised that they would be ushered into a golden age that would deliver them financial and artistic rewards. However, the reality for artists and their partners in the creative industries has been almost exactly the opposite. As a result of rules established two decades ago, wealth has been diverted from creators into the pockets of massive digital intermediaries, and what little is left over for creators has been concentrated into fewer and fewer hands. As a result, the creative middle class is disappearing, and with it numerous jobs and opportunities.
When we compare the global revenue from the sale of recorded music in 1999 with today, it is obvious to anyone that jobs and opportunities have been lost. This is a problem we're solving. Help us put Canadians back to work in the creative sectors. Help artists and other creators get back to full-time creative work. The government can address this and other effects caused by the value gap by taking simple, moderate steps to rebalance rules created at a time when everyone was guessing how the digital age might unfold.
The guessing is over. Now we know that the golden age promised to creators has never happened. We therefore collectively owe it to them to address the rules that have so profoundly undermined their careers. These rules must be adapted to the reality of today's digital marketplace in a way that is fair to all stakeholders.
My name is James Lorimer. I'm the publisher of Formac Publishing in Halifax and the CEO of another publishing company, Lorimer, in Toronto. My colleague, Errol Sharpe, from Fernwood Publishing, who's involved in the project I'm talking about, wanted to be here today, but, unfortunately, he's ill.
I'm speaking on behalf of Canadian Publishers Hosted Software Solutions, which is a non-profit consortium of five independent publishing houses. Actually, I feel like I'm kind of an add-on to the session earlier today because what I have to talk about is what was being discussed in the earlier session.
For the last three years, the five of us, the publishers, have been working on a project to offer middle ground in the polarized conflict between Canadian universities and Access Copyright. We think the middle ground is to make it appealing, easy, and affordable to buy chapters of our books for course use. You can go onto our website, which is up and live now, and see how this works. It's www.canadiancoursepacks.ca.
On our platform, course instructors can search the chapters in the books published by our firms and by other Canadian publishers on the social sciences and humanities. When they find a chapter that looks interesting, they can get a short abstract of its content, and they can read the whole chapter right on the website.
Each chapter is priced, and the cost averages 10¢ a page. The course instructor can select the chapters they want to use for the course and put them together in what's called a course pack. The course instructor gets a unique identifier for the course pack to take to the university bookstore just like they take the title of a textbook they are requiring their students to use.
The bookstore orders copies of the course pack from us. If they order a digital version, the bookstore pays a package price of about 10¢ a page, so that would be $30 a copy for a 300-page course pack, which would often cover all the reading material required for a single course. If the bookstore orders printed copies, they pay a few dollars more, six or seven dollars more, for the printed bound copy. Our option puts the course instructor's selection of chapters into a university bookstore printed and bound for $36 or $37 a copy. With its usual markup, the bookstore would sell the package to the students for about $50.
This option compares well to standard university course textbooks, which are now priced, as you probably have already heard, at $50, $75, $100, $125, and up. To summarize, the middle ground we've developed is a digital platform for publishers to sell individual chapters for course use at reasonable prices.
We're well aware that most Canadian university administrations have implemented a policy that the course instructors and students—you were hearing about this earlier—can take chapters of our books for free and use them in courses. They use a guideline of 10% of the original book, usually one or two chapters.
We realize the alternatives to this 10% policy, which have been open to the universities today, are awkward, frustrating, and expensive. One alternative, paying the excess copyright tariff, is very costly to universities, and it doesn't connect directly to use. The other alternative, assembling permissions from rights holders for each individual portion of a book and negotiating fees for each item in the course pack, is awkward, expensive in staff time, often frustrating, and unpredictable in terms of the bottom-line cost.
Our project aims to break through the current impasse between the universities and Access Copyright. We think university administrations can believe that the education exemption is fair and may use them to take our chapters for free, but still opt to advise course instructors and bookstores to use our platform and purchase course packs that they can sell to students. Why would they do that? Because, as I've said, our option is easy for course instructors to use, requires no staff time for copyright clearances, produces reasonably priced course materials for students, and leaves universities free of the risk that in a few years the courts will rule that they should have been paying.
We do believe that when all is said and done, the courts will find that fair dealing under the Copyright Act today does not allow universities to take our chapters for free.
Even if the courts determine that it has been fair use up to now, we expect they will find that it's no longer fair use to take chapters for free when they can be easily found and purchased at reasonable prices on an easy-to-use platform aggregating thousands of chapters from hundreds of books from many leading Canadian publishers.
Nevertheless, I am here today to ask you to recommend that the act be amended. The request is for an amendment to clarify that when portions of a copyright work are readily available for purchase at reasonable prices, fair use does not encompass taking them for free. While we believe that the courts will ultimately make this determination based on the Copyright Act as it stands right now, that process may take many more years. Conflict on this issue will continue unabated. You've been exposed to lots of that in the hearings you've had up to now.
Incorporating clearer and more definite language in the act would likely encourage universities to move away from their current hardline stand, and to accept a middle ground resolution.
If there's time in the discussion to follow, I'd be happy to brief you on the initial responses we've had from the 35 universities we've approached since January to brief them on our platform and on our middle ground resolution around using copyright material for courses.
Thanks for the opportunity to tell you about our course pack project.
[Witness speaks in Maliseet
My name is Andrea Bear Nicholas. I am from the Tobique First Nation in New Brunswick, and I've been teaching as the St. Thomas University chair in native studies for 20 years. I'm very grateful for this opportunity to speak with you.
As chair in native studies at St. Thomas, I began working over 25 years ago with a group of Maliseet families to publish nearly 5,000 pages of stories in our language, which had been recorded by a non-indigenous academic between 1970 and 1983. From 1994 to 2004, we worked with the collector to publish these stories. When he offered to sell the 37 original, large, double-sided tapes to the families for $4,000, they agreed to pay him, but only on condition that he surrender copyright to the families, otherwise they wouldn't be able to use them.
He signed such an agreement and was paid his price, but subsequently changed his mind. Since Canadian copyright law gives copyright to those who record stories rather than to those who tell them, he refused to allow the families to publish the stories except under his sole copyright. For the families this would have been tantamount to surrendering claim to the oral traditions of their elders, and they could not bring themselves to do it.
I and the families subsequently spent three years and $30,000 in legal fees trying to negotiate with the collector. The families were even willing to publish the stories under a joint copyright with the collector, but he refused even that. In the end, his lawyer stopped responding to our lawyer. Consequently, the families made the difficult decision not to publish the stories at all, fearing the real possibility of being sued under section 18 of the Canadian Copyright Act.
A moment is needed here to explain how detrimental this has been for my language, Maliseet, which is said to have only 60 lifelong speakers out of nearly 7,000 people. Like most indigenous languages in Canada, ours is in fact deemed to be critically endangered, which is the last category before becoming extinct according to UNESCO's Atlas of the World's Languages in Danger. When I received a sizable SSHRC grant in 2010 to investigate the effectiveness of adult immersion in revitalizing an endangered language, we were prohibited by Canadian copyright law from using both the tapes and the transcriptions that we had made from the tapes.
When the Canadian Association of University Teachers, CAUT, learned of this appalling situation, they helped us to publish the first volume of stories and promised to provide legal support in case we were sued. We now actually look forward to being sued, so that the matter might be settled in court.
We are aware that songwriters do not lose rights to their songs when someone else records them, and we ask only for the same right to be guaranteed to storytellers, particularly indigenous storytellers, who are the keepers of our intellectual and cultural heritage. For anthropologists, linguists, and others, however, Canadian copyright law has served as the perfect tool for stealing and exploiting our intellectual and cultural heritage, rather than for protecting it and promoting the survival of indigenous cultures.
One of the calls to action in the 2015 report of the Truth and Reconciliation Commission called on the federal government to fully adopt and implement the 2008 UN Declaration on the Rights of Indigenous Peoples, and in 2016 the Government of Canada declared its intention to do so. Article 11 of the declaration declares that indigenous peoples must have the right to “practise and revitalize their cultural traditions and customs”, including “the right to maintain, protect and develop the past, present and future manifestations of their cultures”.
There can be no question that the oral and written versions of our stories are manifestations of our culture, and there is no question that the theft of these traditions has had a destructive impact on our ability as Maliseets to revitalize our language and culture.
The final report of the Truth and Reconciliation Commission declares that reconciliation “requires constructive action on addressing the ongoing legacies of colonialism that have had destructive impacts on Aboriginal peoples' education, cultures and languages....”
Residential schools may no longer exist in Canada, but many destructive legacies of colonialism still exist and actually reinforce each other. That our language is in such a critical state is not so much the consequence of residential schools, since very few of our children were actually sent to one; it is the consequence of being forced, generation after generation, to send our children to schools conducted in the medium of English rather than in the medium of our own language. Since section 18 of the Canadian Copyright Act effectively legalizes the theft of our stories, the right of our children to the oral traditions of their people has been, and still is, doubly denied.
Unless this country moves quickly to remove these legacies of colonialism in its laws and policies, our language and most other indigenous languages in Canada will soon be extinct, and the promise of truth and reconciliation will be meaningless. I sincerely hope this will not be the case.
Woliwon. Thank you.