Welcome, everybody, to beautiful, sunny Vancouver. This is meeting 114 of the Standing Committee on Industry, Science and Technology, as we continue our study, the five-year legislated review of the Copyright Act.
We've been seeing witnesses for a few weeks already. This week we've been on a five-day road trip, in Halifax, Montreal, Toronto, Winnipeg, and Vancouver. It has been an invaluable trip, because we have met with such a diverse group of people who have given us lots of information to contemplate as we continue to move forward.
If you've been following the proceedings, we've divided this up into sections. Each section is meant to help us build our own information and knowledge on copyright. We will be meeting with authors, radio, television, and publishing. It has been quite enlightening.
We're supported, of course, by our wonderful staff. We have translators here, so when you speak, perhaps you could speak a little slowly. Everything said today will be recorded, as well as translated.
Our clerk keeps us on track, and we have two of our three analysts with us today. Our analysts are the ones who will take all this information and help us by doing briefing notes and giving us background information, and at the end of the day, will help us write our reports and our recommendations. We look to our wonderful, magnificent analysts to do that. We have other support staff here as well.
Thank you all very much.
Today we have with us, from the University of British Columbia, Susan Parker, University Librarian. From the British Columbia law association, we have Christine Middlemass, President.
My name is Susan Parker, and I'm the University Librarian at the University of British Columbia, and I'd like to thank you all for the opportunity to speak before you today. With me today is Allan Bell, associate university librarian for digital programs and services at UBC; and Michael Serebriakov, legal counsel in the Office of the University Counsel.
UBC is a global centre for research and teaching, consistently ranked among the top 20 public universities in the world. We are Canadian authors and publishers as well, publishing material through UBC Press and other publications. The UBC library is the largest academic library in British Columbia, and one of the two largest in western Canada. In 2017, our total acquisitions budget was close to $17 million. That is $17 million spent each year on purchasing and licensing Canadian and international content in various formats, from print materials, which comes to about 20% of the total, to various kinds of digital content making up the other 80%.
I am here to reinforce the following message:
We are focused on fairly compensating content creators and their publishers to foster and support the creation of the best resources for our students and faculty so that they may achieve excellence in learning, research, engagement, fostering global citizenship, and advancing a sustainable and just society. These resources are increasingly digital resources, and they provide enhanced educational features such an enhanced content, embedded collaboration tools, and access 24-7.
As the digital industry inexorably grows, paper-based publishers are seeing their industry erode. The international trend is clear. Paper resources cannot compete with digital, and this is independent of fair dealing or the Supreme Court's 2012 confirmation that fair dealing for private studies applies to the educational context. Even before 2012, UBC was buying fewer and fewer paper resources. Our faculty members are distributing fewer paper copies and making fewer paper course packs, and our students are demanding more digital content.
The plight of Canadian authors and publishers is very real. Many of the most prolific content creators are members of our own academy, so we are mindful of the importance of a copyright system that fosters the dissemination of content for the benefit of society and simultaneously creates the right incentives for creators. Eliminating or restricting user rights, or imposing extremely onerous statutory damages for infringement, will not reverse the digital revolution, nor will it restore the viability of the business model of paper-based publishers and their collective agencies.
What it will do is several things. It will increase the costs of an already increasingly outmoded format, which will only accelerate the transition to digital course material. It will hurt authors and publishers as they, too, exercise user rights extensively. It will likely have unintended consequences in the digital sphere where user rights are a necessary counterweight to restricted forms of use that are imposed upon users, including a digital lock that may threaten to keep all content behind a paywall, and the undue bargaining powers that statutory damages will grant to collective societies.
UBC's request is for Parliament to defer action on user rights. There are several important court and Copyright Board decisions that should be allowed to play out now. The market is already developing its own market-based solutions to what may appear to be an intractable problem. For example, large-scale subscription arrangements are being floated like those that have revitalized the music and television industries. Instead, Parliament needs to use this opportunity to support a robust public domain. The public domain refers to the body of works where the author has waived copyright, or where the copyright term has expired. Currently, the term of copyright is the life of the author plus 50 years. To put this in perspective, a work published when the author is age 30, and that author lives to age 90, is protected under copyright for 110 years after its creation. That is more than adequate time for the author, heirs, and publisher to benefit from the work.
Realistically, of course, most copyright works have little or no commercial value—this testimony, for example—or exhausts the commercial value relatively quickly. To support a robust public domain, we urge Parliament to do two things: first, to reject calls to further extend the term of copyright by an additional 20 years; and second, to develop a means by which libraries and archives may empower researchers, educators, and the public to utilize and disseminate what are called orphan works.
Orphan works are works that are protected by copyright, but the current copyright owner is unknown or cannot be found, the author has passed away, or the original publisher is defunct, and it's unclear who has the rights. There is a debate about how to address this issue, and I stand here to ask this committee to have the debate and to resolve to act.
Libraries across Canada are full of important works that demonstrate the richness and diversity of Canadian culture and scholarship. Parliament has the power to create a system that ensures that Canadians can fairly and respectfully tap into a rich source of Canadian content.
In closing, I ask you to please keep your eyes on the horizon and ensure that, whatever you do, you're facilitating progress and innovation rather than seeking to bolster any particular industry or format. The world has changed. We can't turn back the clock.
Thank you very much.
Hello, and thank you for the opportunity to address you this afternoon.
My name is Christine Middlemass. I'm the incoming President of the British Columbia Library Association, the voice of libraries in British Columbia. With me is Donald Taylor, our copyright representative for BCLA and a copyright officer at Simon Fraser University.
Libraries play a key role in the use, dissemination, and creation of copyright-protected works. We empower Canadians in their pursuit of lifelong learning, research, and innovation by preserving knowledge and by providing equitable access to information. The Copyright Act and its exceptions likewise underpin our mission. Libraries support Canadian creators by purchasing and promoting their works as well as by providing services and information resources for their use in the creation of their new works.
BCLA thanks Canada for maintaining the copyright term of life plus 50 years. BCLA likewise is in agreement with the fair dealing and educational exceptions in the act and with the 2012 exception for non-commercial user-generated content.
Kindergarten and post-secondary libraries are hubs for education, as are public libraries through their collections, literacy programs, outreach to new immigrants, and wide variety of community programs, from reading clubs to indigenous programs.
All library users depend on exceptions in the Copyright Act. For example, fair dealing for education or research allows instructors, parents, library patrons, and library staff to make copies for research and educational uses and allows libraries to send articles and other short excerpts to patrons of less well-endowed libraries as part of interlibrary lending. These activities enrich society and make education and lifelong learning a reality for all Canadians.
Many post-secondary libraries and large urban public libraries in British Columbia have makerspaces. The current fair dealing provision for non-commercial user-generated content in the Copyright Act allows library users to experiment and innovate in these makerspaces. Loss of these provisions will constrain their creativity.
B.C. libraries invest heavily in collections for their patrons. In 2016, approximately $29 million was expended collectively within the province of British Columbia on collections, both physical and digital. Definitely, the main increases were our digital collections.
Unlike printed material, digital works, such as e-books and online reference sources, are governed by licences, and all their uses, including reproduction, are governed by these licences. This often means that clauses in a contract override statutory rights in the Copyright Act. Libraries may not be permitted by the licence to lend to another library through interlibrary loans, and library users may not be permitted to print the pages. As these restrictions are barriers for our patrons to education, research, and lifelong learning, BCLA would like to see the Copyright Act stipulate that contracts cannot override exceptions in the act.
Technological protection measures, or TPMs, are also used to limit fair dealing and other statutory rights in library licensed digital resources. In order for libraries and library users to exercise their rights in the Copyright Act, BCLA recommends that the act be amended to exempt fair dealing and other exceptions from the prohibition on the circumvention of technological protection measures.
Digitizing and making available historic materials, such as photographs, postcards, and posters, to a wider public is fraught with copyright implications for B.C. libraries. The uncertain copyright status of orphan works, the fact that the non-locatable copyright owner regime applies only to published works, and the extreme difficulty of tracking down myriad copyright owners prevent cultural institutions from digitizing historic works of significant cultural and historic value to Canadian communities. Therefore, BCLA recommends that the Copyright Act be amended to clearly state that libraries, archives, and museums are only required to remove material if they infringe copyright when they had reasonable grounds for believing that their use of the copyrighted work was for a fair-dealing purpose. They should not be required to pay statutory damages. This change to the provision would protect Canadian educational institutions, libraries, archives, and museums, from being sued for digitizing orphan works in good faith.
According to Statistics Canada, Canadian publishers reported a profit margin of 10.2% in 2016. Canada is also the sixth most lucrative global market for streaming music sales and royalties. As well as being significant purchasers of Canadian content, libraries and librarians have long supported and participated in programs like the public lending right to ensure a vibrant Canadian culture. However, we believe copyright legislation is an inappropriate tool for subsidizing Canadian creators. Rather, BCLA encourages the pursuit of public and private programs, such as the public lending right, to help foster and remunerate Canadian creativity.
We strongly urge Parliament to maintain the amendments to fair dealing and the educational exceptions added in 2012.
Thank you again for the opportunity to speak to you.
As the chair noted, I am Rowland Lorimer. I'm the founding director of the professional master of publishing program at Simon Fraser University and Treasurer of the Canadian Association of Learned Journals. I appear on behalf of the Canadian Association of Learned Journals, and I thank you very much for this opportunity.
Before I start, I'll add that I'm also the publisher of eight different journals, seven of which are online, open access journals. One has a print component and is open access to the level that is required by the tri-council agencies.
Canada has over 630 scholarly journals with budgets of over $50,000 per title. This amounts to about $30 million of economic activity. About 10% of funding comes from the Social Sciences and Humanities Research Council. The rest comes from professional and institutional support and market earnings in and outside Canada.
The notion of user rights and the inclusion of education as fair dealing are founded on the social behaviour of single readers. They wisely affirm exchange amongst readers, and facilitate the use of modern copying technology to allow close study. The central problem for Canadian journal publishers and most Canadian publishers is that on the legal foothold of an education user right, educational administrators have seized the right to deliver all kinds of mostly unlicensed content, including core learning materials, to students without recompense to authors and publishers. Further, many educational institutions require their instructors to compile content that pointedly avoids triggering the education community's self-defined rules for compensating authors and publishers.
These rules were tested in Federal Court in a suit by Access Copyright of York University, and they were found wanting. The court found that the vast majority of copied content was unlicensed. It mainly came from books, but it also included unlicensed Canadian journal content. In a way, then, the talk of millions spent on licences is mostly irrelevant to the Canadian content found in print course packs and uploaded to learning management systems without compensation. Our suggestion is that the education user right be treated as a self-initiated right of biological persons and as not extendable to institutions or other persons downloading and distributing on their behalf, nor as a means of delivering course content.
In scholarly journal publishing, recompense to authors is not an issue. Authors receive a basket of benefits for publishing their research. For scholarly journals, the issue is that educational administrators are undercutting the resources Canadian journals need to maintain efficient and effective not-for-profit publishing and distribution of Canadian research.
In Canada, journal costs are very affordable, largely because Canadian journal publishing is dominated by not-for-profit organizations. One fairly typical example of a subscription-based journal has 55 Canadian institutional subscribers who pay the journal just $7,000 in direct subscriptions. The journal attracts roughly 200,000 article views per subscription. The cost to Canadian institutions is 3.6¢ per article view, yet the education administrators want more and are taking more without recompense. Rather than supporting the development of Canadian journal publishers for their primary focus on knowledge dissemination, educational institutions are crippling the very sector that is best able to make knowledge available in an affordable fashion.
In short, the seizure of user rights by educational institutions to deliver course content without compensating creators and publishers weakens the generation and communication of ideas. For journal and other publishers, it forecloses on opportunities to build intellectual property-founded businesses, a growth sector in developed economies. More generally, it deprives Canada and Canadians of jobs and opportunities in copyright-based economic activity.
For individual students, it is already erecting unfair barriers to the generation and communication of Canadian knowledge for about the cost of a case of beer per student.
My name is Kim Nayyer. I'm here on behalf of the Canadian Association of Law Libraries, or CALL. I want to thank the committee for your careful and thorough work in this statutory review process. I do appreciate the opportunity to speak here in Vancouver, and I thank you for undertaking these regional hearings.
Our association has 370 individual legal information professional members representing 210 organizations from various sectors of the legal environment. About 25% of our membership work in law firms; 22% are in courthouse and law society libraries; 21% are in the academic sector, mostly, but not only, in law school libraries; and another 10% work in government libraries. Publishers represent about 5% of our membership, and 12% of our members indicate other affiliations. Many of our members are also authors. I myself am in the academic sector. I'm the director of the law library at the University of Victoria and the associate university librarian for law.
This review is of great interest to CALL and our committee. In fact, our committee was established some decades ago to address copyright amendments of that day. Our members work daily with material that's protected by copyright law and with licensed copyright-protected material.
Today I'm going to address four points: interlibrary loans, fair dealing, overriding licence provisions, and crown copyright.
First, on interlibrary loans, I'll draw your attention to subsection 30.2(5.02) and the requirement that a library, as defined by the act, take “measures” to prevent an interlibrary loan borrower from taking certain actions set out in that section. In practice, we don't find our members to be in a position to meet a positive obligation to enforce loan terms compliance by interlibrary loan borrowers. Some libraries have the technological capability to limit use of interlibrary loaned materials, but many do not. We really aren't practically capable of meeting an onus of accountability for the actions of interlibrary loan borrowers who are in other locations, yet a core function of law libraries is to share resources when they are needed and as law permits. We see this as an important element of access to legal information and therefore access to justice. We suggest that perhaps the addition of “reasonable” before “measures” would meet the policy and legal goal of that section.
Next is fair dealing. I'll just speak briefly on this point. As noted, in the Canadian Association of Law Libraries we have a large range of members, just like Canadian society itself, and in our experience, fair dealing as it stands now generally works well. The current provisions are flexible and responsive. Our view is that the interpretation of what constitutes a dealing that is fair should continue to be left to the context.
With regard to overriding provisions in licences, we suggest that the act stipulate that licence terms not override activities otherwise established by the act as permissible. Occasionally, some of us are able to negotiate out of particular provisions in licences that would override activities made permissible by statutes, such as some aspects of fair dealing or interlibrary loans, but not all of our members are in that position. Licences are often opaque, click-through, or otherwise presented as non-negotiable, or they may be presented to someone less connected with the daily use of the licensed material. The result is often that our members are inadvertently or inappropriately contractually limited from doing what Parliament otherwise granted them the right to do.
Finally, I would like to speak about crown copyright. Last fall an e-petition presented to the House of Commons requested the addition of a section 12.1 that would provide that works covered by section 12 be no longer protected under that section upon being made available to the public. Many of our members support that view. I have to say, though, the question has not been formally presented to my association, so I can't speak in support of it or not in support of it on behalf of the association. Today, however, I'd like to bring to your attention another idea related to section 12. Our view is that public access to the law of all the jurisdictions of the country is central to access to justice.
Our study of section 12, crown copyright and the royal prerogatives, and the origins and purposes of the Copyright Act, suggest that a fair and modern interpretation of Canadian law is that the act in section 12, or in any other section, should not be seen to govern primary law. It may be time for the act to state, whether in section 12 or elsewhere, that primary law, and particularly case law, is not a proper subject matter of the Copyright Act.
The trial court and the Supreme Court of Canada in the CCH v. Law Society of Upper Canada decision touched on this point tangentially, although the particular question was not an issue in that case. Paragraph 35 of the Supreme Court decision is worth noting.
In practice we do treat this as a given, as copying of primary law is necessarily done in the course of our members' work and indeed in the daily lives of Canadians. We reproduce primary law to file in court. Courts reproduce it for carrying out their business. Law libraries and law teachers must reproduce law for the purposes of legal education. Clarity on this would enable other useful activities, and furtherance of access by Canadians to the laws that govern us. Our members and others would then be unhindered in creating tools and resources to enable Canadians to access our own laws.
An example from the U.S., where as I understand it primary law is expressly within the public domain, is the Harvard Law School library's recent digitization of the entirety of published U.S. case law, removing proprietary content from their source books. They've made this content freely available to the public, and they're working with that digitized case law as data to make new and useful presentations of legal information.
My association, CALL, suggests an addition to section 12 to confirm that case law, and perhaps legislation, are not works within the meaning of the act, and so aren't subject to its provisions, or Parliament may simply provide that legislation and case law of the jurisdictions of Canada are in the public domain.
Thank you very much for your consideration of my submissions. I'll do my best to answer any questions you have.
Indeed, we do have the poster on the wall, but that's really not education. That's prophylactic, I guess, really.
A lot of the education we do in the library context at UBC involves a host of things regarding literacy about intellectual property, because not only are students and faculty members creating and using other people's work, but they also then create and use one another's intellectual property.
It's become a suite of information we give to students in one fashion and to faculty members in another, in their appropriate context. Students are specifically instructed by librarians about what is and is not fair dealing in Canada so that they understand exactly what they're doing when they are violating that concept or not complying to it.
What we express is that the library is an exemplar of using fair dealing properly and that we can explain it to them and show them to do it because they themselves are creating their own content and want that to be treated the same way.
I would say it's an iterative process with students over time, because they're with us for a few years. As they progress in their studies, it may be more related to the particular field of study they're working on.
With faculty members it's an ongoing effort. You don't get them as much or as often, so sometimes you start from zero every time. I think, however, that our faculty understand what the library's policies are. We explain them, and we make it very easy for them to comply by providing staff members to do all the work for them in educating them about that process.
Mr. Bell, you might want to come back to the table.
Voices: Oh, oh!
Mr. Majid Jowhari: You're going through all the numbers.
First, to all the panel members, thank you for making your presentations. Your contributions have definitely helped us in making sure that our study is comprehensive.
Ms. Parker, I want to go back to a comment that you made, and which I think Mr. Bell echoed, around the fact that Universities Canada, as we've heard from other testimony, said that they pay more now than before for access to copyrighted material. You indicated that you're spending about $17 million. Of that, about 80% is digital and 20% is print.
Can you give me a sense of what the change has been since 2012, either up or down in terms of your expenditures, with regard to your purchases in licensing?
Welcome back, as we continue our study of the five-year statutory review of copyright.
You are the last panel of the day for us. We started in Halifax on Monday, went to Montreal on Tuesday, Toronto on Wednesday, Winnipeg yesterday, and today we are here with our second panel.
First of all, I want to thank our panellists for coming in today. We've learned a lot, and we continue to learn. It's like an onion. Every time we think we know something, we peel a layer, and something else pops up. A lot of the questions that you'll be asked today are meant to probe, to dig deep, and to try to get a clearer understanding of copyright legislation.
As we start, you'll each have five to seven minutes to make your presentation. After that, we'll go into our questions.
From the Association of Book Publishers of British Columbia, we have Kevin Williams, Past President and Publisher of Talonbooks. As individuals, we have Jerry Thompson, Author and Journalist; Maya Medeiros, Lawyer, Norton Rose Fulbright Canada; and Carellin Brooks, Author, and university and college instructor.
Am I pronouncing your name right, Carellin?
I'd like to think that we're going to be your most vivacious panel of the day. That will help you out.
As mentioned, I am the proprietor, president, and publisher of Talonbooks, one of Canada's oldest independent literary presses. We celebrated our 50th anniversary in book publishing last year. We've always been independently owned. This is my 42nd year in the book trade. I spent 10 years as a retailer. I spent 21 years as the manager, executive, and partner of a distribution/publisher firm called Raincoast Books, which is one of Canada's largest distributors in town.
In 2007 my wife and I bought Talonbooks from the previous owners. For the last 11 years, I have been an independent literary publisher, publishing works of drama, poetry, books in translation from Quebec literature, indigenous studies, and social issues. I also served for a few years on the Access Copyright board. I've been on the Association of Book Publishers of British Columbia board for 12 years. So I have had a lot of opportunity to become familiar with the issues.
The issue from the point of view of independent Canadian publishers and from the point of view of Canadian authors is that our works are being systematically copied and used in educational settings, both at the K-to-12 and university levels, for commercial purposes. They are being used for course packs and for delivery of what would technically be textbook material. I know that people like to interpret the current Copyright Act and the fair use provision as meaning that they are free to copy our works and use them for course packs and in these large-use situations, but fair use implies that there's no commercial damage suffered and that there's no use in terms of commercial purposes. But that is exactly what's going on.
To our point of view, the people who least can afford it in the whole chain of endeavour are the ones who are being asked to sacrifice. They are basically being told that the university and teachers and everybody who works in the system, the infrastructure, the administration, should all be paid and should get benefits. The people who don't have benefits, and whose salaries are on average about $40,000 a year, are the ones who therefore should sacrifice their hard work. My contention is that in the long run, you're crushing the spirit of Canadian publishers and creators. We will gradually create a situation where we no longer have the extremely high level of authors and independent publishing that Canada enjoys today, whose works are known around the world and around the country for being among the very best.
The thing that's unique about Talonbooks, and that perhaps goes against some of the comments you've heard today, is that we're an independent literary press, where 65% to 70% of our sales are academic or school course adoptions. Our literature and our books bring to light Canadian stories by indigenous authors, by diverse authors, by authors from the margins of the community, and by some of Canada's most prestigious poets. They are used throughout academia. It's the same with our drama. All the great plays are used in academic settings. That's where most of our income comes from.
People ask, “What are the numbers?” Well, our average sales a year are about $400,000. Our income from Access Copyright prior to the change to the Copyright Act averaged $18,500 a year. Our income over the last two years has been $3,700 a year and it's dropping. It's obviously a significant decline. Now, $18,500 is about 4.6% of our sales, so it's a substantial number of sales, but licence sales are basically pure margin when they arrive. As $18,500 represents 9.25% of our gross margin, or about 10% of our gross margin, we would have to generate another $40,000 to $45,000 in sales to replace that.
Our sales have been relatively steady. We've maintained anywhere between $330,000 to $400,000 a year ever since, say, 2005, all through the difficult downturns, the advent of e-books, and all sorts of other stuff. Basically, trying to increase sales against the downward pressures of markets is extremely difficult. The overall book market in North America is not shrinking or gaining. It's the same. If anybody increases sales, you have to take market share from other people.
I think we've been somewhat successful taking market share from other people, but I can tell you here and now that there is absolutely no way to replace $20,000 a year, or 10% of our gross margin, on an ongoing basis, out on the open marketplace. That's not going to happen.
What does this mean from the point of view of the authors? For every cent we get, the author gets a cent. Our authors have also foregone the $20,000 a year in income from Access Copyright. For example, I was talking to a magazine writer today, and she said, “Be sure to tell them how important the cheque from Access Copyright has been to me every year as a magazine writer, being a crucial part of my magazine income and often enabling me to produce feature articles, where there is a long period of play before we are paid.”
First of all, I'd like to say that the collective licensing process, I think, is recognized as being the easiest one. I think the York case pointed out that the systematic copying of 600 million or 700 million copies a year is anything but fair use. In fact, probably the best way to deal with that is through a universal licence. I definitely support that point of view.
I go to academic conferences all the time, and the profs there all tell me that they use our stuff all the time. I know how much of our materials were being used before, and if anything, Talon is a stronger publisher today than it was over the last few years, with best sellers and a few indigenous books that have won numerous prizes. We have a Griffin Poetry Prize. We have a Governor General's Award winner in drama. We have another Griffin Poetry Prize winner, an indigenous author. We have Mercedes Eng, from a Chinese-Canadian background, who just won the Dorothy Livesay Poetry Prize. We have a book by another indigenous author, who won the Lambda award, and we have another indigenous author whose book was shortlisted for the B.C. Book Prize.
None of these books comes without the production of intellectual capital on the part of the author and the very long value-added chain publishers go through. I know that all our works are being well used in greater quantities than they were used before. I have not received a single request for permission for use from the University of British Columbia since the change to the Copyright Act. I have not received a single permission request from the University of Victoria, and I could go through a litany of just about every university in the country. The only requests I have received to use our materials are from the people who used to request them before: the University of Guelph and a couple of others, four of five of them. The ones we got before the act changed are the same ones we get now. I've had nothing, zero, from the rest of them.
What have I been told? I've been told by professors at the Canadian Association of Theatre Research conference that it's very common for them to sit down in a classroom and for the whole classroom to check out our e-book from the library, and everyone can use that for a course pack. The fact is, our licence to the library never included the right for them to be doing that. There is no enforcement; there is no prevention of that.
I asked to present a picture today that we were tweeted on social media, but was not given leave to, of a high school class reading one of our most successful indigenous authors, Drew Hayden Taylor. His works are used all the time. The classroom is proudly reading a play called Only Drunks and Children Tell the Truth, and you can see one person in the classroom holding a copy of the book that's been cut, and every single other person in that class is reading a photocopy.
They'll say that it's not up to them to enforce people copying whole works, but they are copying whole works in the library, so we need some kind of compensation to at least offset this wholesale adaptation of our materials and free use.
The royalty on one book to an author is $1.69. Basically, we have 20 or 30 books in that classroom, and the suggested royalty for K to 12 is $2.41 per student. Basically, they're suggesting that they pay, on an annual basis, the royalty for one and a half books to make up for the millions of copies they are copying. That may not be an adequate fee, but it's better than paying nothing and saying, “We should be able to copy all these materials for free. Why don't you creators and publishers donate your works to the system?”
I met last year with the Ministry of Education—
I am the author of a book about earthquakes published by HarperCollins. I have written for Reader's Digest, Equinox, Vancouver Magazine, and The Globe and Mail. I've made documentaries for CBC, CTV, Global, Discovery, etc. I'm also a member of the Federation of BC Writers, the Writers Guild of Canada, and the Writers' Union of Canada. I didn't realize I would actually have to do that, eating into my time.
My presentation is called “Stealing from Canada's Writers”.
When York University published guidelines in 2017 stating that the revised Copyright Act allowed their faculty and staff to copy up to 10% of a book without compensation, including entire chapters, poems, and articles, the Federal Court of Canada said, “no”. York's policy was struck down. Yet here we are, millions of stolen pages later, still fighting the fight, and still paying lawyers' fees. A cynic might think Canada's big universities and school boards are trying to bleed us writers dry.
The illegal copying of works created by Canadian writers is only the latest twist in the ongoing saga of digital piracy. Rent any DVD movie and you will see a short video warning against the theft of intellectual property. The writing, directing, acting, filming, and editing of a movie involves years of creative work. Illegal copying of the final product is a crime in both the United States and Canada. We've all seen the FBI logo and the caution so many times now that people tend to ignore it, but the tag line is clear: piracy is not a victimless crime.
So why are provincial governments and education administrators behaving like modern-day pirates? Why the attack on Canada's writers?
In British Columbia, the Ministry of Education recently joined Ontario and others in a lawsuit against Access Copyright, the agency that collects the royalties due to Canadian writers and publishers. The issue is the copying of millions of pages of non-fiction books, novels, poetry, and magazine articles for educational purposes under the guise of the fair use concept, which was rejected, shot down, in the case against York. As most of you know, the Copyright Act was reviewed and partially modernized in 2012. Somehow the definition of fair use got muddied or lost in translation.
How much of a book, article, or poem can be copied for free? Well, we obviously don't agree. The lack of clarity that came from the 2012 review fed the appetites of anti-copyright activists, who encouraged university and public school administrators to think that a “new” consensus had been reached. They argued that quick and easy public access to information was more important than intellectual property rights, and that it was more important for cash-starved school systems to get something for free than it was to pay the workers who had created the books and the poems and the articles. The argument is and always was bogus. It was the same empty-minded, moral sludge used previously to justify the wholesale downloading and theft of music and movies. Digital technology made it too easy to steal. So, what the heck, everybody else is doing it, so school boards and universities might as well get in on the looting, too, eh?
“Information wants to be free” came the cry of the ethically challenged. Yes, sure, free until it's your information that someone else wants to steal. Creativity is work. Books are the product of work, just like baking bread or building cars. You don't expect to get bread for free. You certainly don't expect to get a car for free. We all pay for the work of a teacher or a professor, so why should anyone expect a writer to work for free? Which brings us back to the current lawsuit. There never was a new consensus about what constitutes fair use. The court ruled clearly against York's libertarian twaddle. Yet for reasons that defy common sense, school administrators across the country chose to ignore that decision. They pounced on the so-called lack of clarity in defining fair use and decided they could stop paying to copy. The Association of Canadian Publishers reports that more than 600 million pages of published works have been copied for free by the education sector since 2013. But—hang on—the ruling against York has not been overturned. It is still the law of the land. Why would any clear-thinking school administrator or provincial government be pressing ahead with yet another lawsuit that uses faulty reasoning to get something for nothing at the expense of some of Canada's poorest-paid workers? It boggles the mind.
A few lucky writers in Canada also have jobs in universities or as school teachers and therefore have a foot in both camps, but most don't. Most writers have no sinecure, no reliable monthly paycheque, no job security, and no benefits. A recent survey of writers nationwide documented that 83% earn $15,000 or less per year from writing. In other words, writers in Canada earn significantly below the national median. If illegal copying of their work sounds like an unfair labour practice, you're right, it is.
I do realize and sympathize with the fact that years of budget cuts to education have caused schools and universities to look for some way to cut corners, but writers are not in a position to subsidize underfunded schools. You cannot cover a budget shortfall in public education by stealing from writers.
As a writer, my message to this committee is: please help us clarify fair use as quickly as possible. We can't afford to wait for a long, drawn-out deliberation. Canadian writers and publishers have been losing $30 million a year since 2013. That's a lot of unpaid rent, and unbought groceries, day care, prescription medicines, you name it. Writers are not rich people. This loss of income hurts. Stealing from writers is not fair use. Piracy is not a victimless crime.
I'm an intellectual property lawyer, and I also studied computer science and math before going to law school, with a focus on artificial intelligence. I'm going to provide an overview of artificial intelligence technologies, and I'll highlight issues that impact copyright in relation to these innovations.
The term “artificial intelligence” is often applied when machines mimic cognitive functions that humans associate with the human mind, such as learning and problem solving. It's a field of computer science that includes something called “machine learning”. Machine learning can automate decision-making using programming rules that dynamically update. This involves training the system using large datasets. Supervised learning involves labelling these datasets, such as “cats” and “dogs” for images of cats and dogs. Unsupervised learning involves training data without those sets, and clusters are discovered automatically.
AI learns to think by reading, listening, and viewing data, which can include copyrighted works such as images, video, text, and other data. It's different from typical software because it automates decisions that are not normally in the realm of computers, and then the code adapts or changes over time in response to the learning of this data. This triggers new ethical and legal issues, which is what we as a law firm look at.
One of the issues is that AI systems need to meet certain ethical standards, and those ethical standards often embed rights and values. One issue that comes up from this point is that there is an increase in biased AI systems, and we're trying to discover why these systems are so biased. Consider a very simple example. In 2016, there was a event called Beauty.AI, an international beauty contest judged by an AI system. Six thousand people from more than 100 countries submitted photos to be judged, but the vast majority of the winners were white-skinned. Upon investigation, they realized that the AI system had been trained on hundreds of thousands of images that did not include non-white faces, so the training dataset was not sufficiently diverse.
Other examples relate to human resource tools, credit scoring, as well as policing and public safety. These biases can cause harm and inequality. Responsible AI should maximize benefits instead of these harms.
What does this have to do with copyright law? The AI training datasets can involve copyrighted works such as images, video, text, and data. The training process can involve reproductions of the training data, and these can be temporary reproductions to extract features of the data that can be discarded after the training process. An AI system can rely on the factual nature of the works to understand these patterns. The AI system algorithm is separate from the training data, but the training data may result in an improved or optimized algorithm. It is unclear whether the use of copyrighted works for training an AI system is considered copyright infringement if the author's or copyright owner's permission is not obtained. This uncertainty exists even if the initial training is done for research purposes—an enumerated fair dealing ground—and then the trained system is eventually used for commercial purposes or made available under a licensing arrangement. This uncertainty can limit the data that is used by AI innovators to train the AI system. The quality of the dataset will impact the quality of the resulting trained algorithm. There's a common saying in computer science: garbage in, garbage out.
There are public or open datasets available, but they may not be made up of the best-quality data. In fact, a number of examples show that the available open datasets under different licensing arrangement actually do result in biased algorithms due to gender inequality in the underlying datasets. An algorithm trained on this sub-optimal data may result in a generated bias.
An AI developer can develop or generate their own large body of training data, but this may not always be feasible if a certain quality or type of data is required. For example, when training a face-recognition algorithm, it's desirable to have a diverse dataset with thousands of images representing different types of people. However, this may be very difficult for a company to generate unless they are a large social media company, for example, collecting a lot of images on a daily basis.
A recent decision also creates additional uncertainty when that machine-generated raw data is a copyrighted work, because human skill and judgment were used to set parameters around creating that data. This creates additional uncertainties about the scope of copyright protections afforded to data and what can be used for training these systems. Further, even temporary reproductions of copyrighted works for technical purposes can be considered copyright infringement, which creates additional uncertainty.
Another issue relating to AI systems and copyrighted works is that they're now starting to generate new works that can be considered literary works, artistic works, and musical works. The role played by a human in the creation of these works will vary, depending on the technology. An example is a system called AIVA, which actually composes classical music and has an album out. It has already released an album and it also has other tracks available.
It's difficult under the current copyright law to clearly define whether these machine-generated works are protectable as copyright works. It also shows that the nature of these technologies is changing. We need to consider how copyright can address these future technologies and uses and resulting works. This uncertainty creates uncertainty around ownership of these works and the commercialization of these works.
My name is Carellin Brooks. I am a writer and a member of the Writers' Union of Canada. I was on the board of the Vancouver Public Library for eight years.
I knew that I wanted to be a writer from the time that I was a very small child. I wanted to contribute to Canadian stories, I guess. I didn't quite think of it that way when I was six years old, but I wanted to do that. When I became an instructor, I also wanted to represent the work of my fellow writers in the classroom. I take pride in introducing students and readers to Canadian writing.
When the 2012 Copyright Act was under consultation, I and other people came and talked to MPs about it. It seems that none of what we said at that time went into the actual act. Before the Copyright Act, we had Access Copyright payments that came to us every year. As other speakers have said, those payments have dropped by half or more. I think one of the other speakers said that 83% of Canadian writers make under $15,000 a year from their writing. I'm definitely in that category. I just cashed my most recent royalty cheque for my most recent book—this is the book—and it was $48. The book was also translated into French.
I've worked at universities, including the University of British Columbia and Kwantlen currently. Both of them opted out of paying their Access Copyright fees since the modernization of the Copyright Act in 2012. This puts me in a difficult position as an instructor and as a writer. From surveys that the Writers' Union runs nationally, I know that copyright is one of the top hot-button issues among my writer peers. I feel that if I am providing Canadian content in the classroom in the form of photocopies, I am undercutting them and undermining them. I can't, in good conscience, hand out photocopies of works that I want my students to see. I have to do a weird little workaround where I display it on the board but don't give everyone a copy.
One time, I knew in advance that I was going to teach a course. I contacted some writers I knew and asked them individually for permission to use their work. They said yes. They did not charge me anything for this. However, this isn't really a viable solution for me. University instruction is in some cases itself a bit precarious. Sometimes, depending on where you are on the list, you don't know if you're going to be teaching until a few weeks or even a few days before your courses start. Even if you had the will, then, you just wouldn't have the time to go and individually ask each author if you could use that person's work.
When students tell me that they are going to copy a chapter, I have to put my fingers in my ears and make that little singing “la-la-la” noise, because I don't want to hear it and I don't want to lecture them. I often feel like I am the only person in the setting who cares about this stuff. I talk to my peers, other instructors, and they don't have any consciousness of why it would be an issue to photocopy large amounts of book chapters, articles, and so on and so forth. There is no issue for them in terms of the ethics of that.
The Copyright Act of 2012 has had huge impacts. It has had a huge negative impact on me and on the other writers I know. It has also had a huge impact on our families. I am the sole breadwinner in my household, and there was a time when I would use my Access Copyright cheque to pay for my Christmas. Access Copyright doesn't do that anymore. So I would love to see some changes to the Copyright Act.
Thank you very much.
I can point out a few of them.
For example, as I think I indicated earlier, a lot of our sales are in the university market, so the bookstores have made a real effort to get students to sell back the textbooks. There's a real increase in the number of used textbooks in the university market. There is also a lot of use of whole digital books in the university market, which obviously has nothing to do with copyright and is not particularly legal, and is taking advantage of those e-book licences, but nobody seems to care. Basically, we have the same number of course adoptions, we sell the same number of books into the university system, but our returns rate has gone from about an average of 18% to an average returns rate now of 40%. Books are returnable. It's a great business. We can sell the books to people, and then they can send them back to us and get full credit. We get to have the expenses twice: once for processing them in and once for processing them out. A significant change in the returns rate, a doubling of the returns rate, is practically enough to bankrupt the publishing industry.
It's been suggested to us that we should get more government funding to replace the legitimate funding that we get from sales and from rights income. I would argue that's not a good idea, because, one, it's not fair; two, it's not a representation of reality; and, three, it doesn't look after the authors in the equation. For the 50¢ of every dollar that we get in rights sales, the authors get 50¢, and for all those books that aren't sold in the universities or come back in returns, the authors don't get any royalties. It's not really an answer on the creator's side to try to say, “Well, don't worry about us abusing the copyright back because we'll slip some money to you through the back door”. I don't really think that's an answer to our problem.