:
Thank you for this opportunity to testify before you today.
I am a full-time professional writer from Cape Breton, Nova Scotia.
In Canada, creators of intellectual property number over 140,000. A quarter of us live in rural or small communities--about 36,000, the same number of artists who live in Toronto and Montreal combined. In all, Canada's $46-billion arts and cultural industry employs more than 600,000 Canadians.
A professional book writer usually earns about 10% of the cover price of a book. The remaining 90% is disbursed to others who work in the book publishing industry. Most professional writers in Canada earn less than $20,000 annually from their writing.
I am here before you today to put a face behind some of these statistics.
Some of my income is derived from royalties on book sales, but as time passes, interest in a published work diminishes. Writers also depend upon book launches, festival readings, and school workshops. However, that market is rapidly diminishing. A school board in the district where I live has been asked to cut back 22% of their budget. The first cuts will be music and arts teachers, and of course visiting writers.
Writers can and do apply for Canada Council grants and other grants, but demand always outweighs availability. As writers usually spend between two to four years working on a new book, these grants, if awarded, only go so far.
I also depend upon revenue from Access Copyright, a collective agency that issues licences to authorize the copying of my copyright material. About 85% of Access Copyright's current revenues, what it collects from educational institutions, is at risk if fair dealing for education is incorporated into Bill . So I stand to lose up to 85% of my income from Access Copyright.
Former industry minister John Manley told you last week to have a look at the new education provisions “in five years' time, to see if some of these extreme expectations...have come true, but in the meantime come down, in balance, on the side of education”.
Actually, in the meantime, teachers across Canada will be encouraged by this new fair dealing exception to freely copy big chunks from a book of mine, maybe even a chapter or more, for an entire class without paying Access Copyright--and, through them, me. The collective that represents me and other artists will be forced to cut back drastically and will be less able to represent us effectively. More copying will hurt book sales, as well. With all due respect to Mr. Manley, five years is too long for us to wait while we're being decimated.
In ten years I've had five books published, and for six of those years I've published a literary magazine. The more than a quarter-million dollars of revenue generated by these publications generated tax dollars and infused money into the local community of Cape Breton, benefiting publishers, printers, designers, graphic artists, illustrators, distributors, writers, advertisers, photographers, and booksellers. At a time when rural communities across Canada are experiencing out-migration, my cultural and entrepreneurial contribution has been positive for the economy. And I am only one creator.
Fair dealing for education is not defined in this bill. As other witnesses have mentioned, a Supreme Court ruling lays out a six-part framework for deciding what might be fair. The courts are entitled to consider other factors as well, but the question is to be decided on a case-by-case basis, and protection of an author's financial interest in the work he has created is not a priority in that framework. No one at this point really knows what fair dealing for the purpose of education really means--except more copying without compensation to creators, and more costly lawsuits.
An advantage of living rurally is that one gets to know many of the people who operate local businesses. Several years ago, a local photocopying shop called me because an educator had arrived at the store and wanted to photocopy 100 copies of a children's book that I had written. When told that she couldn't copy the entire book or make so many copies without being in violation of copyright, her response was, “I'll never read another thing he writes. Who does he think he is--Harry Potter?”
Now, what disturbs me is not that the teacher in question didn't realize that Harry Potter was a fictional character, but that she assumed that stealing from me would not matter. Adding education to fair use is an invitation to much more abuse and to protracted legal battles. The practical outcome will be far more copying by teachers, and fewer publishers and writers producing much less material for Canadian readers and Canadian schools. You'll be making my life's work much more difficult to sustain. Please drop the fair dealing exception for education.
Thank you. Merci.
I certainly appreciate the opportunity to appear before this committee. I have with me today my colleague John Staple, who is the deputy general secretary of the Canadian Teachers' Federation. Together he and I will be addressing the questions, hopefully.
The federation is the national voice for teachers in Canada on education and related social issues. We represent upwards of 200,000 teachers through 16 provincial and territorial teacher organizations across the country.
Our brief to the committee we hope puts the views of Canadian teachers on elements of Bill clearly in perspective. As indicated in the introduction section, we have struggled with issues related to the balance that we believe needs to be struck between the rights of creators and the need of access by students and teachers to educational material.
Our own policy reflects the fact that we have been attempting to address that balance. We've been following attempts to amend the Copyright Act for many years. We and our partners in Canada's education community have been consistent in our approach on what is important for education over that time.
CTF supports Bill because it is a fair and balanced approach for education. Two key sections are of great importance to us. They are the education or Internet amendments, depending on your choice of words, which is proposed section 30.04, and the addition of education to the list of purposes for which fair dealing is available, proposed section 29.
The Internet amendment is important because the current copyright law is not clear about the extent to which teachers, students, and other educational users can legally engage in routine classroom activities such as downloading, saving, or sharing text, images, or videos that are publicly available on the Internet.
The amendment contained in proposed section 30.04 deals only with publicly available material. That is material posted on the Internet by the copyright owner without password protection or other technical restrictions on access or use. Most of this material is posted with the intention that it be copied and shared by members of the public. It is publicly available for anyone who wants to use it.
The problem is that current copyright law may not protect schools, teachers, and students when they are making routine educational uses of this publicly available material. Educational institutions and the teachers, students, and staff who work in them use the Internet in unique ways that may infringe copyright, even though many individual uses of the same material might be allowed under the Copyright Act.
Examples of the kind of educational use that is surrounded by legal uncertainty include making multiple copies of a work such as a photograph or an article found on the Internet for all students in a class; playing an online video for students in a classroom; and posting an item from the Internet on a class website. We welcome and support proposed section 30.04, and know that it will provide legal clarity about the use of publicly available Internet material for educational purposes.
The notion of adding additional purposes to the fair dealing provision has been discussed in the copyright reform process as a balanced method of providing access to works without harming copyright owners, because the dealing must meet a fairness test for the provision to apply. CTF supports the amendment to add education to the list, but believes, at the same time, that it does not go far enough. That is why our brief indicates strong support for the passage of the amendment adding education to the list of fair dealing purposes, and suggests a further amendment clarifying that making multiple copies for a class of students is fair dealing.
Two other issues referenced in our brief impact on the access to learning materials. They are the requirements to destroy course material 30 days after final examinations and the amendments respecting technological measures. We would support an amendment that deletes the requirement to destroy online course material 30 days after the final course evaluations, and we would support an amendment to proposed section 41 that would permit users to circumvent technological protection measures in situations where the use of the material would not be an infringement of copyright.
Thank you. We look forward to your questions.
The courts have established in a recent case that “multiple copies” is not fair dealing. We are suggesting that if education is to be added to the list for fair dealing, then it would make sense to clarify that issue about whether or not multiple copies is in fact fair dealing within the legislation.
To go back to what you said, we're not suggesting we'd make multiple copies of books. Teachers are not in the habit of copying books, full works; they're more in the habit of copying small extracts, one or two pages, two to three pages of works, but not copying full texts. That would not be fair dealing.
:
It depends on the course.
[English]
For example, some courses may have textbooks involved, but more and more teachers do get away from textbooks, depending on their course. One, the information is changing so rapidly, and two, book budgets in school boards have declined very much so because we have access to other information--the Internet, of course, being one of them, and all kinds of different access to information. Fewer courses will have textbooks associated with them because of that rapid change in education, in knowledge.
:
Potentially it's up to 85%, but let's put that into real dollars.
As an individual creator, the average amount a writer got from Access Copyright this year was $350. That may not sound like a lot of money, but it's a lot of money for me. If you take away 85% of that, you're left with, what, $60? It's a big cut into my income.
Aside from that, over the past decade or so I've been invited by educators and by schools to come in and do workshops and to do reading. Obviously they think my work is good; I've probably taught 25,000 students. And I have arrived in classrooms where, in advance of going into the classroom, my book has been photocopied for every child in the room.
So with all due respect, it does happen.
:
I think what the school boards are challenging is the element that does not allow teachers to make multiple copies for class. I think that's what they're challenging. We're not a part of that process.
What we're saying here is that it makes sense to us; it makes sense in the teaching situation to have a copy per child. So if you're going to make education part of fair dealing, then understand the reality of the classroom and extend the fair dealing provision to the act of making multiple copies per student.
I'm not talking about making multiple copies of a full text per student. That's not fair. That's free, and fair dealing doesn't mean free dealing. If you need textbooks, you pay for them. You should not copy textbooks. That's not fair dealing.
That said, if I want a page from a textbook and that's classified as fair dealing, then the act should give me the leeway to say that I can copy 20 or 30 copies for students without asking them individually to go copy it themselves, which would be probably classified as okay.
:
I'm interested in proposed section 30.04 on the use of Internet materials. I've published a number of books, and I get paid by Access Copyright for some articles that were in textbooks. When I was in school, we only had textbooks, because how else would you get articles? But now a great deal of material is coming in from students. They're doing their own research. They're not photocopying, they're taking stuff off the Internet; they're just cutting and pasting and putting it right into Word. That's being used in the classroom.
I ran a magazine for seven years. We posted all our articles online for free, because to us it was loss leader. We sold subscriptions and people used it. We always used to get calls from teachers saying, “Can we use this in the classroom?”, and we'd say, “Yes, sure, go ahead”. I didn't know that we were on the cutting edge of a copyright debate. It was just business.
So now we're dealing with what used to be a closed market. We now have a very open market, where all materials are coming in. Wherever you look on the Internet, there's as much product for free as what people used to pay for.
Would you support the use of Internet materials if we maintained collective licensing in place?
:
Thank you, Mr. Chairman.
I really feel it's necessary to try to correct the record a bit here. There's been a lot of questionable information provided here that I think is creating some confusion around the table.
I'm going to go first to the Teachers' Federation briefing here. First of all, it says:
The current Canadian Copyright Act states that it is not an infringement of copyright to “deal fairly” with a work that is protected by copyright for five listed purposes: research, private study, criticism, review, or news reporting. Adding education to this list seems a natural fit.
Whether or not any particular use for education purposes is considered fair will require
—this is important—
an assessment using the six factors determined by the Supreme Court of Canada: the purpose of the dealing; the character; the amount; alternatives to the dealing; the nature of the work, and; the effect of the use on the work. In applying these factors, the Federal Court of Appeal has found that a teacher making copies for a class of students is not fair.
It seems, Mr. Brown, you're of the impression that the court ruling doesn't matter, that the inclusion of fair dealing for education means the fact that the Supreme Court has said that making copies is not fair isn't relevant.
Is that my understanding of what you're saying?
:
That process will continue.
From a general perspective, I can understand Mr. Brown's situation. This is the kind of thing that we struggle with as a teacher organization. I don't want to leave the impression that teachers are stealing from creators, because they are not doing that.
The fact that there has been a decline in textbook sales in this country is not because teachers are photocopying textbooks. It's because school boards and ministries have a finite set of resources for education, and they're trying to make it go as far as possible.
Instead of everybody getting a textbook, class books are bought, class sets, and everybody shares them. They pass them on to somebody else. That has reduced the number of textbooks purchased. The quality of textbooks is higher. They last longer because they're a standard set. There is a greater reliance on electronic information and digital information. There's a whole host of reasons why the textbook sales are slower, probably, over the last 20 years.
That said, maybe the number of texts is down, but the amount of money spent is still the same. It's increasing, as a matter of fact.
There's only so much of that pie. There are billions of dollars spent on instructional materials, books included, every year at the university level and at the K-to-12 level.
:
No, absolutely not. I can certainly speak from 30 years of experience in schools that it was never encouraged to copy an entire work, a whole book. As I said before, you wouldn't have the copy budget--the Xerox budget, as we used to call it--in the school. You wouldn't have the time to do it, either.
I can give you an example of how this would be used. Let's say a teacher has one copy of a children's book. Usually you would not have a whole class set of the same children's book; you would have a multiple array of books in the classroom for the children to read at different levels and such. So if the teacher was reading one of those books to the class, which very much still occurs in school, the teacher would, for example, read the book, show the nice, pretty pictures that go along with the book, and maybe copy one page out of that book and say, “Now we're going to work with this passage, and I want you to draw what you see here”, or something along that line.
Certainly I can absolutely understand where Mr. Brown is coming from. We are in no way encouraging teachers to copy entire books.
:
There's so much information out there on the Internet. Indeed, the Internet and computers are very much part of today's classrooms. At some schools and some school boards, children have their own laptops. They are using the Internet on a daily basis. They're learning how to search for information. They're learning how to make those connections.
That's what we want our children to do. They're learning to be lifelong learners. They're developing a passion with that learning, and that's what we want to have our students do.
So to limit them with copyright infringement laws would be very detrimental to their learning and to their increase in knowledge. We want our students finding as much information as they can and making those connections so that they will be able to make good, solid decisions on their own.
It's all very important. We want to have that open for teachers to be able to say this is what we can do, and not limit that.
I know that teachers have always played the part of very important role models for kids, because they work with them when they're quite young. I would think that following the laws as indicated by copyright--and, just by extension, some of the other things we've talked about--would obviously be something that would be of high priority for the education sector, correct?
Ms. Mary-Lou Donnelly: Yes.
Mr. Dean Del Mastro: Thank you.
And Mr. Brown, thank you very much for appearing.
I'm trying to understand the issue here. My impression is that nobody would have any problems with teachers going and getting whatever is the best material, especially with more and more material being available. I don't think anybody has any objections to teachers going and getting the best material for teaching purposes.
My sense is that the issue here ultimately is about money. That's my impression. I don't think there's any law that prevents anybody from going and getting any material they want. At the moment, they may have to pay for it, but nobody is saying you can't have it. Copyright doesn't say you can't have it. Copyright says you can have it if you pay for it.
Am I understanding the issue here? Is it ultimately an issue related to money? On the one hand, there are those who feel they're not being paid, but on the other hand, there is a strained school board system. Is that how you see it?
:
For clarity, they're not in a position to decide whether or not to pay: they must pay. It's the law. That's the way it exists right now.
I've heard the question of clarity brought up several times in the past hour. Ms. Donnelly was asked a hypothetical question a little earlier. I'm paraphrasing here, so correct me if I'm wrong, but she was asked to give a definition of fair use in the sense that could she foresee, with the amendments, if they went through, there would be rampant photocopying of entire works?
With all due respect to Ms. Donnelly, she's not in a position to answer that question. And that's the problem with fair dealing, that it's not spelled out. We would have to go before the courts to get a clear definition of that.
:
Not necessarily. I mean, there will always have to be fees paid, but what fair dealing opens the door for is a definition, where there isn't right now, of what is fair use.
How much photocopying are we talking about? There are very clear regulations as it stands now. Without any definitive definition of fair use, again, we are put into a position where we would have to go to the courts to decide or at least support our belief that there was too much being photocopied.
I want to make it clear here that this is not a fight between educators and writers. The school system is very important for writers. When we are invited—and we're very proud to be invited—into schools, this is a point of entry for us into nurturing young minds and future readers. I reiterate that we just want to be able to be compensated for the use of our intellectual property. If people want to use it, and believe in it, it's worth paying for.
:
Good afternoon to our witnesses.
I have several questions. Mr. Brown, I imagine that the people who are listening to us or watching us on television do not fully understand what we're talking about. Earlier you said that you have written five books and published literary magazines. Those publications have brought in more than a quarter of a million dollars. That is correct, that is what you stated. This has benefited advertisers, drafters, photographers, local bookstores, but as an author, as an artist—because you are an artist, you are an author, you are the one who wrote the book, you are the one who created it—as a creator, how much of this would you receive, perhaps not in actual dollars but in terms of the percentage of that quarter of a million dollars? Is it proportional to your cultural contribution? At the end of the line, does your copyright fee provide you with a certain amount of money? In terms of the percentage, is it worth your while?
:
Absolutely it's worth it. Writers want to be read. That's why we do what we do.
But to answer your question, regarding the books, generally speaking I would get 8% to 10%, depending on the publisher. The rest of that income, or the income generated from that book, would benefit other people in my industry.
Regarding the magazine, that was a work of love. I never took a salary for that. I was very proud that I was able to pay writers and photographers and bring their work to a larger audience.
It is generally known that for every $1 invested in culture in Canada, there is a $3 return. I would argue that it's even more in smaller communities in Canada. We do make tremendous contributions to the economy, to the local tax base. If you take us out, there's a lot to be lost.