Good afternoon, everybody. Welcome to meeting 110 of the Standing Committee on Industry, Science and Technology.
We are continuing our five-day, five-city road trip on the Copyright Act. So far, it has been quite interesting to get the diverse opinions that are coming through. As well, the open-mike sessions have been really well received.
We have translators here; everything being said today is being recorded, as well. We'll be able to take it back to the House, and it will be part of the official documentation.
Today we have in our first panel the Canadian Copyright Institute, Mr. William Harnum, chair. We have the International Publishers Association, Mr. Hugo Setzer, vice-president of publishing. From the University of Guelph we have Ms. Rebecca Graham, university librarian, chief librarian's office.
We really wish Lloyd was here for you.
Finally, from the Toronto Public Library we have Ms. Susan Caron, director, collections and membership services.
We're going to start. You have up to seven minutes to make your presentations, and then we'll get into rounds of questions.
Just as a reminder to our audience, once the gavel has been banged there is no picture-taking or recording allowed. That prohibition is part of our official House of Commons protocol.
We will start with the Canadian Copyright Institute.
Mr. Harnum, you have up to seven minutes.
Thank you very much, Mr. Ruimy.
Good afternoon. I'm pleased to appear before you today on behalf of the Canadian Copyright Institute, an association of creators, producers, publishers, and distributors of copyrighted works. Founded in 1965, the institute seeks to encourage a better understanding of the law of copyright.
Members of CCI have made representation to various levels of government on changes to copyright law and the copyright landscape in Canada, and we've participated in international discussions, including the Stockholm revision of the Berne Convention, and more recently, meetings of the World Intellectual Property Organization in Geneva.
In the interest of full disclosure, I should say that I've worked in academic publishing in Canada since 1984. I've been president of the Association of Canadian Publishers twice, and I have also served on the board of Access Copyright. Most of my volunteer work for the last decade has been in the field of copyright.
In our view, some aspects of copyright in Canada have been in a state of flux since the 2012 changes to the law. We supported some of the changes at the time, but our members were very worried about the inclusion of education as a fair-dealing purpose.
Representatives of the educational sector at the time assured parliamentarians, in meetings very much like this, that the inclusion of education as a category of fair dealing would have no effect on revenues to creators, and specifically that they would continue to pay their collective licence through Access Copyright. This, of course, did not happen.
People on both sides of the debate have argued about the extent of the damage to creators, but any reduction of revenues in creative industries, with narrow profit margins and low income for most writers and artists, is significant.
Let me repeat what John Degen, executive director of The Writers’ Union, said on this matter last week. He said that fair dealing should apply when an individual student or other person goes to the library to make a few copies for his or her own use, not when that copying is carried out on an industrial or sector institutional basis.
That is what we believe is happening in educational institutions: wholesale copying, without compensation, of content as a substitution for purchasing books, including textbooks. The promulgation of arbitrary fair-dealing guidelines—10% of a work; an entire poem, play, or essay from a work; the whole chapter of a book; and so on—is not, in our view, fair. The Federal Court decision in the recent York University case upholds this position.
None of this is new. When I was in graduate school in the mid-1970s, accessing copyrighted content was difficult and inconvenient. Some of my professors diligently cleared copyright for excerpts handed out in class; some didn't bother.
With the introduction of Access Copyright agreements around 1991, the need for individual negotiation was eliminated and replaced by a negotiated collective licence. Educators told Access Copyright at the time that they didn't want to keep records of what was actually copied, so sampling and other methods of determining what was copied and whom to pay were devised and agreed upon. It was an easy, efficient, and inexpensive method of accessing content from Canadian and foreign publications.
In all the talk of billions of dollars in spending by universities and libraries on content, it's important to remember that its highest rate, the Access Copyright fee, was set at $27 per full-time student—less, as my son says, than the price of a case of beer.
About 20 years later, educational institutions decided, emboldened by the 2012 amendment extending fair dealing to education, that most of what they were copying should not be paid for at all.
We suggest that education as a category of fair dealing needs parameters either in a copyright act or regulation, or both. The parameters must provide some latitude for copying by individuals but not be so broad as to encourage wholesale copying, unless with a licence from a collective society, or alternatively, a tariff determined by the Copyright Board. That's our position on fair dealing.
Secondly, claims by the education community that tariffs established by the Copyright Board are voluntary are, in our view, absurd. The Federal Court, in the York University case, has determined that tariffs are indeed mandatory. Despite the clear ruling of the Federal Court, however, many in the educational sector are refusing to pay royalties owing under tariffs set by the Copyright Board.
Our third point today is a recommendation to extend copyright to 70 years after the death of the author, which would have been required by the trans-Pacific partnership agreement, if the U.S. had remained on board.
Countries that now protect copyright for 70 years following death include the United Kingdom and all the other members of the European Union, the United States, and Australia. Canada is out of sync with the norm. If concerns were expressed about difficulty in locating deceased rights holders, we can look to improvements in the copyright owner provision in the Copyright Act, as well as enabling an author to leave a legacy that may benefit grandchildren, as well as children, which is an additional important reason for the extension. It is now more advantageous for a Canadian author to publish first in countries outside Canada because some countries provide the 70 years of protection only on the basis of reciprocity.
We believe that these three changes are important for a thriving copyright environment, for the benefit of both creators and the public.
Good afternoon. Thank you very much for the opportunity to appear before this committee. My name is Hugo Setzer. I am a publisher in Mexico City and currently vice-president of the International Publishers Association or IPA.
IPA is a federation of national, regional, and specialist publishers' associations, with 76 member organizations from 65 countries throughout the world. IPA has three Canadian members. We have the Association of Canadian Publishers, the Canadian Publishers' Council, and l'Association nationale des éditeurs de livres.
IPA has a special interest in educational publishing. Educational publishers are very good at producing and supplying quality textbooks and learning materials, and they develop a wide range of innovative new tools and content in digital, print, and blended formats. Education is a legitimate market for publishers, and the protection of their investment by copyright encourages and promotes investment in quality educational material.
Publishers are not in principle against exceptions. They have their place in a well-balanced ecosystem. For example, we fully support the Marrakesh Treaty. But when there are too many exceptions or when they are too broad, they undermine the very business model that produces high-quality educational content in the first place.
When considering educational exceptions, we think that legislators should consider broader policy objectives, notably to establish a sustainable local publishing ecosystem that supports a knowledge- and information-based economy.
Exceptions for specific, well-defined, and narrow educational purposes are part of the copyright landscape, and publishers accept that. Publishers' experience is that exceptions that are designed for a specific case, as contemplated by the Berne Convention's three-step test, work best, since all parties have a common understanding of how the exception works.
The so-called “fair dealing” exemption introduced into Canadian law in 2012, however, is much too broad. Nowhere in the industrialized world outside Canada is education in the generic sense a permitted purpose for an unremunerated fair dealing exemption, as shown by many studies.
Our concern at IPA is that Canada is now considered internationally an outlier, not only with its fair dealing exemption for education, but with its court-made law that equates fair dealing exemptions with so-called user rights, all of which has resulted in loss of income for Canadian publishers and others. Publishers report reduced or even complete withdrawal of investment in Canada's specific K-to-12 educational content.
In the IPA submission to other national copyright reviews in places all around the world, such as Australia, Ireland, Nigeria, Singapore, and South Africa, we have had to argue that Canada is a bad-case example of governments' interfering with copyright and undermining the local market. It is an unfortunate but direct consequence of the 2012 copyright law changes that Canada now sits with such countries as Venezuela, Kuwait, and China on the priority watch-list of the Special 301 Report of the United States Trade Representative.
Canada has obligations under the Berne Convention and TRIPS whereby its exceptions must pass muster under the three-step test. We are hearing arguments from noted scholars that the fair dealing for education exemption, as subsequently interpreted by the Supreme Court and by a number of educational institutions such as York University, does not need the three-step test.
A well-balanced educational publishing infrastructure includes collective licensing. We all know that copying exists, and finding a mechanism that remunerates creators and publishers fairly for income forgone when teachers and students copy material is unquestionably the best way of dealing with this activity. Students perform best when they have high-quality resources to work with. Collective licensing in the educational field is done at a very low cost per head.
Education is a strategic resource for all countries that want to be part of the knowledge-based economy of the future. Educational publishers and the authors they employ, many of whom are former teachers, are the professionals best placed to translate curricula into quality textbooks and learning materials. It is publishers who are keenly aware of the latest research into teaching and learning. It is publishers who will use all available and appropriate formats, and publishers' materials are specifically designed to stimulate academic success. Please help us to continue to invest in education.
Thank you very much.
Good afternoon, Mr. Chair and members of the committee. Thank you for the opportunity to speak with you this afternoon.
As you've just heard, my name is Rebecca Graham and I'm the university librarian at the University of Guelph. I'm joined here today by Heather Martin, our copyright officer and manager of e-learning and reserve services.
Today I would like to share with you the history of fair dealing practices at the University of Guelph. For almost 35 years we have practised effective management of copyright. In doing so, we facilitate and advocate for responsible and informed uses of copyrighted materials through compliance with the act and compliance with the many licences and contracts we negotiate with digital content publishers and providers, and engagement with Guelph faculty, students, and staff. We provide expertise and guidance on copyright and authors rights issues, as well as fair-dealing practices, so that they understand both their rights and their obligations as creators and consumers of content. We also have a commitment of staff and other resources to support copyright education and compliance.
In 1984, the University of Guelph was among the earliest Canadian institutions to implement an institutional copyright policy, one that included specific guidelines on fair dealing. Guidelines adopted at that time did not differ substantially from the fair-dealing policy in use at universities today. They specified copying from books “may not exceed ten percent of the monograph”, and for periodicals, “one article in five from any one issue”, no more than 10% of the whole issue.
There were dramatic shifts in our collection development strategy from the mid-1990s to 2010 as we moved away from the acquisition of individual books and journals in print to the increasingly larger-scale acquisition of digital content to the benefit of our patrons, made possible through technological advances.
During the period, the university paid for a collective licence with Access Copyright to authorize photocopying of print materials, paid transactional licences to Access Copyright for copying that exceeded what could be copied under the terms of the blanket licence, paid publishers and creators directly for the right to digitize and post course materials online, and continued to use fair dealing to authorize copying works that were excluded from Access Copyright's repertoire.
By 2010, the majority of journal and book content utilized for courses was from our subscriptions to digital publications. Given this rise in an increasingly networked world, which in turn enabled both digital publishing and new learning environments, the collective licence for reproducing print materials no longer had value.
In January 2011, the University of Guelph was one of a number of Canadian universities choosing to opt out of the Access Copyright model and choosing to manage our own copyright practices. Subsequent developments between 2012 and 2017 supported this decision, most notably the Supreme Court decision in Alberta (Education) v. Access Copyright, which affirmed that fair dealing for purposes such as private study and research extended to teachers making copies for their students.
The addition of education as a fair dealing purpose in the 2012 Copyright Modernization Act provided further clarity on the scope of fair dealing in an educational context. In 2012, the university adopted the fair dealing policy for universities developed by Universities Canada based on the Supreme Court decision.
In 2017 through 2018, the recently completed fiscal year, our acquisition budget was $8 million, with which we purchased or subscribed to international scholarly output, including substantial portions of Canadian University Press output, as well as literary works by Canadian authors. We subscribe to e-books from the Association of Canadian University Presses. We provide a digital publishing platform for a number of scholarly journals and we contribute to the national journal publishing efforts, including Érudit.
In that period, we also spent $100,000 on transactional licences to accompany educational materials that fall outside the limits of fair dealing. Currently, 92% of the materials we acquire are digital and the rights we negotiate provide for greater legal opportunities for the use of those materials.
Students at the university access course readings in a variety of ways. They purchase textbooks from the university bookstore. They also access materials placed on reserve in the learning management system including 54% through direct links from licensed materials, 24% open and free Internet content, 6% via transactional licences, with the remaining 16% under fair dealing.
I would like to conclude by stating that we support the retention of fair dealing, as it currently exists in the legislation. I would like to thank you again for this opportunity to speak with you today.
Thank you for inviting me to address you this afternoon and for leading the review of the Copyright Act.
I am the director of collections and membership services at the Toronto Public Library, and I'm going to talk about interlibrary loans, technological protection measures, and equitable access to e-books.
Public libraries have long played a role in assisting people to undertake personal research and study. Since it is recognized that no library can be entirely self-sufficient in fulfilling this role, the Toronto Public Library is an active participant in the interlibrary loan process, in which library materials are lent to and obtained from other libraries to fill customer requests. As the largest public library in Canada, and the owner of unique materials, we welcome the opportunity to share our collections and to support the work of researchers outside Toronto. We regularly lend and provide about 4,500 books and copies of documents a year.
These services rely on the current fair dealing framework, primarily the exception for research and private study and the exception for libraries to copy material for customers. This balanced and flexible framework is critical to the future success of resource-sharing between public libraries, which extends access to library collections across Canada. Therefore, the current fair dealing provisions that support this use and exceptions for libraries should be retained unchanged.
However, as electronic materials make up more of our collections, our ability to lend those materials is often restricted by the contract provisions in our licences. This means that we cannot lend digital material to other libraries that cannot afford expensive digital resources. Contract language is complex and difficult to interpret, so librarians err on the side of caution and do not lend or copy digital material for other libraries. To be able to provide equitable service, regardless of format, we recommend amending the act to explicitly state that contract provisions cannot override fair dealing and library exceptions. This would allow us to provide interlibrary loan services in the digital age.
Second, technical protection measures, or TPMs, on materials such as e-books can prevent the library from non-infringing sharing that would otherwise be recognized as a fair dealing exception. For example, if a library customer wants to make a copy of a small portion of an e-book for private study or research, the TPM prevents this, even though it is allowed under fair dealing. Publishers see TPM as the way to protect digital books against copyright infringement and piracy. However, many researchers dispute this.
According to a 2017 study by Britain's Intellectual Property Office, 17% of e-books read by U.K. customers are illegally downloaded, and there is no reason to believe that Canadians are any different. For example, as Mr. Setzer alluded to, in its 2017 report, the International Intellectual Property Alliance kept Canada on its watch-list, stating that online infringement remains widespread in Canada.
Briefly, TPM appears to have little effect on e-book piracy. It's fairly easy to crack e-book encryption, and there are thousands of illegal sites to choose from. Publishers are spending a great deal of money on TPMs, and in the meantime, are blocking users from legitimate sharing of content. Many see TPM-free e-books as the obvious solution, and this is gaining ground in the academic world. However, we simply recommend that the act be amended to allow for non-infringing circumvention of TPMs to allow libraries to lend and customers to copy within existing exceptions, regardless of format or TPM applied.
Last, I want to speak about the challenges libraries are facing in building e-book and e-audio book collections. In 2016, Toronto and Ottawa city councils, at the request of their library boards, adopted a resolution to, “request the Department of Canadian Heritage and Industry Canada to investigate current e-book pricing practices of multinational publishers as part of any upcoming statutory review of the Copyright Act”. This was also endorsed by the Federation of Canadian Municipalities.
In the last five years, the use of digital formats by Toronto Public Library customers has risen by 200%, to over 4.5 million uses in 2017. This is great news, but we, like public libraries across Canada and around the world, are dealing with multinational publishers that may charge us four to five times what consumers pay for a licence that allows customers to access one copy of an e-book. Furthermore, three out of the five multinationals require that we repurchase these licences after a set time or number of uses. This is an unsustainable licensing model, and despite repeated efforts over six years to discuss a reasonable model with publishers, there has been little movement.
Canadian libraries have also been unable to access the same titles as American libraries, although we share the same vendors. We have been told that this is because Canadian rights have not been negotiated, and some of these titles are Canadian.
We submit that the book importation regulations may offer a model to address the lack of availability and the excessive pricing faced by libraries in the digital era.
Thank you for the opportunity to speak.
Well, it's hard to rebut, because of course we don't have numbers on the table. The fact is, the number we're aware of is that last year alone in Canada over 600 million paper copies were made of the content of Canadian publishers and other publishers. All the publishers in the association that I most represent, or that I most know at the association—Canadian publishers—have seen their revenue from Access Copyright, from licensing, decline to, in many cases, almost zero.
In the case of creators and authors, these are not people who have bundles of electronic content that are sold through CRKN, JSTOR, or others of the people who have been mentioned today. These are individuals who are writing books. They were used to getting perhaps $600 to $700 per year from their Access Copyright royalties, and they're now getting $90. That's the direct result of the extension of fair dealing.
It's certainly true that for individual publishers who are used to selling class sets, for example, of plays or volumes of poetry to universities across the country, we see that eliminated completely in favour of prepared and made anthologies of print materials that are sold in university bookstores as course packs, where you take a chapter from this book, a chapter from that book, and a chapter from another book, and put them all together. What have you got? You have 10 chapters in a book, you slap a sticker on it, and you sell it. No creator gets a penny from that work.
There's been a kind of red herring set up by a number of people who are talking about this issue, which is that, well, there's so much digital that there's no print anymore. The fact is that digital, in the market for which I'm talking mostly—individual publishers in Canada—still represents less than 15% of the market. Eighty-five per cent of our market is still print. We're losing almost all the university market for.... It used to be.... It was never a huge market and never a huge amount of money, but it could be the difference between profitability and non-profitability. That's the reality.
Welcome back, everybody, for our second hour of copyright discussions.
Today we have with us, from the Ontario Book Publishers Organization, David Caron, president. We have, from the Canadian Society of Children's Authors, Illustrators and Performers, Sylvia McNicoll, author. From Colleges Ontario, we have Joy Muller, chair, copyright interest group, heads of libraries and learning resources. From Artists and Lawyers for the Advancement of Creativity, we have Ken Thompson. Finally, from Ryerson University we have Ann Ludbrook, copyright and scholarly engagement librarian. That's an interesting title you have there.
We're going to start off, and you're going to have up to seven minutes. After everybody presents, we'll do our round of questioning, going back and forth. We'll have a good panel.
We're going to start off with Mr. Caron from the Ontario Book Publishers Organization. You have up to seven minutes.
Thank you, Mr. Chair, and thank you to the members of the committee for having us.
My name is David Caron. I am the president of the Ontario Book Publishers Organization. I'm also president and co-publisher at ECW Press here in Toronto.
Also here is Holly Kent, executive director of the OBPO.
We represent more than 40 Ontario-based, Canadian-owned book publishers, companies that provide the risk capital and the creative partnerships to publish and print audio and digital for hundreds of Canadian authors every year in all genres to readers around the world.
Copyright is at the heart of our businesses and at the heart of our relationships with our authors, and those have been damaged by the Copyright Modernization Act. You've heard in general the kind of effect the act has had. I want to tell you some specific stories about publishers in Ontario.
I have a publisher from southwestern Ontario who has seen a loss of $50,000 per year in revenue and has been forced to develop scholarly books for the American market in order to survive as a business.
I have a publisher in Toronto who saw a loss of $90,000 per year and whose author walked into a classroom where they were studying her Governor General's award-winning novel, but all the copies were photocopied without compensation.
I have a university-based publisher who has seen a drop of $65,000 per year in revenue because the institutions it works with believed that one library copy equals unlimited course use.
I have a literary publisher who has lost $39,000 per year in sales, a sizable chunk of its annual revenue; a legal publisher who is now missing $55,000 of its sales; and a children's publisher who has seen a decrease of $195,000 per year.
In our own case at ECW, I can tell you that we've lost $102,000 per year in educational course adoption revenue on average versus our loss last year, which was $28,000. In other words, that revenue made the difference between being in the red and our profitability.
There are similar stories across our membership, and I don't want to go into all of them, but you get the picture.
It's not just the fact that the direct revenue through Access Copyright from educational institutions has dropped by almost 90%; it's that the private companies that service those institutions, specifically companies that offer digital content subscriptions and that used to carry our material, have now stopped paying for that content. A significant portion of our revenue, half of it in the case of our company, would have been paid out to our authors, so not only do we lose, but our authors lose as well.
A study by PricewaterhouseCoopers concludes that $30 million in licensing revenue alone has been lost, not to mention additional losses from book purchases, because educational institutions opt for free copying rather than buying books.
The Writers' Union of Canada reported that 80% of authors' revenue from educational use has disappeared.
As a publisher, if I use an author's work in another book, I can only use the minimum that I need in order to discuss that writing. Even then, I cannot use an amount that would affect the commercial value of that writing. I cannot affect the revenue of the original book. That is fair dealing for us. Yet clearly from our examples, the educational copying without compensation has affected the revenue of copyright holders.
The facts of unclear copying have been tested in the Federal Court through the York University case and have come before the Copyright Board. The interpretation of the Copyright Modernization Act by Canada's schools, colleges, and universities has created a perception of free access that goes beyond those legal limits and has created significant damage for Ontario publishers and the authors with whom they partner.
We ask that you clarify fair dealing for education and end unfair copying; promote a return to collective licensing in the education sector—there exists a reasonable means to negotiate a fair price between institutions and the creative sector—increase statutory damages to discourage systemic infringement; and ensure that we meet our international treaty obligations.
As Ontario publishers, we are ready to look at systems that provide copyrighted materials in digital, audio, and print media searchable by educators. The OBPO is involved even now in an online project to make it much easier for educators to access learning resources for our books. Fair payment for the intellectual property used in our classrooms is not only right and relatively cheap—as you've heard, it costs only a few dollars—it also invests in our future as a nation.
Our copyright-reliant professionals and industry should be growing. They should not be shrinking. They should be contributing to our nation, not looking to produce outside our borders. Students should be seeing that they could make a living in the creative and copyright-reliant professions, not that such pursuits are deemed worthless.
Thank you. I welcome your questions.
My name is Sylvia McNicoll, as you know. I'm here to represent the Canadian Society of Children's Authors, Illustrators and Performers, better known as CANSCAIP, because writers and illustrators for children are probably the most affected by the fair dealings educational exemption, especially in the K-to-12 sector, although I know my material is taught in colleges as well.
We wish to have the educational exemption stricken totally from the Copyright Act. I've been writing for approximately 30 years, and I've served as CANSCAIP's president and in various other executive positions. My first book was published in 1989, and it was chosen as a novel study for schools in Atlantic Canada. I think, actually, it was just Newfoundland, which meant an instant sale of 2,000 books that bumped it into a Canadian best-seller.
Since then, many of my novels, including that lucky first one, have been published internationally in Scandinavia, England, Australia, and most recently, Korea and Colombia.
My colleagues consider me a successful, hard-working writer. Like most mid-list novelists, I try to cobble a living together through a stew of projects: writing books and articles, teaching, speaking, grants, public lending rights, and Access Copyright payback.
When that early novel-study sale occurred, a classroom set of novels would typically include 30 books. As the years went by, that number dropped down to five because of different philosophies of education, cost-cutting, and then in the latter years, yes, photocopying—that was earlier even—and downloading.
A few years ago, I visited a correctional facility for young adults in northern Ontario where one of my novels was entirely photocopied for the students without my permission. This was ironic because it was the grade 9 students who were incarcerated for breaking the law. This is what well-meaning, hard-working, law-abiding teachers do when the author is present to witness it.
But we did have Access Copyright licences that were respected in those days. I would receive some compensation for minimal copying. Licensing fees tend to act like speed limits on the 401. If the speed limit is 100 kilometres, most people drive at least five to 10 kilometres over, and maybe 20 when they're late.
While the fees were intended to compensate us for a few pages of copying and downloading here and there, mostly for the purposes of research for a project for an individual student, we knew that schools were copying well over the 100-kilometre speed limit.
Enter Bill , educational exemption. In 2012, the fateful year before it took real effect, I earned approximately $46,000. Of that total, $2,578.68 was Access Copyright licensing fees, which paid for two months of mortgage and three weeks of groceries. That's important to a children's writer.
Schools, universities, and colleges decided that because of the educational exemption, 10% of copying now was entirely free. They decided that Access Copyright licensing was unnecessary. They also decided that copyright tariffs were optional, and they opted out. They are still photocopying and downloading well above that speed limit too.
My grandson recently brought home a photocopied story in a Duo-Tang folder. It was a Canadian-authored retelling of an indigenous tale, and it was Canadian illustrated, Canadian published, and Canadian edited. The photocopied story was 100% complete.
Let's be generous and say that it was 10% of an anthology. Who knows? The well-intentioned teacher—and they are; they're hard-working, and they just want to have their curriculum met—uses a photocopy of that folk tale year after year, instead of buying a text.
It is not her fault that her school board thinks a 10% grab of an anthology is fine because of the fair-dealing exemption. This photocopying of course negatively impacts the publishing industry and the cultural workers involved. Our Bachelor of Arts kids lose potential jobs, and they are good jobs.
I've just finished preparing my income tax for 2017. My income is down 90%, to $12,000. My Access Copyright cheque is, coincidentally, also down by about 90%, to less than $400. That's down from two mortgage payments and three weeks of grocery payments to one week of grocery money—groceries have also gone up.
Also, boards of education now are suing for part of my 2012 cheque back. Bill 's fair-dealing exemption alone is not responsible for my income decline, but fair dealing is a beacon of disrespect for content. The world watches as Canadian schools download and copy curated content in a government-sanctioned theft of 10%. You have turned the Highway 401 speed limit in reproduction of materials into the autobahn—no speed limit at all.
Last year, I had two Canadian best-selling mysteries for middle-grade kids published, and probably almost three—they straddled the year. I worked even harder in 2012, because of course authors are expected to do more promotion, social media, etc., but I give up: not on writing or presenting to kids—that is my passion, my identity—but I'm trying to make a living. It's impossible. I must tell my students the same. I am drawing my pension and cashing in my registered retirement funds. After that, I will sell my house.
What does that mean for future writers and cultural workers? Your job must become a hobby. You do it on your lunch break.
Can Canadian publishers survive that way? We are already seeing their demise. What we create needs to—must—appear in the schools to represent Canadian values. Make no mistake about that.
What we create provides excellent jobs. What we create deserves respect, and what we create deserves compensation. You need to fix fair dealing by removing the educational exemption. Otherwise, we will have no Canadian culture.
Good afternoon, Mr. Chair, Mr. Vice-Chair, and members of the committee. Thank you for the opportunity to speak to you this afternoon.
As you've heard, my name is Joy Muller. I'm associate director of Seneca College libraries here in Toronto, and manager of Seneca's copyright services. I'm here today representing the Colleges Ontario Heads of Libraries and Learning Resources.
Our college libraries' responsibilities include providing broad library collections, current technology and array of spaces, and library literacy instruction to support the various research and innovation endeavours within the academic programs and subjects offered at the 24 Ontario colleges.
Our colleges respect copyright and the importance of compliance with the Copyright Act, while we recognize that copyright law needs to balance the interests and the rights of both copyright and moral rights owners and users of copyright material.
Our libraries have created opportunities for consistent messaging across the Ontario college community on copyright compliance through a series of locally collaboratively created training modules, which are self-directed learning resources to help educate our faculty and staff. They're entitled “Copyright Literacy in Ontario Colleges”, and these modules won the 2014 Ontario College and University Library Association's special achievement award. Over 90% of English-language Ontario colleges utilize them as either mandatory or optional throughout their institutions.
Consistently since 2012, many of the Ontario college libraries have identified copyright responsibilities as part of at least one employee's job scope. These staff advise students, faculty, and employees on the use of copyrighted materials. In keeping with these best practice efforts by the Ontario college community to support copyright and the exceptions within the Copyright Act, our first recommendation of three is to allow sections 29, 29.1, and 29.2 of the Copyright Act, which are directed to fair dealing, to remain unchanged. That would allow college libraries to continue to offer support and enhancements to teaching and learning that have grown under this legislation.
A further recommendation submitted by Ontario college libraries is to urge upon the government that section 41 of the act be adjusted to permit circumvention of technological protection measures for all non-infringing purposes, in order to ensure that we are able to exercise our statutory rights under the law. The law should be clear that it is only illegal to circumvent digital locks for the purpose of copyright infringement. This change to section 41 would enhance our ability to serve our users.
While prior to 2012, our library collections were largely print based, it's important to note that according to Statistics Canada, Canadian book sales actually increased between 2014 to 2016, as noted by Denise Amyot who presented to this committee.
College students have been asking for more flexible 24-7 access to learning resources, and the ability to access these resources from multiple devices. Ontario colleges have increased our digital footprint as a result, by purchasing licences to more and more databases, and increasing our user licences within those databases.
These digital resources provide around-the-clock access that the students are seeking, as well as supporting the students who are studying remotely through distance education opportunities. As a specific example, my library system at Seneca College has moved, since 2012, to a collection which is 90% digital, approximately 15% of which is comprised of Canadian content. We have in fact tripled our digital collection in those years.
College library collections have also increasingly focused on providing our users with access to open access journals, open educational resources, Creative Commons licensed materials, and resources that are publicly available on the internet.
Since 2012, most Ontario college library collection budgets have increased, and last year collectively, the Ontario colleges' libraries collections budgets exceeded $8 million. Statistics Canada reports that since 2012, expenditures of print and electronic acquisitions for colleges and institutes have increased by 26%.
The Supreme Court of Canada has made it clear that fair dealing is a user's right and that it must be given a large and liberal interpretation. With the changes to the Copyright Act in 2012, we feel that Canada has achieved a balance. The act grants extensive economic and moral rights to creators, while granting limited exceptions to these rights for users, libraries, and cultural institutions.
In the digital environment that college education is increasingly adapting for both teaching and learning, our libraries are licensing much of the content that our faculty and students use. These contractual obligations often have clauses that restrict the use of materials and override the exceptions that the Copyright Act provides. The Copyright Act should prevent vendors from overriding and removing uses of materials by licence that the statutory rights in our act provide.
We would, therefore, like to request as our third and final recommendation that an amendment to the Copyright Act be considered that indicates clearly that no contract can take precedence over the exceptions within the act itself.
Good afternoon. My name is Ken Thompson and I'm here with my colleague Ms. Marian Hebb. I would like to thank the chair and the members of this committee for inviting us to appear on behalf of Artists and Lawyers for the Advancement of Creativity, ALAC.
ALAC is a not-for-profit corporation that for over 30 years has been helping artists, actors, musicians, dancers, writers, filmmakers, and other creative Canadians address legal problems. ALAC provides the Artists' Legal Advice Services, ALAS, which is a free legal clinic for creators wishing to understand their legal rights or obtain guidance on dealing with specific legal problems. ALAC also offers educational programs for creators to help them understand the laws that affect them.
The ALAS clinic is operated by practising arts and entertainment lawyers and intellectual property lawyers with the administrative assistance of volunteer students from the University of Toronto. Our lawyers donate their time to provide advice to those creators who may not be able to access expensive or more intimidating alternatives.
Twice each week, ALAS lawyers meet with Canadian creators from all artistic disciplines who experience the impact of copyright laws on their professional lives and who need to sign copyright-related agreements and contracts to pursue their professional endeavours.
Today, because of limited time, we would like to list a number of specific recommendations that would improve the situation of Canadian creators.
With respect to fair dealing for the purposes of education, we would ask that you revise or add regulations to the fair-dealing exception, which was brought into law under section 29 in 2012, for the purposes of education. Educational institutions have adopted their own arbitrary and overly broad guidelines on what they think they should be able to copy without permission from authors and their publishers.
Limit the scope of the user-generated content exemption. Give collective societies management of the right of users to create new works using an author's existing work or performance without permission, such as fan fiction or mash-ups of songs, if for non-commercial purposes. A song mash-up or an unauthorized sequel to a novel or film by someone else could scoop the value of the author's or performer's original. The user-generated content exemption was added to section 29.21 in 2012, and it should allow authors and performers to choose whether or not to authorize user-generated content for either non-commercial or commercial purposes, and if the latter, to receive payment.
Revise the parody and satire fair-dealing exemption. Add to parody or satire as purposes of fair dealing in section 29 to cover additional forms of pastiche, and include the creation of works, including artistic works that use excerpts or clips from other works without further legal risks. Artists encounter these issues in their work and have brought them to our clinic. An amendment here could make an existing work more accessible.
Extend the term of copyright for authors. The term of copyright for authors should be extended from 50 years to 70 years after the author's death to stay in line with legal developments elsewhere, including in the United States, the United Kingdom, the European Union, and Australia. Authors as well as owners of corporate businesses should be able to bequeath what they have worked to create to at least their children and grandchildren. This amendment requires a change to section 6.
With respect to musical performances in films and on television, an amendment should be added to the act to remunerate performers for their recorded musical performances fixed in films and other audiovisual works when they are broadcast and digitally communicated. This would require an amendment to the definition of “sound recording” in section 2.
Remove the broadcasters' exemption. Remove the $1.25-million exemption that subsidizes commercial broadcasters and deprives performers of remuneration. Repeal this special and transitional royalty rate in subsection 68.1(1).
With respect to statutory damages for non-commercial purposes, get rid of the caps and bars on statutory damages for infringement for non-commercial purposes that make the remedy in subsection 38.1(1)(b) potentially nothing more than a single licence fee for many non-commercial infringements by more than one infringer. Effective statutory damages are essential.
In conclusion, all of these items affect the incomes or financial interests of authors and performers and their ability to exert reasonable control of uses of their work. Several of them provide greater access for both professional and amateur artists to make reasonable use of works of others.
From our work at ALAS we know how difficult, often close to impossible, it is to earn a living working as a full-time professional artist. We thank the committee for the opportunity to share our experience and views for copyright reform. Ms. Marian Hebb and I will be pleased to answer your questions. Thank you.
Hi there. I'm going to start with a land acknowledgement because we're very near Ryerson. Toronto's in the Dish With One Spoon Territory. The Dish With One Spoon is a treaty between the Anishinaabe, Mississaugas and Haudenosaunee that bound them to share the territory and protect the land. Subsequent indigenous nations and peoples, Europeans and all newcomers, have been invited into this treaty in the spirit of peace, friendship and respect.
Thank you for giving Ryerson University time to speak to you today. I also appreciate all your work in this important statutory review process.
My name is Ann Ludbrook. I'm the copyright and scholarly engagement librarian at Ryerson University. I would also like to acknowledge my colleague, Julia Shin Doi, general counsel of Ryerson University, who is also attending.
At Ryerson we are committed to diversity, entrepreneurship, and innovation, and to ensuring that what our students learn in the classroom is enhanced by real-world knowledge and experience. As such, Ryerson provides an important voice in advocating for copyright laws that support innovation and research, scholarly work, and teaching within the higher education sector in Canada. Such a copyright law includes fair dealing, as well the ability for circumvention of technological protection measures and related technologies for non-infringing purposes.
The law should be forward-focused and flexible to enable Canadian innovation in artificial intelligence, augmented reality, and other non-commercial data analysis. We also endorse laws ensuring protection of indigenous knowledge.
Like all university libraries, Ryerson spends substantial amounts to access and purchase essential information resources for students and faculty. Changes to the publishing world mean that the vast majority of these scholarly resources are in digital form and this trend is continuing.
More available content, more content in digital form, as well as inflation from 3% to 7% per year all influence spending increases.
It is important to note that increasing digital content enables direct linking to purchased resources through secure learning management systems, and at Ryerson to our e-reserve system, further reducing the need for print course packs and other course handouts.
Through Ryerson's copyright management e-reserve system and other commissioned services we spend more than $150,000 annually in transactional commissions for copies that are not within our licensed resources or are beyond fair dealing. Some of these transactional licences are direct publisher transactions or brokered through the U.S. Copyright Clearance Center, and fees are returned to Access Copyright as Access Copyright does not currently permit direct transactional commissions—as far as Ryerson knows.
More than 80% to 90% of the content we make available to our students in e-reserve is covered by licences for digital materials, links to legally posted, publicly available materials and open-access content.
Ryerson has also put into place copyright management safeguards to help ensure copyright compliance at our institution. Ryerson has a fair-dealing guideline that places reasonable limits on the copying and use of copyright material. Ryerson also provides copyright education for instructors, staff, and other community members.
We are aware of the committee's specific interest in Canadian content, creators, and publishers. At Ryerson, the majority of what we both use and create for research and teaching purposes is scholarly material rather than literary or creative works. A relatively small scholarly publishing industry in Canada means that much of what we create and consume is published internationally. However, we do spend more than $200,000 per year specifically on Canadian collection materials, both print and electronic.
It should also be noted that open access, open education resources, and other models for freely sharing and accessing scholarly and educational materials are important and have continued to impact the traditional publishing industries over the last 10 years.
Ryerson strongly supports copyright laws that recognize both the rights of copyright owners and the rights of the users. We join with other higher educational sector stakeholders, including Universities Canada CAUT, and CARL, the library association, in supporting fair dealing for private study, education, and research.
We believe that the 2012 Copyright Modernization Act allows limited use of works for education, and it remains an important investment in the future of our country to foster education, innovation, and scholarship.
In the case of the colleges, because of the money we are putting into our licensing of digital resources, when faculty are looking to create course materials, they are looking to our databases, where we have paid a licensing fee. As I noted, we are paying for more and more user licensing within the contracts with individual vendors. If a faculty needs to use a certain resource, the faculty can send the students to a persistent link. They aren't making those physical print copies as much as they are linking to our database. A student has to log in and be using it as an individual user.
Many times they can't use it for a whole class, because we don't have an unlimited user licence. But there are some vendors where we do have unlimited licences that we have paid for. We have paid up front in our contracts for access to the materials for our faculty and our students.
I will just mention that in the case of course packs, for example, many of us have third party printers that have licences with consortiums like Access Copyright. If a faculty wants a course pack put together and printed, they will be working with a third party printer that we do not engage with, and that third party printer has the appropriate consortium licensing arrangements.
Thank you to all the presenters. I said to the previous panel that it's always great to go to the different regions.
I even noticed in Sylvia McNicoll's analogy where she used driving.... If the speed limit is 100, if the people on the 401 and the highways around here start driving at 110 and then 120, the next thing you know, they're blending in and now they're at 140 and 150. Driving here from northern Ontario, I experience that and notice that. I was like, “Wow, are they ever....” It seems that everyone starts driving at those speeds.
We're talking about the Copyright Board and tariffs. But in my mind as well—and it goes to some of what Ken was saying, and this is where the question is for Ken and the board—I'm wondering if we are doing a good enough job of educating people. This regardless of what the rules are because the rules seem to be, perhaps, not enforced by everyone all the time.
If you didn't receive any issue or problem, then you went on.
Ken, you talked about an interpretation of the rules and whatnot. You're dealing with a number of artists and a number of issues. Are we doing a good enough job of educating whoever it is? In the previous panel, they mentioned that by the photocopier there is a sheet of paper saying what the rules are. Is anybody reading that?
Are our educators, even at the high school level, educating our students? Are our educators at the high school level being educated on what the rules are, regardless?
Sylvia, I think I'll go to you first. Do you think we could do a better job, regardless of the rules, in educating some of the people on the importance of copyright and protecting the creator's rights?
Unfortunately, because of the Internet and the feeling that content is free, students are extremely resistant to the idea that intellectual property isn't a free-for-all, so start with that.
Can we educate the teachers better, or the students better? You're going to have to jump over the hurdle that for some reason content is free. They don't care. If they spend $1,000 on a phone, they think the phone should come with free music and books, just because they spent $1,000 for that phone.
I am still with that 10%. That is my issue and that is my problem, that somehow schools have assumed that 10% is okay. So if it's okay that they do that, and then the students do it, look at that prison example. If she photocopies a book, what are the prisoners going to do when they get out?
We are leading by example as well. We're saying that it's okay to photocopy a little. I know I'm coming from a different perspective; I'm coming from the K to 12, and with the younger kids you photocopy more than you download.
Have I answered your question?
This is very close to my heart because I was the project lead for copyright literacy in Ontario for a community colleges project.
Of these modules—there are almost 20 of them—seven of them are specific to fair dealing in copyright, as the Copyright Act lays out fair dealing. We have very specific modules that are based on questions that faculty have come to us and asked—for example, whether they can post a particular YouTube video for their class on course management systems. We go through all the fair-dealing steps, the six steps that faculty have to consider in individual cases.
These modules, as I mentioned, have won an award. We presented at a library conference about a year after they were created, and many universities have approached us about gaining access to these modules. We've put them under a Creative Commons licence, and they are now available by a link on eCampusOntario, through the Ontario College Libraries learning portal.
If you go to eCampusOntario, you can see a nice little blog that's just come out about the learning portal. It was created by the heads of libraries and learning resources under the auspices of their chair, Tanis Fink, who also happens to be my director. At the portal, you will see that we have a faculty tool kit and that these modules are now available for anyone to access on the web. So we are striving very hard to educate.