[Recorded by Electronic Apparatus]
Tuesday, October 29, 1996
.1846 
[English]
The Chairman: I'd like to call the meeting to order and hear witnesses on Bill C-32, an act to amend the Copyright Act.
I'd like to make two brief announcements, first of all to advise you, and to put on the record, that a member from the official opposition, Mr. Leroux, was good enough to call me just before the session. He had a meeting that he had to attend. He apologizes to you, and will be here later on.
The second point I want to put on record is that according to the rules, we have given 15 minutes' notice to the two opposition parties, as we must, so now the meeting is in order to start.
I'd like to welcome the representatives from the Association of Canadian Archivists, Ms Jean Dryden, chair of its copyright committee; Mr. Victorin Chabot,
[Translation]
from l'Association des archivistes du Québec,
[English]
and Ms Nancy Marrelli, from the Canadian Council of Archives.
Who wishes to start? Ms Dryden, the floor is yours.
Ms Jean Dryden (Chair, Copyright Committee, Association of Canadian Archivists): Thank you very much, Mr. Chairman, for the opportunity to appear before your committee. As you know, I'm Jean Dryden, and I'm the chair of the Canadian archival community's joint copyright committee.
I represent the Association of Canadian Archivists, my colleague Victorin Chabot represents l'Association des archivistes du Québec, and Nancy Marrelli represents the Canadian Council of Archives. Together we represent some 1,500 professional archivists and 800 archival institutions charged with the responsibility of preserving and making available Canada's archival heritage.
We have submitted a brief, in which we ask for five amendments to Bill C-32, and we would be pleased to answer questions about it. First, however, I want to speak more generally about the special nature of archives and the way in which this bill impedes preservation of, and access to, our archival heritage.
Copyright law has always been a problem for archivists because of the unique nature of archival holdings. This bill groups exceptions for libraries and archives together, apparently assuming that their holdings are similar. However, it is important to understand that archival holdings differ significantly from library holdings in the following ways.
Archival holdings are generally unpublished; library holdings are published. Archival holdings are unique and irreplaceable; library holdings, in most cases, exist in multiple copies, and replacement copies are readily available. The creators of archival documents are unremarkable individuals about whom little is known, whereas creators of published items are clearly identified and documented. Finally, photocopies of archival material have negligible commercial value; however, photocopies of library materials compete with commercially available products. Those are some significant differences between the holdings of the two types of institutions.
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While Bill C-32 provides significant benefits to libraries, it provides little assistance to archivists in their mandate to preserve and make accessible Canada's rich archival heritage.
To illustrate better the nature of archival material, I want to tell you about a man named Stewart Dunlop. You undoubtedly haven't heard of him. He was my grandfather.
While serving in the Canadian army in France in World War I, he wrote letters to his sister. One of the most moving was written on the eve of battle, when he knew he would have to lead his men over the top the next day. He was only 22 years old. That battle was Vimy Ridge. He was wounded at Vimy; the next letters are from the hospital.
After the war he returned to Canada, married, and raised a family on a farm in southeastern Saskatchewan during the Depression. He kept a very simply diary - only one line per day. Across the page for the month of June 1935, he wrote ``Dry. No rain since the 7th''. I have a photocopy of that page - an illegal photocopy, under the terms of the act as it is now.
The letters that he wrote as a young soldier in France and the diary that he wrote during the Depression are very typical of archival holdings. According to the Copyright Act he is the author of these literary works. Yet he wrote these documents with no thought of economic gain, and the copyright holders - three children and four grandchildren - would be delighted that a researcher would want to copy some of his letters for use in their research. However, as the law stands, a researcher wishing to photocopy these documents - say, for example, someone like Pierre Berton, who has written books about both Vimy and the Depression - would have to get the permission of the seven adults who hold the copyright, a considerable and unreasonable barrier to research.
The archival community's brief stresses two main archival functions: preservation and access. We are delighted that the bill permits copying to preserve our collections. However, to deny for-profit organizations this exception is an unreasonable distinction, which places significant parts of our archival heritage at risk. Having high profits does not guarantee the immortality of archival records. The paper documents preserved in the archives of the Royal Bank are deteriorating and may require preservation microfilming just as urgently as the records and the archives of the United Church of Canada. We ask that the right to copy unique and irreplaceable archival records in order to preserve them be provided to all archives, regardless of the nature of their sponsoring organization.
The second task of the archivist is to make their holdings accessible for research. In this regard the bill fails badly because of the assumed similarity between library and archival material. Libraries are provided with four means by which they can serve their research clientele without violating the Copyright Act. There's a term of protection for published works. There's the fair dealing provision. Collectives may act on behalf of copyright holders. Finally, there's a provision for the Copyright Board to act on behalf of an unlocatable owner of copyright in published material.
Only the first of these measures is available to users of archives. Bill C-32 provides a welcome limit to the perpetuity of copyright in unpublished works; however, it includes a lengthy transition period that effectively limits research use of many 19th and 20th century documents until halfway through the next century.
None of the remaining three provisions is available to archives. Neither the fair dealing provision nor the unlocatable copyright owner provision apply to unpublished works. There is no possibility of forming collectives to represent the hundreds of thousands of unremarkable ``creators'' and their descendants of works in archives. For example, no one is going to take the trouble to track down me, my cousins, my mother and my uncles to get us to join a collective for the sake of a few photocopies of my grandfather's letters or diary.
Therefore, in order to make archival material as accessible as library holdings, we require some changes to Bill C-32. We are asking for a further exception that will permit researchers and archives staff to make a single copy of an unpublished work in the holdings of an archives for research and private study. As well, we request the extension of the unlocatable copyright owner provision to unpublished works in an archives.
Canada's archivists serve a wide range of researchers, many of whom are also creators, who use Canada's rich archival resources to produce histories, articles, films and television documentaries, historical novels - I could go on. For example, Margaret Atwood's most recent novel, Alias Grace, includes acknowledgements to eight archival institutions. One of the archives she acknowledges is mine, and we responded to Atwood's inquiry with a photocopy.
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The nature of modern research is such that researchers no longer have the time or money to spend weeks in archives making notes from the documents they are studying or travelling the length of the country for one file, or, in Atwood's case, walking down the street, because my archives is very close to her home. Instead, researchers make photocopies of everything that may be relevant and take these documents home to study and assess at leisure.
As the law now stands, every time a researcher requires copies of documents, an archivist must assess the risk and make a choice. Bill C-32 provides no means to allow researchers and archivists access to the raw material of Canadian history. Archival institutions should not be put at risk of contravening copyright legislation simply by permitting researchers to use their holdings.
In our brief, the archival community has sought to convince the committee that Bill C-32 severely limits access to our archival resources, and we have proposed ways to fix these problems without jeopardizing the rights of creators. We respectfully request that further exemptions be provided for archives to fulfil their mandate to preserve and make accessible Canada's rich documentary heritage.
Thank you for your attention. We would be pleased to answer any questions you may have.
The Chairman: Thank you, Ms Dryden.
[Translation]
Mr. Plamondon.
Mr. Plamondon (Richelieu): Thank you. It is very interesting and quite complex. In your presentation, you have talked about conservation and access. You have also talked about copying to preserve collections. To what extent is it necessary to make copies to preserve archival records, even in the case of private holdings? I think you alluded to the archives of the Royal Bank, isn't it?
Could you be more specific about the amendments you would like to see in the bill regarding that issue?
Ms Nancy Marrelli (Canadian Council of Archives): Preservation of archival records is usually a two-fold issue. First, there is the case where material is deteriorated to such extent that it shouldn't be used at all. If it was, it would just get ruined. For such type of work, it is necessary to make what is known as a transfer of medium. A copy must be made to permit access to the information itself.
Mr. Plamondon: You would want that an exception be provided to permit such copy?
Ms Marrelli: Exactly. It's copying for preservation purposes. Such copies could also be made in the case of unpublished works or records kept in our archival repositories.
Besides, there is the instance where a record is very fragile. In our archives, almost all the documents are somehow fragile. As time goes, they are deteriorating, but they are normally not so damaged that they cannot be used any more. However, if we keep on using them, they may turn unusable. That's why we make what we call reference or access copies. We need them in order to preserve the originals.
Mr. Plamondon: As it is now, the bill would not permit it. Is it so?
Mr. Victorin Chabot (Association des archivistes du Québec, Canadian Council of Archives): In the bill as it is now, archives and libraries holdings are assumed to be similar. On the library side, there are not-for-profit libraries, such as municipal or school libraries, and there are for-profit libraries. Because of the assumed similarity between libraries and archival holdings, a distinction is being made between for-profit archives and not-for-profit archives. Yet, in the archives area, such a distinction cannot actually be made, since archives are usually set up for the sole purpose of an institution, be it the federal, provincial or municipal government, or companies such as the Royal Bank or les Caisses Populaires, or other organizations such as religious communities.
.1900
In the bill as it is now, not-for-profit archival holdings are provided an exception which permits them to make copies to preserve their materials, while for-profit organizations, such as banks or other private companies would not be permitted to make copies of their own archival documents even for the sole purpose of preserving them. That is why we ask in our brief that no such distinction be made between for-profit and not-for-profit archives.
Ms Marrelli: I want to point out that archival holdings owned by for-profit companies are not for-profit themselves. Usually, companies are even losing money with them. It is unfortunately so for not-for-profit archival holdings.
Mr. Plamondon: I will leave it to the honorable members who are in power to take good note of your proposals on that issue.
[English]
The Chairman: Ms Phinney.
Ms Phinney (Hamilton Mountain): Thank you. I have just a couple of small questions.
You were just talking about the distinction between the profit and the non-profit archivists. Could you please tell me how many private sector archives there are in Canada?
Ms Dryden: Of the 800 archival institutions in Canada, I couldn't be exact about how many -
Ms Phinney: Is it half or is it...?
Ms Dryden: Oh, no.
Ms Phinney: Is it less than 100?
Ms Marrelli: Oh, certainly less than 100 - probably less than 50.
Ms Phinney: Is there a list of them anywhere?
Ms Marrelli: Yes, there are. The Canadian -
Ms Phinney: Of all 800?
Ms Marrelli: Yes, absolutely.
Ms Phinney: Could we get a copy of that, in case we wanted to speak to anybody? Thank you.
You have requested an exception for researchers to make a single copy of unpublished work for research purposes, subject to, you said, appropriate safeguards for copyright holders. Can you explain what you mean by appropriate safeguards?
Ms Dryden: Quite often when people donate records to archives, they put donor agreements on them that may safeguard the confidentiality if there is some sensitive material, that might close them for a certain time. For example, in some audio-visual works there are a bunch of legal agreements around various creators. If any of those sorts of agreements come into play when something is donated, those of course would override and prevent any sort of single-copy exemption for research.
Ms Phinney: Okay. Assuming that the relevant exceptions in Bill C-32 were extended as you requested, who would control or police the exceptions, ensuring that only one copy was made, and was made only for private study or research? How could you control this?
Ms Dryden: Well, most archives don't permit self-service photocopying, because of the fragility of the material. Usually researchers have to put in an order, saying ``please copy the following sheets that are marked'', and they have to wait for it to be sent out. So because the archival staff are doing a lot of the copying, they know it's only one copy. Also, when the researcher registers to do research at that archives, there is usually an interview; the researcher would have to explain why they are there and what the purpose of their research is, so that's another mechanism.
In those archives that do have self-serve photocopiers, due to staff cuts and that sort of thing, the photocopier is usually right by the reference desk so that the archivist can supervise it - again, looking not just for copyright issues but also things like the fragility of the documents. If a researcher comes up with something with the edges flaking apart, you are not going to let them put it down on a photocopier.
Archivists are quite used to policing various forms of access restrictions and donor agreements and those sorts of things, so this is another one, admittedly. But it's not -
Ms Phinney: You're saying you have 800 archives, and you've used the word ``usually'' four times, I think, in the answer to my questions. What about the ones that don't come under ``usually''?
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Ms Marrelli: There are very few archives -
Ms Phinney: Would you have to put a rule in that all 800 archives would have to follow this? And how would we control that?
Ms Marrelli: It's extremely rare that an archives will allow a researcher to copy from originals.
Ms Phinney: So you just govern yourselves on this.
Ms Marrelli: Yes, it's part of the package of being in an archives.
Ms Dryden: Also, when this bill is passed, in whatever final form it takes.... We were just discussing this evening our plans to do more education of our members in the archival community about what this new copyright legislation will hold for them.
As Nancy has said, it's part of the package of being an archivist, but there is some more education we can do.
The Chairman: Mr. Bélanger.
Mr. Bélanger (Ottawa - Vanier): Thank you, Mr. Chairman.
On the notion of a non-profit versus a profit archive, you're suggesting they be treated equally as non-profit archives. Suppose the government went along with that. Would you also argue that, for internal consistency, libraries be treated the same way?
Ms Marrelli: Are there for-profit libraries?
Mr. Bélanger: Yes.
Ms Marrelli: I'm not familiar with that. There aren't for-profit archives.
Mr. Bélanger: You suggest that for the purposes of this bill they be treated the same, as non-profit archives.
Ms Dryden: There are for-profit libraries.
I'm feeling uncomfortable, because I'm not here to speak for the library community, but if there are for-profit libraries, then I think you need a special exemption that removes the distinction between profit and non-profit for archives, but not for libraries.
Mr. Bélanger: You did allude to it in your opening remarks. That's why I was asking.
It's a minor point. We'll ask the libraries.
Ms Dryden: I wanted the distinction removed for archives. I wasn't necessarily speaking for libraries.
Mr. Bélanger: On your amendment number 4, the one for public performance in an archives facility, do you have in mind a public viewing by one person or two or three? Where do you stop?
[Translation]
Mr. Chabot: For research purposes only. Within our archival holdings, of course, we keep textual records, but also photographs, films and sound recordings. It is quite often possible to see people not working alone, but by teams of two, three or four persons.
Mr. Bélanger: It could be a whole class.
Mr. Chabot: Yes, even a class. But it can only be for the purpose of making research and not for publishing or making profits.
Mr. Bélanger: Here, at the National Archives, we regularly have series of films.
Mr. Chabot: A distinction must be made between an archives which would present a film for commercial purposes and publicize it, and an archives which would have a group of students come and view a film for a course or a study, as students in cinematography who would come and view the film of a particular film producer to study his style.
Mr. Bélanger: If that activity took place in a classroom, would there be an exemption?
Mr. Chabot: Actually, the bill provides for exceptions in the case of educational institutions. In the bill, exceptions are in fact provided for educational institutions which present a film for learning purposes, but no such exceptions are provided for archives, and that's what we are asking for.
Mr. Bélanger: If I did not misunderstand you, you are asking that an exemption be made when the film is viewed or projected on your premises, at the archives.
Mr. Chabot: It's only that.
Ms Marrelli: Not in an auditorium, but at the archives.
Mr. Bélanger: You're right. It has to be specified.
Ms Marrelli: We are talking of the archives as such, of the reference room.
Mr. Chabot: For research purposes.
Ms Marrelli: That's correct.
Mr. Bélanger: Yes, but to say that it's for research purposes may be very woolly, very vague. If it is a whole class who makes research, you must have them in the auditorium, but you pointed out that it couldn't be in an auditorium.
Ms Marrelli: No. In fact, what we mean is that it couldn't be a public event because it has to be for research purposes only.
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[English]
Mr. Bélanger: May I continue?
The Chairman: Yes.
Mr. Bélanger: This is fun.
You were saying Margaret Atwood was using your archival resources for her most recent book, which is definitely a commercial venture on which she gets royalties. Were there any royalties associated with any of the work...?
I'm not prying, but I'm trying to drive at a point here. Are you arguing that someone who will use archival resources for eventually providing a work that will generate a profit should be exempted from paying royalties on the archival materials that person may be using?
Ms Dryden: I'm not saying they shouldn't pay royalties; I'm saying there's no mechanism. Nobody in their right mind is going to organize a collective of all the thousands of Canadians who are the descendants of these ordinary people who wrote these ordinary letters.
Mr. Bélanger: Organizations such as SOCAN, CANCOPY and a number of them might be interested in coming to terms with archives.
Ms Dryden: Yes, but it's the other side, the creators and their descendants.
Mr. Bélanger: Has that been tried? Before we say it can't be done, has it been tried?
Ms Dryden: Not that I know of, but I think it's very unrealistic.
Mr. Bélanger: All right. So I want to make sure. You're asking, therefore, that someone using archival facilities for the generation of a piece of literature that will generate profit should not pay royalties on the material used in the archives?
Ms Marrelli: We're not talking about them using those pieces; we're talking about when they use them for research purposes.
Mr. Bélanger: To write a novel, you might have to do some research.
Ms Marrelli: Absolutely, but if you take the piece and use it -
Ms Dryden: If you publish it.
Ms Marrelli: - you are of course held, by the copyright legislation, to pay royalties.
Mr. Bélanger: But you're asking to be exempted from that.
Ms Marrelli: No.
Ms Dryden: Photocopying doesn't mean publishing. Say Margaret Atwood photocopied a hundred documents as part of her research, but only published one of them, yes, she would have to get the appropriate permissions and what not to use that one. We are saying she shouldn't have to approach a hundred people, or more than a hundred people, to -
Mr. Bélanger: Just one: the archives where she got the material.
Ms Marrelli: No.
Ms Dryden: No.
Ms Marrelli: Because we don't have the copyright.
Mr. Bélanger: Thank you.
The Chairman: Mr. Abbott.
Mr. Abbott (Kootenay East): I have a very quick question to differentiate between a private and a public collection. I believe Mr. Bélanger was touching on that.
If we can assume that although it might be a not-for-profit archive, it nonetheless would be owned and controlled by Seagram, Maple Leaf Gardens or some other commercial corporation, do you think it would be necessary to have a distinction between that kind of archive - particularly one that was aggressive and active in going out and trying to acquire new material for their archive...? Would it be essential, in your judgment, to differentiate in legislation between what could or couldn't be done for that...we'll call it a professional archive versus the not-for-profit archive that you represent? Should there be a distinction in legislation?
Ms Dryden: In terms of the right to copy their records to preserve them?
Mr. Abbott: In other words, for all of the functions you would be doing that would be duplicated, so to speak, by the other archive - the only difference being the issue of ownership, one being owned by a for-profit company and the other being a stand-alone, non-profit organization or a government organization - should there be a distinction in legislation between what the functions can be as they relate to copyright?
Ms Marrelli: Not for preservation purposes; that's what we're saying. For preservation purposes, it acts as a deterrent.
The for-profit institutions that acquire and preserve archives generally do so as part of their regular business operations. They don't go out and aggressively acquire archival material. They're generally things they acquire in the course of doing their business.
What we are concerned about is that this legislation acts as a deterrent for them to keep those archives, because it doesn't allow them to copy strictly for preservation purposes - for example, as we were indicating before, a document that is falling apart.
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The example that comes to mind is insurance companies, one of the institutions that do keep archival records. If they can see that it is not in their interest or that there's a deterrent for them to keep this archival material, they're just going to dump it.
We want to provide incentives rather than deterrents. We're saying that the heritage they have is important enough. We don't give them particular incentives, but let's not prevent them from doing what they're trying to do. This is at some expense to the company, I might add.
Mr. Abbott: Thank you.
[Translation]
The Chairman: Do you have any other questions? Mr. Bélanger.
[English]
Mr. Bélanger: I have just one final question. How hard is it or how easy is it to set up an archive? Who decides whether someone can set up an archive or not?
[Translation]
Mr. Chabot: Any organization, private or public, or any individual may create their own archives. But it must pointed out that some organizations, besides keeping their own documents which they have created or received, may purchase other archival materials as a complement to their own holdings. When private records are bought by an archive, those documents become the physical but not the intellectual property of the archive. The creators still remain the holders of copyright.
Mr. Bélanger: Thus, it means that if our proposal is accepted, one could argue that he has set up an archives in his home and make a copy of a book. It would be part of his personal archives.
Mr. Chabot: A distinction must be made between published and unpublished works. In your personal archives, you would have some documents that were written or created by yourself, and some other documents that you received from other people. As for the copyright on the works you would have received from a third party, it would still be held by that third party. For the books you have in your own library, it's something else. That's the same copyright law that applies, but with different terms of rights. The law currently provides for a perpetual copyright in the case of unpublished documents. On the other hand, for published documents, the term of the copyright is fifty-year after their publication.
Mr. Bélanger: An archives would be permitted to make a copy of a work for preservation purposes, isn't it?
Mr. Chabot: Currently...
Mr. Bélanger: According to what is proposed.
Ms Marrelli: Yes.
Mr. Chabot: If the organization is a not-for-profit one.
Mr. Bélanger: For any work.
Mr. Chabot: For an unpublished one.
Mr. Bélanger: Alright. Thank you.
[English]
Ms Dryden: In conclusion, Mr. Bélanger, if you were going to set up an archive, note that they do not make money.
The Chairman: Thank you very much, Ms Dryden, Ms Marrelli and Monsieur Chabot.
[Translation]
Thank you very much for appearing before us tonight.
[English]
Thank you.
.0950
[Translation]
I would like to welcome the National Archivist, Jean-Pierre Wallot from the National Archives of Canada, who will introduce his colleague to us. Mr. Wallot, the floor is yours.
Mr. Jean-Pierre Wallot (National archivist, National Archives of Canada): Thank you, Mr. Chairman. I thank the committee for the opportunity we had to appear before you today. I have with me Mr. Lee MacDonald, the Assistant National Archivist at the National Archives.
You have already heard from representatives of the archival community, whose opinions, of course, I agree with. I fully concur with the comments expressed by Ms Jean Dryden and her colleagues. In particular, I want to support the attempts she has made to show you that archives are unique, located on a single site, and that the requirements for archives in copyright law are different from those of libraries.
Bill C-32 groups library and archival exceptions together. In this bill, some provisions have been provided to archives to permit them to fulfill their preservation mandate. To protect our nation's heritage, for example, this bill allows institutions which are owned and controlled by for-profit companies to make copies of records for preservation purposes. There are also other provisions, but the real needs of archives have not yet been fully met.
It is because of the very important differences between library collections and archival holdings that the archival community is requesting the five amendments detailed in its brief. These are aimed at ensuring that the rare and unique records held in archives are not only preserved, but also made as available for research and study as the published collections held in libraries.
[English]
What are archives, and why do countries, organizations, associations, and even individuals, keep them? As I have written to you at greater length, archives are the memories of groups of individuals and nations. They assemble, in an organized way, the documents from the past in order that we may understand our roots and build upon them for the future.
Archival records consist of the letters, memos, diaries, official papers, private papers, maps, photographs, audio-visual records and electronic records of governments, associations, businesses and individuals.
Of all the records originally created, those in archives have been selected for their historical, legal evidential or informational value. Archival records were not originally created for profit. They are generated in the normal course of daily life and the activities of groups and individuals. As such, they acquire historical, legal or evidential value over time. Their authors are thus all citizens who have recorded parts of their lives, experiences and opinions over time.
Archival records are overwhelmingly unpublished. In fact, what we say in French is des actes notariés. In English you call these notarial deeds. Archives are deeds that have recorded actions and transactions that have occurred.
As you are probably aware, at the moment the Copyright Act in Canada has no provisions for the copying of unpublished records. Copies may not be made legally for preservation purposes, let alone for research and private study.
Copyright on unpublished works is also perpetual. Making a photocopy of a letter from Sir John A. Macdonald may be deemed to be illegal under our current act.
Bill C-32 has recognized this problem in part. It has introduced a broad exception for archives to permit them to preserve their holdings through conservation copying. This is a most welcome exception, and we fully support it. Acidic paper of the late 19th century, and of course the 20th century, film stocks, especially nitrate films, and computer tapes and files are all unstable and are deteriorating at an alarming rate. We must have the legal right to try to save them.
[Translation]
However, the public archives alone can no longer preserve our nation's memory.
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More and more, as governments cut back on budgets, responsibility for preserving private sector archives is falling to the private sector. For this reason, and to support the growing partnership between public and private sector archives in Canada, which are at the very basis of the well-ordered safeguard of our collective memory, we are recommending that these preservation provisions be extended to private sector archives, that is to the archives of businesses, associations and other so-called for-profit organizations.
Given that some of the major companies in this country played a vital role in our history, they should not be barred by law from preserving the valuable records they hold. I will give you an example which is imaginary but very real at the same time. If the Hudson Bay Company had been subjected to the copyright law of Canada, its records which document our 17th, 18th and 19th centuries would have disappeared in large part because they would have been destroyed. I give that example because the Hudson Bay Company, which was then British, was not governed by our law. But we could also take the example of the CP to show the importance of that problem. We could refer to all kinds of other companies, like Molson, who holds archives which go back to 1774.
These are all companies who have very rich archives holdings, not only invaluable for them or for their commercial interests but also for Canada. There is no money to make with archives. In fact, archival records are often considered by companies as a burden rather than as a way to make profits. They keep them just because they generally are good citizens or because they sometimes are conscious that their archives are precious for their business continuity.
Bill C-32 has, in line with many other countries and according to international convention, also introduced a limit on the term of protection on unpublished works, the life of the author plus fifty years, the same term as for published works. This change is most welcome. However, in practical terms, with the transition provisions as described in Bill C-32, many works will still be protected for a very long time.
[English]
According to proposed section 7(1) of the bill, works by creators who died 100 years before the bill comes into law will receive five more years of protection and then fall into the public domain. Assuming that Bill C-32 becomes law in 1997, a letter by Sir John A. Macdonald can at last in 2003 be photocopied legally.
The records in Canadian archives up to about the mid-19th century will finally fall within the public domain. They will for the first time be available legally for Canadians to use, copy, study and to include in new works.
Works by creators who died less than 100 years before the passing of Bill C-32 will be protected until the year 2048 or 50 years after this new bill becomes law.
Do we really want to prevent all research copying for 150 years of the documents of Laurier and Borden, the diaries and letters containing first-hand accounts of the adventure of the Klondike or the distress of the First World War, a record of the hardship of the Depression or the prairie dust bowl?
I've put in the package two photocopies illustrating what we mean by the kind of research copies. As you can see, in no way can these be published nor be reproduced. They're really for research. One is the last spike - to borrow the words of Pierre Berton - which is a telegram saying the CP is completed. Another is a letter by Wilfrid Laurier. These would be extremely useful for Canadian history, but they would not be available until 2048. And many others would be in that situation.
To solve this problem, archives are proposing that an exception be introduced to permit the making of a single copy of an unpublished work in the holdings of an archive for the purposes of research and private study, providing that no agreement or other restriction exists to the contrary. This has already been explained, so I'm not entering into detail.
[Translation]
In addition to being the National Archivist of Canada, I am also a university professor and an author of over a dozen books. So, I am a creator as well. I was president of the Historical Society of Canada, president of l'Institut d'histoire de l'Amérique française and member of l'Académie des lettres du Québec. So, I can see at the same time the viewpoint of the creators, the viewpoint of historians and researchers and the viewpoint of archivists, since I am the National Archivist and that we continuously have to deal with all kinds of public.
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In my academic world, research grants are declining considerably and travel is ever more expensive. Authors and graduate students cannot afford to go from archive to archive, hand copying the records they want to use for reference in their theses, articles or books.
Photocopy and reproduction has become a part of life. They permit not only quicker research, but also broaden access to the heritage collections of the country for all Canadians.
The same thing applies to ordinary citizens. The clientele of archives is not mostly made up of experienced researchers and people who want to write books, but of ordinary citizens who want to know who their ancestors were and how they came to this country, or who want to see the diary of their grandfather who served during the First World War and so on, or who want to document some rights. Here I am thinking of Indians in particular. There is, indeed, a lot of materials concerning the Indians which are not in the public domain but in private holdings. If there is no access to all that, it's useless.
While I have heard some people argue that copyright is a protection for the content of personal papers, I believe that those who hold that position are confusing copyright and privacy. The exact words in the original many not be used, but the ideas and opinions in such works, even if they are protected by copyright, may be paraphrased or described. Copyright does not protect ideas, only a specific expression of those ideas.
Personally, I would prefer to see authors accurately quote from original works rather than have them condemned to paraphrasing and betraying the writings or ideas of authors.
It would perhaps be helpful for you to know that archives are very aware of the issues of privacy and of the rights of the individuals. Many of them operate under some type of Privacy legislation. In addition, they also often acquire collections through agreements where donors may specify any number of special provisions, including arrangements for the management of copyright and the blocking of all or part of the access to files during a period which can be short or very long depending on the type of materials and their content.
[English]
In requesting an exception for the making of a single copy of an archival record for research and private study, archives are not asking for a blanket right that would negate their many privacy and other obligations. Such an exception would however apply to the literally millions of records that are now held in archives where there was no original intent of profit or commercial gain, where the authors were ordinary citizens, and where no trace of them or the current copyright holder can now be found.
It is not possible to create a collective that would cover these creators. They are in fact all Canadians. Moreover, interactivity must not negate the intentions of those donors or sellers who have already placed materials in the archives with specific conditions.
Archives has also asked on behalf of its clients who are authors that the Copyright Board be authorized to act on behalf of a copyright holder to grant permission for the publication of an unpublished archival record where the copyright holder cannot be found. You were asking a little bit earlier if that was possible; it would be possible though the extension of this right.
This is in response to the many requests archives constantly receives from authors about how and where to gain permission to use the records of these unknown creators. Such a provision now exists only for the use of published works, thus for libraries.
Bill C-32 contains a special provision that will permit the National Archives to tape broadcast records off-air for archival purposes. We are pleased that this is included in the bill as it will assist in the acquisition of our audio-visual heritage as authorized by section 8 of the National Archives of Canada Act. As you know, audio-visual is an increasingly important medium, perhaps now the most important for recording the times in which we live.
[Translation]
In any society and in any legislation, the interests of various parties must be balanced. Archives are not asking for any exceptions which would harm the economic interests of creators. They are simply requesting provisions which, in all common sense, will enable them to carry out their mandate, to preserve our memory and to make it accessible and therefore useful.
Archives are the bridge between one generation of creators and another. But to be effective in carrying out that role, they must be accessible and usable.
.1935
At a time when our Canadian society meet so much difficulty in knowing and assuming its identity, does it not make sense that we should have full access to our roots, to the history that brought us to the present and to our rights as citizens?
All of these are held in the archival holdings of this country. Bill C-32, if it takes into account the specificity of archives, will make that possible in a reasonable measure.
Thank you for your attention.
The Chairman: Thank you, Mr. Wallot.
Are there any questions for Mr. Wallot?
Mr. Plamondon.
Mr. Plamondon: The previous witnesses have answered Mr. Bélanger's question concerning presentations in an auditorium or the fact of providing information meetings for students or researchers on the archives premises. Would it have been better if we had forgotten you in our thinking about Bill C-32? Would you have preferred to keep it the same way?
Mr. Wallot: No. The bill is an important step forward from what it was before.
Mr. Plamondon: Could you tell us, in concrete terms, what are, in your view, the two or three most important improvements that are proposed in this bill? What would you like us to change in it?
Mr. Wallot: Concretely, it limits the term of the copyright, whereas before, it was impossible to get a firm opinion from legal advisers, because the law was not specific about that. Bill C-32 gives us, for example, the right to make copies for the preservation of materials, at least in the case of public and not-for-profit archives, such as universitary archives, etc.
Mr. Plamondon: There is a series of exceptions.
Mr. Wallot: Yes. On the other hand, as I already mentioned, if we are not allowed to make a unique copy for research purposes, it will make research extremely difficult. Let me give you some concrete examples. If someone wanted to make research about Sir Wilfrid Laurier or about his time, through the use not only of documents from Sir Wilfrid Laurier himself, but also of other records about that period, he would have to come to the National archives in person, use our research instruments, identify the documents needed, look at them one by one and transcribe them by hand.
Should he have access to our research instruments through Internet, he would then be able to identify the records he wants and ask for photocopies. We would send him those copies, from which he would draw a limited number of ideas in support of his thesis. That's the way we work in terms of the research.
Mr. Plamondon: That's the way it works currently?
Mr. Wallot: That's the way it always worked.
Mr. Plamondon: But you have also talked about the irritants of the bill. Did you not say that those are things you won't be able to do anymore?
Mr. Wallot: No. I said that the present bill would not permit us to do it.
Mr. Plamondon: Therefore, it turns to be an irritant compared to the way you were operating until now.
Mr. Wallot: If we talk about the way we work right now, I must say, to be honest, that nobody knows if we are acting legally or illegally. We simply ask that archives not be let in a potential illegal situation. We want to be put in a legal framework. You must understand that it is extremely difficult to hold an archive. Everybody come and ask us access to materials, and we cannot check where all those people are coming from. If they come from Vancouver, from Trois-Rivières or from somewhere else, they are going to ask for photocopies so that they can work at home, because it is less costly.
Mr. Plamondon: That will be all, Mr. Chairman. In short, if the bill is adopted as it is now, without being amended, and the list of exceptions is not modified in the line of your recommendations, research in Canada will become much more difficult. Am I right?
Mr. Wallot: It will be very difficult, indeed.
Mr. Plamondon: Thank you.
[English]
The Chairman: Mr. Abbott, have you any questions?
Mr. Abbott: Let's take a scenario with the bill and without the bill, and I'll ask you to describe the difference for me.
.1940
I can visualize a day when my friends across the table are going to be trying to look into the roots of the Reform movement, which goes back into the 1800s. Let's assume there were some documents, which in fact there are, from around 1840 to 1850. If they wanted to have those copies for their in-depth research at home, as things presently sit, what would the effect be, and with the legislation, what would the effect be relative to those documents from 1840 or 1850?
Mr. Wallot: As things presently exist, there's no limit to copyright, so these documents would not be in the public domain. Theoretically, the researcher or the archives, or both, would have to ask if they know who the owner of the copyright is, and our problem is that most of the time we don't know. We're talking literally of millions of sources. We wouldn't know where to go.
But suppose the documents were used and quoted extensively. Usually nobody complains about how they are quoted. We've never had any complaints. The only legal case known is from 1925, so we're talking about a long length of time. But until now we, and all archives in Canada, have been working on the assumption - even though there's a cloud about the legality of what we do - that we use a fair dealing kind of approach. If we're sued for one reason or another, we're at risk because the copyright, as I've explained, does not expire. So with the new law, at least there's a period of time after which the records become public domain and can be used. We don't have to worry about that part.
What we have to worry about is that in the new legislation, where there is a specific exception made for libraries for single copies and for specific things, if there's no similar exception for archives it'll be much harder to maintain that we are working in a certain legality. There's a law being passed, and if we're not mentioned it's because the legislators didn't want to do that. It'll be much more difficult to say that we are still legal in providing copies of records. So we're creating a kind of chaos in research, and by research I don't mean only research by scholars, I'm talking about research by newspapers, by lawyers, even by government.
Government uses the National Archives extensively, and not only public records; sometimes they have to go into private records to understand why this policy was adopted. They will, for instance, use records of a past Reformer or a past Liberal or a past....
Suppose we have the records and they are opened by agreement with the donors or the donors' heirs. Not everybody can always read or spend years in the National Archives. What they will identify is the body they believe contains what they want to know. They'll take the photocopies home. They cannot reproduce these in a book. They wouldn't make a book, and what money would you do that with? So they would bring it home and choose from all these things the elements they need to build up their thesis or their interpretation, or their article or the film they're making, or whatever.
Audio-visual is not a problem. It's already well protected. It's a profit-making enterprise, and it's not in question here because it's well protected. It's the same for photographs. They have a very specific copyright. They're like a work of art. They have a copyright of 50 years. What we're mostly talking about here is the other archival materials. Essentially it is textual materials, but it could also be maps and other types of records that are not covered by the regular rules of copyright.
Mr. Abbott: Thank you. Thank you, Mr. Chairman.
The Chairman: Ms Phinney.
Ms Phinney: I'm very pleased to see in here, on pages 8 and 9 of what you read tonight, that a lot of archives follow privacy legislation now. This is the basis of my question. I'm concerned about material that is in private archives, particularly. You've agreed with the other group that they need the same ability to preserve their records as the non-profit archives. You give an example of Molson's having an archives, and probably the car companies do and probably a lot of others we could name. Wouldn't most of the things they have in their institutions be things they have created or written themselves? Isn't it their own material, and as such they wouldn't need any authorization to copy this, would they?
.1945
Mr. Wallot: It's more complicated than that. You see, the person who rights a letter is the copyright owner. If I write to, let's say, John Molson the first, or John Molson the son, he didn't own the copyright. He wouldn't even have known copyright existed in the late 18th century or early 19th century. Today, I could not get a photocopy of the letter that So-and-so wrote, because I can't find the copyright holder, because that person is a nobody, an unknown person from Three Rivers who wanted his beer. I've seen such records myself, so I know a lot about this.
For the Molsons, for instance, or many of these companies, it comprises much more than what I would call the internal business - their minutes, etc. As soon as you're talking about external relationships...and of course companies do that all the time. They get records from other people, from other companies. They exchange information. Who owns the copyright of these? If they're caught in a difficult situation, then they will not copy anything and they will not give access to anything. That would be unfortunate, because many of the larger companies have kept records. In the case of the Molsons, they have transferred their archives to the National Archives, but other companies have kept their archives.
Ms Phinney: Let's say that Molson hadn't transferred it and the Molson family still owned the Molson archives. That material is their material. They put the material in there, the first Molson, the second Molson, the third Molson. They put that material in there. That's their material. If I put this material aside, it's my material. Can they not copy that? I don't mean to give to you, I mean for themselves. They can make a copy of that for themselves, can they not? I'm talking about just making one copy to store it so it's in good condition. They could do that without asking anybody else. Or do they need this bill to do that?
Mr. Wallot: There is an exception here that says except for for-profit organizations, if they have archives. So theoretically, legally I presume they wouldn't have the right to copy even for preservation purposes.
Ms Phinney: Not their own material.
Mr. Wallot: No, if the law was applied that way. But I presume that if they did make photocopies, nobody would know about it, and I don't think there would be a lot of people who would start going around to police this kind of thing. When something is unreasonable, somehow people don't follow the law. What I'm trying to say is that there is an equilibrium here to reach, and I'm suggesting that perhaps we should not put archivists or researchers in the position where they must transgress the law or ignore it or do nearly the impossible thing, like having everybody come to the National Archives in Ottawa or go to provincial archives in Toronto or l'Archives nationales du Québec. We should provide for this reality.
The difficulty in what you say is this. Suppose you write a letter to me saying you didn't like this or that in my brief, you own the copyright of that letter. Suppose I was a private citizen, not the national archivist but Jean Dryden - of course I don't look like her, I'm not as pretty, but suppose I was - I would own the letter physically; eventually I could donate it to an archives, but nobody would own the copyright except you. After 50, 100, 200 years, how do you find these?
In my family we're nine children alive, then about 40 grandchildren; who are you going to ask? If we went back about a century, nobody could probably find traces of my family, because part of it came from Belgium, part of it came from Germany, and the rest from French Canada.
Ms Phinney: That's what my question was leading to. Is it not possible there could be a lot of information, particularly in private archives, that people don't know is there or don't know how it got there, and then one copy is made and that person wouldn't want a copy made. The person could be living today. They wouldn't want a copy given to somebody else.
Wouldn't it be possible by legalizing all this that we're saying, this is in your archives and therefore you can make a copy of it and you can let somebody else use it, when maybe the person's even alive today and wouldn't want it to be used; but they don't know it's in the archives - or what I call an archives, because as you said, I can open up an archives. So I have all these letters over there and I didn't know they were over there. By legalizing all this, doesn't it - I'm asking out of my own curiosity - create a problem?
Mr. Wallot: There are two different realities here. First of all, I would not advise you to open an archives. It's very costly, and eventually it has to be transmitted somewhere, and this is where it's lost. It's where the letters go and are split up and are being perhaps given in all kinds of ways.
.1950
But privacy is usually dealt with by the donors. A good example is that we've acquired the papers of all the past Prime Ministers, the more recent ones in particular recently. They are all putting in some very specific guidelines on when and how they want access to it. That's part of the agreement of their donation.
It's the same when we acquire either by donation or when we buy, unless we buy the copyright. But even when we buy the copyright, if a person wants things to be kept secret or hidden for a long time because it might influence the children or it might have an impact on their career or something, we're used to that. We do that all the time.
Ms Phinney: I understand that; you've explained it very well. But what about the person who doesn't know that their letters are being...?
Mr. Wallot: Well, the copyright cannot solve that. That's not a question of copyright. I would call that a question of ethics. By ethics I mean responsible archivists, and by training.... I don't know of any irresponsible archivists. I'm not saying there cannot be one, but I don't know of any. When they see in letters something that would be very personal....
For instance, we have all the files of all the soldiers who fought in the First World War, 650,000 of them. Some of them are still alive and some of them have died just recently. The law of protection of privacy of course applies only to public records, but even so, it ensures that we don't reveal certain types of information before 20 years after death. Sometimes the person is barely cold in the ground and the descendants come and want to see the whole file, including the medical file. In the medical file there are sometimes things you don't want to show right away.
We have to apply the law in a responsible manner. We're not God. We make mistakes, but usually we make mistakes under....
The French translation of ``archivist'' is conservateur. I don't mean the political party. Conservateur means ``preserving''. So archivists by definition will always take the safe side; things will explode in their face if they don't.
I don't know of any example in the past 50 years where the archives, or at least any major repository, has been caught doing anything in this manner that would be really bad. But even if you don't know your letter is in a specific fond, and even if you should know by the Copyright Act that people could find out you are the author, this would not protect you from persons looking into the letter and, not necessarily copying it word for word, but saying this person says in her letter that she's done this or she's done that. And it could still be published by a researcher.
How sanitized do you want history to be, in the end, after a certain amount of time? If it becomes too sanitized, it's not history; it's a kind of angel book for children. But we're not children. We're a society. We need to know what really happened.
I'm sorry. My answer is not a good one, perhaps, but it's the best I can give from my experience.
Ms Phinney: Thank you.
The Chairman: Are there any other questions?
Mr. O'Brien.
Mr. O'Brien (London - Middlesex): I just have one, Mr. Chairman.
I'm wondering if there was any opportunity prior to this for input from either of the previous two groups as this bill was drafted. Was there any consultation?
Mr. Wallot: On the other two groups, I don't know, but I know the National Archives did present their point of view. In fact, I think at some point in time, when the drafting was going to be done, they distinguished archives and libraries.
The main difficulty here is that the lawyers.... We need lawyers to write laws, of course, but when they made the final draft, they somehow forgot what they had learned about archives and libraries and mixed the two together again.
In fact, the law is great progress compared to what we have, and we support it entirely. What we're suggesting is that we could reinforce the efficaciousness of the law by adding a few exceptions. They would have no commercial impact. There's no profit to be made there. It would simply make our heritage available to more Canadians. That's important too.
Mr. O'Brien: I have a great deal of sympathy for what you say, so I just want to be clear. You had a chance to make these arguments, and your view is that perhaps it was....
Mr. Wallot: I think they were pretty much agreed to during the discussion phase, but of course we see the final draft only when it comes in front of the House.
Mr. O'Brien: Yes.
Mr. Wallot: Somewhere in there there has been a slippage. I don't know.
Mr. O'Brien: Okay, I appreciate that.
.1955
The Chairman: Dr. Wallot and Mr. MacDonald, one of the benefits of our job as parliamentarians, even at 8 o'clock at night, is that we happen to meet a lot of interesting people and learn a lot of things we certainly, speaking for myself, didn't know before. It was really interesting hearing you and learning about what you do. Thanks for coming. I appreciate it very much.
Mr. Wallot: Thank you, Mr. Chairman.
The Chairman: I'll suspend for just two or three minutes.
.1956
.2005
The Chairman: I'm pleased to welcome CARL, the Canadian Association of Research Libraries. Mr. Graham Hill is the university librarian from McMaster University in Hamilton.Mr. Timothy Mark is the interim executive director of the association.
Mr. Hill.
Mr. Graham Hill (Canadian Association of Research Libraries): Good evening,Mr. Chairman and members of the committee. Monsieur le président, membres du comité, bonsoir.
My name is Graham Hill. I'm the university librarian at McMaster University in Hamilton, Ontario. I'm also a past president and director of the Canadian Association of Research Libraries.
I am honoured and pleased to appear before the committee on behalf of the Canadian Association of Research Libraries. I would like to introduce Mr. Tim Mark, interim executive director of the association, who is with me this evening.
I've indicated in the association's written submission to the committee that the Canadian Association of Research Libraries consists of 27 major university libraries, the National Library of Canada and the Canada Institute for Scientific and Technical Information.
The combined collections of our member libraries form the largest and, in many respects, the most comprehensive library resource for study and research in Canada. In 1995, our university library members collectively held 95 million equivalent volumes of print holdings and maintained current subscriptions to 364,000 academic journals and serials. Last year, we spent nearly $120 million on books, journals and other information media.
Canada's research libraries have long advocated that Canada should be governed by and benefit from an intelligent and balanced copyright law that has been crafted following wide consultation and substantial scrutiny by Parliament.
This means that, on the one hand, we respect and support strong copyright protection for creators, but on the other hand, we are committed to equally strong statutory respect for the need to promote the growth and advancement of Canada by the encouragement of learning, research and the creation of new knowledge through legislative provisions that balance the monopoly and controlling position of the rights holder with the imperative for our society, which is that it should facilitate and encourage the growth and spread of knowledge.
With the passage of phase one reforms in 1988 to strengthen the rights of Canadian creators and rights holders, the educational and library communities were repeatedly assured that the second phase of reform would restore the principle of balance to Canadian copyright law by the inclusion of certain exceptions for educational and library uses of copyright. Thus, these sections of the bill fulfil a long-standing commitment made by the government many years ago. They were the outcome of a wide-ranging series of consultations conducted by the government and will, if passed into law, bring Canadian legislation into line with the copyright laws of comparable common law jurisdictions.
It is generally recognized that Canada is a net importer of information. Research libraries typically spend between 10% and 15% of their acquisitions funds on Canadian publications. In comparison with our information partners in the United States and Europe, Canada has a considerably greater need for the cultural products and research activities of other countries that have a larger population and resource base. But we do have unique strengths and resources, upon which we must capitalize so as to rightfully maintain our place on the field of international knowledge.
Research libraries regard the provisions of proposed section 30.1, which will permit libraries to preserve and maintain their collections without infringing copyright and yet safeguard the interests of rights holders through regulated the procedures for such copying activity, to be of great importance for the long-term preservation of Canada's research resources and literary heritage.
Interlibrary loans have long been recognized as an important vehicle to facilitate research. Not even the largest library can be self-sufficient in its ownership of recorded knowledge. Through the system of lending original and surrogate copies of scholarly works, libraries enhance the support they provide to research.
The need for the surrogate copy, which is made with no motive of profit, arises from the form of serial publication. If libraries lend the entire physical volume, which often contains more than 50 separate works, to the distant researcher, this would not only effectively remove all these works from our shelves for a period of weeks, but it would also give rise to damage and deterioration.
Timeliness is an important factor in the conduct of research, especially in the scientific and technical disciplines, and most of our libraries strive constantly to minimize delay.
.2010
Interlibrary loans are not, and never have been, substitutes for local collection development. Rather, they recognize the global nature of inquiry and the reality that no library can acquire a copy of all works that may be needed. In a research library, interlibrary loans traffic accounts for about 2% of total circulations from its own collections.
Without the statutory right to engage in non-profit interlibrary loans, a non-profit library is required to obtain the permission of the rights holder or to obtain copyright clearance through increasingly expensive licensing arrangements with a copyright collective.
Canadian research libraries, hence Canadian researchers, are thereby placed at a disadvantage in comparison with their colleagues in comparable jurisdictions. Take, for example, the United States, where legislated exceptions for the purpose of facilitating research permit libraries to make and send a surrogate copy of a journal article for the purposes of research or private study without infringing on copyright.
Therefore, in summary of its views on the provisions for interlibrary loans, the association welcomes proposed section 30.2, which will permit the long-standing practice of sharing the more esoteric collection resources of a research library with the patrons of other not-for-profit libraries.
The provisions contained in proposed section 30.3 of the bill, which would release libraries and their parent institutions from liability for the potentially illegal use of photocopy machines on their premises provided that certain conditions are met, are eminently sensible.
Canadian research libraries have long demonstrated their respect for copyright and frequently play an important role in educating members of their communities, both creators and users of copyright material, on intellectual property issues.
All Canadian universities hold current licences with CANCOPY, the Canadian Copyright Licensing Agency. They have instructive signs on copyright law, along with the licence, posted above every self-service copying machine. We do not abdicate responsibility for the use of these machines, but rather make continuing efforts to educate our faculty and students on the importance of respect for copyright.
We understand that the submissions of other bodies to the committee oppose the legislation of virtually all exceptions for educational, library and archival uses of copyright. The arguments made in opposition to proposed section 30.2, more particularly proposed subsection 30.2(5), which is commonly referred to as the interlibrary loans exception, require comment from the research library community.
Briefly stated, the publishers of academic journals fear that an ILL exception will have an adverse effect upon their market and revenues. Librarians fear that without an exception in the law, the sharing of materials among researchers and institutions will be diminished, to the detriment of private study and research.
Academic publishers and groups of rights holders generally advance three positions or reasons in support of their arguments against the legislated exception, such as this one.
First, rights holders believe they would be economically disadvantaged by such an exception, believing that they are due repeated and continuing compensation for this use of rights that they have generally secured at no cost from the scholar.
Second, such an exception would permit libraries to compete with the copyright owner in a primary market.
Third, such an exception would encourage libraries to reduce their subscription holdings and rely increasingly on interlibrary loans to meet their patrons' needs.
The first argument, which is continuing compensation for use, has little merit. Academic journal publishers already receive compensation through the relatively high annual prices set for these journals, a differential pricing structure that sets a significantly higher price for institutional subscriptions than for personal ones, and the publisher's policy of factoring subscription cancellations into the base price of the journal.
The committee may be interested to know that the statistics of the Association of Research Libraries in Washington, D.C. reports that the average unit cost of an academic journal purchased by a North American research library in 1995 was $287. The average annual increase in this cost over the last ten years has been 11.4%.
The second reason that is frequently advanced is that libraries might compete in the copyright owner's primary market. Presumably, this implies that some research institutions may use the multimillion-dollar investments that have been made in their collections to develop a revenue stream in competition with academic publishers. In our view, this fear is groundless and cannot be supported.
.2015
Until the 1970s, research libraries provided inter-lending services at no charge whatsoever. As funding declined however, a few of the larger libraries attempted to stem the demand for loans by the introduction of a deterrent fee, which was generally about $5 per transaction.
This caused volatile shifts in the lending and borrowing patterns among libraries, and most libraries soon imposed this deterrent charge. This charge is now uniform among university libraries in most provinces.
In Ontario it's still $5, despite the fact that an interlibrary loan cost study conducted in 1993 revealed that the benchmark cost of a completed interlibrary loan transaction, excluding the capital investment in the collections, was $25.32 for the borrowing library and $14.86 for the lending library, for a total cost of more than $40. Research libraries continue to engage in inter-lending for service reasons, not economic ones.
The third argument captures the fear on the part of publishers that libraries will reduce their serial subscriptions through interuniversity subscription management schemes. There is no question that university libraries are reducing their journal subscription commitments, and will continue to do so in the face of the increasingly limited resources available to universities and the recognition that the usage made of many academic journals is extremely low.
In good economic times, libraries were able to purchase a wide array of journals no matter how small the demand for their use, but we are well past that stage. With university budgets being reduced by 15% to 20%, publishers must unfortunately expect some adverse effect on their revenues.
No library is cancelling journals in high demand, and it is inconceivable that they could do so. Without some demand for a journal, either within or outside the university, there would be no point in purchasing it at all. It is our view that neither resource-sharing practices nor subscription cancellations pose a significant threat to the revenue base of academic journal publishers.
In summary therefore, and in conclusion, ladies and gentlemen, the Canadian Association of Research Libraries appreciates this opportunity to present our views on Bill C-32. We applaud the commitment of the government to move forward with the proposed reforms to redress the imbalance created with the passage of Bill C-60 more than eight years ago.
We believe this legislation offers a fair and reasonable compromise in this extremely complex area of national interest and will serve to strengthen both teaching and research in Canadian universities for the benefit of all our citizens.
[Translation]
Thank you, Mr. Chairman, and thanks to the members of this committee.
[English]
Thank you again, Mr. Chairman, and members of the committee.
The Chairman: Thank you very much, Mr. Hill.
Mr. Abbott.
Mr. Abbott: You very kindly gave us some numbers, but I must admit I'm still in a quandary. I still don't completely understand this. If you had cooperating libraries and institutions, what would be the major inhibition for them to decide to share?
It's like when you get on an airplane. One guy will take The Toronto Star, another guy will take The Globe and Mail, and another guy will take the The Toronto Sun. Then they swap them back and forth.
Mr. Hill: There's an impediment as to why that does not come about, and in my view it's unlikely to come about. Our library collections are driven by the academic programs at the universities. Obviously, local ownership is of considerable importance in the conduct of that teaching and research.
It is possible at the margins to share esoteric journals and materials. That is what inter-lending is about. But as I indicated in my remarks, those circulations account for only 2% of our total circulation, so 98% is from material that we have purchased for our own users. That's the relevant statistic there.
Given the diversity and the autonomy of universities in Canada, it's virtually impossible, despite our best efforts, to bring to fruition any significant sharing type of arrangement. It simply does not work.
.2020
Mr. Abbott: With the advancement of computer technology and the number of things that are available on the Internet, for example, is it reasonable to believe that although we're faced with perhaps some technological barriers to being able to do that today, within the next five years, it might be very easy to do?
In fact, a given university might not have to have actual physical ownership of something on a piece of paper. Rather, it would be in a repository with university A so that universities B and C could access it at university A just by the push of a button that is occurring at that particular institution.
Mr. Hill: That's a very good point. Anything is possible on the Internet in a digital environment. What stops it, of course, is copyright. Bill C-32 deals with print on paper, as it were.
I know the government has indicated that it anticipates phase three, which will deal with intellectual property in a technological environment. Certainly that is possible. I think it's absolutely true to say, though, that to this point the research libraries of Canada have been really meticulous in not abusing copyright. As I indicated in my remarks, we respect copyright. Our primary clientele, the faculty and students, use copyright, but they also produce copyright material. So we are in the middle.
In the comments that were made earlier this evening, I think it's very important for our students particularly - our faculty certainly have more experience - to develop respect for copyright law. As copyright issues emerge on the information highway, it will be absolutely critical to understand that you cannot just put it out there and take what you want as a self-serve operation. So we do respect copyright to that extent. It is copyright law that currently prevents that kind of situation arising.
Mr. Abbott: Thank you very much, Mr. Hill.
The Chairman: Ms Phinney.
Ms Phinney: Welcome to our committee.
I have to admit that I talked to you earlier. You had spoken about one of the proposals you put in the initial resolution we received on fair dealing. You made some comments about it such that you regret that fair dealing for educational purposes is not clarified, as it is in the United States and Australia. You explained that a little bit. Could you explain to us why you feel it's not clarified?
Mr. Hill: I will try. In our submission to the committee, we chose these words quite carefully. We regret that fair dealing for educational purposes is not clarified. Our view of Bill C-32 is that it is a good and effective compromise and the result of many years' work.
There are some things we would have liked to see but that did not appear. But given the exceptions that are provided for educational and library uses of copyright, we strongly support the bill as a whole package as it presently exists.
There is an active debate. I think I've made arguments on both sides that fair dealing in Canada is a defence against an accusation of infringement. In other words, it's a valid defence. It is not a legislated exception, in contrast to the provisions in the U.S. code, which have a defined fair use right. There are tests for what is fair use.
I think the library community has urged for many years that the scope of fair dealing should be defined. The view seems to prevail - it's my personal view, not that of our association - that fair dealing is somewhere between a fair use right and a defence that can be raised in response to an accusation of infringement. We regret that. There is a desire for certainty, and perhaps members of the library community look for certainty. They're more comfortable with certainty.
I am personally quite satisfied that the defence is there and can be raised. It's right there in proposed section 29 of the bill. Given the stream of exceptions in proposed sections 30 through 33, then I think as a package it works very well and is a good supplement to Bill C-60.
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Ms Phinney: In your brief, you state that the making of a digital copy is often necessary in order to obtain a printed copy. You suggest that this ought to be permitted.
Do you also support the view that it should be clearly stated in the legislation that the digital copy is a transitory copy and must be destroyed?
Mr. Hill: Absolutely.
Ms Phinney: Would you agree with that?
Mr. Hill: Yes, I would.
Ms Phinney: How would this be enforced?
Mr. Hill: You can refer to our comments on proposed section 30.2, which is on page 6 of our brief.
The equipment we use right now is called Ariel. It's technology to assist in the production of a print-on-paper copy. The AUCC's brief, I think on page 11, gives a much fuller explanation than ours on Ariel technology.
This is assured simply because the make-up of the station is such that it's impossible to store the stuff long enough. It exists in RAM solely for the purpose of printing the copy at the recipient institution. Even if we were silly enough to store it, we would almost go bankrupt paying for the hard disk. An even greater reason is that there is just no way of indexing that stuff. So it exists as a transitory electronic copy for the purpose of producing a print-on-paper copy.
Our association would welcome a clarification that put boundaries around it such that it was solely for transmission. This is rather analogous to facsimile transmission. It exists at some point in digital form, but the purpose of that digitization is not to send it to the scholar's workstation or to produce multiple copies, but simply to produce a piece of paper at the other end, which is the recipient library, to get around the delays that are inherent in Canada Post.
Ms Phinney: Thank you.
The Chairman: Mr. Peric.
Mr. Peric (Cambridge): Mr. Hill, you mentioned that you spent nearly $120 million on books and journals and other information media last year. Could you be a little more specific about this other information media?
Mr. Hill: Other information media would be, for example, video tapes, CD-ROM material and archival material. All of our member libraries have archives in the university as research archives. For example, we have the archives of Lord Bertrand Russell, and it's on materials in support of that. That's what's meant by other materials: other media.
Mr. Peric: Thanks.
The Chairman: Mr. Bélanger.
Mr. Bélanger: I just want to explore the relationship between university libraries and the private sector, such as for-profit libraries. Before we go there, I want to know if in your presentation and your amendments you include the NRC's library, CISTI.
Mr. Hill: CISTI is a member of our association, but I speak on behalf of university libraries. All the statistics I've given are on behalf of them.
Mr. Bélanger: They're not included in that.
Mr. Hill: No.
Mr. Bélanger: You say that 1% of the articles purchased end up being used in interlibrary loans. Correct?
Mr. Hill: It's 2%.
Mr. Bélanger: How many -
Mr. Hill: I'm sorry, it's 1% of the articles purchased. Yes.
Mr. Bélanger: Of that 1% of 275,000 interlibrary loans, would you have a sense of how many are done with for-profit libraries?
Mr. Hill: Unfortunately, our libraries do not keep that kind of a breakdown. My estimate would be that this is probably around 5% to 10%.
Mr. Bélanger: That's 5% of 1%?
Mr. Hill: Yes.
Mr. Bélanger: Would you know how they treat those for-profit loans? Would they then use that interlibrary loan to turn it around to make a profit?
Mr. Hill: I really don't know.
Mr. Bélanger: You don't know?
Mr. Hill: I really don't know.
Mr. Bélanger: We'll have to find out some other way, then.
Is this is a growing trend? Is there a growing trend of cooperation between university libraries and the private sector, as there is in, for instance, private sector support for research?
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Mr. Hill: I wouldn't say so, particularly. I wouldn't say it was a growing trend. Interlibrary loans is an international program and an international concept whereby we lend materials from our collections to public libraries, special libraries - all kinds of libraries so long as they are libraries. We really don't discriminate among them.
Mr. Bélanger: Do you have a sense of some of the numbers out of the NRC's library? I gather it's one of the best in the world, and largest.
Mr. Hill: Sorry, I don't know.
Mr. Bélanger: Mr. Chairman, I wouldn't mind knowing if that particular library would come under the provisions of this bill. I'd be curious to know that, if we could ask someone to find out.
The Chairman: I see what you mean.
Mr. Bélanger: Thanks. That's it for me.
The Chairman: Mr. O'Brien.
Mr. O'Brien: Do the CANCOPY agreements that exist with the universities and colleges also apply to the libraries of those institutions?
Mr. Hill: Yes, they do.
Mr. O'Brien: How feasible are the arrangements CANCOPY has in terms of dealing with interlibrary loans?
Mr. Hill: At the present time we're in the course of renegotiating the licence. All our universities have had a licence for two years. There was an agreement right in the licence that we'd agree to disagree on the scope and interpretation of fair dealing. However, interlibrary loaning is specifically mentioned and licensed on part A of the licence, the per capita part.
In fact, going back to the earlier comments regarding Ariel technology, it's interesting that this licence includes specific reference to Ariel technology as a transitory means to effect interlibrary loans. It seems to create no problem for them.
The cost of that licence to our university last year was $40,000. We paid a total of close to $150,000 in royalties under that licence for copying done at our institution. Extrapolated to the 55 licence-holding universities, that would be a considerable sum of money.
Mr. O'Brien: I appreciate that. Thank you.
The Chairman: Mr. Bélanger.
Mr. Bélanger: Do you expect these licensing agreements to continue even if this bill is passed?
Mr. Hill: Yes.
Mr. Bélanger: Thank you.
The Chairman: Mr. Hill and Mr. Mark, thank you very much for appearing tonight and bringing your knowledge and comments to us. They will be taken into account as we study the bill.
Mr. Hill: Thank you very much.
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The Chairman: I now welcome representatives from the Canadian Museums Association:Mr. John McAvity, executive director; Ms Maia Sutnik, head of collections, Art Gallery of Ontario; and Ms Barbara Tyler, executive director, McMichael Canadian Art Collection.
The floor is yours.
Mr. John McAvity (Executive Director, Canadian Museums Association): Thank you very much. Given that the hour is a bit late, we'll try to be fairly succinct and to the point, I hope, on the issues we wish to bring before you.
The association works on behalf of more than 2,000 not-for-profit museums and galleries across Canada. We have been active in copyright in the first phase and at every opportunity given to us in the development of this particular bill.
We would like to state at the outset that we agree with the Minister of Canadian Heritage, when she appeared before you recently, that this bill is about balance - that is, balancing the legitimate rights of copyright holders with the legitimate rights of certain public not-for-profit users. Copyright legislation is not simply a matter of giving rights to one group but ensuring that the broader public interests are well served. This principle of balance is at the root of all considerations of copyright law.
Our museums are in a perfect position to reflect on this balance. We ourselves are holders of copyright in our collections. We are also in a position of giving to the public access to our collections in an open and educational manner.
We wish to reiterate that we support the amendments in this bill as far as they go, and we wish you to consider some additional improvements to them.
Without going into detail on our recommendations, I'll just highlight the main points.
First, museums provide many of the same functions as educational institutions. However, this bill does not recognize museums as educational institutions. We ask you to amend this in order to correct this unfortunate omission. Attached to the statement I'm now reading is an amended definition we would propose that would permit museums to be considered as educational institutions.
Second, the exceptions for libraries, archives and museums are very limited in the case of museums. You have heard from both libraries and archives tonight that each are distinct. Well, we would add to that that we, too, are a very distinct group.
There may be 13 pages of exceptions in this bill, but from our perspective there is really only one of significance to our community, and that is the ability to make a copy for internal record-keeping purposes - insurance, police investigations or restoration purposes. This to us is a very reasonable exemption, and very minimal.
We have outlined in our brief several areas where this could be strengthened - that is, planning, exhibitions, display purposes of reproductions where the original is too fragile, etc. None of these improvements to the legislation would jeopardize the economic rights of the artists.
Third, we have identified the need for a provision for unlocatable owners of exhibition rights. The exhibition right was a right introduced in the 1987 amendments to this bill. This is, and will become in time, a much greater problem if it is not resolved in this legislation. It is also in the interests of artists to have such a clause introduced to this bill.
The final and significant point we have commented on in our brief is the so-called reversionary interest, which we feel should have been repealed in this bill. Currently, provisions in the legislation render void all agreements with the signees on the 25th anniversary of the creator's death rather than the full term of copyright. We see no practical need for the continuation of this provision.
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The Canadian Museums Association strongly supports the efforts that will benefit our artists and other copyright holders. We gladly uphold copyright principles, as we have a long tradition of paying artists for their work, even before amendments were brought into the law in the first place.
I might add that we sponsored last year a series of about eight or ten seminars and consultations across Canada to better educate our members and to be in a position to enforce copyright, and at the same time to consult with them about the principles coming forward in this bill. So we have consulted with our community.
However, we also ask for provisions that will not impair us from doing our job of educating the Canadian public about the richness and the variety of the collections we hold in trust for our citizens.
Thank you very much. We'd be pleased to answer questions. I assure you, my two colleagues will participate in the question and answer series.
The Chairman: Thank you for your very concise presentation, Mr. McAvity.
Mr. Peric.
Mr. Peric: Mr. McAvity, in your statement you mentioned that you function as an educational institution. Could you be more specific about how you function and why the museum should be included in the bill?
Mr. McAvity: Museums for hundreds of years have been regarded as educational institutions - perhaps not big capital-E institutions but small-e institutions. They have been developing more seriously in the 20th century their educational programs.
Many school tours come to museums. These are not simply a day off from school or a chance for the kids to do something different. There are serious educational programs, curriculum-based, now developed in museums. Museums often take their reproductions of materials or duplicate originals out to schools, to offer them in schoolroom settings. We've had exhibits in soup cases and other fairly low-cost types of activities.
It's really a fundamental activity that has been the hallmark of museums. We employ educators in our institutions, museum professionals who are dedicated to ensuring that when you go in it's a meaningful experience to you as a visitor but also in terms of organized programs specifically for school groups.
Ms Barbara Tyler (Canadian Museums Association): I think what we're seeing today increasingly, and certainly in the province of Ontario, where the common curriculum has been adopted, is a much greater dependence on museums for the resources they have, especially in art galleries for the visual arts. The common curriculum has created a problem for teachers. The resources aren't there to match the common curriculum right now. That's being looked at very closely by other provinces right across the country. We've seen an increase in students coming to the museums, and we're even a greater resource electronically to take materials to them.
Those curriculum-based classes are really built into the curriculum and are being used by those teachers. As the web becomes usable and integrated into the school system as well, there's a greater call on us to do that.
I would like to say, too, that what we're seeking out of this is the ease to do the research, the ease internally to develop the material they're requesting, not in any way not to share any financial or economic gains back to the creators. That's a given as far as we're concerned. We're only looking for that ease with which to develop the products, both internally for school groups and for the future use electronically.
Mr. Peric: Do you mean, if this amendment you've proposed is accepted in the bill and you are recognized as an educational institution, you wouldn't ask the government for additional support?
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Ms Tyler: Not any more government support than we ask for now.
Some hon. members: Oh, oh!
Mr. Peric: Do you believe current educational institutions would accept or agree with your statement and explanation on why this bill should include museums as educational institutions?
Mr. McAvity: I would hope they would. There are strong bonds between schools and universities and colleges that have been there for quite some time.
By asking for an educational institution what we're asking for is to be able to do some of the very basic things this bill will not otherwise permit us to do. For example, museums are a visual medium. We frequently have lectures where we project a slide of a work of art. We will not be able to do that under this legislation. That would be a violation of copyright. It's as simple as that.
Often museums will have flip boards, and they will make a reproduction or an image or produce text that would go on the flip chart. That is a provision that's in here for educational institutions, but we wouldn't be able to apply for that. This legislation essentially, as grateful as we are for it and the many hours of meetings we've attended, really only gives us one thing - the ability to make copies for our internal record keeping. I can't think of something more basic than that. We're asking for other activities that will supplement what is our normal, ordinary course of business.
Ms Maia Sutnik (Canadian Museums Association): I want to add that we bring in over 35,000 students in an anuual school year. That's not counting university and so on; we're talking about secondary schools. We prepare for them an orientation visit to the museum, which often includes projecting a slide or some diagrammatic-type thing to introduce them to the experience of the museum. Under the legislation that's proposed now, there are certain limitations and restrictions that would make this illegal. But if you look at what is under the provisions for the educational institutions, a university professor can, for instance, produce the slide, taking it out of whatever sources they find, and project it in their classroom situation. Under these current proposals, that would be an acceptable practice.
So we're asking for some balance between those two activities.
Mr. Peric: Okay.
The Chairman: Ms Phinney.
Ms Phinney: You were talking about your internal and non-commercial management functions. In your brief you talked about ``use in gallery design''. Can you explain what that means, and how you control the number of copies that are made?
Mr. McAvity: Frequently when the institution is planning an installation in the gallery.... For example, a Renoir exhibit will be here at the National Gallery next June. They will develop a maquette, a small cardboard model, of the physical space of the room. In order to place the paintings they will use small, poor-quality photocopies or photographs in order to help in the design and the placement of the works of art. That will be a violation of copyright.
Ms Tyler: But that would also be true of all kinds of other activities, such as the development of the educational materials you might want to use with your group before it is published. You still design a publication. You will design what you're going to do and use copies for electronic media as well. That comes under the cover of research, really, and manipulation of the images until you get to the final product you want, but it's not in any way infringing the artists' rights. When the final product comes out, it has to be copyright cleared, with royalties and everything else.
Ms Phinney: Thank you.
The Chairman: You heard the previous witnesses on the distinction between profit and non-profit, archives and the fact that they said.... But in museums, I take it, there's a very clear distinction between a non-profit organization and a for-profit museum.
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Mr. McAvity: Yes. We're focusing on only not-for-profit institutions. In fact, the vast majority, probably 99.9% of them, are registered charities.
To us, the only for-profit museums are really not of the professional calibre we're referring to. These would be the wax museums you might find at Niagara Falls and so on. We'll let them argue their own case. We're talking about institutions that are not-for-profit and working in the public interest in society.
The Chairman: With regard to museums meant to be covered under the new law, I suppose the very large majority in Canada would be not-for-profit museums. Are there such animals as for-profit museums comparable with the museums you run and know about?
Mr. McAvity: It would be just the wax-institution types. To look at the parallel with the archives, often there are corporations that will have collections of material. Some of those may set up a museum, but this is fairly rare, and where they do set it up, it's in a legal structure different from the archives. I shouldn't speak on behalf of them, but I believe that is seen as a function of an organizational operation.
A museum is usually set up as a separate legal entity. For example, Ortho Pharmaceutical, has a museum, but it is set up as a separate legal entity. Toronto-Dominion Bank has a collection of works of art, but it's set up, as I understand it, as a separate legal entity.
That's what we see the trend as being. As long as it is a not-for-profit organization, with its own board of governors and properly incorporated, and usually a registered charity, which to us is a strong litmus test, then we recognize those institutions.
The Chairman: Okay.
With regard to unlocatable owners of exhibition rights, you say this will become a much greater problem if not resolved in this bill. Could you just amplify this so that we understand fully?
Mr. McAvity: First of all, the exhibition right is a right that came in on June 7, 1988. It is a right an artist has to receive not only a payment but also, in our interpretation, control over the exhibition of their work of art.
So if a museum owns works of art created after that date, 1988, in its permanent collection, the artist will require that the museum pay them a fee. That's fine. We've never objected to that. We voluntarily paid fees before that came into law. Our concern has been over the control that provision could take away or exert upon the role of the curator in the institution.
Second, since that right only pertains to works after 1988, this will become a growing phenomenon. If we cannot locate the artist to negotiate their permission each and every time - unless they're a member of a collective - we will have a great deal of difficulty in ever being able to display works of art that may be in permanent collections or may not be, if we cannot locate them.
So our recommendation is that a provision similar to other ones you have be put in place so that the museum can go to the Copyright Board and obtain permission and deposit the fee with the Copyright Board. To us, this is a ticking time bomb. It's an obscure right that isn't terribly well known. We're concerned that it'll become an administrative problem. We simply want to get around that.
The Chairman: Are you living this phenomenon today, or are you just anticipating the future?
Ms Sutnik: I would say we've had experiences in it, not so much in the area of painters and sculptors, who are more visible, but particularly in the area of video artists. Creative videos are in our holdings and the artist has disappeared. We have no trace. We've sent payments to them and the cheques have come back to us. We try to find out through the community where they are: don't know.
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So what we have is something in our holdings or in our collections that we have a vested interest in but are in fact restricted from showing in view of the exhibition rights.
The Chairman: Okay.
Thank you very much for appearing before us tonight. We appreciate it, in spite of the late hour.
We are adjourned.