[Recorded by Electronic Apparatus]
Wednesday, October 30, 1996
.1812 
[English]
The Chairman: I call the session to order.
As you know, the committee is studying Bill C-32, an act to amend the Copyright Act.
We welcome today, from the National Library of Canada, Marianne Scott, national librarian; Tom Delsey,
[Translation]
Director General of Corporate Policy and Communications; and Paul McCormick, Director of Planning and Policy.
[English]
Mrs. Scott, the floor is yours.
Ms Marianne Scott (National Librarian, National Library of Canada): Thank you very much.
[Translation]
Mr. Chairman, members of the Committee, I appreciate the opportunity you have given me to appear here this evening and to present my views on the amendments to the Copyright Act that have been proposed in Bill C-32.
As you said, I am accompanied by two members of senior management at the National Library, Tom Delsey, Director General of Corporate Policy and Communications, and Paul McCormick, Director of Planning and Policy.
[English]
In our written brief to the committee we have highlighted the role the National Library plays in preserving Canada's published heritage and in facilitating access to Canadian library resources from coast to coast. We also try to indicate how important the library exceptions proposed in Bill C-32 are to the fulfilment of our objectives.
Over the last few weeks this committee has heard from a number of witnesses who have argued that the exceptions proposed in the bill are too broad in scope. Some have gone so far as to suggest the notion of exceptions to copyright is inappropriate. They claim the sole purpose of copyright law is to protect the economic and moral rights of authors. They say the Copyright Act is not the place for government to address the interests of the users of copyrighted works.
I have to say I cannot accept that argument. I believe copyright legislation is ultimately an instrument of public policy and cannot be viewed in the very narrow terms that the representatives of the copyright owners have suggested.
Obviously the protection of intellectual property rights is an issue of central concern in this legislation. In large part the amendments proposed in the bill are designed to provide a broader range of copyright and neighbouring rights protection to the owners of those rights and to strengthen the remedies for infringement.
.1815
But copyright legislation has important implications for more than just property rights. As an instrument of public policy, copyright legislation must address broader social values as well. It should promote research, the advancement of knowledge and lifelong learning. It should promote and protect our cultural heritage.
In fact, I believe these broader objectives are as important to individual writers, musicians and artists as they are to society as a whole. If we were to ask what value their work has for them, I am certain most would acknowledge that while economic reward for their efforts is important, it is equally important to them that they are part of and contribute to the broader cultural, social and economic enterprise of this country. I believe they'd also acknowledge that the works they produce today owe a great deal to the works of their predecessors.
Copyright legislation provides us with an opportunity to protect the works of our writers, musicians and artists for future generations and to do what we can to ensure the continued vitality of both creative and scholarly endeavours.
We cannot limit the scope of our copyright legislation strictly to the protection of individual property rights. We have to recognize that while copyright provides a broad range of protection for an author's economic and moral rights, it must also provide certain exceptions and limitations to balance those rights with other important social values and with broader cultural objectives.
The Berne Convention makes it clear that such exceptions and limitations are entirely appropriate, provided they do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author.
Copyright laws in the United States, the United Kingdom, Australia and other jurisdictions all provide for library exceptions that are similar to and in many cases significantly broader than the exceptions proposed in this bill.
If we accept the basic notions that copyright law is about more than just the protection of individual property rights and that the protection of rights must be viewed in the context of broader social values and public policy objectives, then it seems to me it comes down to submitting specific proposals for exceptions to a test of common sense and to our collective perception of what is reasonable.
When considering the merits of a specific exception, I would suggest we need to ask two basic questions. The first is whether the exception conflicts with the normal exploitation of the work or unreasonably prejudices the legitimate interests of the author. The second is whether the exception serves a valid public purpose.
On the first question, it is clear that the library exceptions in the bill are framed in such a way as to provide all the safeguards necessary to protect the normal exploitation of copyrighted works and the authors' interests.
The exception permitting a library to make a copy of a work for purposes of managing and maintaining its permanent collection has limitations built into it to ensure no copy will be made if a suitable replacement copy can be obtained commercially.
The exception permitting a library to act on behalf of a person engaged in research, private study, review or criticism is tied strictly to the provisions for fair dealing that have always been recognized in the act, and in no way does it extend the scope of existing exceptions.
The exception permitting a library to make a copy of an article from a periodical for a user requiring it for purposes of research or private study has limitations built into it to safeguard creative works and works written for the popular media.
It is quite clear these exceptions do not in any material way conflict with the normal exploitation of the works that are copied and do not unreasonably prejudice the authors' interests in those works.
On the other side of the equation, we have to evaluate the public purpose that would be served by the exceptions.
I would suggest there are three major public policy objectives that the library exceptions are designed to support. The first is the preservation of our intellectual and artistic heritage. The second is the promotion of equitable access to information. The third is the support of research and the advancement of knowledge.
The first of the library exceptions would support libraries in their efforts to ensure the survival of individual works beyond the author's lifetime, beyond the additional 50 years of protection that is granted by copyright; to ensure that the work is preserved for as long as possible, as part of our cultural heritage; and to ensure that the work will be available to future scholars and researchers. Ultimately, the objective is to ensure the continuity of what we might call the knowledge enterprise.
.1820
There's a great deal at stake with this exception. Time and chemistry are already against us. Libraries are doing what they can to stem the physical deterioration of works in their collections, but they lack the resources needed to undertake fully the preservation filming of the hundreds of thousands of works that are irreparably brittle or damaged and cannot be replaced with purchased copies.
Libraries are hard pressed just dealing with the physical aspects of the preservation effort. The additional time and effort required to determine if the work is still protected by copyright, to determine who owns the rights, and to seek permission to make a copy, is substantial. One could say that every hour spent on tracing copyright ownership is an hour taken away from the preservation effort itself.
The exception permitting a library to make a single copy of a periodical article for purposes of research or private study is designed to support library efforts to ensure that all Canadians, regardless of where they may live, have access to the collective resources of Canadian libraries.
In my view, the principle of equitable access to information is absolutely fundamental to our economic, social and cultural goals as a nation. It is a principle that has always been essential to the functioning of democratic societies, and it is becoming increasingly critical as we make the transition to the knowledge society.
The library exceptions proposed in this bill are all clearly intended to support research in this country. They are designed to put Canadian researchers on an even footing with our counterparts in the United States, the U.K., Australia and other countries in the developed world.
They are designed to ensure that Canadians are in a position to contribute meaningfully to the advancement of knowledge worldwide. Surely, those are objectives that cannot be faulted.
By the time these hearings are over, I expect you will have heard more than enough from the lawyers and the administrators, myself included, on the details of this bill. In the end, it will be up to you to judge these exceptions on their merits.
In doing so, I believe it is absolutely essential that you consider the broader public policy objectives that form part of the context for this legislation. Ultimately, your decisions will have to be based on what the reasonable man and the reasonable woman would conclude is the social value of each exception as weighed against its potential impact on the author's right to control the normal exploitation of his or her work.
I believe the provisions of the bill do ensure the necessary protection of the author's economic rights, that the library exceptions do not conflict with the legitimate interests of copyright owners, but that they do serve a valid and important public purpose.
[Translation]
Thank you for your time and attention. I would be happy to answer any questions you may have about our written brief or about what I have just said.
The Chairman: Thank you, Mrs. Scott.
Mr. Leroux.
Mr. Leroux (Richmond - Wolfe): Thank you, Ms. Scott and the people accompanying you, for your brief.
I think we have to remind ourselves and repeat to ourselves that balancing the rights of authors and users is nevertheless a fundamental objective. The authors are constantly pointing out that when they create a work, they generally do so in order to reach people through that work, and so people can have access to their work as well.
On that, irrespective of the area of society, the coalitions, the organizations and the institutions, everyone is trying to define here the field in which they practice and say that, in their case, their mission and the objectives they have to pursue and achieve are extremely important. So the bill should enable them, etc., while recognizing the rights of the authors, which you are doing, I think, quite well here.
I would like to take a concrete example of what the bill proposes. For example, I would like you to tell us how you might administer the exception according to which for purposes of research and study you can circulate a work or a copy of the work.
.1825
How is this situation currently administered and how can you guarantee authors that the bill doesn't open the door to making multiple copies of a work and to abuse of copyright through wider distribution? How is it administered at present? Do you have forms to fill out? How do you proceed?
[English]
Ms Scott: Certainly, within the National Library of Canada the staff who deal with any photocopying for interlibrary loan purposes are fully aware of the present copyright legislation and act accordingly. There are certainly specific exceptions. It would be our intention to ensure that the staff are trained and that they follow the legislation; therefore, by doing this they would not open a door unnecessarily. Interestingly, the interlibrary loans we do are spread all over the country, and rarely is it the same library or the same person coming back. We really serve a broad range of people. It's a back-up resource for the country.
[Translation]
Mr. Leroux: Do the people who request access to some works have forms to fill out to describe why they are using the works, among other things whether it is for research or study purposes, or do they just have to make a verbal statement that you believe and that's it?
[English]
Ms Scott: I would say it's mostly a verbal declaration. Interlibrary loan is usually done through a library, where the person goes and utilizes the resources of their library, be it a public or a university library. If they can't find what they want, and they've located it somewhere, we may then loan them the book or, if it is a small copy, we would make a photocopy for them.
[Translation]
Mr. Leroux: We already know that the licensing bodies have agreements with a number of educational organizations and some governments and that even they provide for some exceptions in the licences they grant. From what is said in the briefs that we are getting, the major concern of the copyright owners, authors and creators is how all the exceptions that are added in the bill might be administered, in a fairly clear administrative procedure.
In view of what you have just described to me, they may be right to be concerned, because if there is no means of administering these exceptions, if we simply decide to believe the user, there is no longer any control.
How can we reconcile these positions? In the final analysis, what everyone is looking for is to achieve some clearly defined objectives, isn't it? On the one hand, there are some users who, for research and development purposes, need to have access to some works on which they must work. On the other hand, the authors are saying that the system should not be so open that it becomes a sieve. But you're telling me that you rely on people's word.
How can we assure authors and creators that there will be some control mechanisms? Can you suggest to us some approaches or should we keep to those you have just described?
[English]
Ms Scott: I think one of the things is that a lot of the material requested is often not very current material, which is already excluded. One could, I suppose, institute a system of having people sign a form. I think that's done in some countries. Certainly in the National Library all of our copying is done by staff, so as I said, I don't see a problem with not following the exceptions.
[Translation]
Mr. Leroux: Would you be agreeable to the authors' licensing bodies possibly holding discussions with you on how to administer all that? It could be discussions but also exchanges, negotiations. The authors would acknowledge that some exceptions must be granted, but would also discuss how they would be administered. Are you open to such a possibility or are you holding to your desire that these exceptions be contained in the bill and that the exchanges stop there?
.1830
We no longer discuss with the authors or their licensing bodies because the law now provides that we can administer in this way.
[English]
Ms Scott: CANCOPY, which has the licence of the government.... That's negotiated centrally. I think you, Tom, participated in some of the discussions.
Mr. Tom Delsey (Director General, Corporate Policy and Communications, National Library of Canada): All the activity that the National Library engages in is done under the licence with CANCOPY. That licence will continue to be in place. I've looked at the statistical data on which the payments under the licence were based, and by my calculations, the exception for periodical articles copied for purposes of ILL, given the numbers that were involved, would affect substantially less than 10% of the licences.
Under the terms of those licences, we agreed to post certain things, to follow certain procedures. We're only covered for the repertoire, so we have to make sure that what we're copying is within the repertoire. None of that would change, and if additional requirements were demanded by the regulations or whatever in terms of putting the exceptions into place, I think that really is not problematic as far as we're concerned. We're used to administering this type of activity.
[Translation]
Mr. Leroux: Are you asking that these exceptions be placed in the bill because you are unable to reach an agreement with CANCOPY, which agreement might include the kind of exceptions contained in the bill, or because you think this is an important and fundamental general provision that has nothing to do with CANCOPY and negotiations that would allow the insertion of this kind of exceptions in their licence?
You seem to be telling me that things are going well with CANCOPY, that it is civilized, that you are managing to understand one another and talk to one another. Why would it be necessary to introduce some exceptions in the bill that could be administered and provided for in the discussions with a collective?
[English]
Mr. Delsey: I think the major problem certainly for us is that the licence we have only includes what is actually in the repertoire of CANCOPY. Most of this preservation copying is for early material. The Canadian Institute of Historical Micro-Reproduction is doing some preservation filming. They submitted almost 1,100 names to CANCOPY and asked them if they were in the repertoire. They didn't have a single one of those authors in their repertoire.
So while the licence will cover a good deal of what we're doing, there are other very important materials that the licence simply won't cover because it's not in the repertoire. Even for current material, there are significant major publishers, including the legal publishers who were here the other day, who've excluded themselves from that.
It is difficult for us, especially because we work in the dark. We can't actually see the repertoire. We're bound to stay within it, but it's not really available to us.
[Translation]
Mr. Leroux: Your reply is helpful.
[English]
Mr. Abbott (Kootenay East): I was thinking that with the caricatures and the expectations we have when we meet bankers or lawyers or politicians, I think it's really a treat tonight to meet the National Librarian. I think that's really wonderful. I know that librarians, as they should, work to some very high ideals and high principles that are of exceptionally high value to them.
I wonder if I could have your response to what I hope is a gentle challenge. I'm trying to get a balance here between the rights of the authors and the position I believe you're taking. On page 2 of your presentation tonight, you say:
- I am certain that most
- - referring to the musicians, writers and artists -
- would acknowledge that while economic reward for their efforts is important, it is equally
important to them that they are part of and contribute to the broader cultural, social, and
economic enterprise of this country.
Is it just a little presumptuous on your part to make that assumption? In other words, it seems to me, people who have come before us and who directly represent these writers, musicians and artists have taken quite a contrary position.
Ms Scott: It may be presumptuous, but it's correct, I believe, that authors and other creators should receive a fair return and that the basis of that is usually in the publishing of their works and in the commercial marketplace. But I also believe very strongly - and perhaps it's because I came more from an academic background - that in much of the publishing done in Canada, people also want their knowledge in a particular area to be made available more broadly and to be known. So they appreciate the fact that libraries buy copies of their books and make them available for a loan.
I do think our creative artists and writers do believe in adding to the whole cultural fabric of the country. There is a joy in achievement through producing a work of art or a book and making it widely available.
Mr. Abbott: If we examine this from a very pragmatic point of view, on page 4 you say:
- In my view the principle of equitable access to information is absolutely fundamental to our
economic, social, and cultural goals as a nation.
The exception permitting the copying of a periodical article is conditional upon the library being ``satisfied that the article is required for purposes of research or private study''. Can you tell us specifically how the National Library becomes ``satisfied''? What is involved in that process?
Ms Scott: As I said earlier, first of all, a lot of our work is dealing with other libraries. So there is a type of second tier in that. The people who have requested the material have already gone through their own library. We register the users of our library, and they are doing research.
I just assume there is a certain amount of honesty in people. When they say they are working on a project, one doesn't cross-examine them on it. I mean, if they're researching a particular author or particular area of history in the country, and they need an article out of a 1910 or 1940 journal, you know they want it for research.
Mr. Abbott: Then there is a certain amount of paperwork with respect to the interlibrary loan. One of the concerns, I suppose, is how can there be a level of confidence on the part of the National Library that an interlibrary loan isn't, in some cases, just a form of avoiding buying a subscription?
I'm trying to get a balance to this thing, and I'm having an awful time trying to get my arms around it.
Ms Scott: In the collections in the libraries across the country there is a certain amount of duplication of some core materials, but it's interesting that those collections are developed according to the basic needs of the users. So you do find that you have material in one library that is not necessarily collected in another. It doesn't make a great deal of sense, if a person's doing research in a particular area and they find one journal article, maybe five or ten years old, to say that the library should have had a subscription to it going on for umpteen years for one article.
So it's sharing those things that are not used that often in a particular library and making them more widely available.
Mr. Abbott: Okay, I understand.
Thank you very much, Mr. Chairman.
.1840
The Chairman: Thank you, Mr. Abbott. Ms Phinney.
Ms Phinney (Hamilton Mountain): Thank you very much, Mr. Chairman.
On page 6 of your brief you suggest that the provisions in the bill for a single copy and the alternate format for persons with perceptual disabilities may not be adequate. Could you explain to us why you feel that way, and can you suggest any improvements we might put in?
Ms Scott: As I understand the provision, it requires the destruction of the intermediate format once the copy is made. This is something I feel a little bit out of place going into detail on, but I think we have to really understand how those who serve the visually disabled deal with their clients and what their needs are.
I've read and thought about how they do it, and it strikes me that they need, in order to provide that equitable access to information, to be able to hold onto the master copy so that they can use it again, whereas when we, for example, make a copy, if there is some intermediate form, particularly in digital form, we destroy it. We don't hold onto it. I think that's what is based in the legislation, but it's not necessarily practical or reasonable for those serving the visually disabled.
Ms Phinney: So in your experience - or in the experience of the two gentlemen here - in the library, you haven't worked with anybody who....
Ms Scott: We don't actually do Braille or prepare tapes. When you talk to the CNIB people you'll be able to get a better handle on their specific requirement.
Ms Phinney: Okay. What about people with other disabilities? You haven't had any experience at all over the years where you feel they might -
Ms Scott: We do of course have disabled people using the collection, but we have worked with libraries to improve the way in which libraries and equipment and furniture is designed so that disabled people of all types can better use libraries. We've just finished putting out a publication on that, to support libraries in finding ways to adjust their facilities.
Ms Phinney: So your suggestion here is based really on what some other group has said, not on your experience with people with disabilities.
Ms Scott: We don't produce material, except our own publications. I must say, I haven't thought about that, but we do in fact produce materials in audio cassette and Braille in usually a one-off situation, whereas somebody who is making material available to a broader disabled community may need more than one copy.
Ms Phinney: I was thinking it may not be just be for people with visual impairments, either.
Ms Scott: No - other types of disabilities.
Ms Phinney: It may be somebody who can't use their hands or who has some other disabilities we're overlooking here. But you don't know of any in your experience.
Ms Scott: Certainly many people besides visually disabled people need to have audio cassettes for their use.
Ms Phinney: Okay. I'll come back later with something else.
[Translation]
The Chairman: I am going to allow a question to Mr. McTeague.
[English]
Mr. McTeague (Ontario): Thank you, Mr. Chairman.
When you photocopy, do you charge the client a certain fee?
Ms Scott: When the library does a photocopy for an interlibrary loan, no, we don't. Partly we have been a back-up collection for libraries across the country. We have looked into charging for photocopying. Tom has done some studies on it. I think we found that because of the broad range of clients we have, and that each one's not numerous, the cost of collecting the money is greater than the money we would obtain.
Is that more or less correct, Tom?
Mr. Delsey: Yes. The administrative overhead involved in charging for that service isn't justified.
Mr. McTeague: Do you use a document delivery service in any of your work or in any of your exchanges with these other clients, these other libraries?
Ms Scott: By a document delivery service you mean....
Mr. McTeague: A for-profit organization that would, for instance, provide you or provide your clients with information.
Ms Scott: No. When we provide information, it's from our collection.
.1845
Mr. McTeague: Okay.
Those are all my questions.
[Translation]
The Chairman: Mr. Leroux.
Mr. Leroux: Ms. Phinney was asking some questions about groups that might represent persons with disabilities. Are you acquainted with the agreement that exists between the SODRAC's licensing body and the Canadian National Institute for the Blind?
Earlier, we were discussing the rationale for exceptions in the Act. There is indeed an agreement between a licensing body and the Canadian National Institute for the Blind, an agreement that deals with exceptions and accessibility of works. I simply wanted to know whether you were aware of it. There is an agreement and I am informing you of it. This case serves to illustrate that it is possible to have exceptions, because the licensing bodies are already granting some exceptions with their licences. It proves it is possible in relation to some groups.
The concern you express in your brief should be maintained, because accessibility is important for any type of person in society, regardless of his or her handicap. In that sense, we note that your concern is with everyone's accessibility to works.
[English]
Ms Scott: One of the things we were suggesting was that this is a very complicated area and it might bear further examination by the committee with the people who are most knowledgeable to see how it could be improved.
[Translation]
The Chairman: Are there any further questions?
Mr. Bélanger (Ottawa - Vanier): I apologize for being late. I was asked to stay a few minutes longer in the lobby.
I should tell you that I find the rapprochement of our opposition colleagues remarkable.
My question is very simple. It has to do with the first exception for libraries in the bill in regard to preservation and the idea of being able to make copies when the copyright is exhausted. You say that each hour spent in finding who has the copyright
[English]
is an hour taken away from the preservation effort itself.
[Translation]
Has any thought been given, at some point, to allowing a library - I am thinking of the National Library but perhaps not all libraries - to make some copies and then, when all the materials have been preserved, seeing whether there are copyrights? And wherever there was a copyright and the person who held it prevented you from making copies, you would reverse the process. Instead of spending a lot of time finding someone who perhaps cannot be located, has any thought been given to doing the work and then trying to find that person, when the things have been preserved?
I think people would not be entirely opposed to that.
[English]
Ms Scott: Yes, one could, but I think we would prefer to have it clearly in the legislation that we could do that.
Mr. Bélanger: Well, have you asked? Have you asked them to approach it that way?
Ms Scott: No.
Mr. Bélanger: Do you think it's something you might want to consider before this legislation is passed?
Mr. Delsey: I guess we go on.... Certainly in any preservation copying we do now, if we have any reason to believe it would still be protected by copyright, we do approach the copyright owner. We do a very limited amount of that right now. It's mostly city directories falling apart on the shelves. Fortunately, there is a limited number of publishers, and it's reasonable to do.
If you take the example of the Canadian Institute for Historical Micro-Reproduction and the thousands of names they research, spending thousands of hours on it, when they were actually able to trace either the author or the heirs to the estate, they more than willingly said, yes, we want you to do it.
.1850
Maybe we're unfairly making the assumption that when the purpose is preservation it would not be denied, even if the copyright owner or heir were still available. I suppose it would be possible to go the other way and to say they'd always have the right to present themselves, and to say you want them to undo what they've done. I can't imagine -
Mr. Bélanger: Would that save time in the effort of preservation? You'd be able to skip the search of copyright process.
Ms Scott: I guess I don't know what you'd achieve -
Mr. Bélanger: You'd preserve it.
Ms Scott: - by not having the exception in the legislation.
Mr. Bélanger: I'm not suggesting that the exception not be there. If the problem is that you're spending a lot of time hunting down ownership of copyright, and in the meantime the brittle material you refer to is falling apart and could be lost forever, why don't we reverse that process and preserve whatever needs to be preserved and then go looking for copyright?
Am I being too simplistic for you?
Ms Scott: If it's not in the law -
Mr. Bélanger: Yes, but we're making the law here. We're changing the damn thing.
Some hon. members: Oh, oh!
Ms Scott: - and if you have the exception, then we're home free. I guess that's what we would like to have.
Mr. Bélanger: So this exception is enough.
Ms Scott: As it is, yes.
Mr. Bélanger: Fine. You try to give something away and you can't. That's good.
Ms Scott: We're happy.
[Translation]
Mr. Leroux: You say there is a list. But what is the order of magnitude that you identify in relation to CANCOPY? To hear you speak, there are a huge number of things that exist but not authors, who can be located in any case.
[English]
Mr. Delsey: In terms of volume, the preservation challenge is huge. What we focus on at the National Library, though, is preserving the original item, either through mass deacidification or through some restorative technique - or replacing it with another copy; in fact, that is the cheaper option.
We had several thousand books damaged by water a couple of years ago. In trying to recover that material, we always chose to look first for a replacement copy commercially. That's far cheaper than either the restoration work or preservation filming. Filming is a last resort when you have no other way of preserving the item. In a year we do 120,000 frames of film. That would be an equivalent of 120,000 pages a year. That is not, in my view, a large amount of copying.
The Chairman: Thank you very much, Ms Scott, Mr. Delsey and Mr. McCormick, for appearing before us and giving us the benefit of your knowledge. We appreciate it.
Ms Scott: Thank you.
.1855
.1903
The Chairman: Good evening. It's 7 p.m., so we're going to resume the meeting.
Before I introduce you, I wanted to say this. So that you and all the members agree on some item of procedure, I understand you've already agreed on the order of speaking, starting with Ms Brown. I would ask you to be brief, so that each person has an equal chance.
We are going to carry on. We started late because of the vote, so we'll carry on until 9:15 p.m., which is the time we've allowed you.
As regards questions and comments, usually we have a format, which you've seen, that is pretty strictly regulated. This will be a free exchange, where you and the members will be able to exchange freely. Anybody can come in and comment or ask a question.
I'll use my prerogative to make sure everybody has a fair chance, so that everyone - members and yourselves - is treated as fairly as possible.
I would like to introduce Mr. Harvey Weiner, deputy secretary general of the Canadian Teachers' Federation; Mrs. Donna Cansfield, president of the Canadian School Boards Association; Mrs. Sally Brown, senior vice-president of the Association of Universities and Colleges of Canada; Mr. Alan Andrews, past-president of the Canadian Association of University Teachers; Mrs. Jantje Dunn, operations manager of the Central Alberta Media Services; and Mr. Pierre Killeen, a government relations representative of the Association of Canadian Community Colleges.
.1905
Thank you for being here. The floor is yours, Mrs. Brown.
[Translation]
Ms Sally A. Brown (Senior Vice-president, Association of Universities and Colleges of Canada): I represent the Association of Universities and Colleges of Canada, a not-for-profit, non-governmental association that represents all Canadian universities.
First, I wish to express our support for Bill C-32. This legislative package, including important educational and library exceptions, and other provisions related to limitations on the liability of educational institutions, represents a fair and reasonable balance between the rights of creators and the needs of users of copyright works.
[English]
We believe Bill C-32 essentially honours a long-standing commitment of the government to the educational and library communities in Canada, and we support its speedy passage.
Copyright law in Canada has traditionally maintained a balance between the rights of creators to receive remuneration for their works and the public interest in fostering reasonable access to copyright works for purposes such as education, scholarship and research.
As both substantial creators and users of copyright material, AUCC member institutions understand the need for balance. As my colleagues at CAUT can confirm, the incentives that spur creation in the academic environment are as much about the wide dissemination of works and access to the works of peers as they are about remuneration. At present our copyright law is unbalanced.
Phase one amendments in general were designed to benefit creators by bringing in changes such as protection for new types of works, the creation of a new Copyright Board, increased criminal sanctions and facilitating the formation of copyright collectives.
Prior to, and subsequent to, the passage of phase one, the government arranged a series of consultations, involving both creator and user groups, to discuss the content of educational and library exceptions to be included in reform legislation. These discussions led to a package of proposed exceptions described, for one, in a 1990 letter to the AUCC from the Assistant Deputy Minister of Communications, Mr. Paul Racine. Many of the educational and library exceptions set out in his letter have now been incorporated into the bill.
It seems to us most unfortunate that the previous government chose to split the copyright law reform package of 1988 into two phases. As a result of the repeated postponement of legislation to implement the exceptions portion of the package, some creative groups now feel that something is being taken away from them.
This is not the case. A balance between the interests of creators and users of copyright works has always been an overriding principle of copyright law.
Clearly Bill C-32 is not perfect. In our view, the bill would have been much improved had the government addressed the need for statutory guidelines and criteria with regard to fair dealing.
In addition, provisions of the bill require refinement and clarification. A number of recommendations to improve the bill are contained in our written brief. These include permitting both the making of a transparency and the projection of an image from a transparency; clarifying the definition of premises to ensure that distance education is not disadvantaged; allowing for the display of an audio-visual or cinematographic work to an audience of students and faculty members for the purpose of education, as is allowed for a sound recording; and to accommodate existing interlibrary loan practices, as you heard last night, defining the term ``reprographic reproduction'' to permit the making of an intermediate digital copy, as long as this intermediate copy is destroyed, substantially concurrently, with the production of the paper copy at the receiving library.
Some publisher groups are pushing to limit the applicability of the exceptions in the bill to instances where no collective licensing is available. Collective licensing complements statutory exceptions; it does not substitute for them.
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Our experience with collective licensing suggests that it cannot alone guarantee comprehensiveness of coverage, continuity of coverage, or stable pricing. There are many jurisdictions we can look to where collective licensing effectively coexists with statutory exceptions.
Our member institutions are working hard to educate faculty, students and staff about copyright compliance. We were one of the first sectors to enter into a reprography licence with CANCOPY. Those licences handsomely reward rights holders, primarily publishers, for the reprographic reproduction of their works in Canadian universities. Nothing in the exceptions will materially disadvantage rights holders. It is worth noting that these licences specifically exclude copies made under the fair dealing exception.
Reaching agreement in the absence of legislative exceptions is not easy. The passage of Bill C-32 will make future negotiations easier in that it will clarify ambiguities in the law.
In conclusion, we ask this committee to bear in mind the following key points: that phase two reforms are long-promised, including by the current government, to redress the imbalance created by phase one reforms; that the limited and reasonable library and educational exceptions contained in Bill C-32 are already the product of long negotiations and compromise, and are the bare minimum required to meet the government's commitment; that the incentives that spur creation in an academic environment are as much about the wide dissemination of works and access to the works of peers as they are about remuneration; and that collective licensing is a complement to, not a substitute for, statutory exceptions.
[Translation]
I wish to thank the committee for inviting AUCC to appear as part of this round table session.
[English]
The Chairman: Thank you, Mrs. Brown.
Mr. Andrews.
Mr. Alan Andrews (Canadian Association of University Teachers): Thank you, Mr. Chairman.
I should just say that I'm no longer the past-president of the Canadian Association of University Teachers. They put me out to pasture last May, but then called me back to present this brief to you this evening.
The Chairman: You're the past past-president.
Mr. Andrews: Former president, past past-president, pastured president -
Voices: Oh, oh!
Mr. Andrews: - or whatever you wish, Mr. Chairman.
I'm a professor of theatre at Dalhousie University. Now that I'm no longer the past-president of the Canadian Association of University Teachers, I edit the Dalhousie Review.
The CAUT represents some 29,000 academic staff members across the country, in all provinces. At the outset I want to emphasize that our members are, of course, creators of copyright material - indeed, I suspect a significant proportion of copyright material created in Canada is created by the members of the Canadian Association of University Teachers - and we are, of course, also intensive users of copyright material. So in our presentations to the Government of Canada over the years we have had to be aware of the needs of both of these groups, and we've attempted to do so.
We supported phase one of copyright revision in 1988. Indeed, I was looking through our files today, and I saw that the then-president of CAUT wrote to the then-minister, Ms Flora MacDonald, and pointed out that our support for phase one of copyright revision had been contingent upon the prompt introduction of phase two of copyright revision. Indeed, he suggested that since the House was sitting through the summer in that year, maybe in July or August 1988 we could look forward to phase two of copyright revision.
Well, nevertheless, Mr. Chairman, we certainly are grateful to this government for having brought in phase two of copyright revision. We think the bill that's been presented has certainly made a valiant attempt to achieve an effective compromise between the interests of creators and users.
Let me repeat that the intention with phase two was to accommodate primarily the needs of users of copyright. It was assumed that phase one had dealt with the needs of creators of copyright, and phase two would address the needs of users of copyright.
Now, as far as we are concerned, the exceptions that have been provided for in Bill C-32 certainly go some way towards making that provision. As users of copyright material, what we need is the timely availability of knowledge. We think that the exceptions provided in the bill certainly go some way in achieving that.
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Let me say quickly that the CAUT would oppose any suggestion that the exemptions in the bill at the moment should not be provided where creator collectives have a functioning agreement with institutions. We think that would essentially render meaningless legislation intended to address the needs of users.
There is one matter that has not been addressed in the bill at all, which certainly affects our members and institutional members of the AUCC. That is the use of film and video in the classroom in Canadian universities. There is a need for legislation to respond to what are the actual educational practices in our institutions.
Mr. Chairman, it's a truism that we live in a society increasingly affected by visual imagery of all kinds. Not only in film and theatre programs in universities, but in studying communications, in the social sciences, in literature, visually imagery has become an important component of study and research at universities.
The law in the United States makes it quite clear that provided the copy shown in the classroom is a lawful copy, there is no copyright infringement when such a video or film is shown in the classroom. We believe that provision should also have been included in Bill C-32, and if it's not possible to include it in Bill C-32, then we hope when we get to phase three of copyright revision, Mr. Chairman, those who are then in a position to introduce the legislation will take care of this omission.
I don't want my time to run out completely. I want to mention quickly two other concerns before I turn to the matter of criminal and civil penalties.
We are somewhat concerned about the provision in the bill with respect to parallel importation. We are not, of course, booksellers here, but our campuses do have booksellers on the campus, university booksellers. For them the ability to provide the material needed by students and researchers in a timely fashion is indeed important.
The bill itself doesn't appear to contain any provision for agreement to be reached between distributors and their clients, the booksellers. But we understand some regulation is intended and that it will protect booksellers against the situation in which a Canadian distributor, although owning the distribution rights, cannot provide the material provided in bookstores in a timely fashion.
I'm sure members of this committee can appreciate that if students can't obtain the books they need for their classes in time, then they can't study properly. And I probably don't need to persuade you that researchers also need to obtain material when they need it.
Second, with respect to tape levies, we wish to emphasize, as I think other groups may have done before this committee, that there are legitimate uses of audio tape that don't involve any use of copyright material. We think there should be a system of rebating for universities and researchers in cases where the tape they are using is not being used for copying material that is otherwise copyright material.
Mr. Chairman, we've said quite a bit in our brief about those criminal penalties and civil statutory damages. I don't want to go through that discussion at great length, but I do want to say that we think the bill casts the net too widely with respect to criminal penalties.
We think there should be a specific threshold with respect to the value of the copyrights that are alleged to have been infringed, and that this should be $5,000. We also think there should be a requirement that criminal intent to wilfully trade for financial gain in copyright material, or some other fraudulent intent, is present before criminal penalties are introduced.
We would note that if this were the case, it would be in line with current U.S. law, and we also note that United Kingdom law is not as severe - I almost said Draconian, but that would not be an appropriate word to use - as the proposed Bill C-32.
We might mention here, because it has been mentioned to us by one of our members, that we think the government and this committee should be alert to the possibility that if it proceeds in its present fashion, the bill might well provoke a challenge under section 7 of the charter if the criminal penalties remain as they are.
Basically we think that civil remedies are the appropriate redress for copyright violation when it occurs, and we would generally accept the regime proposed in the bill, although we are concerned that the copyright board should be able to effectively regulate the activities of copyright collectives.
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Finally, Mr. Chairman, I want to make an important point that has to do with definitions in the bill. Clause 18, proposed section 29.3, and clause 20, proposed subsection 38.2(1) refer to educational institutions. Academic staff, that is, the employees of educational institutions, are probably implicitly included in proposed section 29.3, because the matters specified in proposed section 29.3 are presumably activities that would be carried out by academic staff.
Nevertheless, we think it's important that academic staff be included quite clearly as persons acting under the authority of educational institutions. That's particularly important in clause 20, proposed subsection 38.2(1), which deals with the limit on damages that may be obtained by persons who choose to sue in circumstances in which there is a functioning agreement with a copyright collective.
It's important for our members that it be quite clear that if they are separately sued, indeed the restriction on the damages applies to them as well as to the educational institution referred to in that part of the bill.
I suspect it was a drafting amendment in the bill. I hope it was a drafting amendment in the bill, and that the proposal is not controversial. In any event, Mr. Chairman, it is our request that the bill be amended to make it quite clear that where educational institutions are referred to in the bill, that includes the employees of those institutions. As far as our members are concerned, we mean by that the academic staff.
Thank you very much, Mr. Chairman.
The Chairman: Thank you, Mr. Andrews.
Mr. Killeen.
Mr. Pierre Killeen (Constituency and Government Relations, Association of Canadian Community Colleges): Thank you very much, Mr. Chairman and members of the committee. It's a personal honour for me to be here today.
It's nice to see that the committee has recognized that the Association of Canadian Community Colleges, the body on whose behalf I am here, does represent, both nationally and internationally, the voices of Canada's 175 publicly funded community colleges, institutes of technology, and CEGEPs.
While I haven't been involved in copyright for quite as long as my colleagues here at the table, I maybe can start off on a personal note. When I was first employed at the Association of Canadian Community Colleges, one of the first meetings I went to was on copyright. It was a meeting convened by the Department of Canadian Heritage and Industry Canada. The room must have been 10 times the size of this room. There were about 175 people there, each representing the interests of their particular constituency at the table. I guess you've had similar experiences with this hearing.
With this piece of legislation, the government is to be commended for attempting some kind of reconciliation of the many diverse interests represented in, or affected by, copyright.
I have one other aside, and then I'll get to the heart of the matter. Prior to your coming to Parliament, I'm sure you never thought copyright would be such a major issue and would involve so many people, and that by accepting your positions on this committee, you would be deluged with a flood of calls about something that I guess we used to consider as trivial as copyright.
But copyright today is very important. It's of critical importance to community colleges, educators, learners, students. I think the basic reason is that we are living in the information age, and copyright is the economic tool we use to govern the cost of that information.
From the perspective of colleges, information is also the lifeblood of learning and education. It is the basic tool of our trade. If students at colleges didn't have information, it would probably be recessed. I guess that wouldn't be that bad all the time, but come time to get a job, it would not be in their best interest.
It follows, then, that educators and learners have an interest in the broad dissemination of information and in the ability of our institutions to be those disseminators of information, to be areas where students can come, learn and exchange information. When I say ``free'', I don't mean at no cost. Maybe I should have said that a ``broad'' dissemination is what we're looking at.
In many respects the importance of these hearings flow from the importance of copyright. It might be overstating the case, but the Association of Canadian Community Colleges is of the opinion that the results of this hearing will define the parameters of the cost of information for educational library users in the information age. That's why it is of critical importance to us today.
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I don't know how many members of the committee are aware of the copyright environment at community colleges. If any member would like to visit a community college, a CEGEP, or a technical institute, we would be more than happy to help you out with that. At the present time, Canada's colleges and institutes are doing the best to abide by our copyright laws. In most of our institutions, if not all, this means that at least one person - if not two - is dedicated solely to working on matters related to copyright compliance.
In addition to the fees our institutions pay to copyright collectives, these administrative salaries are significant and are important. Colleges and institutes have signed licences with CANCOPY and UNEQ and are now in the process of renegotiating these licenses.
While I know I've probably used the term ``important'' too many times already, the association feels it's important for committee members to understand that the call by the Association of Canadian Community Colleges for educational library exceptions is not a call for an exemption from the payment of copyright royalties. Colleges have paid, and will continue to pay, for the right to use and reproduce copyright material. However, we are looking to Bill C-32 to restore balance to the relationship between copyright holders, educational users and library users.
I don't want to speak for everyone assembled here, but if there is a consistent message, it is that these amendments will restore a certain balance to the relationship our institutions and learners have enjoyed with copyright holders and copyright owners. Our association believes that with a few amendments, Bill C-32 will restore the needed copyright balance.
In recognition of the limited amount of time we have to speak to you tonight on these issues, maybe I could end my general comments there, speak to three specific amendments, and then we'll be very happy to entertain any questions or comments on what we've had to say.
Copyright infringement is a criminal offence. It's something that, given the uncertain nature of what constitutes a defence, such as fair dealing or the uncertain nature of the exceptions.... Many of these will be enshrined in our legislation for the first time.
It creates a very uncertain environment for learners, instructors and college administrators in our institutions. At the association we get calls on a daily basis asking us, can I do this, can I do that? In that particular environment, we are of the opinion that the threat of criminal sanction for basically a bad judgment call is too severe.
Part IV of the legislation will also introduce statutory damage awards. In the opinion of the association, the combined effect of these provisions in proposed sections 38.1 and 38.2 would subject institutions to a different regime of damages, dependent on whether or not they have a licence for the collective in place.
As we interpret the legislation, institutions with a licence would be subject to simple damage penalties where there would be instances of infringement, whereas institutions without a licence would be subject the minimum statutory damages, which range from $500 to $20,000.
While the rationale for this provision is not clearly delineated in the law - and I gather that usually these things are not spelled out in black and white in the laws - it would seem to the association that the legislation here seems to be expressing an opinion that institutions that have copyright licences are complying with the law, whereas unlicensed institutions are not complying with the law.
Respectfully, I would submit that this is not the case. Institutions can and do comply with copyright law, and spend a considerable amount of time, regardless of whether or not they in fact have a copyright licence.
I would like to echo the comments of my colleague from the Canadian Association of University Teachers relating to the addition of cinematographic works to proposed section 29.5. The section does provide for a number of exceptions for the use of audio materials, television broadcasts, but is silent on the notion of cinematographic works, which we understand to be films and videos. These are vital learning tools for our classrooms, and the omission speaks to the need for the inclusion of this exception.
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I would like to conclude my comments, thank the committee, and
[Translation]
apologize to Mr. Leroux for not having spoken in French. But I am fully prepared to reply to your questions in French. Thank you.
Mr. Leroux: I think you express yourself very well.
The Chairman: Thank you very much, Mr. Killeen. Mr. Weiner.
Mr. Harvey Weiner (Deputy Secretary General, Canadian Teachers' Federation): I am happy to be with you today to present to you our joint brief with the Canadian School Boards Association. My colleague, Ms Donna Cansfield, is accompanying me.
Our organization is a Canada-wide federation that coordinates and facilitates the exchange of ideas, knowledge and skills. Among the 13 provincial and territorial member organizations at the elementary and secondary levels, we represent more than 240,000 teachers.
[English]
Having been personally involved in the copyright dossier and issue since the beginning of my employment tenure with CTF, which goes back to September 1988, I too, Chair, would like to take the opportunity to perhaps share with you a bit of the history.
We have within our archives a rich treasure trove of files on the copyright issue, and many letters from former prime ministers, ministers, MPs, and MLAs, which date back to 1987. Some of them have gone on to bigger and perhaps better things, and others unfortunately have not.
Voices: Oh, oh!
Mr. Weiner: There are a couple of quotations from some of this correspondence. As I was going through these archives, I thought they would be worth sharing with members of the committee. I think they reinforce very well...particularly the comments of Sally Brown.
One is from Nancy Betkowski, who, some of you may remember, was Minister of Education in Alberta. In a December 1987 letter she wrote to our affiliate in Alberta, she stated:
- The major concern with Bill C-60 is that it does not address users' concerns, only those of
creators and producers.
- Bill C-60 is the first part of a two-phased process. Because of the urgency and complexity of
copyright provision, it was not possible to address all issues at the same time. I assure you,
however, that the government fully intends to address the very important issue of educational
exceptions on a priority basis. The next phase of amendments to the Copyright Act will deal
with the many other aspects that were not addressed in Bill 60, including that of education users
of copyright works.
Voices: Oh, oh!
Mr. Weiner: Well, we know what happened. In 1988 a net was something one hit a tennis ball over. A web site was something we sprayed to get rid of spiders.
Today we're talking about nets, web sites, and a phase three of copyright that's going to be addressing the new technology. And after eight years, we still have not addressed the major purpose of the bill that you have at present before you is finally addressing, and that is the particular concerns and needs of the education and library user community. As a federation we would suggest that it is time; it is overtime.
Our teachers are not in a position to determine which materials will be purchased, which materials will be available, to use with students on a day-to-day basis. They only know that in the age we're living in today, the students they teach, the students we teach, need full access to the widest range of educational materials possible.
We need certainty and clarity when it comes to copyright issues. And we believe that although it is not a perfect bill, and we have some suggestions that we think will improve the bill, this is nevertheless a bill that clearly defines areas of agreement and consensus, those that do exist, that were reached way back when - I can refer you to letters signed by Paul Racine after many meetings that some of your resource persons attended, and in which they were very active in helping to prepare - areas in which there was a considerable degree of convergence, if not exact consensus, on every point.
.1935
These hearings and discussions, which were furthered when Communications Canada was merged into other departments, and still other departments, were followed up by other hearings and meetings. Pierre talked to you about one I also attended with 170 participants.
So the areas of difference and the areas of convergence are well known. We think that, broadly speaking, they are well reflected in a bill that has good balance, and we are urging this government to get on with the job so that we can get on with phase three, which is an extremely crucial and important phase as well, before some of the issues we are dealing with in phase two become obsolete. Thank you.
The Chairman: Thank you, Mr. Weiner.
Mrs. Cansfield.
Ms Donna Cansfield (President, Canadian School Boards Association): Thank you very much, Mr. Chairman. It's a pleasure to be here to make a presentation along with my colleagues in the educational community, and to give you some background.
As president of the Canadian School Boards Association, I represent over 400 school boards in 9 provinces. That translates into some 3 million children and some 16,000 schools, all of which have libraries. So this is a very critical issue for us, to look at the balance, to find some reasonableness between the rights of the creator and the needs of the educational community.
Rather than go forward and reiterate the statements that have already been made, I would like instead to support the comments with a great deal of solidarity, because they in fact do represent the education community from the school boards' perspective as well.
We do believe that Bill C-32 would be stronger if it were to include the statutory guidelines and the criteria to permit fair dealing. But we're also here to indicate that we fully support Bill C-32 as a well-crafted compromise, and we do encourage the government to pass it without delay.
You've heard of a number of clarifications and amendments, and we support those that have been indicated by our colleagues. I think rather than our going through and restating them again, it's important for you to know that we do represent a fair amount of solidarity as we sit here together at the table, representing the educational community.
The 240,000 teachers Harvey referred to as employees are also creators. The amount of curriculum produced in our schools that is the responsibility of the school boards is phenomenal. So again, we accept that reasonableness and balance, and we accept that there needs to be fair dealing on both sides.
We look forward to the passage, and I was absolutely delighted to hear that the chairman said phase three would start this summer.
Voices: Oh, oh!
Ms Cansfield: May I presume to have that in writing?
Voices: Oh, oh!
The Chairman: That still won't help.
Ms Cansfield: It won't help. Then maybe we can start with the next filing cabinet.
I would again like to thank you for the opportunity to make a presentation, and I would be pleased to entertain any comments or questions from you. Thank you.
The Chairman: Thank you, Mrs. Cansfield. I'll give you a verbal agreement form.
Ms Cansfield: You're on.
The Chairman: Finally, to finish this part of the hearing, we have Mrs. Jantje Dunn from the Central Alberta Media Services. Mrs. Dunn.
Ms Jantje Dunn (Operations Manager, Central Alberta Media Services): Thank you. I also welcome this opportunity, on behalf of the regional and education resource centres in Alberta, specifically to request clarification on what constitutes a public performance in the Canadian Copyright Act. I know it hasn't been addressed in this bill, but we were hoping that possibly it could be.
Our contention is that viewing legitimately purchased or rented copies of feature films on video in a classroom setting does not violate the current Canadian Copyright Act, as a school is not a public place, nor is it viewing for private profit. To classify schools and the instructional use of videos in the same category as public theatres makes no sense at all.
Section 21 of the School Act clearly identifies schools as private property. Certain distributors - namely VEC, or Visual Education Centre, and ACF, or Audio CineFilms Inc. - are claiming that screenings of feature films on videos in a classroom setting constitute a public performance, and either the feature films on video must be leased or a public performance rights site licence must be purchased.
.1940
For the committee's information, the lease costs for VEC are between $250 and $300 per print for a five-year lease. After five years, if the videotape is still usable, another five-year lease must be purchased for the same cost again. The normal retail cost of these items, which they feel schools have to pay between $250 and $300 for, is $20 to $30 or often less, and that is for the life of the tape.
ACF has a contract for $175 for a three-year lease. The normal retail price of the tapes available through ACF is the same as for those available through VEC.
In the past three years the average cost to our centre for non-feature educational videos has ranged from $83.44 to $90.73. So there's a huge discrepancy between what we normally pay for the life of the tape of an educational video product and what we have to pay for a feature film. And in most cases the educational video is more closely related to the curriculum than a feature film is.
I've outlined the PPR site licence costs. Collectively the regional and urban resource centres of Alberta were able to negotiate the price from $1 per student to 25¢ per student per distributor, a total of 50¢ if you want a comprehensive licence that will cover the majority of producers of feature films.
Three years ago we only had one distributor to deal with, because Visual Education Centre was representing the majority of producers. Now there are two companies involved. We were paying 35¢ a student; now we're paying 50¢ a student. What happens if these licences are sold to more distributors and we have to deal with more than two distributors? Our costs will escalate.
The best-case scenario for a national PPR site licence for schools that want both licences, for Canadian kindergarten to grade 12 students - and I've estimated that there are 5,672,300 students in Canada - would be $2,836,150 per year, and that excludes the administration costs. Annually, half of that would go to each distributor.
This estimate is based on the calculation that's noted in my attachment. I've based the calculation of the number of students in Canada on the number of students in Alberta versus the population; I've taken that percentage and just extrapolated nationally. I don't know how close it is, but I suspect it's not too far off.
We feel the present structure provides a clear revenue windfall opportunity for the distributors. The distributors claim that between 50% and 70% of the fees they collect are then turned over to the producers in the form of royalties, but I believe royalties are already included in the cost of the video and these licences are double jeopardy for schools.
As was pointed out in our brief, when educators read aloud from To Kill a Mockingbird to a group of students, they don't pay a public performance fee to the book's publisher. When educators screen the video for the same class, why should they be required either to pay a lease cost as much as 10 times the retail cost of the title or to annually purchase and administer a public performance right site licence in addition to paying the rental fees? We do not believe this constitutes fair and equitable treatment of Canada's 5 million students.
Then there's the issue of home schooling. If students are home-schooled, as many more students are in Alberta - and I don't know if this is true of Canada nationally - there's no question that feature films used in the home schooling situation would be perfectly legitimate. Our claim is that it's perfectly legitimate in a classroom setting too, but the distributors don't agree with us.
I have included for the committee's information a copy of pages 42 to 45 from a publication entitled Unfair Use - Intellectual Property Law in Canada. The most pertinent passages are underlined for your information.
.1945
Clarification of public performance as it relates to the classroom setting is needed sooner rather than later, because many schools are purchasing these licences and incurring these fees. There really isn't consensus as to whether these licences are even necessary. Mr. Spetz's contention is that they are not necessary, and he's not the only one who believes that.
I know this issue hasn't been addressed in this round, but I'm hopeful that it can be and that the costs for these licences will not have to continue to be borne by schools.
Thank you very much for inviting me to present.
The Chairman: Thank you, Ms Dunn.
As I indicated before, this will be an open exchange. There won't be any order of precedence. I will recognize questioners, and hopefully we'll rotate the questions and comments so everybody gets a chance.
Whoever wants to start it off, you're welcome. Mr. Leroux.
[Translation]
Mr. Leroux: The exchange we are going to have this evening is very important, because in the bill there is a major item that is completely new.
Thank you for filing briefs and explaining your positions in such a clear and forthright way.
You have among your own constituents many authors, writers and creators. For over five years I myself taught at university and, among my friends, there are authors, creators who are teaching in the CEGEPs, in the colleges, etc. I must tell you that they are not happy with this bill.
The owners among the creators talk about the many exceptions contained in the bill. They feel that their own rights are expropriated. They feel they are being sent the message that we can't discuss the exceptions. They expropriate us and they insert 13 pages in the bill dealing with rights that the authors don't have. So they would prefer to go back to the old Act, which had not 13 pages but one page of specific exceptions.
As to the evolution of copyright since 1925, a first revision was carried out in 1988, a second one in 1996 and there will be a third in 2001. The history of copyright administration is therefore very short. It was only a few years ago that they managed to establish copyright collectives, to enter into negotiations and establish agreements with the colleges. For example, we know there are a series of agreements. In your three provinces, there are agreements between CANCOPY and the Education ministries.
They think the bill knocks the props from under them and fails to recognize their ownership of copyright or their capacity to negotiate, to encounter one another as people who have rights and responsibilities.
You talk about a fair and reasonable balance. They think the bill does not propose this fair and reasonable balance, because it also sends a message to the extremely sensitive sectors such as education, the libraries, etc.
So we may not be able to negotiate copyrights because there are some exceptions. It undermines accountability in the relationship between the institutions and the copyright owners.
.1950
I would like to know what your understanding of their position is. What importance do you attach to the exceptions message which is sent out by the bill, and which could prove to be a negative message denoting lack of accountability, in their view?
You already have some agreements with them. How do they work? Are you really disappointed? Where is the difficulty? Reaching an agreement, or paying?
I will come back to other aspects, but I would first like to shed further light on this issue of the balance between owners and users. I think everyone clearly understands this, but what could be done to dispel the bad mood that has developed among the authors?
Mr. Weiner: I will try to answer your question in part, and my colleagues can add to it.
I think the people who raise the questions in that way are trying to rewrite history. I cited previously Ms Betkowski's letter in 1987. I think she said everything. Ms Betkowski,
[English]
when she said that Bill 60 does not address users concerned, said:
- The establishment of collectives in this phase of the amendments could result in departments of
education having to negotiate licences without knowing whether the second phase will provide
fair and reasonable education exceptions.
If you examine the history as you must, you will see that Bill C-60 was to include some exceptions for educational purposes, etc. That was not done.
So, it can be said that in the existing power relationship in the negotiations that have been held since 1988, the power was not on our side, if you will.
It should be understood that the intention, not only of the current government but of previous governments, was to achieve a fair balance between the rights of the creators and the rights of the users. That is how we explain things to our people, the creators. They accept that.
Mr. Leroux: You are telling me that the licensing bodies are big machines that hold a monopoly, that they have us in their hands. That's what you are telling me.
Mr. Weiner: Well, I don't want to exaggerate...
Mr. Leroux: But that's the way you put it in your documents.
Mr. Weiner: Some things are not settled satisfactorily, and in my opinion some things that should not be there have been included. If the government had legislated as it should have at the time, they would never have been included in these agreements.
The Chairman: Thank you for your comment.
[English]
Are there any other comments from anybody regarding this point?
Ms Brown.
Ms Brown: There are two or three points that I want to respond to there, because I think you indicated that in the province of Quebec the academic creator community feels differently. We represent all the universities, including the universities in Quebec, and I'd have to say that our Quebec members, if anything, are more concerned about the fair dealing exception, more energetic in terms of preserving the fair dealing exceptions and educational and library exceptions in the act, and they have been vocally in support of this bill. The UNEQ licence that was negotiated through the Quebec government for the universities in Quebec excludes every single single copy, whereas the CANCOPY licence in the rest of the country incorporates within it the assumption that some single copies, if used for administrative purposes, might not be fair dealing.
So my impression is quite different from what you're presenting. Without being simplistic, it's important to comment. There is concern about the number of pages taken up with exceptions in the bill, but as all of the justice department drafters have indicated, the creator rights are couched in very expansive language; the exceptions are couched in very restrictive language, and it is that restriction that provides the 13 pages of length, not the substance of the exceptions, and I think that is important to emphasize.
.1955
[Translation]
Mr. Killeen: Mr. Leroux, I am not in a position to judge the reaction of the creative community in Quebec in regard to the bill, but I was able to discuss it with my colleagues in the CEGEPs and in the Fédération des cégeps. Their feeling is that when the time comes to sit down to negotiate the collective agreements, they feel powerless. They have a lack of power, not total, but the balance now leans in favour of the creative community, which has some collectives and considerable power.
The majority of our members do not have the strength of a big university like the University of Toronto or Queen's University, where I studied. We don't have the power or the muscle that our university colleagues have, to sit down as equals at the bargaining table.
The Chairman: Are there any further comments from the guests?
[English]
Mr. Andrews.
Mr. Andrews: I'm surprised to hear Mr. Leroux say the members of the academic profession that he knows are opposed to the fair dealing exceptions in the bill. We're talking about single copies of journal articles created for the primary purpose of sharing and communicating knowledge, and I would have said that it is generally true of the academic profession - I'm sure there are exceptions - that their first concern is the communication of that knowledge and information. What they want, both in the interests of reputation and in the dispassionate interest of furthering the advancement of knowledge, is to see that knowledge communicated to people who are interested in receiving it.
I've heard comments outside this room about this particular bill that have suggested that, for example, photocopying works disadvantageously to the rights of authors and creators. I think there's an argument on the other side. I think that the reputation and knowledge of the works of creative persons is spread through a great deal of the photocopying that occurs.
Most of my colleagues would prefer to purchase the book or the article in the journal itself rather than obtain a photocopy. The obtaining of photocopies occurs in circumstances in which that is not convenient or easy to do. People don't, as a general rule, make photocopies of material they expect to make a use of in their research activity. They would rather have the material in their possession.
So I'm not sure that the whole of this argument that suggests the permission for single copies and restricted copying of materials under the provisions of this bill, which is more restrictive than the provisions in neighbouring countries, in countries with which Canada compares itself, is really damaging to the interests of creators. I would have thought one could make the argument that it in fact furthers the interests of creators, it spreads reputations, and it spreads knowledge. I would also suspect that creator members of the academic community are themselves users of copyright material who would welcome the exceptions provided in the bill that will enable them to use copyrighted material in the way the bill provides for.
[Translation]
Mr. Leroux: Shall we go on?
The Chairman: I'm going to go to Mr. Abbott.
[English]
Mr. Abbott: Let me start with my premise, which is that there are property rights and we have to pragmatically understand how those property rights are balanced against the uses we're talking about here. So that's the basis of my question.
I was particularly interested in the issues Ms Dunn brought up relative to AV. It's my understanding from your presentation this evening that you're saying there will be a double jeopardy or double charge for education institutions. Was that your point?
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Ms Dunn: I feel there is now, because the copyright doesn't clearly define what constitutes a public performance, and some people believe that a school is not a public place and that what happens in the classroom cannot in any way be construed as a public performance. Therefore, distributors who have acquired rights for public performance of feature films should not be coercing schools into believing they need to purchase these licences.
We believe the classroom setting is not a public performance and that the viewing is not for profit, and we believe according to the way the copyright law is written now, that's what needs to happen before such licences need to be purchased. It has to be a public performance and it has to be for profit, and neither of those cases apply in a classroom setting. So why should schools be even having to purchase these licences?
Mr. Abbott: Permit me to play devil's advocate for a second. I really appreciate Ms Brown's note that the reason for the number of pages, relative to exceptions, was because they were very narrow and well defined. That really helped a lot this evening. I appreciated that comment.
Are we then talking about adding yet another couple of pages or would -
Ms Dunn: Not at all. I don't see it that way, because we're not asking to copy materials and use them in classrooms. We're asking to have it clearly stated that a classroom setting is not a public performance, and that therefore a public performance site licence is not necessary. We want to be able to either purchase legitimate copies or rent them from a video store. I believe those copies, as a part of the cost, would have a royalty included them. The producers would be compensated for their artistic work. We wouldn't suggest the schools should make copies of these materials and use them in a classroom setting, but purchase copies, use them in a classroom setting, and not have to lease them - purchase them outright.
Mr. Abbott: This is still a form of an exception, isn't it?
Ms Dunn: I don't see it as such. It's a definition.
Mr. Abbott: Okay. Help me with the argument that was very well put by a previous presenter, who said the taxpayer pays for the desks, for the teachers' salaries and for the schools and so on and so forth, so why should they be any less responsible for paying for the works that are being used by those teachers on those desks or in those classrooms? I just throw that out to you broadly.
Ms Dunn: I'm not suggesting they shouldn't. As I outlined in my presentation, on average in the last three years our centre paid between $80 and $90 for an educational program, and we're not objecting to those costs. We realize that if we want good materials, we have to pay for them. Our budget for acquisition has been in the neighbourhood of $180,000. But we object to having to lease these materials instead of being able to purchase them, or else having our school buy a site licence in order to be able to use copies from a home video rental establishment.
The Chairman: Mr. Andrews, if you will bear with me, Ms Phinney wants to ask a question. But before we pass on to Ms Phinney, on this particular subject, when you mentioned $250 to $300 for five years, a lease or an AFC-175, which is $50 to $60 a year, are you talking per school, per school board or - ?
Ms Dunn: Per print. When our centre buys resources, initially we buy five copies if it's an upper elementary or primary resource, three copies for circulating purposes if it's a senior or junior resource, and we buy additional copies as distribution demand warrants. In some cases, such as for seasonal items, we have as many as 100 copies of an item. For a popular feature film, at those prices we can't afford to have sufficient copies for circulation purposes. So we have a very limited number of titles, and those titles are costing us significantly, on the order of three times as much as any other educational video or feature film.
.2005
The Chairman: So you're talking $50 or $60 a year per video?
Ms Dunn: No, we have to pay the $175 per video up front. We can't pay it on a three-year instalment basis. We have to pay for it when we acquire it and then we can use it for three years, and when that three-year period is up we have to pay another $175.
The Chairman: I understand.
Ms Dunn: And on every other educational video. As I say, educational videotapes range from as low as $21, if you have an agreement with the National Film Board, to as high as $900.
The Chairman: Let's say you rent a film, one video, you've paid your $175, and you're allowed to use it for three years. Can you show it all over the province, or just in one particular region?
Ms Dunn: We can circulate it to our members only. We can't circulate it outside of our membership.
The Chairman: Ms Phinney.
Ms Phinney: I think it was Ms Brown of the Association of Universities and Colleges who brought up the question of perceptual disabilities.
Is it in your report?
Ms Brown: Yes.
Ms Phinney: You noted correctly that it deals with visual impairment but not hearing, and you questioned this and think it should be changed. Could you expand a little bit on that and your experience with this? Can you tell us why you think that should be changed?
Ms Brown: I'm sorry, I had the French going in my earphone when you we're asking the question. Can you just...?
Ms Phinney: You mentioned correctly that perceptual disabilities are mentioned. We talk about visual but we don't bring in the hearing part of it. You suggested that should be changed to perceptual disability, that it should be changed to include everything, not just visual.
Ms Brown: Correct.
Ms Phinney: Can you explain why you put that in there?
Ms Brown: Our members and many of our faculty believe there are an increasing number of perceptually disadvantaged individuals in our universities, and why would an exception benefit one particular perceptual disability over others that are equally as debilitating in an educational setting? I believe there's a general principle with respect to perceptual disabilities that would apply regardless of the perceptual disability, as long as it is impeding the ability of that individual to function in an educational setting. So it's merely a question of why it would be limited. It didn't make a lot of sense to us that it would be limited to one type of perceptual disability.
Ms Phinney: Why have you limited it to two? Do you personal experience with this? We will want to make the bill as complete and as -
Mr. Andrew: No, I think the answer to this is probably that Sally and I were both at the same conference, shortly after the bill was promoted, in which this issue was raised by people at that meeting. I think we probably both realized that it applies quite specifically, in the learning context in universities and colleges, to perceptual disabilities other than hearing that needed to be addressed. So I think that's where it came from. If you're asking what gave us the idea, I think it was that it was presented as a failing in the bill.
In our brief we say it's our understanding that the Council of Canadians With Disabilities is making recommendations to you, and we were basically in sympathy with that and think that will accommodate the needs as they exist in the learning situation.
Ms Phinney: In your brief you asked that the bill be amended to exclude the application of criminal remedies from the education sector. Can you provide us with any examples where the criminal justice system has been invoked in the education system?
Ms Brown: It hasn't been, and I think one of the difficulties and one of the reasons we put this in our brief is that we're going through a stage right now in the educational institutions and elsewhere where we're trying to comply with copyright law, and criminal sanctions put the whole act in a very different frame. You're not a criminal if you mistakenly photocopy something wrong. It just seems it is an inappropriate sanction for the level of crime and that there are other appropriate remedies for infringement. This one is not appropriate and shouldn't apply.
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Ms Phinney: What are the other remedies that are appropriate?
Ms Brown: There are non-criminal sanctions. There are fines. There are a number being suggested in the bill with respect to.... There's an issue and there's a debate amongst the educational community about whether statutory damages should apply only if you're operating under a licensing regime, or if it should apply even if you're operating under a licensing regime. That's an ongoing debate, and it's an issue we don't all agree on at the table.
In terms of those non-criminal sanctions, there are many and they relate to fines and other types of penalties. We believe these are appropriate for the nature of the crime, as it were.
Mr. Andrews: I have a comment on the criminal sanctions point. I'm from Halifax, not Ottawa, but I understand there was a criminal prosecution here in Ottawa quite close to the University of Ottawa.
Ms Phinney: What do you mean ``quite close to''? Did it have anything to do with the university?
Mr. Andrews: Yes. It's our understanding, and this is in the brief we've submitted to the committee, that professors at the University of Ottawa were almost brought as criminals before the courts in this particular case.
We do not say in our brief that there should not be criminal sanctions, and we do not say that persons, even professors, in our society who may violate copyright with the intention of commercial gain or some other fraudulent activity should be immune then from prosecution. But what we do say is that there has to be a clear criminal intent in place to justify criminal prosecutions and criminal sanctions. The damage to persons' reputations that can result from criminal prosecutions mistakenly undertaken is really a serious issue for us.
We're not saying that if crimes occur and can be proved, then persons should be exempt from normal legal sanction because they're professors. Of course we're not saying that. What we are saying is that the activities of professors should be properly recognized for what they are.
[Translation]
Mr. Leroux: You are right on that. This is a very important point. But a "no fault" notion is being inserted in the bill. When someone is caught for violating copyright, by law all he has to do is to say he didn't know he was circumventing copyright and it's all right, since it is in the bill.
It is necessary to achieve a balance. I understand very well the position that you are expressing, but there must be a balance. I am trying to see, to some degree, what is involved in this development. It is recent.
Between 1925 and 1988, it was a very long struggle before authors could get recognition, before there were some collection procedures. Do you agree that the struggle was a very long one?
I would like to come back to the procedures we have in relation to the collectives and the Copyright Board. I would like to verify this with you in regard to the power relationship, which you describe as being completely unbalanced.
Do you think that, in the cases where you actually identify an uneven power relationship, the Copyright Board could intervene to straighten out some situations?
Aren't the existing tools adequate for developing correct and civilized relationships between the copyright owners and the institutions, the users?
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Aren't the tools now in place adequate for achieving the objective of a fair and reasonable balance? You can't do it otherwise than through creating exceptions, because the existing procedures are not adequate.
Do you think the Board can play some role in relation to the imbalance you fear?
Mr. Killeen: For my community colleges and CEGEPs, the Copyright Board is an unknown quantity. We had no idea of how to apply to such a tribunal or what it might cost. Or association has 175 members. Must all these members pay lawyers' fees in order to get a decision on policy issues that, in our opinion, should be decided by this committee?
Mr. Leroux: Can someone add to the reply? You are acquainted with the Copyright Board. What the gentleman raises, there, in terms of representation costs, is real and valid. It will mean some legal costs, some expenditures, etc.
Mr. Killeen: This is new for us.
Mr. Leroux: It is new. You are acquainted with the operations of the Copyright Board?
Mr. Killeen: I have some legal knowledge.
Mr. Leroux: But your briefs are very clear and very straightforward, and I want to know whether the tools we now have are adequate to deal with some situations.
[English]
Mr. Andrews: I think all of us at the table expected phase two of the copyright legislation to provide some balancing of what had been accomplished by phase one of the legislation. That is why I said in my presentation to the committee this evening that I wanted it to be very clear to the committee that phase one was intended to accommodate creators of copyright, and it did accommodate creators of copyright.
The Canadian Association of University Teachers supported the phase one revision of the copyright legislation for that reason. But it was understood and agreed at that time - in fact we said as a condition of our support for phase one of the legislation at that time - that it was necessary to provide phase two, which would accommodate the needs of users of copyright.
In particular and to be very specific, one of the things we said then - and that was long before the changes in communication that have been referred to by people at the table this evening - was that the exemption for single copies of research articles for the purpose of private study and research was an essential component of phase two of copyright legislation.
The suggestion now that we have regimes in place or other mechanisms that somehow will accommodate this so we don't need these exceptions is just wrong. We do need those exceptions and we continue to need those exemptions even with copyright collectives. Copyright collectives do not guarantee to researchers that they can in fact obtain the knowledge and information they need in order to carry on their work in a reasonable and timely fashion.
[Translation]
Mr. Leroux: Mr. Killeen, in the process, some licences are granted by the collective and those licences contain certain exceptions.
You haven't convinced me that those tools were fully used, that we were capable of going further than those tools allow us to go. We are now getting some experience with them. You have some agreements that include some exceptions. There is the Board, but you are not demonstrating to me that you have really used or that you are really going to use those tools.
It reminds me of the broadcasters who, with all the discussions with the government, were expecting that ephemeral copying would be exempted. They don't have that exemption. They are very disappointed. Their lobbying didn't work.
You are saying, more specifically, that your discussions were conducted in good faith and that those exceptions should have been included. After all, you are talking about discussions and commitment to the review process.
[English]
The Chairman: Mrs. Brown.
Ms Brown: I'd like to answer that.
Universities have a reprography licence with CANCOPY, and it works to a certain extent. We negotiated a two-year licence with CANCOPY for all of the universities outside of Quebec, because they negotiated separately with UNEQ. We had to agree to disagree on what constituted fair dealing. We basically said, we think fair dealing is A, you think it's B, so we'll agree that you'll pay us $2.50 per student and we won't say what that covers. That worked for two years. We had hoped that then the legislation would provide guidelines around fair dealings so that at the renegotiation we could say, now we have some clarity and we can reach a new agreement.
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We have failed to renegotiate the agreement currently. Two things are needed. We're making a representation to the Copyright Board. We support the amendments in the bill to make the Copyright Board more effective; it's a legitimate process if you have disagreements on tariff. We almost did not reach agreement on the other part of the licence because this go-round the collective came forward and said, we think that interlibrary loans isn't fair dealing and so we're going to charge you 24¢ a copy for an interlibrary loan. And we said: no, no, no, we believe it is fair dealing. I believe it's only because the draft bill put an exception for interlibrary loan that then the collective said they would go back to their previous position.
Without this legislative clarity, the collectives won't work. Collective licensing cannot exist in a vacuum. There is no regime that is regulated in some way where there isn't a public policy objective to provide some clarity. That's all we're asking for. We are perfectly willing to enter into licensing agreements. This bill will make those easier to enter into, not more difficult.
May I just add, Ms Phinney, because I think I led you astray, that in regard to the case my colleague referred to, which you mentioned, there was one case. It was actually against a private copy shop that happened to be located near the University of Ottawa. And it is interesting that initially a number of the professors at the University of Ottawa were cited in the case.
The Chairman: Ms Brown, I should mention they're going to appear here, so this whole thing will -
Ms Brown: Yes, I realize that. May I just say, though, that in the end the faculty members weren't cited, because I think there was a reluctance on the part of even the prosecuting party, who felt that criminal sanctions for faculty members was somehow not very appropriate. The case is with a private copy shop, and that's why I don't call it a university case.
The Chairman: Mrs. Cansfield after, and then I'll defer to Mr. Bélanger, who has been very patient.
[Translation]
Mr. Weiner: I think Ms Brown has provided some good examples of the current situation.
If, for example, history had been written as it should have been at the time, in 1988, with the exceptions that should have been included in the Act - the intention was to include these exceptions in the Act - I think we would be in a better situation now.
For example, in our sector, in each province and in each school board, there are no agreements, even now. The agreements differ from one province to another.
We should look beyond the boundaries of our country. In the legislation of the United States and Australia, there is a basis that has, in my opinion, created a better balance between the rights of the creators and the rights of the users. So, we should look elsewhere.
In the bill, we have established a fair basis for everyone. On that basis, we can begin negotiating in a more satisfactory way. This would be a much more appropriate approach, in my opinion, than the one that now exists.
Mr. Leroux: Are you talking about the clarity of the definition or of the established cost?
Mr. Weiner: I am talking about clarity. As a former negotiator, I know that in negotiations, if you agree on the facts and you begin with the same understanding of the facts, it is much easier.
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Mr. Leroux: In the example you were giving in relation to Australia, you did say that it was $2.50 per student? You were speaking earlier about the cost that was established, after negotiations, for one student. In Quebec it is 88 cents, while in Australia it is $11 per student. What is the reason? Is it that the negotiations didn't go well?
Mr. Weiner: I am talking about clarifying the term "fair dealing" and making a distinction between the things that are covered and the things that are not covered.
Mr. Leroux: But they say that in the countries where there are fewer...
Mr. Weiner: I am not talking about price, because that is negotiated, but you begin with the same rules, the same understanding and the same interpretation of what it means.
[English]
The Chairman: Ms Cansfield.
Ms Cansfield: Thank you.
I would like to restate that my experience at the national level is obviously limited, but I have had some experience at the Ontario level with negotiation on the CANCOPY. To suggest that it was protracted is a minimalist statement. It was probably, without a doubt, the most exasperating situation. Part of the reason was that there was not a level playing field in terms of what the guidelines or the criteria were, or some reasonableness with which to begin the negotiations.
The whole idea of negotiations is ultimately to finish them, and I can assure you that we had finished. We were into the next phase of the following two years when the ink wasn't even dry, because they knew how long it was going to take. The lawyers, the people involved, and the cost were absolutely phenomenal. I also think that the other thing that became very difficult was the policing aspect, because of the lack of trust that existed. That was there because the guidelines that could have been there weren't there.
I believe that's reasonable. We all negotiate in our provinces - and I'll use the teachers as an example. In my province we negotiate under something called Bill 100. At least it gives us a premise on which to begin our negotiations. I expect that's not unreasonable to ask of a government. After all, that's part of what governing is all about: it's helping those in other levels of government reach some of the conclusions they need to reach, and negotiation is one of them.
For me as an individual, much less as a taxpayer, it's critical that dollars are used well. But I also happen to be a parent with two children, one in the university system and one in the school system, and a good education is absolutely paramount. And I again think it's reasonable to ask that all of the governments come together to help provide some sort of speedy process in which that could take place.
[Translation]
Mr. Leroux: It is important when we're talking about costs.
The Chairman: No, sir. I think we have to give everyone an opportunity.
Mr. Bélanger.
Mr. Bélanger: If you wish to let him continue, go ahead.
The Chairman: Well, go ahead, Mr. Leroux.
Mr. Leroux: The costs are important. You mentioned, when we were talking about generous awards, generous compensation, and I think that these costs are important. But according to Statistics Canada, Canada is one of the countries with the lowest compensation costs in the world. We are one of the countries with the lowest compensation costs.
That was the comment that I wanted to make, and I thank Mr. Bélanger for letting me speak.
[English]
The Chairman: Just one minute. I'll give you a chance to comment if you have the facts, then that will be it and I'll go on to Mr. Bélanger. We don't want to start a big debate here.
Ms Brown: One of the reasons why the costs are so different in the various jurisdictions is that the licensing agreements are structured totally differently. In Australia, the jurisdiction with the most comparable licence, the cost per page is 2.2¢. We started our negotiations at 3.5¢ per page, so we're not the cheapest. And I think we should recognize that the United States doesn't even have a system that requires much of what we pay for to the collectives, so it's almost impossible to compare costs.
[Translation]
The Chairman: Mr. Bélanger.
[English]
Mr. Bélanger: My first question would be to Madame Brown and Mr. Andrews. I just want to know, generally speaking, how your organizations view the Copyright Board. Favourably? Unfavourably? Do you trust them? Do you not trust them?
Mr. Andrews: I'll answer very quickly, while Sally thinks of her answer.
As far as I know, we have had no experience of the Copyright Board, so I have no basis on which I could give an honest answer to your question - and I certainly don't want to give a dishonest answer.
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Ms Brown: I'd have to say we have very little as well. At this point, I'd have to say it's neutral. The Copyright Board has not put itself into anything other than the SOCAN licensing. It hasn't ventured into the reprographic reproduction area, which is the area that we're most concerned with.
I should say that in most of the music performance in the field in which the Copyright Board plays - and through the SOCAN licensing - my understanding and our members' understanding is that it's well regarded. There's a system that works.
But as I said, we are now making a presentation to the Copyright Board, so we'll know in six months.
Mr. Bélanger: The reason I bring it up is that in the CAUT brief, one of the recommendations - I think it's the last recommendation - is that a bunch of criteria be established, either in legislation or regulation, to guide the Copyright Board in its deliberations. Almost everybody else who's been before us thus far has recommended the opposite. There are two or three references in the bill saying that the Copyright Board should take this into consideration, but those other people said to leave the Copyright Board to do its work. So I was wondering where that was coming from.
It's on page 25.
Mr. Andrews: Yes, I know where it is.
I think we thought somebody had to do it. We thought it was desirable that these criteria should be established.
Mr. Bélanger: If they were not there, you'd have to rely on the board using them when arguing your cases and so forth.
Mr. Andrews: Yes.
Mr. Bélanger: Okay, fair enough.
On to question two. I can't recall who, but someone suggested that there be....
[Translation]
There should be a threshold of $5,000 in damages.
[English]
Mr. Andrews: That's our suggestion.
Mr. Bélanger: Okay. You suggested there be a $5,000 threshold. That's not of damages, but of copyright theft, I suppose.
Mr. Andrews: That's right, in terms of criminal -
Mr. Bélanger: What does that represent? Can you quantify that in terms of numbers of copies or numbers of books that have to be fully copied? I want to know if this is a -
Mr. Andrews: No, I can't answer it in that way. I have to tell you that is what the threshold is in the United States law with respect to -
Mr. Bélanger: But what does it mean in practical terms?
Mr. Andrews: It means the value of the copyright is lost.
Mr. Bélanger: Give me an example, please, if you could. I can understand the notion of a threshold, but I want to believe the threshold is not ridiculously high or ridiculously low.
Mr. Andrews: No. As I said to you, we borrowed the number, we took the number from the United States legislation at the moment. We assumed it would become comparable to what would be reasonable here.
Mr. Bélanger: If we're talking about the copying of a textbook, how many copies would you have to make before you reached $5,000 worth of copyright?
Mr. Andrews: It would depend on the royalty agreement, I suppose.
Mr. Bélanger: Let's say it's a book that costs $20 - or $100, since that's what textbooks cost these days. How much copyright is there on that?
Ms Brown: Ten dollars goes to the author.
Mr. Bélanger: Let's say $25 goes to the author.
Ms Brown: You're asking what the value of the copyright is in the work.
Mr. Andrews: The copyright that would be lost if someone were to -
Mr. Bélanger: I want a concrete example, even if we have to fabricate it here.
Mr. Andrews: Can we get back to you on this?
Mr. Bélanger: I'm starting to believe it might be that you'd have to copy a few hundred books.
Mr. Andrews: That's a fair question, but I don't have a good answer for you.
Mr. Bélanger: In that case, how often would such a threshold be even achieved?
Mr. Andrews: The issue here is that there is a criminal intent to obtain some commercial reward from the copyright violation that occurs.
I don't think we're particularly attached to the idea of $5,000, and I think you're right to ask the question about what it strictly represents. But what would constitute a criminal theft of copyright in those circumstance where somebody was seeking to....? And what would justify criminal prosecution?
Mr. Bélanger: No, I'm trying to determine what kind of a threshold you're asking for, in practical terms. That's all I want to find out.
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On the issue of fair use, l'utilisation équitable, if we put the U.S. definition in the act, as you seem to be suggesting, how may pages of exceptions would we drop?
That's for Monsieur Leroux.
Some hon. members: Oh, oh!
An hon. member: It takes care of a hell of a lot of printing.
Mr. Bélanger: But seriously, it could be four or five pages. It's very clear that you'd prefer the definition of ``fair deal'' that the United States has.
Ms Brown: Yes.
Mr. Andrews: Yes.
Mr. Bélanger: There's one more question.
The Chairman: Mr. Weiner.
Mr. Weiner: I just wanted to add that I would assume that if the costing figures are right, the creators would as well, because their royalties would increase substantially.
Taking the question that we had from Mr. Leroux, I say that tongue in cheek.
Mr. Andrews: To be serious, though, the justification for that proposal is not merely that it will reduce the number of pages in the act that deal with exceptions, of course.
Mr. Bélanger: You'd have a clearer.... A copyright would be more work.
Mr. Andrews: But there would be greater clarity.
Mr. Bélanger: Before I get to the last one, I appreciated your comments about the net and the web, but there is another one that you may want to add to your list. I remember when ``java'' used to mean coffee.
Some hon. members: Oh, oh!
Mr. Andrews: I thought java had something to do with chocolate.
Mr. Bélanger: Who made the allusion to a charter challenge under section 7?
Mr. Andrews: We did.
Mr. Bélanger: Can you please elaborate on that?
Mr. Andrews: As I understand it, the argument stems from the fact that the bill provides for too widely drawn a provision for the criminal at the moment, for criminal prosecution to occur. The challenge would occur under section 7 with respect to the security of the person. That is a point that has been put to us by lawyers with respect to the present criminal provision in the bill. We think the committee should consider it, but you will no doubt have your own experts to give you advice.
Mr. Bélanger: Would you kindly invite that lawyer to submit such to the committee? We might want to take a look at that.
Mr. Andrews: Sure, we can do that.
Mr. Bélanger: Thank you.
The Chairman: Just before we go on to the second round of questions, I wanted to ask you a question about exceptions and collectives. The subject, of course, has been very crucial to these hearings. It keeps coming up all the time.
Some people have suggested that if you had exceptions or some kind of safety net, you would have the exceptions in the law and they would only come into play if you had no agreements with a collective, like CANCOPY or another. Such an agreement would really be tantamount to the exceptions, would take care of the exceptions. If you didn't have it, then the exceptions would apply. What is your reaction to something like this?
Ms Brown: Our strong reaction - -and I mentioned it in my opening remarks - is that collective licensing isn't a substitute for exceptions. There is no question that this issue is coming up more and more in our negotiations.
Do you mean that if an exception comes under a collective licence, it is a non-compensable part of that licence? If it's compensable in that licence, it is not excepted, so who sets the tariff for that activity? If the activity that you mean is something that would be a fair dealing exception - the copying of a scholarly periodical article for research purposes - and you said it wouldn't be excepted unless it came under collective licensing, are you saying that it then becomes a compensable part of that licensing? If that's the case, then there are no exceptions. All you are doing is saying that every activity you undertake is compensable.
There is a fair dealing exception in the act. In our view, it's much broader than any of the exceptions coming down now. We had this discussion with CANCOPY with respect to the interlibrary loan. If there is no exception in the legislation, then what do you mean by saying that interlibrary loan comes under the licensing agreement. Do you mean it's compensable? Who sets the tariff? Who determines what it is? Can the collective then say that if you want to copy that material, it's $5 per page?
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So if you believe, as a government, that there is a public policy objective in having certain types of copying exempted because they facilitate the dissemination of knowledge, then having them come under collective licensing doesn't meet that objective. We just don't see the merit at all in the argument that's being put forward.
The Chairman: Mr. Weiner, then Mr. Killeen.
Mr. Weiner: To add to that, I think Sally said collective licensing is not a substitute for exceptions, and I thought she explained why. If we go back to the history of this, and to the need for balance and the acceptance of it through many discussions that did involve both creator and user communities, there was convergence on a lot of these points. But people have forgotten their history.
I would also make the point that exceptions - and we've never argued this - are no substitute for collective licensing. It works both ways. We don't see exceptions. We have never asked for exceptions for our sector with no collective licensing. We've accepted the concept of collective licensing. We've accepted that in very many cases there need to be agreements in which fair compensation is provided to the creators. So neither is a substitute for the other.
The Chairman: Mr. Killeen.
Mr. Killeen: Thank you, Mr. Chairman. I would like to endorse Mrs. Brown's comments about the nature of the relationship between exceptions and collective licensing, but maybe I can add a brief statement on that - and hopefully I won't contradict you here, Sally.
Without the exceptions, I think our institutions would be at the mercy of the collectives when it comes time to sit down to negotiate these fees. It's important for the committee to understand that there is only one collective. We can't go anywhere else. There's no open market.
Mr. Andrews: It's a monopoly.
Mr. Killeen: It is a monopoly. Basically, we're sitting there at the table and they're telling us that if we don't like their terms, they have a number of tools in their kit with which to enhance their negotiating power. Our negotiating power comes out of the exceptions.
[Translation]
Mr. Leroux: You seem to take it as a monopoly, but the Copyright Board is there and you can use it as a tool.
Mr. Killeen: If we ask the Board to decide a question or a dispute between a college and a collective, it will refer to the Act, which will not contain any exception.
Mr. Leroux: The Board already gives rights to the licencing bodies and it can also decide disputes, but it is not being fully used. Are we going to another topic?
The Chairman: Yes, we're going to another topic. Mr. Leroux, I am going to give the floor to Mr. Abbott.
[English]
Mr. Abbott: I'm trying to dig back through my memory file from about two weeks ago, when we were talking about the size of the penalties and got into exactly this issue. In other words, who has the hammer in the negotiations? Do you have any concerns about either existing copyright legislation or what is proposed in Bill C-32 with respect to the size and application of financial penalties? The basis of my question is springing directly off what we just talked about.
Mr. Killeen: If I could touch on this, I think we may have opened up the can of worms about statutory damages here. I don't think it's an easy argument to make or to understand. If I'm not that clear, please let me know.
Our understanding of the way Bill C-32 is structured is that in the situation where an institution had a license and, for whatever reason, breached one of the provisions of the Copyright Act, the damages the institution would be liable for would be what they would have paid under the license. In a similar situation, or even an identical situation, if an institution does not have a copyright licence in place and there is a breach, this institution is liable for statutory damages that start at $500 per infraction and go up to $20,000.
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I guess in situation A the damages would be to the collective, or the author would have suffered as a result of the breach. This might have been, under the license, say, 7¢ a page. But without a licence, you're on the hook for $500. In our brief, we feel this is a very powerful tool that the collectives have been given.
Personally, our association has had a real crisis of conscience over whether or not to endorse the legislation because of the dangers of part IV of the legislation. First of all, we try to encourage students in our environments to learn. Now all of a sudden, they're being told that if they're too active in their pursuit of learning, they might be facing a criminal penalty. If not, it's $500 to $20,000 for an infraction.
I'll stop there.
Mr. Abbott: I'd like to go just a tad further with the panel. I wonder if we could get an overall recommendation.
If $5,000 to $20,000 is too high, which I assume is the agreement, then what are more appropriate penalties or sanctions? What is a more appropriate level?
Mr. Killeen: I would say that the way the damages are structured under the current legislation would be satisfactory to our association, which is basically the common law damages. What is the loss the plaintiff has suffered as a result of the infringement?
Take a situation in which you have a student who might copy a whole poem instead of three-quarters of a poem. That takes him or her outside the protection of the fair dealing exception, so this is a $500 call. Under the existing legislative framework, this particular student might be asked to pay say 7¢, which would have been the loss suffered by the collective as a result of his or her decision.
Mr. Abbott: Just to conclude this, I'd be interested in knowing whether the rest of the panellists agree with those thoughts.
Mr. Andrews: I certainly don't disagree.
Mr. Weiner: I won't put a specific clause or figure on it, but certainly there is agreement here that the penalties are excessive as they're outlined in this legislation. By comparison with what the penalties would be where the licence exists, I think it's ludicrous to look at figures like that.
The Chairman: Thank you. Ms Phinney.
Ms Phinney: New technologies are not a part of this phase of the reform of the Copyright Act. If this remains the case, and distance education is not covered by the exceptions in Bill C-32, how would this affect your institutions, or would it?
Ms Brown: I think I want to answer that in two ways. Currently distance education is, maybe surprisingly, not very technologically sophisticated. It's basically the reprographic reproduction of material that's sent by correspondence. But if we don't reach a solution in terms of what is considered fair dealing in the digital environment, I think we are at risk of Canada not developing an enormous potential capacity in distance education.
The Americans have no barriers at the moment. They're having a lot of discussions, as you know, with respect to their white paper on the whole of the application of fair use in the digital environment. There's no question that the United States is investing huge amounts of money in distance education. It's now bringing the material on-air over the border.
The potential loss is not a loss to our institutions, quite frankly. It's a huge potential market for Canada because we have enormous expertise in servicing our remote communities. We have a network of centres of excellence doing an enormous amount of research on distance learning. I think if we don't deal with this issue of what is allowed or not allowed in the digital environment for educational and research purposes, we're potentially losing a huge market.
Ms Phinney: That's fine, thank you.
The Chairman: Mr. Abbott.
Mr. Abbott: This is a rather off-the-wall question, but it is important to this committee. In attempting to put together the testimony before the committee for Bill C-32, one of the challenges we faced was the composition of who the witnesses were going to be.
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I look across Canadian school boards, federations, colleges and universities. In your judgment, do you think we have had a total canvassing or exposure to the ideas and problems that are facing the college, university and school board environments?
Ms Brown: My reading is that the testimony in front of this committee has characterized university, college and other students as rapacious abusers of copyright, and the students have not had an opportunity to defend themselves. In our view, while there's no question that some students copy the whole of the textbook at their father's office, that's not the norm. They are very concerned about intellectual issues. They use the web. They're very technologically in tune, much more so than we are.
So that might be one group that I think is getting a bit of an unfair rap in terms of misunderstanding and the ``rapacious abuse of copyright''. We don't see it, and none of the library or copier studies, or anything else, supports it in my view. So that might be one group.
Mr. Killeen: I can't really fairly comment on the broadness of the scope of the committee hearings, but I might want to indicate that the committee might benefit from hearing from Algonquin College. It's an institution here in the national capital.
Algonquin prepared a very detailed submission about copyright. It did request an appearance. I guess everyone recognizes the difficult task the committee has had in terms of trying to select people and institutions to appear. Algonquin is in a very unique situation vis-à-vis their negotiations with collectives over access to materials. The committee might benefit from an elucidation of their situation.
Thank you.
Mr. Weiner: Not necessarily to suggest other groups that might be heard, but to pick up somewhat on Sally's points about students, I would make similar points about teachers. We have been very scrupulous in this in terms of the instructions provided to teachers, as have school boards.
I would suggest to the members of the committee that something has happened over the past number of years in the absence of the exceptions and clarity, which I don't think has served students very well. There have been many moments whereby certain materials could, perhaps should, have been used, but weren't used or accessed. That's because there was a lack of clarity as to whether in fact there was access or whether the timeframe in order to get authorization for access to those materials was too long to be appropriate for those materials to be used with students.
Therefore, I guess it's a plea to the committee - I think I made it in my opening remarks - to get on with the job. Don't backslide on the exceptions that are included in this bill. Look at some of the constructive proposals to try to sharpen some of the points in the bill.
On balance, recognize the kind of work, discussion and involvement. I think there has been much in-depth consultation on this issue with both user and creator groups over the past eight years and more refinement in terms of the people who have worked on the issues, drafted the clauses, looked at them within the context of various departments federally and tested them with Justice, etc. If we're not really to move now, God knows when, or if, we ever will be.
Mr. Andrews: I think it's an interesting question. My observation at Dalhousie University, certainly in the last two years since the CANCOPY agreement came into force, is that people are extremely sensitive with respect to copyright issues. We have all been educated and sensitized to the issues of copyright. I think there has been a growing understanding, even on the part of faculty members but certainly on the part of students, with respect to the meaning of copyright and intellectual property and how it serves cultural and educational interests.
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I wanted to say just one other thing. Some of the earliest research I did as a scholar involved a person who spent a good part of his life copying out material by hand from old newspapers in the British Library, as it was then. I think that in large part a lot of photocopying that goes on now is exactly what is otherwise people copying material by hand.
In other words, I don't think it's an alternative to purchasing work that could be purchased in book form, magazine form or whatever. It's an alternative form of an old practice of study that everybody around this table engaged in when they were students, when photocopies weren't available.
I think that's the basic use of photocopiers. I think there's a lot of melodramatic sensationalism about the abuse of copyright through the use of copying machines, particularly since we now have agreements in place that govern the permissions with respect to photocopying.
So I would not be too easily persuaded by blithe statements that there is gross and wholesale abuse of copyright by persons in educational institutions. I don't believe that's the case.
Mr. Abbott: If I may be permitted to refocus, I was specifically going to make sure that in the judgment of the people here we had done a fair and equitable job of making sure we had a fair representation from all the user groups in the educational community: students, teachers, institutions, boards or whomever. It should be all the people in the educational community.
Mr. Andrews: I can't answer that, because I'm only here tonight.
The Chairman: Go ahead, Ms Cansfield.
Ms Cansfield: Thank you. Like most things, I think it's important to go back and reflect on that to ensure that you haven't missed some folks. I know we've probably done exhaustive representations on the issue of copyright across Canada, but there might be an issue around two exceptionalities.
One is the issue of adult basic literacy and the whole adult population vis-à-vis immigration, refugees and second languages.
The other issue will be in new technologies, such as the whole area of exceptionalities with children with disabilities. The impact of those technologies on their lives and what's happened in opening up their lives is phenomenal. Because of the impact, it will be critically important in that phase three, which you're going to start immediately, for there to be a broad spectrum in terms of recognizing that particular group.
Here's the other thing. It would be interesting to ask about. It's something I'm going to ask when I go back to Ontario. It's the whole issue of aboriginals in terms of their first language and how that is impacted. That would be another area I might suggest.
The Chairman: We are getting to the close of the meeting. I would like to recognize Mr. Leroux and Mr. Bélanger. As there will be a few minutes left, I think our researchers would like to ask a couple of questions of Ms Dunn before we close.
[Translation]
Mr. Leroux.
Mr. Leroux: I would like to raise with you, Mr. Andrews, a completely new aspect which is in your brief, and which I consider very audacious. You are talking about copyright and you want to be included among those who are claiming royalties. At page 14 of your brief, you propose to establish a levy on blank tapes.
If you would look at the brief of the Canadian Association of University Teachers, at page 14, under the title "Tape Levies". I quote:
- Although no doubt a major use of blank tape is to obtain private copies of commercial
recordings, there is a variety of other legitimate uses including several for educational purposes,
which do not infringe copyright.
And then you make the very surprising request to have a levy on blank tapes. I would like to ask you how this can be done.
The Chairman: I think they don't want there to be a levy on blank tapes that are used for purposes other than copying.
Mr. Leroux: Basically, it is an exemption at origin. It would be necessary, and this is what is in the bill, incidentally, to collect this levy directly from the manufacturer. But how can it be administered?
Can it extend to all educational uses when we know that videos are used extensively in human kinetics or in institutions in which they work at developing athletes? How would a proposal like that be administered?
[English]
Mr. Andrews: I would just like to be clear about what it is we've raised with the committee here. Our understanding is that the bill provides for a levy on blank audio recording tape at the point of purchase.
The philosophy - if I can call it that - behind this proposal is that there is widespread copying of copyrighted audio recordings. In order to provide compensation to copyright holders, there is to be a levy charged on blank tape, and the proceeds from that levy will be distributed by the Copyright Board. I think the board will determine how the proceeds will be distributed to the original creators.
What we say in our brief is that there are uses to which blank tape is put that do not involve any infringement of anybody's copyright. A lot of those uses occur in the educational environment. Researchers use tape for interviewing people with respect to oral history and social surveys.
I'm a professor of theatre. Students in our program use tape. Tape is used as part of their training and education. Music students use tape. We do not think that it is legitimate to charge a levy on tape that is used for those purposes.
I suppose you could carry out this discrimination in some way at the point of sale, but it makes more sense to make a provision for a rebate to persons whose use of the tape does not entail any infringement of copyright. That, we think, should be included as a provision in the bill. The government has, in other circumstances, provided rebates where it seemed appropriate to do so, and that's what we think should happen in this case.
[Translation]
Mr. Leroux: That was my understanding. You are asking that there be a levy, but that part of it would be rebated to the person who used a blank tape for educational purposes. So you verify that there is a request for a levy.
[English]
Mr. Andrews: Yes, they should.
[Translation]
Mr. Leroux: So it will cover all educational activities. We're clear on this. Many sectors use videos for learning or educational purposes, such as dance classes, theatre or other classes, and it could be extended fairly widely.
[English]
Mr. Andrews: Yes, the challenge is indeed to the ingenuity of legislators.
[Translation]
So we are going to ask those who get neighbouring rights to agree to a nice big share! Thank you very much.
The Chairman: Mr. Bélanger, you may ask a final question.
Mr. Bélanger: I would like to come back to the question of the $5,000 threshold. At 3.5 cents per copy, you would have to make about 142,000 copies before reaching that threshold. We are really talking about industrial quantities. But I don't know if that is what you were thinking about.
I would now like to ask a question about the new technologies. I would like to know whether, in the universities and colleges, the use of scanners is becoming more and more widespread.
[English]
Ms Brown: Do you mean to digitize work?
Mr. Bélanger: You scan a sheet of paper or text into a data bank.
Ms Cansfield: Imaging.
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Ms Brown: I might answer that in two ways, if I can. Now there is a second-generation photocopier that digitizes the work and stores it so that what we call course packs are provided on demand to the student when they wish it.
Mr. Bélanger: Does that come out of the same machine?
Ms Brown: Yes, there's a machine there. It just makes for a cleaner copy, and the products can be printed on demand, rather than printing 10,000 of them and selling 100. This type of second-generation photocopier, even though it is a digitized image and even though the CANCOPY collective and the legislation doesn't deal with digitized images, is allowed under the CANCOPY agreement, because they recognize that there's no transmission of this image. It's stored in the photocopier in order to produce a paper copy.
In our submission - I think it's extremely important - there is another type of technology called the Ariel technology, which is used for 80% of all interlibrary loans. It is essentially a digitization of the image.
Instead of a facsimile copy, which is transmitted to the receiving library, a paper copy is produced. What we're saying in our brief - I think it raises the image - is that we are scanning, so the exception has to include that technology, which is similar to the technology that the collective has already recognized in the production of course packs. But there's no networking of that image; the image is destroyed once the paper copy is produced.
So in that respect, all of these technologies are producing a second generation. We're saying that as long as it's not networking - that's a phase three issue, and we recognize that - then we need to recognize that the image used to produce a transitory copy produces a paper copy at the other end.
Mr. Bélanger: On that question, do you believe that the distinction in the act between for-profit libraries and not-for-profit libraries is a fair one? Or is it unfair?
Ms Brown: I would have to answer that the AUCC position is that it's a fair one. We have already agreed with CANCOPY.
I should say that we have brought a submission together to the Copyright Board in the hopes we can still reach a negotiated settlement. If not, we are proceeding to the board. We have agreed with CANCOPY that copies provided to for-profit recipients of interlibrary loans will be the subject of a tariff. So I would have to say that we agree with that distinction.
Mr. Bélanger: Thank you very much.
[Translation]
The Chairman: With the members' leave, I am going to give the research staff an opportunity to ask one or two questions.
[English]
Ms Wanda Noël (Committee Researcher): Thank you, Mr. Chairman.
I wonder if you could help to clarify some of these numbers for me. These questions have come up before, and I haven't been able to provide the answers. Hopefully you can help me.
As for the VEC licence, you state that it's $250 to $300 for a five-year period. That's one component of the payment, but how many students would that copying service? You talked about your members, but who are your members, and how many students do they serve?
Ms Dunn: It could vary. If it's housed in a school's collection, it would typically serve just the school population. If it housed in a school district collection, it could serve a number of schools.
Our centre serves 271 schools. As a guideline, we can circulate an item 11 times in a year. So typically one copy, on average, could be circulated 11 times in a year.
Ms Noël: Does your licence restrict that?
Ms Dunn: No. We can loan it to our members. There are no restrictions on the number of uses.
The only reason I included that cost was to compare what we have to pay for that type of resource versus any other resource. To me, it's not reasonable that we should be paying more for a feature film whose primary audience wasn't education. Why should we be paying a lot more for that product than we do for products that have closer curriculum relevance? It seems to me that the only reason we're paying more is because there's nobody else providing that product.
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Ms Noël: Would you be able to give us an estimate of how many students would be served by the service you provide?
Ms Dunn: We serve about 80,000 students.
Ms Noël: Could you tell me, if possible, how much money you would have spent to service those students for public performance fees in 1995?
Ms Dunn: Visual Education has indicated that 160 schools of the ones we serve have such a licence. I got a figure from another region that said 86% of the schools they served have purchased such a licence.
Ms Noël: Do you have a global figure in terms of dollars?
Ms Dunn: No, I don't, because the schools deal directly with the distributors. We circulated a memo to our schools to say that such a licence was available. We didn't say that such a licence was necessary, because my view is that it's not necessary. But the distributors are saying that it is necessary. It's up to the school to decide whether they want to risk litigation.
No school has ever been brought to litigation, but the distributors are circulating brochures to schools indicating that such a licence in necessary if they want to use this material.
Many schools in Alberta - I can't speak for the rest of Canada - have opted to purchase such a licence. The Calgary Board of Education has such a licence. The Edmonton Catholic School Board has a licence.
As I say, 86% in another region I know of have such a licence, and a good percentage of the schools we serve have such a licence.
Ms Noël: You've gone now from the VEC charges to the per-student charge.
Ms Dunn: Yes.
Ms Noël: You've shifted now to the other method of payment.
Ms Dunn: There are two legitimate ways of acquiring this resource, according to the distributors. They say we can either lease it, or we can purchase a site licence. A site licence is an annual fee. They have to pay this fee every year.
Ms Noël: I understand that. Thank you very much.
The Chairman: We are ready to close. I would like to ask one brief question to Mr. Killeen just to clear my mind.
I think you made the point in your brief, and tonight as well, that there was an unfair distinction between licensed and unlicensed colleges in regard to statutory damages. Could you just explain it to me again?
Mr. Killeen: Certainly.
The Chairman: Is this a viewpoint of your association?
Mr. Killeen: I guess we have done an analysis of the implications of the sections of the legislation. Our understanding as to how they would be interpreted by a court of law, should this come into play, is such that institutions that have a licence are subject to what we would call common law damages, whereas institutions without licences are subject to the statutory damages, which could be characterized as punitive.
It would seem to our association that the rationale for this distinction, although it's not stated in the law, is that institutions that have licences are complying with the law, while institutions that don't have licences are not complying with the law.
The point we're trying to make here is that institutions can comply with the law outside of the mechanism of statutory licensing.
The Chairman: Is this opinion shared by your colleagues around the table?
Mr. Killeen: I would certainly never endeavour to speak for them.
The Chairman: No, I know. I'm not asking you; I'm asking them.
Mr. Andrews: If you think about it, it's certainly an interesting point.
Ms Brown: We haven't pushed on that point. We've viewed the statutory damages as aimed at a target community other than the not-for-profit community, quite frankly.
I guess where we disagree with ACCC is by having some faith in the system that this is not the intent of that provision.
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I think there is a concern, because voluntary licensing is not the only option for institutions. They can choose to have individual transactional licences with certain publishers, which is not the sort of licence that's envisioned in the statutory provision section.
I think there is a case to be made that some more thought needs to go into that, because you could be an institution, not be an infringement, have transactional licences, clearly use the exceptions in the legislation and fair dealing only and clamp down on any other infringement.
I think it's an important issue. I guess we, as a community, felt that the aim of the provision was not at us, and we were putting some faith in how it would be applied.
The Chairman: Ms Brown, Mr. Andrews, Mr. Killeen, Mr. Weiner, Ms Cansfield, Ms Dunn, we really appreciate your input tonight.
We've heard from a lot of groups, as you know. The views shift. They come and they go.
In the end, what helps us is to hear from people who are very articulate, committed to their cause and knowledgeable about their fields. It really helps us a lot to form an opinion in the end. The picture will get much clearer when we have heard all the groups.
We really appreciate your presence here and your testimony. It will be extremely useful to us. We'd like to thank you very much.
The meeting is adjourned.