[Recorded by Electronic Apparatus]
Thursday, October 31, 1996
.1106 
[English]
The Vice-Chair (Ms Phinney): Ladies and gentlemen, I call the meeting to order. I'm sure others are either in the House or at other meetings and will be joining us shortly.
This is Thursday, October 31, and we are the Standing Committee on Canadian Heritage. We're studying Bill C-32, an act to amend the Copyright Act.
As our first witnesses today, we have with us members of the Canadian Library Association. John Tooth is the convenor of the copyright committee, and Paul Whitney is vice-president and president-elect, and is also chief librarian of the Burnaby Public Library. Is that right? Are you chief librarian?
Mr. Paul Whitney (Vice-President and President-Elect, Canadian Library Association; Chief Librarian, Burnaby Public Library): That's correct.
The Vice-Chair (Ms Phinney): And Leacy O'Brien, acting executive director, is also with us.
Welcome. We're ready to hear your presentation. I think we've all read the initial presentation you sent in.
Mr. Whitney: Thank you very much.
I suppose I should start by wishing the members of the committee a happy Hallowe'en. One is tempted to start off by saying trick or treat, acknowledging the fact that the library community feels it does have a couple of favours owed to it. However, the notion of a trick here is counter to how we do business and how we operate, and I wouldn't want it to be construed as any kind of threat.
My name is Paul Whitney. As was mentioned by the chair, I am the vice-president of the Canadian Library Association.
CLA was founded in 1946, and it exists to provide leadership in the promotion, development and support of library and information services in Canada. There are approximately 4,000 personal and institutional members in the association. There are five divisions, representing college and university libraries, public libraries, school libraries, and special libraries that include government and corporate. CLA members serve over 90% of the population in communities and institutions across Canada.
Thank you very much to the committee for inviting us to appear today, and thank you to the government and departments involved for ensuring CLA's involvement in the lengthy consultation process that has culminated with Bill C-32. We are here to speak in favour of speedy passage of this long-overdue legislation.
There are going to be two components to our presentation this morning. John will review the CLA brief and highlight the key issues from our point of view; I will touch on library concerns relating to parallel importation clauses of Bill C-32 and will address several issues relating to libraries that have been raised in other briefs and presentations. Given the recent presentations the committee has received from CARL - representing research libraries in the country - and the university sector itself, we will not focus on interlibrary loan issues in our presentation. In case there are any doubts, however, please allow me to indicate that we fully support the positions that have been put forward by those other organizations.
At this point, I would like to hand it over to John.
Mr. John Tooth (Convenor, Canadian Library Association Copyright Committee): Thank you, Paul, and good morning, everyone. It's a pleasure to be able to talk with you for a few minutes about copyright.
The Canadian Library Association would like to commend you on the consultation process undertaken to date, and on the development of a bill that addresses many issues important to Canadian citizens today. CLA supports Bill C-32. While we will be addressing some of the technical concerns in this presentation, the bill itself addresses the fundamental issue of balance.
The purpose of the government's legislation was encapsulated when Canadian Heritage Minister Copps introduced the bill in the House. To quote her from the April 25 issue of Hansard:
- In the wording of the proposed amendments, we were careful to protect the interests of creators
and users. I would like to add that we are fully aware that in the public interest exceptions
limiting the enforcement of copyright are sometimes necessary. It is a question once again of
finding a balance between users' needs and those of copyright holders.
Briefs by the Canadian Library Association, the Canadian Association of Research Libraries, CREPUQ, which is an association of principals and presidents of Quebec universities, and also of ASTED, which is the national French library organization that is CLA's sister group, all support the exemptions and argue in favour of the immediate passage of Bill C-32.
CLA firmly believes Bill C-32 brings into balance the rights of creators and the rights of users. We acknowledge that Canada must have a strong cultural community, and one that receives fair remuneration for the use of copyrighted materials. After all, the products of creators are what we purchase, use and make available to Canadian citizens through our libraries. We also strongly believe, however, that users of copyrighted materials have the right to access fairly and reasonably this copyrighted material for the purposes of education, research, private study, teaching and the advancement and dissemination of knowledge.
In 1988 the federal government passed phase one of the amendments to the Copyright Act and promised phase two, which was to cover exemptions for libraries and education. During this time, CLA and other user groups and creator groups participated in the federal government's consultative committee on library uses of copyright works. This group arrived at a consensus on an appropriate balance between the rights of users and creators. This agreement essentially became CLA's official position, which we have continued to articulate to the present day. We are disappointed that certain elements of the creative community have chosen to turn 180 degrees from this 1988 consensus - as you have heard in presentations before you and as you have read in briefs - to a point where they now argue for virtually no exemptions whatsoever for copyright users.
Bill C-32 in fact encompasses the majority of the exceptions agreed to by consensus in 1988. CLA is pleased with the exemptions given to libraries in Bill C-32. Specifically, I'm referring to clauses related to the following: dealing with the maintenance and management of collections; dealing with the reproduction of a single copy of an article in a periodical; allowing libraries, on behalf of their users, to enjoy all the exemptions available under the act, as well as the defence of fair dealing; incurring limited liability for a patron's use of its photocopy machines; and permitting libraries to do for another library what it can do for itself. These exceptions permit the balance of rights wanted by the government and wanted by CLA.
There is one technical matter I would like to raise. Clause 38.2 limits the liability of an educational institution with regard to photocopying when there is a collective licence in place. We do not understand why this limited liability should apply only to educational institutions and not to libraries when they have a collective licence. Since there is no logical reason to exclude libraries with licences, we assume this might have been an oversight in the drafting of the bill. This limited liability clause for libraries would encourage them to join collectives, and thus would further the policy objectives of the government.
Finally, I would like to make several comments regarding some of the briefs and presentations. Let me assure you that libraries are not the villains that we have been made out to be. Libraries follow Canada's copyright law not only because we are law-abiding citizens and institutions, but also because we support the concept of copyright. Since the legal creation of copyright collectives in 1988, thousands of school libraries, all university libraries, the majority of college libraries, and all federal libraries, have negotiated copyright licences with CANCOPY, enabling these libraries to copy beyond what is allowed by law, and providing millions of dollars annually in revenue to CANCOPY for its members. Public libraries are now negotiating with CANCOPY.
If at times it looks as if we are adversaries with creators and their collectives, this is not the case. As negotiators with CANCOPY, we have to demonstrate responsibility, since we are all using taxpayers' dollars. In other words, please don't confuse the rhetoric and emotional appeal you have heard with substantial issues that must be resolved.
Finally, although CLA's brief does not address users with perceptual disabilities and their need for equitable access to Braille, large print, and talking books, we do support the brief of the Canadian National Institute for the Blind. That brief both articulates a number of concerns with proposed exemptions and also proposes a number of recommended changes.
I would now like to turn it back to Paul, who will talk about paralleling.
Mr. Whitney: And I'd like to make a few brief comments on that.
Since originally announced in 1992, the library community has voiced its opposition to the inclusion of protection in legislation for exclusive distributors of foreign books in the Canadian market. Our concerns echo those of the Canadian Booksellers' Association: that is, book distribution is a marketing and service issue rather than a property matter, and its inclusion within the Copyright Act is both inappropriate and unworkable.
.1115
One indeed wonders if protection is necessary. I would draw to the committee's attention the example cited by the Association of Canadian Publishers in their brief, the book Every Living Thing, by James Herriot. It was indeed, in the instance cited, an egregious example of improper importation. However, in that instance the Canadian publisher was able to get the books withdrawn from the marketplace. If the press is to be believed, they received financial compensation for lost revenue. And all of this came without the protection that we are told is necessary to ensure just that kind of thing.
Canadian libraries have always been among the strongest supporters of Canadian publishing and authors. It is ironic that parallel importation is to be legislated at a time when Canadian libraries are spending more in Canada than ever before, reflecting the high quality of and public demand for Canadian books, as well as competitive pricing for foreign books. It is also ironic that the legislation is pending when library and bookstore customers are experiencing what has been described in the November issue of Quill & Quire, the journal of the book trade in Canada, as a ``distribution disaster'' with two of the major publisher-agents in the country.
If the government chooses to continue with the parallel importation clauses of Bill C-32, CLA has three specific concerns.
First, libraries wish to ensure that third parties - wholesalers and bookstores, for example - when they acquire books for a library, will have access to the same exceptions as the library itself.
Second, proposed subsection 45(2) appears to place customs officers in the impossible position of having to judge the right of an importer - a library or bookstore in this case - to bring books into the country based on the exclusive distributor's adherence to performance regulations. Let me assure you that these are exceedingly complex and very difficult to understand for somebody who is not in the industry. The assumption, from the initial Communications Canada announcement in 1992 to the recently negotiated voluntary performance guidelines, is that the burden of proof must lie with the exclusive distributor. This should be a matter for mediated resolution between parties - and relevant associations as is appropriate. Customs should not play a role.
Third, we must register disappointment with the Association of Canadian Publishers' strongly stated position that libraries should not have access to a single-copy exception. This has always been acknowledged as necessary by government, and also by the major publisher associations, both in their original bargaining position on performance guidelines presented in 1992 and in this year's negotiated voluntary performance guidelines - and the Association of Canadian Publishers endorsed both of those documents.
Time constraints prohibit a detailed review of why the single-copy exception is necessary. Suffice it to say that without it, library collections will be weakened over time. To remove the single-copy exception at this late stage would fundamentally and unacceptably change the impact of Bill C-32 on libraries.
Several presenters and briefs to the committee have mentioned the recent study ``Photocopying in Public Libraries in Canada'', by Françoise Hébert, as evidence of financial harm to writers through photocopiers in libraries. I should add that as chair of the council of administrators of large urban public libraries, I acted as a consultant to this survey.
It is important to note that the first draft of the survey, dated May 1996, has been substantially revised. An updated version has been supplied to the clerk of your committee. And if I may be permitted to put in a brief plug, it will be published by the Canadian Library Association before the year's end. Specifically, the survey now projects 11.6% fewer published photocopies per year on these machines. The number of copies from newspapers has declined from 15.1% of the total published copies to 7.2%. These are substantive changes. The numbers cited in other briefs are from the first draft, and this was of necessity because that's the draft that was available at the time the submission deadline was about. So I think it's important that the committee recognize that those numbers need to be reviewed in the light of the revision.
The survey was undertaken cooperatively by the Canadian public library community and CANCOPY to provide an objective assessment of the nature of copying in public libraries, and to assist in developing a public library licensing agreement - and I would like to emphasize the word ``cooperatively'' here. The public library sector has worked, and continues to work, with CANCOPY towards a licensing agreement. The reason there are not yet agreements in public libraries, simply put, is that CANCOPY was focused on other sectors where agreements have significantly greater financial benefits for the creators and publishers it represents.
.1120
The library sector has concerns about the unrealistic and highly subjective numbers assigned to copying on its machines. One example was the Stevenson Kellogg Ernst & Whinney study, ``Developing a Reprography Collective in Canada'', which was published ten years ago exactly, October 1986. It estimated that 110 million photocopies were made annually in public libraries of published materials. This was a gross overestimate, and the current study demonstrates that it is out by a factor of more than eight. To us, these kinds of numbers continue to emphasize the need for current, reliable, and objective statistics on what is actually going on.
I would like to cite a few numbers from the survey. Some 12.9 million copies are made per year of published material on public library photocopiers. This constitutes less than one quarter of all copies made on those machines. The total is 23.2% are published materials, materials that would be subject to Bill C-32. The average number of pages copied per time, what we would refer to as per transaction, is 4.4. One would then estimate it means that roughly 3 million published works were copied in part or in total.
With respect to public libraries, I think it's necessary to point out that this represents less than 1% of the total items borrowed from public libraries. Photocopiers are not central to our activity, and our primary reasons for their presence in our collections is to protect collections. Unfortunately, a certain segment of our users - thankfully a small segment, but, bless them, they are there - would choose to deface collections, tear out pages rather than spend the time in the library to read this material. If you ask any librarian they will tell you that is the primary reason the photocopiers are there: it's to protect the collection.
It is time for a reality check regarding the nature of copying on these machines. Of all published copies made on public library machines, 53.7% relate to formal education. This includes kindergarten to grade 12, and post-secondary, colleges and universities.
The typical example is the grade eight student copying a page from a newspaper on a Saturday because she doesn't have access to her school library. We believe that this copy, and a significant percentage of the total copying done quantified in the survey, would be eligible for a fair-dealing defence.
I note that several presenters have mentioned the Metro Toronto Reference Library when it comes to photocopying in libraries. The committee should be aware that Metro, along with other large public libraries, will soon have a licensing agreement. It should also be noted that Metro is a unique public library in this country: none of its English-language book collections are available for loan. No other library is in that situation. It would be inappropriate for legislation that will affect 1,500 public library systems in this country, and well over 3,600 actual physical locations and tens of thousands of other kinds of libraries of all kinds, to be formulated based on their impression of one institution.
It has been alleged that libraries will use exceptions, such as proposed section 30.3 on self-serve machines, to avoid signing licensing agreements. Libraries continue to view licensing as complementary to legislation and will work with CANCOPY to arrive at equitable agreements. Proposed section 30.3 is necessary, as libraries cannot control activity on those machines. It does not mean necessarily that copying on self-serve machines will not be licensed. Libraries will continue to be responsible intermediaries between writers and publishers on the one hand and readers on the other, and we will continue to respect copyright.
In closing, I wish to offer congratulations to the government for the introduction of the legislation, which effectively achieves a balance between users' needs and those of copyright owners.
[Translation]
Again, we thank the committee and wish it the best of luck with its deliberations. Thank you.
[English]
The Vice-Chair (Ms Phinney): Thank you very much.
Mr. Leroux.
[Translation]
Mr. Leroux (Richmond - Wolfe): First of all, thank you for your presentation. I would like to get straight to the heart of the subject and talk about reproductions and photocopying machines. The situation that you just described focuses on the responsibilities that libraries have not only when it comes to recognizing copyright but also the legislation and its application and the agreements that may be in place with CANCOPY or other collectives such as UNEQ.
Did I understand you to say that you would agree with the legislation absolving libraries of any responsibility for photocopying machines located on their premises? Do you support the idea of your institution no longer being responsible for these machines?
.1125
A number of people have told us that it doesn't make any sense for libraries to no longer be responsible for the photocopying machines on their premises. What incentive is there be to negotiate agreements when you are no longer responsible for reproductions or for your machines? This is an important point. The law gives you a way out.
[English]
Mr. Whitney: The fundamental issue here is one of education. It's a responsibility we accept, and we're becoming increasingly better at it in terms of educating the public on issues relating to copyright.
Our concern relates to self-serve machines. It is physically impossible for us to have a staff member standing behind those machines for, in the case of my library, the 73 hours a week we are open to monitor the activity taking place on those machines. We would, in cooperation with CANCOPY and following whatever guidelines are drafted by the government, ensure that appropriate signage was available and do our best to educate the public as to what copyright infringement constitutes.
As was mentioned last night by the university sector, I think we have witnessed a significant improvement in awareness of this issue, and it's something people are much more sensitized to now than was the case before.
[Translation]
Mr. Leroux: I understand the kind of responsibility to which you are referring and the appeal you are making for education, but there is nothing magical here. When there is not a clear framework within which to operate and when the rules of the game are not clear, there will always be some deviation one way or another.
Will you admit that absolving libraries of any responsibility for the use made of the photocopying machines located on their own premises is tantamount to sending out a message that less control will be exercised over these machines? In these times of budget and staff cutbacks, you might end up simply overseeing the maintenance of this equipment, not in fact monitoring how it is used. Furthermore, if negotiations were to become bogged down, what reason would you have to work out an agreement since the law absolves you of any responsibility where these machines are concerned. Even though your objective is to educate the public, you do not consider it your primary mission to stand next to the photocopying machines to remind users that copyright does in fact exist.
I don't see how these operations can be managed. Authors have are justifiably concerned. Without waging a numbers' battle to see if copyright is being infringed to such a degree, I'm trying to see how copyright will be enforced when photocopying machines are no longer anyone's responsibility. I'm trying to see how this would be possible. Will we have to rely solely on people's good will, responsibility or sense of duty?
[English]
Mr. Whitney: I think the short answer to the question is yes. I think this has been demonstrated through negotiations that have taken place with CANCOPY up to this point, and which are continuing. We will enter into those negotiations with the best will in the world.
John may wish to add something.
Mr. Tooth: Yes. Perhaps I could add to that in saying one of my responsibilities is to negotiate licences with CANCOPY in Manitoba. I represent schools and we negotiate agreements. All of those agreements talk about the need for sampling, and CANCOPY has been very emphatic about the need to do this. In fact, it just started in Manitoba in the fall of 1995.
The self-serve photocopy machines in school libraries are being sampled to find out the nature of the copying so that we know what teachers and students are doing and so that CANCOPY knows what they're doing. Based on those results, we are able to say it appears for the most part that teachers and students have been obeying. In cases where they are not, while we don't isolate individuals, we are in a position to know that we have to go back out there and do some work with teachers because they don't realize that you can only do one chapter of a book and not a chapter and a half.
Sampling really does provide us with the core information and then CANCOPY and the department of education and other individuals can go out there and work with students and teachers to make them understand that it's illegal to do three chapters of a book. The CANCOPY agreement only allows one.
[Translation]
Mr. Leroux: I understand, but as you know, there are a number of for-profit libraries whose primary mission is not education. A great many people use municipal libraries and they are accessible to the public at large. While they may want to devote some effort to education, they will not spend all of their time monitoring the machines.
.1130
Would it really complicate matters for you if we were to withdraw this exception which absolves you of any responsibility in so far as reproductions and photocopies are concerned? What impact would the withdrawal of this amendment have on you?
[English]
Mr. Whitney: The consequences would be that libraries would still be left with a situation where it is our users who are using the machine and we cannot directly control their activity, and ultimately we should not be left responsible to criminal liability for actions over which we have no control. That's the short answer, the best I can do.
[Translation]
Mr. Leroux: Mr. Tooth, as far as agreeing to negotiate with CANCOPY or UNEQ, or some other collective, you're saying that you will not hide behind this legislative provision which absolves you of responsibility in order to avoid negotiating. You're saying that despite this, you will move forward and negotiate on the basis of established schedules and figures. You will continue to proceed in this manner.
[English]
Mr. Whitney: That is correct. John has in the past negotiated with CANCOPY. I am currently involved in discussions with the organization and I believe this would be an accurate representation, that we will be addressing what happens on those machines.
[Translation]
Mr. Leroux: Holders of copyright and collectives have expressed some reservations that the exceptions contained in the bill could invalidate, either in whole or in part, either the negotiations or existing agreements. Is this pure conjecture on their part?
[English]
Mr. Whitney: Yes, I take your point. I think the far greater concern and where the greatest division exists between the collectives and the library community is on the interpretation of fair dealing. As I said, CANCOPY will take the position that the single newspaper article copied by the grade eight student in support of her curriculum does not constitute fair dealing. CANCOPY will say any copying by definition is substantive and should fall under a licensing agreement.
We would not adopt that position, and this is why you have situations that have arisen in sectors. In the university community, licence is on a per capita, per student basis, as opposed to the number of copies made.
The proposal on the table with the public libraries is that we will be licensing on a per-machine basis, which is not volume-driven. This is, I suppose, the negotiating strategy that allows us to get past our fundamental differences on some of these issues and arrive at an equitable agreement.
[Translation]
Mr. Leroux: Given the different perceptions people have and the opinions expressed, I have a very simple question for you: Is it true that libraries resort to inter-library loans in order to avoid purchasing subscriptions?
[English]
Mr. Whitney: I do not believe this to be the case, and I believe that the CARL, the research library organization -
[Translation]
Mr. Leroux: Then these were only ugly rumours then.
[English]
Mr. Whitney: I believe a strong case was made for this previously, that the costs of inter-loan, particularly in what we're dealing with here in Bill C-32, copies that begin on paper and end on paper, is an exceedingly inefficient way of dealing with demand for that title - if you're doing it consistently with the same title - and it is cheaper and more effective to purchase if you have the demand for it.
An interlibrary loan fills the role of meeting infrequent demand as it occurs.
[Translation]
Mr. Leroux: Could you tell us how much you spend on inter-library loan activities? How do these costs break down?
[English]
Mr. Whitney: Off the top of my head, my understanding is that in terms of the cost relating to the lending library based on academic studies where inter-loan - inter-loan is primarily an academic research library issue - the costs vary in the range of from the lending library approximately $15 per transaction to upwards of $35 to $40 per transaction for the library that is actually borrowing the material. That is per transaction, and it relates to the kinds of transactions that would be covered by this legislation.
[Translation]
The Chairman: Thank you, Mr. Leroux.
[English]
Mr. O'Brien (London - Middlesex): I'd like to ask a couple of questions.
.1135
I appreciate your presentation. Your brief talks about a consensus in 1988. Are there any written records of that consensus, and if so, could you send a copy to the committee?
Mr. Whitney: Perhaps it would be more appropriate for that request to go to the research staff of the committee, some of whom I believe were involved in those discussions.
Mr. O'Brien: My request is for a written copy of the consensus.
Mr. Whitney: These are of course fugitive documents. I trust you will keep them as such.
Some hon. members: Oh, oh.
Mr. O'Brien: When we get into some of the future deliberations it could be useful.
You further talk about certain elements the creative community has abandoned - those are my words - to move away from the consensus. To me, it would be useful to have you identify specifically who those people are, what elements.
Mr. Tooth: For example, one of the groups here the other day was the Periodical Writers Association. They were arguing that libraries should not have an exemption. They in fact even quoted a number from the public library study Paul has been referring to - that is, they would no longer receive compensation for 2.3 million transactions as a result of this exception.
First of all, we couldn't find any such number in the study. Second, there was agreement at the very outset that there would be clauses related to fair dealing put into phase two. Parties in general agreed to the idea. Over the past seven years or so we seem to be seeing a lot of slippage from that position.
Mr. Whitney: I would add that both the Canadian Book Publishers Council and the ACP in their briefs were fairly aggressive in attacking what we saw as fairly basic exemption rates.
Mr. O'Brien: Okay.
You mention in your brief that you support licensing agreements with CANCOPY. I would like to know if there are talks under way to conclude such agreements.
Mr. Whitney: In the public library sector there are talks under way. In fact, we have a meeting scheduled with CANCOPY the day before they appear here. You'll be able to ask them how it went. We'll try to make sure they're in a good mood.
In fact, agreements have been signed in the university library sector, in the vast majority of the college sector and in departments of education across the country. They're not all in place, but they're falling in line. Agreements starting to be signed with provincial governments relate to special libraries in those governments and also, obviously, with the federal government.
Mr. Tooth: For example, in Manitoba we just finished signing a new agreement with CANCOPY that is really an addendum to our existing agreement. It will cover the next two years, 1996-97 and 1997-98. We will be paying $2 a student for the right of teachers to photocopy and make multiple copies. That amounts to some $400,000 in Manitoba alone. The agreement in Ontario is I think around $4 million.
So we're not talking small amounts of dollars here. As you can see, we already have $5 million from two provinces.
Mr. O'Brien: Last question. Is there a target date to wrap up those agreements and have everything signed and in place?
Mr. Whitney: For the public library sector, the one sector that is not currently...?
Mr. O'Brien: Yes.
Mr. Whitney: I'm sure CANCOPY has one. I personally anticipate - and I will be at the table - that by early spring that will be resolved. There are logistical problems in getting people together from across the country and so on, but we have a meeting scheduled for mid-November. We're certainly hoping that with other agreements in place, which we can use as examples, this will not be a protracted process.
Mr. O'Brien: Thank you, Mr. Chairman.
The Chairman: Ms Phinney.
Ms Phinney (Hamilton Mountain): Thank you, Mr. Chairman.
In your brief on page 6 you mention that you're expecting ``11.6% fewer published photocopies per year''. With newspapers it would be a decline from 15.1% of the total to 7.2%.
Mr. Whitney: That's the difference between the two versions of the photocopy study. That was just to give you an indication of the substantive changes that exist in the revised version, which has been given to your clerk.
.1140
Ms Phinney: So you were expecting this reduction. It's just the figures that are different.
Mr. Whitney: No. We traced logging errors that occurred in the study. The first draft was inaccurate. The second draft represents the true picture. Those numbers are a snapshot of a couple of areas where significant change has occurred.
Ms Phinney: Is the trend going down to fewer photocopies or not - or do you know?
Mr. Whitney: It's an interesting question. Because of library growth globally, new buildings and so on - and I can speak with assurance about the public library sector - the numbers have gone up. But where I have looked at photocopying in institutions that have been unchanged - the same building, the same number of copiers, the same collection size and so on - in the last ten-year period, in my system, the volume has gone down 25%.
You're seeing substantial and ongoing migration of information and data to digital format. This is why you will continue to hear about the necessity and the urgency of phase three legislation, because that's the direction the world is moving in.
Ms Phinney: In the sign you post above your photocopy machines, do you...? Maybe you could just tell us what the sign says, and then I'll make comments.
Mr. Whitney: It's very difficult for us to advise our users because of the uncertainty in the act. We can tell them what the fair dealing clause says. We devoutly would have wished to have had clarity in that, to allow us to assist our users in making the assessment of whether or not they are breaking the law.
Our sign advises people that the copying of published material falls under the Copyright Act. We have copies of the act available - Lord help them if they should actually ever ask to try to read through it. But we are not in a position where we can advise somebody in a matter that, say, in an extreme example, may be subject to litigation, that, yes, they can do this, or, no, they can't. The user has to make that decision.
When licensing agreements come into play and there are negotiated specifics - for example, not more than 10% of a work, a single photocopy article and so on - I would anticipate that this kind of information would be incorporated in the sign.
Mr. Tooth: Really, the signs are less important when you have an agreement with CANCOPY. The CANCOPY agreement extends what one can legally do at the photocopier. So the sign becomes almost academic, because the teacher basically has the right to do more or less whatever is reasonable on the copy machine.
No one could afford to negotiate a licence to copy an entire book. That would be foolish. But we believe what we have come up with is an agreement that allows the users of the self-serve machines what would be fair and reasonable, such as a chapter from a book, or 10% of the book.
The sign itself is there. We have a sign posted on the machine that says copying on the machine is covered under the Canadian Copyright Act and our agreement with CANCOPY, which allows you to do 10% of a book, or one chapter. It outlines what a teacher can do.
So it's very explicit. That's one of the benefits you accrue from having a licence, and that's why we have licences.
Ms Phinney: But that's not in the public library.
Mr. Tooth: Not yet.
Ms Phinney: Right now, if somebody wanted to take you to court because you had a copy machine there, wouldn't it be difficult to say, well, you'd put up a sign saying there are some rules about copying, but you had provided the machine for them to do it? Wouldn't the court probably say you should have that machine in a back room, then, if you're not going to supervise it?
Mr. Whitney: We're back to the issue that we feel confident that a significant amount of the activity would, under the current act, fall under the fair deal defence. I doubt very much we would end up in a situation where the courts would direct that machines not be made accessible to the public. That would have a profound operational impact on us.
Ms Phinney: Has anybody ever taken the library to court?
Mr. Whitney: No. The Laurier copy shop case was mentioned last night - not the library.
Mr. Tooth: The sign above the copy machine started out from a court case in Australia, where a university doing extensive photocopying was taken to court and found to be guilty of copying. The judge mused at that particular point that had there been a sign above the machine, she would have thought differently of the matter. Once that court case came down, signs appeared above copy machines throughout the world.
Mr. Whitney: Yes, worldwide.
Mr. Tooth: That's the origin of the sign above the machine - a reasonable way of helping a person understand.
.1145
Ms Phinney: We've been told by several witnesses that the interlibrary loan is a substitute for a library buying a subscription. Could you comment on that?
Mr. Whitney: We strongly believe this is not the case. Alluding to my earlier comments to Mr. O'Brien, actually carrying out an interlibrary loan is very expensive. If this becomes anything but an extraordinary operation for the library, it assumes real financial implications for us.
Ms Phinney: Does one library charge another library for the loan?
Mr. Whitney: There are varying practices throughout the country, but many do not.
Ms Phinney: Where there are charges being levied, are they making a profit on it?
Mr. Whitney: I can't answer with assurance that nobody is, but given the fact that the actual cost of the physical handling of the transaction is in the range of $15, I would believe the vast majority do not.
Ms Phinney: Okay. Thank you.
The Chairman: Before we close, I would like to ask you one question. Last night when people from the educational sector appeared, I think it would be fair to reflect their feeling on the negotiations with CANCOPY as being one of great frustration. One of them said that by the time they finish their negotiating after two years, it will be time to renew the agreement. They - or some of them, anyway - seemed to be extremely frustrated with the tough wheeling and dealing, and expressed the feeling that without the exceptions that were coming up in the new law it would have been a very long haul. The exceptions almost provoke a better negotiation frame.
You seem to indicate that negotiations with CANCOPY have been reasonably smooth, if I interpret properly your replies. Could you give us your own feelings about negotiations.
Mr. Whitney: I think we'll both respond to this, because we're coming at it from different sectors at the table with CANCOPY. My comments relate to preliminary negotiations, which is what we have been engaged in. Three months from now I may give you a somewhat different point of view.
I think, though, we do benefit from the fact that we are going into discussions with CANCOPY with other negotiating agreements in place. Obviously, the more this occurs, there is a kind of cumulative, if you will, wisdom and knowledge that both sides obtain. It makes the process somewhat easier.
Mr. Tooth: I've been negotiating agreements now since 1992. It has taken over my life.
The Chairman: Lucky guy.
Some hon. members: Oh, oh.
Mr. Tooth: It personifies copyright in general, and what it can do to one. When it first started, I recommended to my superior that we needed a half-time staff person to deal with this matter. Of course, I was told I could probably do it myself.
For the last three or fours months, even though we have an agreement, we have been negotiating an amendment to that agreement. We've been working full time on this matter. We don't have time to work full time on these agreements. They are excruciatingly difficult to negotiate. You argue word by word. You fight over nickels. You fight over dimes. You fight over the colour of the paper the literature is going to printed on. It just goes on and on.
I don't have a solution to it. I wish I could say, rather than using collectives, let's use something else. I don't have an answer to that. All I can say is that at the moment, the labour intensity of all of this on our side and on CANCOPY's side is incredible. People are working full time on both sides, working out the details of this information.
It's never going to end. It's always going to be there. I wish we could alter it.
I would like to add, though, that in all the agreements - not all the agreements right across the land, as it were - with CANCOPY, right from the beginning we always knew there were going to be exceptions. There's a clause in our agreement here that basically says our present agreement in Manitoba will be renegotiated when the federal government passes exceptions. Right from the beginning it was on the table. It was put into the agreement as a holding spot so that nobody would forget that at a later point in time we would look at these agreements again.
.1150
[Translation]
Mr. Leroux: I think this is an important point, Mr. Chairman. Only yesterday, a reference was made to the experience being acquired in the negotiation process. These agreements are part of our recent past. In other sectors of society, negotiations involving other businesses or relating to working conditions have been taking place for some time now. However, in the copyright field, collectives and licensing arrangements are relatively new initiatives.
I quite enjoyed your comment about the expertise that is being developed. As we move forward in this process, some expertise is being developed and these negotiations will ultimately define fields of activity, semantics, terminology and so forth. I would like to hear the two parties acknowledge that they have a duty in our society to speak to one another instead of hiding behind a law in order to avoid discussion. I'm happy to hear you say this.
A question was also raised yesterday about all of the mechanisms that can come into play. In addition to the collectives, there is also the Copyright Board. These are mechanisms that we must learn to develop given our recent experience. I'm pleased with your perspective on matters, Mr. Whitney.
[English]
The Chairman: It was very interesting because it obviously points to the fact that the system of checks and balances that has been designed with CANCOPY, the collectives and the board does leave open the whole question of negotiation and the time and everything else. So let's hope that in the future it becomes much smoother and faster, because obviously we want you to live a long life.
Mr. Whitney: Thank you.
The Chairman: Thank you for appearing before us today. We really appreciate it.
Mr. Whitney: Thank you very much.
.1155
The Chairman: I would like to welcome, from the Canadian National Institute for the Blind, l'Institut national canadien pour les aveugles, Mr. James Sanders, national director, government relations and international services, Fran Cutler of the national council, and Sean Madsen, a volunteer and advocacy director for the Canadian Council for the Blind.
Who wants to lead? Mr. Sanders?
Ms Fran Cutler (National Council, Canadian National Institute for the Blind): Mr. Chair, I'm Fran Cutler and I'm a volunteer with the Canadian National Institute for the Blind. I'm chair of the communications committee of the national council and I'm the president of the National Broadcast Reading Service, better known as Voiceprint.
We're very grateful for this opportunity to clarify any points in our written submissions you may wish to focus on. We're grateful that you and your colleagues share the conviction that for blind and vision-impaired Canadians, the right to read must be preserved.
We seek nothing more than equal access to the literature of Canada and the world. We seek nothing less than a shared and common cultural experience with our fully sighted peers. And we'd like to acknowledge the tremendous support we've had from publishers and authors in this country for 90 years.
I'd like to ask Mr. Madsen to say a few words.
Mr. Sean Madsen (Volunteer, Canadian National Institute for the Blind; Advocacy Director, Canadian Council for the Blind): I am the advocacy director or director of legislation for the Canadian Council of the Blind, which is an organization separate from the CNIB. The CNIB is a service-providing agency, founded in 1918, which provides rehabilitative and other services to blind people. The Canadian Council for the Blind was founded in the 1940s - we had our fiftieth anniversary two or three years ago - as a spokesgroup for blind people. Our clubs across the country, and our national executive, all consist of blind people.
Our purpose in being here today is to support the concerns that Mr. Sanders will go into in more detail - not necessarily all of the technical issues that he will raise, which he knows more about than I do - but the end result, which our members are very concerned about, and that is that literature be available in alternative media for blind and vision-impaired people to read. We cannot go out to a bookstore to buy books to read, because we're blind. We need alternative access to that literature, and that's the concern that brings us before you today.
.1200
Ms Cutler: Mr. Sanders.
[Translation]
Mr. James W. Sanders (National Director, Government Relations and International Services): Mr. Chairman, ladies and gentlemen, I will be making my presentation in English, but I will be happy to answer your questions in either French or English.
[English]
We are not lawyers, as Sean Madsen said, and we're not copyright experts. However, I'm sufficiently familiar with the technicalities and details of section 32 that I will attempt to respond to your questions. I can say at the beginning that we have no sacred cows and there is nothing you should feel you should stay away from in terms of questions or comments. I've met some of you before and I know that you will be very open and frank with us.
Let me set the stage by first laying out a philosophical base and what our ultimate goal is. We believe that blind people will only achieve full equality of access to information when alternative format material, for example material in Braille or on audio cassette, is available commercially at relatively the same time and at relatively the same price. At that point the copyright issues being discussed here now, and contained in section 32, become irrelevant.
In other words, blind people look forward to the day when we can purchase material in Braille, audio cassette, electronic diskette or large print. That is the day when we as blind people and blind people throughout the country will achieve equality. Blind people look forward to the day we can pay royalties just like every other Canadian.
We use the term ``alternate format'', Mr. Chairman, and it might be worth taking a minute to explain exactly what that is. I brought with me today a report with which you will be familiar. It was released on Monday by Andy Scott, whose task force recently analysed the role of the federal government in disability issues. That report was released in regular print and in large print soon afterward. Ironically, I forgot to bring the regular print version but I did bring the electronic diskette copy of that report, and in my other pocket I brought the audio cassette version. I have with me the Braille version, which is contained in two volumes because of the report's size and length, and I understand the large print version will be out shortly. I forgot to bring the regular print copy. This is what we commonly refer to as alternate format material.
When you hear about or we talk about a talking book, we are referring to a book on audio cassette. It is generally obtained through a loan service from an organization like the CNIB library for the blind or others, and it usually arrives in a mailing container, delivered free of charge by Canada Post. You would open the container.
.1205
This book, which is called Boom, Bust and Echo, by Professor Foot, is contained on two cassettes. It is a 90-minute cassette. However, because it is recorded on four sides instead of the normal two, and because it is recorded at half the normal speed, this 90-minute cassette contains six hours of material. Obviously it requires a special playback machine. In this case I've brought the one normally provided on loan to individual borrowers by the CNIB library for the blind. These machines are not available through normal commercial means. I'll play you the first ten or fifteen seconds, just to give you a sense of how it begins.
[Audio Presentation]
That is the standard introduction to the talking books that we receive.
Mr. Chairman, you have received our written brief. I hope it reflects both the passion and the practicality of the issue we have addressed. We believe the proposed section 32 fulfils a longstanding commitment made by successive governments since 1981, and that commitment is to ensure equality of access to information by blind people and those unable to read print due to a disability.
The provision in section 32, which in fact does allow an individual to make a copy in alternate format without infringement of copyright, does not generally reflect the reality of production. In most cases individuals do not produce their own Braille book, for example, or book in alternate format, but turn to a non-profit charitable organization to do that on their behalf.
We strongly and sincerely believe the recommended changes to the wording maintain the integrity of the intent of the original wording, that intent being - I wrote this down because we believe very strongly in it - individual controlled access to non-commercial material by a defined group.
.1210
This is probably the last point we would like to make before beginning questions. We strongly believe that the legislation provides copyright holders and producers with safeguards. It is written in such a way that any charitable producer can be held fully accountable by means of an audit. We don't believe that any additional copyright protection mechanism or third party should necessarily be involved in order to fulfil or monitor that legislation.
Let me end my formal comments where we began: at this time the only reason legislation is necessary is that there is no commercially available market or information upon which blind and visually-impaired and other print-disabled persons can rely.
We are here today primarily to answer the questions rather than to go over the material you have all received.
Thank you.
[Translation]
The Chairman: Mr. Leroux.
Mr. Leroux: First of all, thank you for your presentation. I'm thoroughly convinced that the committee will take a serious look at your comments, particularly those relating to section 32. I have one or two questions for you, as well as for the group that will be appearing after you, the Canadian Hearing Society.
Since I have to leave shortly, I want the representatives of the Canadian Hearing Society, in particular Melanie Sexton, to know that even though I will not be here, I am very attentive to their concerns. We have received and read your briefs and your recommendations.
I would like either Mr. Sanders or Ms Cutler to relate their experiences in negotiating with SODRAC. In your brief, you state that a healthy climate of cooperation exists between authors, holders of copyright and so on. Could you tell me a little about your experiences negotiating with SODRAC and about the positive as well as negative aspects of this process?
[English]
Mr. Sanders: SODRAC and CANCOPY, the two collectives with whom we have had association, have generally been favourable, particularly in the early stages after phase one of the Copyright Act came into law in 1989. In our discussions we always considered that relationship as being temporary until phase two - which we originally thought would be introduced in September 1989 - was put in place.
Our relationship with authors, publishers and copyright holders goes back to 1906. We have traditionally sought permission to produce materials in alternate format - back in 1906 in Braille, in the 1930s on recorded disc, and in more modern times on audio cassette and in electronic format. Permission has never been denied unless that work was intended to be produced for commercial sale, which usually meant audio cassette. Therefore, our relationship with authors and publishers has been excellent. We're not only grateful, but we treasure that relationship and certainly don't take it for granted.
However, the difficulty has not necessarily been a willingness by any party to allow their material to be produced in an alternate format for the specific, sole, non-commercial use by those unable to read print, but it is the time and the effort it takes to do that.
.1215
Some books simply become impossible - books of anthologies, for example, where more than one copyright holder is involved. There is such difficulty in closing the time gap and to a great extent the cost gap between the printed book and the book in alternate format that we believe every measure must be taken to help reduce that but never to lose the integrity of the intent.
In the United States, for example, just last month President Clinton signed into law a bill that was formed in collaboration with the American Association of Publishers, the Library of Congress, and consumer groups of the blind to completely eliminate any necessity to receive notice or permission in advance. That was given because the material would strictly and solely be for people unable to read print. That, we have been told, has already begun to be a very positive measure for closing the information gap.
[Translation]
Mr. Leroux: Thank you, Mr. Sanders. Do you have any dealings with the Copyright Board when it comes to the activities that you have just described and what opportunities do you foresee?
[English]
Mr. Sanders: I'm not sure about the copyright board, but we have a relationship with two royalty collectives in the province of Quebec and can copy for English-language service.
As I said, we work well with them. We considered it a temporary measure. We must still go directly to authors and publishers, copyright holders, who are not part of those collectives. In fact, we began to discuss this in earnest many decades ago and agreed fully with the 1981 recommendation in Obstacles. We have been working to eliminate any layers that would slow down production and increase the cost between the print and Braille productions. So it isn't necessarily the collectives or the copyright holders. It is a very practical issue.
That, Mr. Chairman, will change nothing of the integrity. It will still be for non-commercial use by individuals unable to read print. It changes nothing else except our ability to get closer and closer and closer to sighted people, who have access to print.
Take, for example, the CNIB library for the blind, although we're not the only players in the business. The CNIB library for the blind has approximately 15,000 titles in Braille to be loaned to blind Canadians and about 15,000 titles on audio tape in English for the same purpose. The Ottawa Public Library has 300,000 titles in print for this local area. The gap is immense.
We believe technology will continue to close the gap. We believe, particularly with electronic books - there's an international consortium with which we are involved with publishers to try to make their material electronically available directly to individuals. As I said, at that point we will be able to buy a book at the same price everybody else will pay for the book. We believe that in probably less than five years a more commercially viable production will be available directly from the publisher.
We're part of an international consortium on the next generation of the talking book, using CD technology. That's probably five to ten years away, but it may open up a commercial market and therefore allow non-profit charitable organizations that produce this material to take a step back and enter the commercial market.
.1220
With Braille, although I don't envisage the day when Braille can be commercially viable, ten years ago I didn't envisage being able to push a button and produce a print and Braille copy at precisely the same time. So one never says never.
In my briefcase below my chair is a small laptop computer that uses the Braille keyboard; it has synthetic speech output and it has a refreshable Braille display. I can now not only produce and send material electronically, I can also receive material from the Internet in normal text, as everybody else would get, and this machine will automatically translate it for me, either in Braille or in synthetic speech.
Mr. Chairman, I'm mentioning that because we really believe the measures taken by the Government of Canada, which are contained in the amendments to the Copyright Act, in proposed section 32, with the practical changes we're suggesting are truly temporary. The legislation we're pleased to know, and we support this, clearly states if the material is available commercially, we are not to produce it, and we do look forward to the day it is available commercially.
[Translation]
Mr. Leroux: Thank you very much, Mr. Sanders, for your enlightening comments.
I have to leave, Mr. Chairman, but I want the representatives of the Canadian Hearing Society to know that we have taken note of their concerns about section 32 and the total lack of reference to hearing problems. I also want to thank them for introducing us to American Sign Language.
Thank you, Mr. Sanders, Ms. Cutler and Mr. Madsen.
The Chairman: Thank you very much, Mr. Leroux.
Mr. Sanders: Thank you and until next time, I hope.
[English]
The Chairman: Mr. O'Brien.
Mr. O'Brien: Thank you.
First of all, I want to thank the witnesses for their presentation. It was very interesting to me, and I had occasion recently in my riding office in London to meet with representatives of the CNIB to try to understand some concerns. I'd like to pursue those concerns here.
I think you've spoken to the same issues. Am I correct in saying that the primary concern you have is this issue of single copy of an alternate work?
Mr. Sanders: That's correct. The way the legislation is written an individual can, without copyright infringement, make a copy in alternate format if it is required by that individual. ``Individual'' is also defined in the law as the organizations that produce the material. Individuals simply don't; unless you have a great deal of expertise and a great deal of money, you really don't produce your own works.
We believe the intent is there, but as we said in our comments, what the law has put forward as an intent, in practice, because of the practical nature of the way in which alternate format material is produced, it probably doesn't really fulfil that intent.
Mr. O'Brien: I understand that, and I hope we can resolve it. It's my recollection at least from witnesses who have come before this committee.... I think you could characterize that everybody - those I recall as witnesses - wants to try to facilitate exactly what you're speaking to. At least I hope that's the case.
It leads me to a practical question I put to my local friends. CNIB wants to provide alternate format copies for people. How many copies would that be? Would it be an unlimited number, or is some sort of a practical number necessary?
Mr. Sanders: That's an excellent question.
First of all, there may be only one copy, such as for a student or somebody in business who requests that specific piece of material. However, because the material is so scarce, manufacturers such as CNIB and the Crane Resource Centre for the blind in Vancouver produce master copies.
.1225
We ensure that all other producers, in fact producers around the world, through the National Library of Canada database here in Ottawa.... Before any copy is produced in format, we first search the international database here at the National Library. Once we've determined that the book is not available, we will produce it. There may be only one copy if there's a very limited interest or need. However, if the book, such as Boom, Bust, and Echo, which has been very popular this year, is produced on audio cassette, the CNIB library for the blind will normally make 36 copies available for loan at any given time.
If it's an extremely popular book we try, where our resources permit, to make a few extra copies. As the interest in the book begins to diminish, we probably will take those cassettes, erase them, and use them to produce copies of other books.
On average it would be 36 copies for loan to this defined group. In Braille, depending again on the title, it could be anywhere from one to five copies circulating.
Am I addressing the question?
Mr. O'Brien: Yes.
Ms Cutler: I spoke earlier of our desire for a common cultural experience with our sighted friends. I'd just like to add that when a book such as A Fine Balance by Rohinton Mistry is up for the Booker Prize, there is a great deal of interest among blind people in reading such a book. Now that book runs 750 pages and is read for the CNIB by one volunteer reader. As a matter of fact, it was read by a man reading his hundredth book. It's now available. If copyright negotiations must take place, the production of such a book is going to be slowed down. As you can imagine, blind and visually impaired Canadians are becoming more and more interested in the timeliness of talking books.
Mr. O'Brien: Yes, I can certainly appreciate that. I'm sure the books that interest those of us who see interest those who are blind.
That leads me to a second question, which is just for my own information. Are you satisfied that the waiting period for alternate form books or books in Braille is acceptable, or is it too long for people?
Mr. Sanders: Perhaps Sean would like to comment on this too, but I can say from a technical perspective and not just as a reader that it is too long.
Let me go back. Maclean's magazine, through the permission of Maclean Hunter, is produced on audio cassette every week through the CNIB studios. In that case the magazine is torn up into sections. They'll have five, six, or seven readers simultaneously reading sections, and then it's all put together in audio format. It still takes ten to fourteen working days, working non-stop, to have it read, formatted, put onto cassette, labelled in Braille and in large print, containerized, and sent through the mail postage-free. I don't know how many copies there are, but we're probably circulating 7,000 copies a week of that magazine.
For a full-length book, where we wait for the commercial copy to be available, we purchase between two and four commercial copies, and we spend about $30,000 a year buying commercially available books in Canada to reproduce in Braille and audio. It is then read by volunteers in professional studios, primarily in Montreal and Toronto, in French and English, respectively. Then it is mastered and formatted. The bibliography is prepared, and it's put onto the shelves and advertised through various means. It eventually gets into the catalogue.
Yes, it takes too long for practical reasons. We have a chance for the first time in Canadian history, despite everyone's best effort, to seriously close that gap by not following what the U.S. is doing. Canada stands on its own, because this legislation was envisaged long before the U.S. came up with it. However, it does in fact parallel what the U.S. has just done. We have a chance and only one chance.
.1230
I promised myself I would not become emotional. Reading is really important for blind people. We're not here to represent blind people; we're here to ask you to not just search in a practical way but to search your hearts too and to do something that really will make a difference to those of us who are blind. Thank you.
Mr. Madsen: If I could comment, I am here to represent blind people. That's what the Canadian Council for the Blind does. I would like to give you two examples of the kinds of needs that are out there and come to our attention constantly.
We either have students in post-secondary educational situations who, like their sighted peers, need access to textbooks and need it in a timely way or we have people who are working either as employees of companies or in many cases, and more cases these days, as people who are running their own businesses. We live in an information age, so one needs access to the information and one needs it immediately.
When there is the kind of delay that Jim Sanders has so eloquently described to you, the direct impact on people's lives, when they're trying to obtain an education, when they're trying to run a business, when they're trying to show an employer that I as a blind person am just as productive as any sighted staff member you have here in the company.... It should be recognized that I'm able to do a good job and that I'm earning my salary.
When the situation arises that there's a delay in the person obtaining the information needed, we at the Canadian Council for the Blind hear about that. We're asked as an advocacy organization to try to help look for solutions that will make it possible for people to avoid these kinds of problems.
I'm here today to ask that the kind of amendment Jim Sanders is talking about to the legislation be made possible. I think the benefits to our society as a whole are obvious. Blind people will have less trouble in obtaining an education, less trouble in working, less trouble in running their own businesses, and they will then be able to become more of an asset to society. I hope we can also change what it means to be blind, not only for them but also for the rest of the Canadian population, who I think are still used to the idea that blindness is a really limiting situation for people and that it makes them less able to be competent and capable and independent.
What brings me here, and I guess I'm becoming emotional too, is that I want the message to be heard that blind people are competent. We are capable of making a contribution to society, and with the kind of help your committee can provide in making the right recommendations to government about this bill and how it can be amended to help us, we can then reach our true potential as equal Canadian citizens. That's what we want more than anything else.
Ms Cutler: That's what it's about.
Mr. O'Brien: Thank you. I can assure you I have the highest respect for what you're saying, and I hope we can make the improvements you're looking for. I hope and believe you're speaking to the converted on that point.
I'll just finish on this, because I think Mr. Chairman may want to ask a question. I hope and I want to know if you agree that this is just a matter of semantics. I believe it is. I hope it is, and I and I'm sure other members of this committee on both sides are going to pursue this with great diligence when we get down to the clause-by-clause. Is that your perception of it, that it's just a matter of semantics?
.1235
Mr. Sanders: It's a matter of semantics in the sense that an individual can make a copy and two copies can be made for an individual. It's semantics, yes, but technically very important.
Mr. O'Brien: Oh yes.
Mr. Sanders: That's correct. Everything else we have been told, and we have spoken with legal experts, publishers, copyright holders.... We had the talking book of the year award two weeks ago. We recognized the Canadian works, the volunteers who read them, the writers, and the publishers. It was an unbelievable event with top writers and publishers and our volunteer readers. I was discussing the issue tentatively with one of the very well-known writers, and I won't use the name here. That individual turned to me and said they'd be horrified if by law or practice CNIB or any other person would be asked to pay them to produce their work in Braille.
Mr. O'Brien: I'm pleased to hear that.
I'll end by thanking you again and assuring you that I know this chairman will be very strict with us in making us diligent, but on this point I will be very supportive of that. Thank you very much.
Mr. Sanders: Thanks, Mr. O'Brien.
The Chairman: Mr. McTeague.
Mr. McTeague (Ontario): Thank you, Mr. Chairman.
I wanted take off where my colleague Mr. O'Brien had left off.
Mr. Sanders: I'm sorry, but I can't see your name.
Mr. McTeague: I'm sorry, it's Dan McTeague. I am not a usual member of this committee, but I know something about it.
I'm certainly enchanted by the presentation and the line of questioning by Mr. O'Brien. I hope some day that Mr. O'Brien will leave this committee and allow me to sit on it. I'm just kidding. He's volunteering himself.
More seriously, though, one of the concerns I have is the history of your experiences. I was wondering whether there's any example you might be able to give me of an occasion on which you or the CNIB has been refused by a particular individual or an organization or even the copyright owner an opportunity to make a Braille or one of those talking books. Has that happened?
Mr. Sanders: Yes, it has, but we weren't actually able to find a specific example. I did try. It happens so rarely. It occurs only when the copyright holder intends to produce a commercial product, and the commercial products to date have only been audio cassette. In that case, unless it's a student textbook and that commercial product will not be available in time, organizations such as the CNIB stand back and wait for the commercial product and purchase it.
Perhaps, Mr. Chairman, I could give one clear example. Although the majority of audio or talking books available commercially are condensed and therefore have a very narrow, limited market, there are more and more producers of commercial full-length audio books, publishers such as Blackstone and Dell. For those books the commercial price range is from $75 to $500 per book.
A few people may, but generally individuals aren't going to spend from $75 to $500 to buy a book, so the CNIB library for the blind and other libraries for the blind around the world purchase these and make them available on loan. We couldn't find an example of our being turned down. The only reason we would be turned down is commercial works, in which case we would shake their hands and wait for it to come out and purchase it.
Mr. McTeague: Does the CNIB pay for copyright royalties today?
Mr. Sanders: We have an agreement with CANCOPY, whereby we pay CANCOPY an annual administrative fee to process and review requests for the production of alternate format on behalf of their authors, creators, and publishers.
.1240
With SODRAC in Quebec we have a similar arrangement, except we base the fee on a per-title or per-book price, recognizing that they do have administrative costs in order to take the title, check it, review it, approve it and send it back to us. As I said, the cost has been minimal to a great extent, but it still means you produce less. It also is the time and the effort and the layers.
Mr. McTeague: Would you be able to give me an idea of the cost, generally?
Mr. Sanders: We're only one. The Crane Memorial Library and other non-profit producers.... We really don't. Probably the royalty collectives would have a better idea, because we're just not in touch with them. I think we pay CANCOPY $1,000 or $2,000 a year. I think for SODRAC perhaps it came to about $500 or $600 last year.
Mr. McTeague: You don't see this bill as having an adverse impact on that? It doesn't sound to me you're very concerned about the cost arrangement at present.
Mr. Sanders: This was a temporary measure. We had actually stopped producing books for almost a year until we came to this conclusion. At the present time, the actual direct cost has not created an unnecessary burden. It just means you spend less money producing books.
I hate to use the word ``bureaucracy'' because I don't mean it in a way that it's purposeful, but it takes time and there are layers. Also, we're not talking about next year, but 10 years and 100 years from now. We don't know what will happen in the future and who will make decisions about what somebody believes should be paid so a charity can produce material in Braille. This is for all time. We just believe so strongly that we have an obligation, not just the three of us but also those we represent, to try to say not what is today but what will be 100 years from now.
Mr. Madsen: I'd like to expand very briefly on what Jim Sanders was saying. I know he was treading delicately in talking about bureaucracy.
The members of the blind community I hear from in my voluntary capacity with the Canadian Council for the Blind are concerned, for the reasons I explained earlier, about delays in obtaining material. Anything that can be done to reduce that delay, including reinventing the wheel each and every time one has to apply for copyright exemption, to explain what blindness is and the fact that sighted people don't read Braille, would certainly be helpful.
I don't mean to sound trite, but if you have to apply for individual exemptions, this is the kind of thing, even if it's understood and you always are granted the permission, that still takes time to do. It still takes staff, it still takes money, and all of those resources are required from a charitable sector of the community that is relying on public donations and not making a profit by selling products.
Of course the people who suffer at the end of the chain are the blind, who are waiting for the material. When there's a delay in their getting material, if they're using it for business purposes they could lose money. If they're trying to do something to deadline for an employer, it could impact on the way in which their competence in their job is seen by the employer. If they're using the material for educational purposes, they might fail the exam or fail the course they are taking.
Those are extreme examples. I'm not suggesting it happens often, but it's just an added pressure on someone who already has to deal with the other effects of blindness to try to lead a normal life. It's something we hope you'll be able to help us address.
The Chairman: One last question, Mr. McTeague.
Mr. McTeague: No further questions, Mr. Chairman. I'm sure we'll try to do that, assuming of course Mr. O'Reilly is prepared to relinquish his seat.
The Chairman: Before we close, Mr. Madsen, may I ask you a personal question out of curiosity and interest? How long have you had this beautiful dog with you? Is it a lab?
Mr. Madsen: Yes, she is.
The Chairman: What is his or her name?
.1245
Mr. Madsen: Her name is Anna. She's ten years old and she's been working as a guide dog for eight years now. Again, I guess it shows there is diversity in the blind community. Some of us find that white canes work better for us and others prefer guide dogs. There's no one right solution.
The Chairman: Just before we close, Mr. Sanders, you spoke about passion and practicality. I think you've demonstrated both today. I think you've given us sighted people an access into your very moving eloquence.
I think from your formidable intelligence, the three of you, you seem to be extremely convincing. Mr. Madsen, I don't think you should worry about competence. I think you clearly show it.
If you recall, the task force on Canadians with disabilities had for its theme to give equal access to all citizens in Canada. I know you were both there when it was launched. I think you've demonstrated why it's so important we achieve this. I think your testimony is very moving and at the same time very practical. Certainly I know I'm expressing the view of all members that we will certainly take it into account.
Thank you very much.
Ms Cutler: Thank you, Mr. Chairman. We've great faith in all of you.
Mr. Madsen: Merci.
The Chairman: So now you'll have to wake up Anna, Mr. Madsen.
.1246
.1254
The Chairman: I would like to introduce Melanie Sexton from the Canadian Hearing Society. She will be speaking from the position where she can use visual aids. So I would ask all the members to sit on the side with the researchers.
.1255
Ms Sexton, you can go ahead.
Ms Melanie Sexton (Canadian Hearing Society): The first thing I have to ask is whether everyone can hear me. I am profoundly deaf myself. I don't hear anything useful at all. It doesn't have very many practical implications right now because I have interpreters with me who will interpret any questions you have for me.
The only thing is that I don't hear my own voice. I'm used to projecting to very large groups of people, so I know I can reach people at a distance. The problem is sometimes I project a little bit too much. When microphones are involved, I can make people very uncomfortable.
If I am speaking too loudly, please don't hesitate to tell me. Sometimes you might need to tell me to write it, but that's much less likely than having to tell me to keep it down. Don't be shy in telling me if my voice is not right. To make sure you can be comfortable now, I ask you if you can hear me okay. Yes.
I'm here to represent the Canadian Hearing Society. We're a social service organization that serves people in the community of Ontario who have hearing problems.
I'm here today to ask you to consider including in Bill C-32 people with hearing impairments in your definition of people with perceptual disabilities. I will give you some background to explain why we want to be included. It's not very obvious.
It's quite clear why you need to include people with visual impairments. Everybody can understand the concept of needing a book to be translated into Braille. It's much less clear why people with hearing impairments would even want to be included. But I assure you there are some very real and very important issues for us. So I will just walk you through a few statistics to help explain why it is I'm here and why we are asking for this.
First of all, just a few basic statistics. Does anyone have any idea how many people in Canada have hearing loss or what the statistics are? A guess, off the top of your head.
Mr. McTeague: Ten percent.
Ms Sexton: Very good, 10%. Spot on.
At the moment it is estimated that one in ten Canadians have a hearing loss of some kind. It's also estimated that by the end of the century this is going to go up to three in ten. Why? What's pushing it up?
Mr. McTeague: Age.
Ms Sexton: Aging of the population that's caused by the baby boom.
Mr. McTeague: Listening to rock-and-roll music.
Ms Sexton: Very good. Noise pollution. Just listening to loud rock and roll for 20 minutes can knock a few decibels off your hearing.
Mr. McTeague: I know.
Ms Sexton: It really is true. We're only now becoming aware of the dangers of noise pollution and we're only now starting to control it. If you have teenagers, you can warn them that this is the real thing. It's not in people's imagination.
The statistics are significant for people with hearing loss. But it's important to look at just who the people with hearing loss are. It doesn't make sense to lump them all together and treat them all as if they were the same because you have people with very different needs under the same label of people with hearing impairment. So here's what I call the umbrella of people with hearing impairment. Under this umbrella, we have very different people, who communicate in different ways.
First of all, looking at this, can you all read it? There's a hard-of-hearing person with a mild loss; a culturally deaf person, bilingual; an oral deaf person; a hard-of-hearing person with a severe loss; a deafened person; and a culturally deaf person who is a native sign-user.
Just looking at that, you've probably heard the term ``hard of hearing''. It's now the accepted term for someone who has some kind of hearing impairment. You've probably all heard the term ``culturally deaf''. Are you familiar with the term ``deafened''? No. I'll explain it in just a moment.
Looking at this, which one would you guess has the least hearing loss? In audiological terms, which one hears less and which one hears most? Which will have the smallest loss? Which one hears best?
.1300
The Chairman: I'd say cultural deaf bilingual would have the least.
Ms Sexton: Cultural deaf bilingual would be your guess as the person who has the highest level of hearing?
The Chairman: No, the lowest.
Ms Sexton: The lowest?
The Chairman: I would say the oral deaf would have the highest.
Ms Sexton: The oral deaf with the highest? Was it you who said this?
The Chairman: Yes.
Ms Sexton: First of all, let's look at what the terms mean. ``Hard of hearing'' is a term for anyone with any degree of hearing loss at all. It could be a very small loss, which basically means they maybe just have trouble hearing in situations where there's a lot of background noise. Or they could be someone who is hard of hearing with a very severe loss and who hears virtually nothing in the range of space. I could consider myself a hard-of-hearing person. So that term ``hard of hearing'' covers a full spectrum of people with various kinds of hearing loss. It basically depends on how people like to identify themselves.
A deafened person, any guess as to what a deafened person is? Someone who's listening to too much loud rock music. Actually it's someone who has lost their hearing at some point in their lives after they've acquired speech in the normal way.
When children hit the age of about four, they have already acquired language in the normal way - not the full vocabulary, obviously, but they already have the concept of a spoken language. So if they become deaf after that age, they're very different from children who were born deaf or who became deaf at a very early age.
So people who lose their hearing after age about four tend to be oriented towards speech modes of communication. There are many people like myself who lose their hearing in their 20s, 30s or teens. It happens more often than you might think. I don't know if you know any people yourselves who have lost their hearing.
Sometimes there's need for some kind of surgery that interferes with the acoustic nerve, severs it and some people become deaf. Sometimes large doses of an antibiotic drug administered in other things can wipe out the hearing. Injury or even a flu-like virus can sometimes leave people totally deafened.
So if you suddenly became deaf now, you would be a deafened person. You would be someone who communicates orally in French and in English, but you certainly don't know sign language. I assume you don't, but normally it is that you don't know sign language. You would want to continue communicating somehow in English and French but you would no longer be able to hear.
Compare that to the people we have here: a culturally deaf person who has studied bilingually and the culturally deaf person who's a native sign-user. This term, culturally deaf, have you heard the term? It's usually written with a capital `D', Deaf. Culturally deaf people are people who are born deaf or with a fairly severe hearing impairment and who grow up using sign language as their first language.
Hear in Canada ASL is the predominant sign language used in English-speaking places and LSQ is the sign language used in French-speaking places. There's no correspondence whatsoever between English and ASL, or French and LSQ. They're totally different languages. But it happens we have both ASL and LSQ.
This person who I said is a native sign language user will be comfortable using sign language. It will be their first language. Babies who are born into families where the parents use sign language babble in sign language apparently. What's the bilingual person, do you think? The culturally deaf bilingual person, what does this term ``bilingual'' mean?
Mr. McTeague: Someone who knows both ASL and LSQ.
Ms Sexton: Not quite.
Mr. McTeague: I should be on the official languages committee.
Ms Sexton: The bilingual person is someone who uses both sign language and spoken language. So for me, if I had been born deaf, if I knew sign language and I had learned to speak in English, I would be bilingual. Someone who is oral deaf, on the other hand, is someone who was born deaf but grew up learning to speak and didn't learn sign language at all. It's important to have this distinction. I kind of whisked through it a little fast and it takes some time to absorb, but it's important because these people have extremely different access needs. If for example you became deaf now, you would have a completely different set of access needs from someone is born deaf and needs interpretation with sign language.
.1305
If you're hard of hearing and you can still get by with amplification, again you're going to need something different, you're going to need an amplification system.
Let's look at what the access needs of these people are and why I'm here. For people like myself who have become deaf, what do you suppose is my primary access need? Now I can use sign language interpreters, but it's taken me many years to gain that degree of proficiency. Before I could use sign language interpreters, how could I communicate? What would I do here now if you wanted to ask me a question and I didn't know sign language?
The Chairman: Write it down?
Ms Sexton: Get you to write something? Yes.
Reading lips would be extremely difficult. Speech reading is very hard at the best of times. Some people fare better at it than others, but English is a very difficult language to read on the lips. Only 25% of speech sounds can be discriminated on the lips anyway, so it's all guesswork. So speech reading would be very hard. If you would write everything down that would be fantastic, I would understand everything, but it would be very slow and tedious. I suspect that you are very busy people who would become quickly frustrated with the speed of the conversation.
One primary method of interpretation for people like that is real-time captioning. You've probably all seen in the Senate, and I think in the House, the real-time captioners who sit at a stenography machine and key in everything that's been said. They do it by listening to the sounds and typing them in phonetically. What that does is it produces a word-for-word transcription of what's being said. It can appear on screen in front of me right here. So if we had that technology right now, everything you said would be typed almost instantaneously and appear on the screen for me to read. It's called real-time captioning.
It has other applications, especially with televisions and videos. If you have a new type of television now, you will know that in this television there is something called a decoder strip. That decoder will allow you to view the captions on the bottom of TV programs. Are you all familiar with that? You have a television program and you see at the bottom of the screen two lines of black type that tells you what's being said. Sometimes that's pre-prepared, sometimes it's live. If it's a football game or something like that it obviously has to be done on the moment.
Captioning is a very important means of communication or interpretation for people who are deafened. People are culturally deaf, on the other hand, need sign language interpretation. If I were culturally deaf, I would probably not be at all comfortable with a captioning. If there were someone here producing a written transcript, they would probably not find that acceptable access.
If sign language is their first language, why might they not find it accessible if all they had was the real-time captioning?
The Chairman: They weren't able to learn the language in the first place?
Ms Sexton: Because they may very well not be at all comfortable with English. They have sign language as their first language.
.1310
If you are born deaf and you don't acquire an oral language in the usual way, it's extremely difficult to even understand the concept of a spoken language. Therefore, they may never develop a grasp of English. Sometimes people say this is illiteracy. As far as I'm concerned, it has nothing to do with illiteracy; it's the difficulty of second-language learning, and second-language learning using a totally different concept. If you had to learn sign language now you would probably find it extremely difficult because your mind would have to function in a way it's not used to. You have to become very visual. It's the same thing for deaf people when they are confronted with English or French. It's not their first language. They may be very uncomfortable even with fairly simple English.
Just to tie up where I've been leading with all this, and how all this fits with revisions to the copyright bill, there are really three important applications. The first relates to culturally deaf people. Culturally deaf people need materials accessible to them in ASL. The written form itself is not accessible to some of them. Therefore, a good way of making the written word accessible is to have someone make a signed video of it, to have an interpreter or to have a volunteer who will make a video signing of the written word. It's the same idea as writing a book in Braille; you could have a book that was signed and recorded on videotape for people who use ASL.
You might have people who have some degree of fluency in English but not enough to read the whole thing in its original form. They may ask for and need a simplified English version of it. Someone translates the complexity and puts it into simpler, more basic English terms.
Those are two important applications for people who are culturally deaf.
Some people who are deafened need things in written form. This may apply to the captioning of TV programs. Many videos now are already captioned. The makers get sponsorship from many of the big companies and they put the captions on themselves. In cases where those captions are not already there, obviously the video is completely inaccessible to someone who needs to read the captions unless we can put them on ourselves. So that's another application.
Perhaps an even more important application for deafened people is that we often need to be able to have a transcript of something that is happening in front of us. We need to be able to turn what's heard into something written, either through means of live captioning or through means of a written transcript. If, for example, you have an audio tape, a deaf person clearly needs something in writing, a transcript of that audio tape, in order to fill a person in on exactly what has gone on in that audio tape. Those really are the applications for people with hearing loss. It's the reason why we also sometimes need to take copyrighted material and change it just for one particular person who may need access to that format and who would not be able to get it in any other way.
I just heard from the CNIB, and as you know already it's a very involved and tedious process to actually get the permission to do that in an individual case. If you have to apply every time it's obviously very time-consuming.
That's really all I wanted to say in order to try to explain to you why deaf people are interested in this issue. I'd be very happy to answer any questions you have.
.1315
The Chairman: That was a very interesting presentation, Ms Sexton. I thought your sense of humour really helped. You have a great sense of humour. I'm sure the members would be extremely interested in asking you questions.
Who wants to lead? Mr. O'Brien.
Mr. O'Brien: Sure. Thank you, Mr. Chairman.
First of all, I'm a teacher, and I second the chairman's comments. It was an excellent short lesson and very informative for me.
I want to go to the heart of the matter and ask exactly what changes are needed in this bill to accommodate the needs you've spoken to.
Ms Sexton: Are you talking about what changes we would like? Essentially, we would like people with hearing impairments included in the definition of people with perceptual disabilities.
Mr. O'Brien: So if that's done, given the improvements we hope to make following the CNIB presentations, it would then address all of your concerns?
Ms Sexton: If we were included under the definition of people with perceptual disabilities.... Essentially, our concerns are there be recognition that people with hearing loss have similar kinds of concerns and have many similar cases. We would like to be included in that definition, but we don't have any additional concerns other than that one.
Mr. O'Brien: That's fine, thank you.
The Chairman: Mr. McTeague.
Mr. McTeague: Thank you. I must say it was one of the more interesting presentations we've had. It's kind of nice to be able to humour ourselves from time to time.
My question relates to the removal of the single-copy infringement. Are you in favour of that, as other groups have been?
Ms Sexton: From our point of view, most of the cases where we need to adopt material are single cases. I'm in support of the CNIB's point of view. In our own particular case, I think we could be satisfied with a single edition. Yes.
Mr. McTeague: If the Copyright Board down the road sets fees for royalties for multiple copies, should something like this come to be someday would you find that excessive? That's probably as far as I would go on that question.
Ms Sexton: It would be extremely restrictive, yes. For example, I was mentioning the need to turn books into signed videos. Now most of those would be used in literacy classes for deaf people who are learning English. Their budgets are always very limited. They work with very small resources, so any cost that would be involved would definitely be a serious problem and I'm sure it would be prohibitive in most cases.
Mr. McTeague: I'm going to throw a bit of a curve ball here, but it's something that deals with a matter of public policy right now. There is a cable production fund that allows many of the producers of programming to acquire considerable amounts of subsidies to produce Canadian programming. Has your organization, or those you represent, ever had an opportunity to discuss with the Ministry of Canadian Heritage the possibility of acquiring some assistance from that fund, through the CRTC?
Ms Sexton: The possibility of assistance for what exactly?
Mr. McTeague: It would be assistance toward a condition that would be established for those who for instance get funding from the cable production fund to create shows. The provision of closed captioning or various other forms of acceptable sign language would be required as a condiiton for receiving the funding.
.1320
Ms Sexton: Providing the funding was available to help us do the things we really need to do.... Realistically, turning those books into signed videos is a much higher priority than turning a TV program or something like that into something with captions. So providing that this priority was kept in mind, then something like that would of course be very helpful.
Mr. McTeague: Thank you.
Mr. Peric (Cambridge): Melanie, can you tell us whether you have to pay royalties if a work is captioned or converted into sign language?
Ms Sexton: If you wanted to turn anything that was protected by copyright into a signed videotape, yes.
Mr. Peric: How much?
Ms Sexton: I don't know.
Mr. Peric: When did you lose hearing? What happened to you?
Ms Sexton: How did I lose my hearing? Is that the question?
Mr. Peric: Yes.
Ms Sexton: I have a genetic hearing loss. It's in my family. Nobody quite knows why or where it comes from. My sister has the same thing. It started when I was about 14. My hearing got progressively worse until about five years ago I was left with nothing very useful. I can still hear very loud noises - explosions, jet planes, power saws - but nothing useful any more. So it's one of those things nobody quite knows the origins of.
Mr. Peric: Thank you.
The Chairman: Ms Sexton, can you tell me today what happens with your organization? Does it deal through a collective licensing agency, like CANCOPY, or not?
Ms Sexton: We at CHS don't currently do very much of that at all. We're really an advocacy organization for the population as a whole, so we're really looking at issues we think will be of concern to people in the community. We don't ourselves, at the moment, make videotapes or reproduce material at all, but we know of community organizations that would want to do this.
The Chairman: That is the question I was just about to ask you. You heard the testimony of the CNIB, which builds up a library. In your case, not your organization maybe but some organizations representing the hearing-impaired, would it be your aim at some point in the future if the law was favourable to you to create this sort of library? How many people do you think it would touch? How many people need this kind of service?
Ms Sexton: We would certainly want to develop that kind of resource, yes. There are places right now that have literacy programs. They make their own signed videotapes, using their own material. They use them in their literacy program. Because of the restrictions right now, we can't turn existing material into those videotapes, but we would certainly want to. So if the law was favourable, I shall put it, it's something we would certainly work on developing, because it's very important to literacy.
.1325
Culturally deaf people have their own very rich culture. Many people don't realize just how much there is to that culture. It has its own art forms, certainly its own language and its own code of behaviour. We have our hearing culture here, and there isn't enough intersection between the two. We see this as a cultural thing, something that could encourage more cultural understanding between the two groups.
The Chairman: You said about 10% of Canadians have a hearing impairment, three million of them. Out of that, I imagine some people have a moderate hearing impairment, but how many people would be touched by what you would want to do? Are you talking about one million or 500,000 as an optimum?
Ms Sexton: To go back to my statistic of one in ten people with some kind of hearing loss, four in a hundred people have a moderate to a severe hearing loss. So four people in every hundred would benefit very directly from either the transcription into caption, for people like me, or the transcription into ASL. About one in a hundred would benefit from the ASL translation.
The Chairman: So it's still quite a significant number.
Ms Sexton: It's a very significant number, and people tend to overlook it, because those people tend to be less visible. People with visual impairment are very visible, and people in wheelchairs also, but because hearing loss is a so-called hidden disability, it's something many people don't see around them. Sometimes we see people signing on the street, and that does make it visible, but on the whole we are much more hidden than people with other kinds of disabilities.
The Chairman: Thank you very much again. Your testimony has been very eloquent and convincing. We really appreciate your coming here today.
Ms Sexton: Thank you very much for giving me the opportunity.
The Chairman: The meeting is adjourned.