EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 5, 1996

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[Translation]

The Chairman: I'd like to call this meeting to order. We are pursuing our consideration of Bill C-32, an Act to amend the Copyright Act.

This evening, our round table includes the representatives of three institutions:

[English]

the Educational Media Producers and Distributors Association of Canada, represented by Mr. John Fisher, copyright chairman;

[Translation]

the Front des créateurs pour la défense du droit d'auteur, represented by Mrs. Diane Lamarre, Coordinator; and the Association nationale des éditeurs de livres, represented by Mr. Antoine Del Busso, President.

We will give each of these groups an opportunity to express their views, and after that, we will open it up for questions. There will be no particular order. People will simply have their name put on the list if they wish to speak. It will be an open exchange of views, until the end of tonight's session.

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[English]

It will be a round-table format. Each of you will be able to express yourselves, after which it will be an open forum, with a free exchange of questions and answers.

Mr. Fisher, the floor is yours.

Mr. John Fisher (Copyright Chairman, Educational Media Producers and Distributors Association of Canada: Thank you, Mr. Chairman.

First of all, I want to thank the committee for this opportunity to appear and to present our views on the proposed new provisions of the Copyright Act. As producers and distributors of educational audio-visual learning resources, a strong Copyright Act is essential to the well-being and continued existence of our industry, and to the companies and employees represented by our association.

Unlike most other segments of the film industry, we do not receive federal assistance, nor are we regulated in any way, other than as ordinary businesses. For the most part we are small independent Canadian companies. And since most of our members also distribute the productions of others, we indirectly represent hundreds, if not thousands, of other Canadian producers and film-makers.

Notwithstanding the smallness of our industry, we provide approximately 90% of the audio-visual learning resources used in Canadian schools. It should be noted that without the regulation or financial support that the other segments of the film industry receive, approximately 40% of the program sales of our members are of Canadian productions, something I think is a remarkable achievement under the circumstances.

Many of the proposed changes in the Copyright Act will, if passed in their present form, be harmful to our industry - harmful to the extent that we believe they will challenge our very existence.

Much of what is harmful we believe is unintended. Many of the provisions as drafted are ambiguous and do not reflect what we understand to be the intentions of the government, as we have been informed by the departments that are responsible for the Copyright Act. We believe these provisions can easily be corrected through redrafting, and we have dealt with those provisions and provided specific recommendations in our written submission. I look forward to reviewing the details of these particular provisions with the committee after the presentations by the three groups.

Other provisions, however, are based upon certain principles that we believe are inappropriate in Canada, and unfair and prejudicial to the rights of citizens who earn their living with ideas and the creation of artistic, cultural and educational resources. As the committee reviews the proposed legislation, it would be simple to become lost in the detail and technicalities of the proposals and provisions, losing sight of many of the important underlying principles and presumptions on which our society is based.

We therefore ask that as you undertake your review, you do so within the context of the following considerations. First is recognition that the creation of a creator is private property. Within the proposed amendments there is a section referred to as exemptions that could be more appropriately called expropriation, for indeed that is what is proposed - taking away the private property of private citizens.

We recognize that expropriation is a fairly common practice in real estate, where society and governments seek to improve the common good, but what is proposed here is an exemption of private property without due process or fair and equitable compensation. As individuals, do you support such a principle, and are you prepared to apply this same principle to matters of physical property as well? Does your party stands for such principle, and will it apply this principle to other areas and other property where the common good could also be served? If not, we believe you must reject the call for exemptions.

Second, we would like you to consider the Canadian principle that educational funding is a public responsibility. No other sector that serves the educational community is required by law to do so without compensation - not teachers, architects, builders or the suppliers of paper or chalk. Creators should not be required to support the educational system separately and apart from the taxes they pay.

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While most of the submissions from the educational community declare support for the principle of fair compensation for creators, most nonetheless ask for exemptions, largely based upon the fact that educational funding has been severely reduced in recent years, and that the educational community simply does not have the funds available to pay for the materials they need to make schools effective learning centres.

We want you to consider their requests with the following funding facts clearly in mind. Educational funding in Canada has not declined in recent years. In fact it has increased substantially. Educational funding increases have surpassed the rate of growth in student population, and in the rate of inflation. If there are not sufficient funds available to purchase learning resources, it is because the educational community has chosen to spend their expanding budgets elsewhere, largely on salaries.

While educational funding increased by more than 32% from 1989 through 1993, the purchase of learning resources by educational institutions in Canada declined by almost 18%, and on a per student basis by more than 37%.

With a national education budget of more than $55 billion, there is clearly sufficient funds available to pay for all of the educational resources required by the educational community. It is simply a matter of priority, which is a provincial and a local responsibility.

The third factor we wish to ask you to consider as you examine the details of the act, is the survival of the Canadian educational audiovisual industry. As you can see from my presentation, we are a small industry and a very fragile one. Over the last ten years we have faced continuing declines in educational budgets for the purchase of learning resources, and because of the development of new technologies, many of our works have been duplicated and used without providing compensation to the creators.

As everyone here is aware, governments at all levels are reducing their expenditures today. Cultural and educational activities are perhaps the most affected. The cultural industries have been told in no uncertain terms to get used to less support and to learn to stand on their own two feet. The proposed exemptions dramatically reduce the ability to do that. The proposed exemptions will greatly diminish our income and make us more vulnerable and more dependent upon government support that is currently being reduced or eliminated.

The fourth item we wish you to consider as you review the details is accessibility. Our industry, as does virtually everyone involved in the creative process, supports the need for users to have access to our works at fair and equitable prices through mechanisms that require minimum effort and administration.

Clearly, it is to the benefit of all of us that our works are more readily available if there is fair and equitable compensation. We acknowledge that off-air taping of television programs is one area where legal access is currently difficult and at times impossible. As an industry, over the last ten years we have exerted considerable effort to put in place a mechanism that would increase legal accessibility. We therefore support the government's efforts to assist, through legislation, the establishment of a mechanism that will enable the licensing of television programming, but with compensation. Unfortunately, however, the proposed regime is both unworkable and not financially viable.

The consequence of the current proposal is likely to be chaos and ambiguity in the marketplace, and ultimately a de facto exemption from copyright for the educational community, because a collective or collectives will not be viable and will ultimately fall apart. Under the proposed provisions, this would result in a de facto exemption for education.

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The results for our industry would be a substantial loss of income through expropriation, ultimate decline and perhaps demise. The major loss of revenue will fall largely upon Canadian producers. This is because their programs are the most likely to be taped off the air under the proposed regime.

If producing educational materials is no longer viable in Canada, who will produce Canadian learning resources for the schools?

Thank you for your interest. I look forward to your questions and will do my best to answer them honestly and accurately.

The Chairman: Thank you, Mr. Fisher.

[Translation]

Mrs. Diane Lamarre (Coordinator, Front des créateurs pour la défense du droit d'auteur): I am here this evening representing the Front des créateurs pour la défense du droit d'auteur, a coalition formed following the tabling of Bill C-32 by eight professional associations and collective copyright societies that are all members of the Canadian Coalition of Creators and Copyright Owners.

These eight organizations represent more than 30,000 people: authors of musical, literary, dramatic and audio-visual works, composers, film makers and visual artists.

As you are certainly aware, the Canadian cultural industry is responsible for more than500,000 direct and indirect jobs in Canada's economy. Its contribution to the Gross National Product has been assessed at close to $22 billion, or 3.7 per cent of the Canadian economy in 1990-1991.

Every day, we all enjoy the "products" of the cultural industry. We need only think of the books, newspapers or magazines we read, the records, films and television programs we listen to, the operas, concerts or theatrical productions we attend, and the paintings, sculptures and photographs that make our daily lives more pleasant.

Too often, we forget the people who are there at the start, who are the cornerstone of these artistic works and productions: the creators.

Creators are generally self-employed workers. They invest their time, energy and talent in the creation of works, just as a great number of independent contractors do, in the hope of securing success for their business and being able to live comfortably.

Like any contractor, they must be remunerated in proportion to all of the uses made of their creative works.

The Copyright Act is the only legal instrument that guarantees them protection, by allowing them to control the uses made of their works and obtain fair remuneration for those uses.

It is important to realize that in practice, the royalties paid them as compensation for use of their works are, in many cases, the only source of income an author has for his creative works.

We also want to emphasize the point that despite the existence of the Copyright Act, the reality of creators' lives, and of the collective copyright societies and professional associations that represent them, is that they constantly - and this has been the case day after day for many years now - have to demand respect for their rights from the various users, and too often have to invest significant amounts of money to defend their rights before the courts.

In this context, the importance of a Copyright Act that is both solid and effective is undeniable, and that is why we're asking that creators be guaranteed real protection that reflects the realities of today's world, and that the Act provide access to works, while fully respecting the principle of free negotiation.

In that regard, the Front des créateurs fully supports the long-standing demands of the Canadian Coalition of Creators and Copyright Owners, which are: confirmation that creators are the first owners of the rights in their works; granting rights to performers, in a specific part of the Act, with respect to their interpretation of a musical, literary, dramatic or choreographic work; granting artists in the visual arts a right to residuals; granting an equal term of protection to all types of work; the use of technologically neutral definitions; compensation for private use of all work through a royalty collected on all equipment and media; the introduction of a rental right for all works protected by the Act, for the benefit of all copyright owners; the elimination of all exceptions to the protection of works; and the protection of creators's rights through appropriate remedies and penalties that reflect the realities of our contemporary world.

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Certainly, we might be tempted to conclude, at first glance, that Bill C-32 meets some of those demands. However, when it does, it does so in a manner that is both unsatisfactory and incomplete.

Before I go any further, I would just like to point out that the purpose of our brief and our presentation today is not to provide detailed analysis of Bill C-32, but rather to review some of the general concepts that relate to copyright and the administration of copyright.

With respect to those provisions that relate to neighbouring rights, we would emphasize that member associations of the Front des créateurs have for several years now supported performers' representatives in their efforts to have neighbouring rights recognized in the Copyright Act.

The representations made in this regard by various groups and coalitions have always specified over the years that a system of neighbouring rights should be the subject of a separate part of the Act, and should not in any way infringe upon or interfere with copyright or the exercise of that right.

Yet Part II of Bill C-32 provides for the granting of copyright to performers and makers of sound recordings, as well as to broadcasters. The language used creates a confusing situation that greatly concerns the authors we represent.

Performers, producers and broadcasters are not the authors of the works in which they're being given these rights. We believe it is essential, from the legal standpoint, to make a distinction between copyright and the rights that are, quite properly, referred to as neighbouring rights to copyright.

Recognition of the principle of private copying is another initiative of Bill C-32 that we consider incomplete, as it only deals with audio media. Private reproduction of works protected under the Copyright Act is an illegal practice that is extremely widespread, but unfortunately impossible to control. It is a practice that involves the reproduction not only of musical works, but of all types of works covered by the Act.

In the present situation - reference is made only to multimedia works in the Bill - and considering that the new technologies make it possible to reproduce all types of works without any loss of quality, the limited application of the principle of private copying, as proposed by Bill C-32, already seems almost obsolete, in our view. In a few years, audio media will account for only a minimal portion of the home reproduction market, and authors will continue to see their works reproduced illegally without receiving any form of compensation whatsoever.

We believe the Copyright Act must use technologically neutral definitions, so that its operation will not be limited by the type of medium used for the creation, circulation or reproduction of works.

As a last example of incomplete amendments being proposed under Bill C-32, we would like to address the matter of rental rights.

The Copyright Act has for some time granted rental rights over musical works to makers of sound recordings alone. Bill C-32 proposes to extend those rights to creators and performers, something which we see as a welcome initiative.

It is increasingly common practice for different types of works, other than musical, to be rented out. We need only think of the rental of best sellers in libraries, or of artistic works by specialized businesses. This practice provides people with access to works at a much lower cost than the price they would have to pay to buy them. However, it also has the effect of depriving creators of the revenues generated by the sale of copies of those works. We believe that inequity should be redressed with respect to rental rights.

With respect to those demands of the Front des créateurs not reflected in Bill C-32, we should like to mention the recognition of creators as the first owners of the rights in their works. Artistic works must be treated in exactly the same way as any other kind of private property. The Act must grant the authors of those works permanent rights which would allow them to control the uses that may be made of their works, and to receive compensation for those works, whether they be writers, screenwriters, painters, author-composers, film makers or photographers.

In addition, the term of protection granted such works must be the same for all authors and copyright holders, whatever the type of work or the media involved.

As regards those provisions of the Act that relate to the term of protection for posthumous works, we believe the Act must maintain protection in unpublished works in perpetuity.

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Finally, for some years now, creators have been asking that the Copyright Act grant artists in the visual arts a right to residuals, by allowing them to benefit from the appreciation in value of their works, and thus to be involved in the economic life of those works.

At the present time, only collectors profit from an artist's success through successive resale of their works. Residuals, that are currently granted in a number of countries around the world, alleviate this inequity.

Our last point will deal with that part of Bill C-32 that most affects, not to say harms, creators. We refer, of course, to the exceptions set out in the Act. On the pretext of seeking a balance between the right of creators to have their works protected and the right of users to have access to them, the government is introducing in Bill C-32 numerous new exceptions and restrictions that would expropriate the rights of creators in favour of educational institutions, libraries, museums and archives, and of persons with perceptual disabilities.

The purpose of these exceptions is presumably to facilitate users' access to works. We believe, rather, that they are designed to provide users with access free of charge, something we consider totally unacceptable.

The collective societies whose existence and role have been expressly recognized by the Act since Phase I was completed, facilitate all users' access to works, in both the practical and monetary sense.

They grant general use licences to institutional users, such as educational institutions, which in some cases guarantee preferential rates for certain classes of users. For example, an agreement between the Union des écrivaines et écrivains québécois (UNEQ) and the Quebec Ministry of Education currently allows educational institutions to photocopy all works in the UNEQ's international repertoire, without prior authorization, but in accordance with certain rules, in return for a lump sum payment.

A similar agreement was signed in 1994 between the UNEQ, CANCOPY - its Canadian equivalent - and the federal government. Such an agreement also exists between SODRAC and the Canadian National Institute for the Blind with respect to audio reproduction of literary works. The new proposed exceptions will weaken and may even invalidate the operation of these licences that, in some cases, were the result of years of intensive negotiations. At the same time, they weakens the role of collective societies, which is to negotiate such rights.

This strikes us as illogical, and thus we believe the federal government must continue to respect the principle of free negotiations between users and collective copyright societies.

If no agreement is reached on the amount of royalties to be paid, the parties have the option of turning to the Copyright Board, which is mandated to ensure fair access to copyright works.

As for the content of the Bill itself, we decided to leave the task of preparing a clause-by-clause analysis of the exceptions to member associations of the Front des créateurs. We do want to point out, however, that the wording of some clauses is extremely confusing.

There is no doubt in our minds that this part of the Act throws a dense fog around the interpretation question, and that it will rapidly become a litigation mine field, generating tremendous costs for creators.

Moreover, the terms and conditions under which some of these exceptions apply are so complex in some cases that they will be extremely difficult, not to say simply impossible, to administer, for both creators' representatives and users.

Finally, we believe it is up to educational institutions, as well as to museums and libraries, whose primary job is to raise awareness and educate, to set an example by respecting creators' rights as well.

If these organizations can find the money to pay their suppliers of goods and services, we find it difficult to understand why they could not do the same for copyright.

Let us be clear: creators have no objection to their works being made available to the largest possible public; quite the contrary. The issue is not that access to works should be restricted, but that creators should be kept involved in the uses made of those works.

For all these reasons, we are strongly opposed to the inclusion of the exceptions and limitations and ask that the principle of free negotiations be respected.

In conclusion, the creators we represent ask that the primary objective of the Copyright Act, namely the protection of their interests, be respected and that users be granted access to their works on the basis of the principle of free negotiation, and not by usurping their rights and thus their living.

Bill C-32, which has been anticipated by creators for more than eight years now, does not represent an improvement as far as their rights are concerned, but rather a setback, compared to their present situation. Not only does the Bill not respond to the needs that have been expressed for several years now, but when it tries to respond to them, it fails.

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Furthermore, it expropriates creators' exclusive right to grant or deny authorization for the use of their works and their opportunity to be paid for the use of those works, thereby repudiating the role of collective societies recognized in Phase I of the Copyright Act review.

For all these reasons, member organizations of the Front des créateurs believe that the changes proposed are not a genuine reform of the Copyright Act and wish to state their dissatisfaction with Bill C-32.

On behalf of the member associations of the Front des créateurs, I want to thank you for giving us this opportunity to express our views today.

Mr. Antoine Del Busso (President, Association nationale des éditeurs de livres): Good evening.

There is one preliminary comment I would like to make, just to correct a negative impression left in our brief, that you've already received, and in which we state our position that the Bill should be withdrawn if it is not amended.

I hasten to point out that our position is less radical than it seems. Fundamentally, our association recognizes that there are some very positive things in this Bill and we want to commend the government for that. The Act required updating, and that work has now been accomplished.

Secondly, the Bill grants a right of exclusive distribution that we are very anxious to have. So, there are some very valuable provisions in this legislation. At the same time, we are disappointed. Thus we would like to make a number of suggestions to improve the Bill.

I will be deviating from the text you have been given in order to focus on our major points. I would like to begin by saying that our association represents approximately 100 French-language publishing companies in Canada. While most of them are in Quebec, there are also a number of companies located outside Quebec in other provinces of Canada. In fact, we are the sister organization of the Association of Canadian Publishers which I believe presented its own position on the Bill a few days ago.

Our basic position is very similar to that of our colleagues in English Canada. I would however make the point that our disappointment relates to a number of specific areas. The first has to do with the exceptions. Although my colleagues fully explored the issue with you, there are a couple of additional points I would like to make.

First of all, we believe that these exceptions are wrong in and of themselves and that there is a need to return to the spirit of the Berne Convention, of which Canada is a signatory, and which says quite simply that exceptions can be allowed "provided that such a reproduction does not infringe the normal exploitation of the work or cause undue prejudice to the legitimate interests of the author". This is a fairly accurate summary of the principle on which our comments will be based. It is to this principle that we will be referring.

Why are we disappointed and why do we believe such significant changes need to be made to the legislation? Well, first of all, because we believe the Bill is based on a spurious principle. That spurious principle is the desire to strike a balance between users, on the one hand, and copyright owners, on the other.

As far as publishing is concerned, the problem does not really pose itself in those terms because publishers are, by definition, people whose profession is to make works accessible and to ensure maximum use of those works by disseminating them as widely as possible. So, we do not represent an obstacle to dissemination of these works. On the contrary, we believe respect for intellectual property is in fact what ensures the widest possible dissemination of works. In the final analysis, non-respect for intellectual property and copyright is the best way of hindering access to artistic works.

Furthermore, we see a number of the criteria used to justify these exceptions as invalid or spurious. What in fact are these criteria? In many of the Bill's provisions, reference is made to the identity of the user, his intentions and the nature of the work he wishes to reproduce. We believe such criteria should not even be considered, and that any criteria used should be purely objective ones. We recognize there may need to be some exceptions, but those exceptions will have to be based on truly objective criteria.

In another presentation, I used the following image. One cannot use the pretext of a visit to an ailing friend to justify stealing fruit in a store that is to be offered to one's sick friend. That is my way of saying that if we want to make a positive gesture, there is little point in explaining what our intention is; it's the gesture itself that must be appreciated.

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So, the issue is not so much whether or not we want to reproduce such and such a work for research purposes, because there is no real way of knowing whether that research is legitimate or whether it is just unhealthy curiosity. In the end , there is no way of knowing who the researcher is, nor what his intentions are. The example that has often struck us is the one relating to education. It is an argument that is very often heard, paradoxically enough, and it goes something like this: "We want to reproduce this work for educational purposes. Surely you don't oppose education and you're going to allow me to do this." That is a very common practice. It is an argument that is used again and again.

We believe that at the present time, given that new technologies make dissemination much easier, rather than broadening the exceptions, we should be limiting them.

We have noted that the legislation sets out all kinds of exceptions that we see as unnecessary, to say the least. Last week, we discussed this with librarians at a conference, and they basically said: "We would like to be authorized to reproduce works for conservation purposes or to make them available to people who come to consult them in the library." After a very brief discussion, we realized that no such problem exists because to our knowledge, and to theirs as well, no one has ever been prosecuted for that kind of photocopying.

We agree that reproduction of works that could not be consulted otherwise or that could deteriorate to the point where they would no longer be accessible, should be authorized. However, that is not where the problem lies. The problem is with the number of photocopies being made and the way they are used. Can a work be reproduced ad infinitum? Is a very small proportion of the work being reproduced, or is a significant proportion? These are important questions for which precise answers must be provided. There would then be greater respect for copyright and intellectual property.

No longer would a library or clerk have the discretion of interpreting the Act and claiming rights he doesn't have. In any case, it is not a librarian's job to determine whether a researcher is serious or not and whether his goals are serious enough to warrant photocopying.

As far as we are concerned, the real question is: how many copies are you making and what part of the work do you wish to reproduce? That is the fundamental issue. I believe it is also where the solution to these problems lies.

And the problems can be solved because there are copyright societies that make that possible, without forcing us to identify or account for every single photocopy or reproduction that is made, and that manage small rights collectively. Administration of those rights is a lot easier as a result.

A well-designed Act should be easy to administer. It is those kinds of changes we would support. That is why our recommendations advocate respect for the spirit of the Berne Convention - in other words, there can be exceptions, but they must be based on objective and quantifiable criteria and set aside any subjective consideration, such as the user's intention or even his identity. It makes no difference whether the librarian's activities are non- profit or profit-oriented, or whether he has humanitarian goals or otherwise. The important thing is to know how many copies must be made.

We therefore support the possibility, provided for in the legislation, of having these rights administered collectively by specialized societies. We also support the principle set out in the Act with respect to exclusive distribution, but we would have that include not only books in printed form but books in every other form currently available today.

Finally, we strongly support rental rights, as my colleague explained earlier.

That basically summarizes the position of the Association nationale des éditeurs de livres. Thank you.

The Chairman: Thank you very much, Mr. Del Busso.

Mr. Leroux, do you have any questions?

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Mr. Leroux (Richmond - Wolfe): Yes, I do. Thank you for being here this evening and for your brief. Among the groups and specific witnesses that have appeared before the Committee, one notes some very clear trends, some very clear demands and some pretty lucid analysis of the legislation, particularly as it pertains to authors. Some are saying - and we would agree with that - that the approach taken in this legislation amounts to an expropriation of authors' rights. The Official Opposition shares that view.

Mr. Fisher, I would like to discuss the suggestion in your brief with respect to a single society. You raise the possibility of a single collective. I would like you to explain in detail exactly what that would mean. We know that there are already a number of societies in place, that certain models exist, and of course, there is the Board. I would like you to tell me just exactly how this might work in the educational field, since you focus on that specific aspect. After that, I will have a question for Mrs. Lamarre.

[English]

Mr. Fisher: Certainly.

Some 10 or 15 years ago our association began discussions with the educational community to determine what they would want by way of rights to be able to have access to programs when they are broadcast. It became clear that, notwithstanding the existing Copyright Act, hundreds of thousands of copies of programs were being made as they were broadcast and used extensively in the education system. The rationalization for that originally was that this was the only way they could have access to those programs and that there was in fact no mechanism in place that would enable them to tape the programs off the air legally and exhibit them publicly in a classroom.

In our discussions with them, it became clear that if such an organization were put in place, the educational community would prefer that they deal with only one source instead of having to seek out, in advance of the broadcast, the rights holder from a variety of collectives or individual companies. They felt that the administrative costs would outweigh the benefits.

As a consequence of that, we put together a proposal that we presented to the two departments, Communications and Industry - and now Heritage - that is based on the model that is currently in place in Australia. It's a single mandatory collective that covers all of the programs that are broadcast in Australia and enables a school or a school district that has a licence with the collective to tape the programs off the air and to exhibit them publicly.

There are a variety of licence agreements, and there are a variety of fees. They depend on the number of copies that are made, the use that is put to the programs, and whether the programs are kept and circulated in the library or used on a single occasion.

Given the small size of the educational learning resource market in Canada - about $150 million, including textbooks, or $20 million if you look exclusively at the audio-visual field - we felt it would not be financially viable for that marketplace and that money to support more than a single source. Our association has proposed and would continue to propose a collective organization comparable to the one that was set up in Australia.

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To give you some idea of the effectiveness of that, I believe it started about five years ago. It has effectively been licensing materials for about three years. Initially the fee was extremely low, simply to get the support of the educational community so they would agree to the licences and to pay. In the last three or four years the fees that had been paid to the copyright holders have increased from just under $1 million to just under $6 million. It's a very significant amount of money for a small marketplace.

I think it also needs to be recognized that it replaced considerably the amount of money that was spent by the same schools buying hard copies of the same or similar programs from the educational producers. It wasn't a totally new and additional expense. It was a replacement expense, which is extremely important for our industry. If there is an exemption, they will use a program that has been produced and broadcast that may be inferior to one that was produced and specifically aimed for classroom use, simply because it's less expensive.

I think the Australian model is appropriate to Canada. It clearly works. Last year the Australian government reviewed all of the collectives that had been set up to administer rights. The audio-visual collective was found to be one of the most effective, best managed, and most appreciated collectives serving the educational community in Australia.

[Translation]

Mr. Leroux: My question is addressed to Mr. Del Busso, Mrs. Lamarre and Mr. Fisher. As regards the goal of recognition of free negotiations between users and collective societies, we still have a way to go.

Within your own groups, I believe a series of agreements have already have been reached between the UNEQ, CANCOPY and others. Of course, we also know that agreements have been put in place in a number of provinces with organizations such as INCA.

When we put this question to various witnesses, they gave a variety of perspectives. We asked whether the approach taken in the legislation, with the exceptions for educational institutions, libraries and archives, rendered obsolete the agreements that are already in place, as well as the entire negotiating process, which is only now in the process of establishing itself. However, we heard differing views in that regard.

What is your opinion with respect to the agreements already in place? Do you believe the legislation would make those agreements obsolete or does it send the message that there is no need to sign such agreements? What is your assessment?

M. Del Busso: Certainly exceptions can only weaken this kind of agreement or the relevance of such agreements. That is why we would like to see as few exceptions as possible, because we submit that it has already been demonstrated that these agreements facilitate the administration of small rights, and thus that there is no need to provide for all kinds of exceptions in order to protect copyright.

It is very important to understand what the concept of "small rights" means. Let me cite the example of a publisher whose book is photocopied by a college - a community college, say. If500 copies are made of one chapter, that would mean about $150 or $200 to be recovered from the college. No publishing company would even consider hiring a lawyer and taking legal action in a case such as this where copyright was violated.

Respect for copyright, at the national level, must be achieved through just these kinds of agreements, so that access can be managed in an orderly fashion and on the basis of generally accepted rules, and so that everyone feels comfortable with the process. That is why we believe these agreements prove in a way that exceptions are not needed. That is also why we are disappointed with the legislation.

The Chairman: Mrs. Lamarre, would you like to add anything?

Mrs. Lamarre: Well, the answer given was quite clear. At the risk of repeating myself, I would say that you have to put yourself in their position.

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I cannot speak for every specific discipline. I am here representing the Front. Our members are active in many different areas - literature, dramatic works, visual arts and music.

It is incredibly difficult to ensure respect for copyright by users, whether we're talking about public or private institutions. So, let's just say we have a long way to go. Collectives - and some are more recent than others - have consistently sought, day after day for many years now, to assert the rights of creators, and sometimes spent years negotiating agreements. That is not an exaggeration; that is a reality. Users are exceedingly reluctant to comply with copyright law and especially to pay royalties in exchange for the right to use these works. So, it is clear that exceptions will mean a loss of credibility or a weakening of the role of copyright societies.

Mr. Leroux: Are you in a position to tell us whether this would negate those agreements already in place? Some say it would weaken their role, while others say it would not. You seem to be telling us it would not really harm those agreements, but that it would weaken the negotiation process.

Mrs. Lamarre: I am here this evening with the President of the Front des créateurs, who is the director of a copyright society. She would probably be in a better position than I am to answer your question. However, there is no doubt that this would weaken, if not those agreements that have already been negotiated, at the very least those that are in the process of being negotiated. That is very clear. Perhaps Mrs. Fortier... Would it be all right if I let her answer for me?

The Chairman: Well, I think we will have to come back to that later. Right now, I will let some other members ask their questions, but I won't forget you.

Mrs. Lamarre: I would just like to add that I am aware that in the case of some associations are currently negotiating or renegotiating agreements with broadcasters, those negotiations have been delayed or the signing of an agreement delayed pending the coming into force of this Bill, which is expected to include many exceptions.

Mr. Leroux: Good, thank you. We'll come back to this later.

[English]

The Chairman: Carry on briefly, Mr. Fisher.

Mr. Fisher: I would like to respond, as well, if I may, and I'll confine my comments to the educational area, because it's the area I know best and work in regularly.

There is often a presumption that a negotiation takes place between equals, but if you look at the size of the eductional community measured in dollars, that of the members of my organization, or for that matter that of the book publishers, you'll see that there's not an equity. They are many times larger in terms of wealth than we are. And if you include individual teachers and students, as this bill does, as agents of the crown and of the provincial departments of education, you're talking about a strength in numbers on their side that greatly outweighs us.

It is difficult to get them to the bargaining table today. It is difficult to get them to deal with rights that, under the current law, they have to negotiate for. Boards of education in most parts of Canada will honour the Copyright Act but will turn their backs on the exploitation of copyrighted materials by their teachers.

I think I can say safely that in the last ten years not one teacher has been dismissed or reprimanded seriously for the abuse of copyright by their board of education, but many have been for stealing from the supply cabinet.

This is a serious matter, and any diminution of the rights of creators makes it more difficult to bring them to the table and to negotiate a fair and equitable deal.

[Translation]

The Chairman: Mr. Bélanger.

Mr. Bélanger (Ottawa - Vanier): I would like to explore two issues in particular with you, but I don't think I'm going to have enough time. One thing particularly intrigues me: you are asking for protection in unpublished works in perpetuity. If I have time, I'll come back to that.

I have one comment to make to Mr. Del Busso. I want to commend you, Mr. Del Busso, on your use of a particular expression - which I consider entirely accurate - at the beginning of your presentation. You said that you represented a number of companies or groups in Quebec and other provinces of Canada.

.2005

Unfortunately, some time after that, you used a somewhat less felicitous expression when you referred to "English Canada". I would point out that there are two Members of Parliament present this evening who represent French Canada. I just wanted to clarify that point.

[English]

Mr. Fisher, you said you proposed this notion of a mandatory collective agency to three departments. Did they give you any indication of why they didn't take you up on your proposal?

Mr. Fisher: First of all I should say we proposed that over a period of time and there were constant changes at the ministerial level and at the staff level. But frankly, no, we were never given an explanation as to why there wasn't support for a mandatory collector.

In fact, at one point in time we were encouraged to discuss it with the council of ministers. We did have a meeting with them and we met with two or three of the provinces to see what their response would be. There are some who would quarrel with the use of the word ``mandatory'', but in fact almost everyone would be satisfied with the outcome in terms of there being a single source for all material and a common licensing agreement in place for everyone before any offer takes place.

Mr. Bélanger: So you're saying the provincial representatives you've discussed this with agreed with the end product but not with the method?

Mr. Fisher: It's difficult to answer that because often in dealing with people they were reluctant to make any kind of commitment, but there was interest in a single source for licensing.

Mr. Bélanger: Should such a proposal be followed up on, what would you want to cover with that? As I follow it, the numbers are $20 million for the 22 companies that are part of your organization.

Mr. Fisher: It goes beyond that. Price Waterhouse conducts an annual survey of all the companies that are involved in our business, and some 35 or 40 usually respond. Those numbers exceed the revenue of companies we represent, although we would certainly represent the bulk of the companies.

Mr. Bélanger: About 40% of the sales, whatever that amount is - you said $20 million so I presume it's higher - is for materials produced in Canada.

Mr. Fisher: Yes.

Mr. Bélanger: Would this mandatory collective cover only Canadian products or all products?

Mr. Fisher: What we propose is that it would cover all products that are broadcast or retransmitted in Canada.

Mr. Bélanger: So if this were to proceed you would receive payment of some sort for all products and then we would send roughly 60% of that to producers outside of Canada.

Mr. Fisher: What we would propose is to license all the parties that are interested in taping the programs off the air. Then the materials that are used would be reported and, based on the use by the schools, the royalties would be paid. We would estimate that in excess of 90% of the royalties that are paid would be paid to Canadians.

Mr. Bélanger: Would you care to explain that to me?

Mr. Fisher: Yes. In November of 1992, NGL Consulting Limited completed and submitted to the Department of Communications a report on the possible impact of copyright revision on the Canadian non-theatrical marketplace. Their study indicated that there was extensive illegal copying taking place at the school level and that approximately 91% of the materials that had been taped off the air were Canadian productions.

Mr. Bélanger: So that's what you base it on?

Mr. Fisher: Yes.

Mr. Bélanger: If that is accurate, you'd only be sending outside of the country roughly 10% of whatever is collected.

Mr. Fisher: Well, I suspect that in those instances even that would not go outside the country, because the Canadian rights to those programs are often held by Canadian companies. I suspect it would be 10% or less.

.2010

Mr. Bélanger: All right. Does Australia send money abroad?

Mr. Fisher: Yes, it does.

Mr. Bélanger: Do any countries other than Australia do that?

Mr. Fisher: Yes, the United Kingdom does. It's not a mandatory collective; it's a slightly different model. But they do have a collective that handles off-air taping.

Mr. Bélanger: Thank you.

The Chairman: Ms Phinney.

Ms Phinney (Hamilton Mountain): Thank you, Mr. Chairman.

I have questions for two of you; I hope I keep this straight. Mr. Del Busso, you conclude in your brief that it would be much better to make no changes to the present Copyright Act rather than implement Bill C-32. If we do that, then parallel importation provisions, which protect exclusive book distributors in Canada, would never materialize. Could you comment on that?

Mr. Del Busso: I mentioned at the start of my presentation that our report looks a little more radical than it really is. I think that our position is basically the same as the position of the Association of Canadian Publishers. We would of course support the amendments that would correct those exceptions we do not want, but of course we want to keep the good parts.

[Translation]

That is basically our position. If the legislation is not amended along the lines we have suggested - in other words with renewed emphasis on the terms of the Berne Convention - we would prefer that this not be touched and that they go back to the drawing board. That is the basic message we want to convey.

[English]

Ms Phinney: All right. Do you like the idea of the parallel importation provisions that are in there, or not?

Mr. Del Busso: Yes; that is one of our recommendations. We agree with that.

Ms Phinney: All right. In your brief you wondered why the government limits the rental right to computer programs and sound recordings. Could you provide examples of other kinds of work that you think would be rented?

[Translation]

Mr. Del Busso: In our view, all works protected by copyright can be rented. Consequently, we have simply expressed the view that all works protected by copyright should also be protected in cases of rental. It could be video cassettes, books or any other kind of product that is subject to copyright.

[English]

Ms Phinney: Do you think that accessing a work through the Internet is renting the work?

[Translation]

Mr. Del Busso: That's a very broad question. Personally, my honest opinion would be that insofar as one is not required to pay to gain access to a work, if that work is not disseminated for exploitation purposes - in other words, if there is no charge for access to that work - I don't think we should be creating problems where there are none.

[English]

Ms Phinney: Thank you. Yes, Ms Lamarre?

[Translation]

Mrs. Lamarre: Can I respond?

[English]

Ms Phinney: Please go ahead. Do anything you want. You can dance if you want to.

[Translation]

Hon. Members: We are extremely liberal here.

Mrs. Lamarre: This may be an issue I am more familiar with than Mr. Del Busso. I could cite two examples pertaining to the rental of works other than musical works. For several years now, it has been the practice of public libraries in the City of Montreal to rent best sellers. People who want to read a bestseller without actually buying it, but at the same time don't want to wait for it to be available in a library... Obviously, when a book first comes out, a lot of people are interested in reading it, and thus it is very much in demand. So, libraries have begun the practice of purchasing a certain number of copies and then renting them.

I went to the library last week, and I believe I heard someone say that the rental cost was $4.25 for three weeks. Renewal is permitted with payment of the same fee. This is current practice. So, one copy is purchased and that copy is used by a large number of people. In the end, the libraries make a profit, but the authors and publishers of those books do not benefit in any way.

I have a further example. I know that this is a common practice at the Museum of Fine Arts and the Artothèque [Art Rental Gallery] in Montreal. Those institutions rent artistic works. People cannot always afford to buy works of moderate or high value. So, for a number of years, it has become the fashion to rent these works.

.2015

Although it does depend, no rental rights are generally paid to the artist. Often these are works that are purchased, possibly given to foundations at a later date and then placed in the Montreal Art Rental Gallery [Artothèque]. So, the works are rented out, yet the artist has no control whatsoever and no opportunity to benefit from the economic spin-offs of that rental.

Could I just answer the question about rental rights on the Internet?

[English]

Ms Phinney: I have two other questions for you.

[Translation]

Mrs. Lamarre: I know that this is something that is currently under consideration. I believe the matter has been raised in Europe. But there is no clear answer. I don't know whether you read the report of the Sub-Committee on Copyright of the Information Highway Task Force, but it did not consider that to be a rental right.

[English]

The Chairman: Ms Phinney, you have two brief questions? Okay, just carry on.

Ms Phinney: Yes, for Madame Lamarre.

In your brief you say that the single copy exception - that's clause 30.2 - will be devastating for writers. Could you elaborate on this? Could you also tell me how much income is derived from reproduction of a single copy now, without the bill?

[Translation]

Mr. Lamarre: You mean private copying?

[English]

I'm sorry; I didn't -

[Translation]

The Chairman: Interpretation is available. Would you like Mrs. Phinney to repeat her question?

[English]

Ms Lamarre: I'm very sorry.

Ms Phinney: In your brief you say that the single copy exception will be devastating for writers. Could you you elaborate on this? Also, how much income is derived from reproduction of a single copy now?

[Translation]

Mrs. Lamarre: I understood the question. I'm sorry, but I don't believe we addressed that issue in our brief. Sorry.

[English]

Ms Phinney: Maybe I'm asking the wrong question to the wrong person.

[Translation]

The Chairman: Could I suggest something?

[English]

Ms Phinney: Sure.

The Chairman: While both of you are checking this out, I will just recognize Mr. O'Brien and Mr. Peric, and then come back to you briefly before I start a second round.

Ms Phinney: Right, okay.

[Translation]

The Chairman: Mrs. Lamarre, you can have a look and we will come back to that a little later.

Mrs. Lamarre: Thank you, forgive me.

[English]

The Chairman: Mr. O'Brien.

Mr. O'Brien (London - Middlesex): Thank you, Mr. Chairman. I have several questions, so I'll be in your hands when I have asked enough, and I'll try to allow others....

First, an observation. There was some discussion about salaries. It's my information and my personal experience, at least in the last five years, that teachers' salaries, at least in this province, have been essentially frozen or rolled back, if anything.

I can tell you, having been a practitioner for some 21 years, that for teachers this whole issue, to put it bluntly, is basically a bloody nuisance. They just want to teach their students in their classrooms with the materials they are afforded, and which are not always adequate. It's a nuisance to dance around this issue. Any responsible teacher certainly is sensitive to the issue of copyright.

That leads me to my two questions. Do you see a role for teachers' unions in the whole issue of copyright vis-à-vis educational materials? This is for whoever would like to answer.

Mr. Fisher: I would be delighted to answer.

Having a number of teachers as members of the family, I understand and appreciate what you say. But there are many ways in which salaries are increased, and one is by adding staff members. In fact in the period from 1965 through 1995 salaries went from representing about 50% of the educational expenditure to 90%, which leaves very little left for anything else.

Yes, I think teachers' unions could in fact be very helpful. Their briefs to the ministries of education usually contain provisions that ask that additional funds be provided for the purchase of learning resources, and they may comment on it, but I would like to see them make it a condition of their contractual negotiations that adequate funds be provided for the purchase of learning resources. Frankly, it's bloody little that is provided, and it's getting less and getting worse. We spend less than half of what the United States spends on a per-student basis.

.2020

Mr. O'Brien: Thank you. You have answered my question. I might say -

The Chairman: Thank you, Mr. O'Brien. I think Mr. Del Busso wanted to add -

[Translation]

Mr. Del Busso: No, I think my comments would be too lengthy. I will just let you continue.

[English]

Mr. O'Brien: That's fine.

I think the gentleman has answered.... With all due respect, I don't know how much experience he has in negotiating teacher contracts, but let me use the word ``hopefully''. It would be very hopeful, at best, to think that teachers' unions would have any luck pursuing the idea of insisting there be more money spent on educational materials when they negotiate with school boards. There would be a lot of sympathy for the idea, but just how practical it is I think is quite debatable.

Mr. Fisher: It's impossible.

Mr. O'Brien: Yes. It is nice in theory.

Are you aware or is it your belief that school boards do caution teachers vis-à-vis copyright laws and the need to respect those?

Mr. Fisher: I have been in this business for 30 years. Prior to the advent of the video copying machine, copyright was not an issue. When video became available, in fact boards of education and ministries were actively engaged in the copying of programs. In the last ten years I would say that has changed dramatically. I would have difficulty now identifying any number of boards that are actively engaged knowingly in the making of illegal copies or the abuse of copyright. On the other hand -

Mr. O'Brien: My question is - and I have several, so I would appreciate it if you could go right to the question - is it your understanding or belief that school boards caution their teachers about the need to respect copyright?

Mr. Fisher: Not effectively, nor adequately.

Mr. O'Brien: Okay. I can tell you again, from personal experience, that at least the ones I am aware of in my own city routinely and regularly caution teachers about the need to respect copyright laws vis-à-vis educational materials.

As far as the effectiveness of that, I suppose there are conscientious people who abide by those laws, and perhaps there are others who don't. I can't speak to that, having been one who abided by them. I want to set the record straight on that. I think anybody here who has been recently in a classroom could attest to that fact - that teachers are routinely cautioned.

On the cost of these materials to school boards, I wonder if any of the witnesses can speak to that. What is the average cost now - if you have those numbers - to school boards for copyright agreements? And how would that change if the scenario you prefer were to come into effect?

The Chairman: Who wants to answer? Mr. Fisher? Mr. Del Busso? Be concise, please.

Mr. Fisher: I think I can be fairly accurate in terms of providing those numbers.

The Chairman: Accurate and brief, Mr. Fisher.

Mr. Fisher: I'll do my best. This is an extremely important matter for our industry.

The Chairman: I know, but we have a lot of members here.

Mr. Fisher: The prices of our programs have declined by about 90% since the advent of videotape. The numbers of copies at a school, or school board purchases, largely determine the price.

The single copy might cost $150 where it used to cost $700 or $800. Multiple copies cost as little as $35 or $40 each.

[Translation]

The Chairman: I think Mr. Del Busso wanted to add something.

Mr. Del Busso: Just to give you an order of magnitude, through the agreement that currently exists with the UNEQ, which is a Quebec publishers' association, we are currently talking about approximately $1 million par year.

As to the amount that would be involved if our own recommendations were followed, I quite honestly cannot say, but it certainly would no increase ten-fold. Indeed, our goal is not necessarily to see an increase. What we really want is to ensure there is no breach of copyright and to limit as much as possible the number of copies made.

.2025

I would just like to go back to a question put previously by Mr. O'Brien. It is true that teachers have been asked not to photocopy, but it is also a well-known fact that the amount of photocopying increases on a daily basis and that we are only seeing the tip of the iceberg. At the university and college level, the numbers are far more significant than what is officially recognized.

Our association's objective is to say: Book publishers produce books precisely because that is the means of achieving the educational and cultural goals we set for ourselves. But that cannot be done through photocopying, because we are discouraging not only the publishing industry, but young people from reading. You don't get young people to read by making photocopies. You get them interested in reading with books that are well made and attractive. That is our goal.

[English]

The Chairman: Mr. O'Brien, do you mind if I -

Mr. O'Brien: I have some more, Mr. Chairman, but I'm in your hands.

The Chairman: If we have time, we will come back to you. Mr. Peric.

Mr. Peric (Cambridge): Thank you, Mr. Chairman.

I have a couple of questions for Mr. Fisher. In your statement you pointed out that annual sales of your members is approximately $20 million. Further down you noted that more than 40% of what you distribute is the work of Canadian producers. Could you tell us approximately how much in revenue is coming from imported products?

Mr. Fisher: Yes, I think I can. Most of the product that is distributed by our members is manufactured in Canada, although the production may have originated somewhere else - France, Great Britain, predominantly from the United States. So the production is foreign and the manufacturing is Canadian.

Royalty rates run about 25%, so out of a million dollars worth of revenue, a quarter of a million dollars might be paid, less the withholding taxes paid to the producers. So a very substantial portion of the total amount of revenue - of the $20 million - stays in Canada.

The Chairman: A very specific answer - I think we can leave it there. Mr. Peric.

Mr. PeriG: In your brief you oppose exceptions in Bill C-32 that permit educational institutions to copy news and news commentary. Do your members own the copyright for news programs or news commentary?

Mr. Fisher: Some of our members do.

Mr. PeriG: What percentage?

Mr. Fisher: The Canadian Broadcasting Corporation and CTV networks are both members of our organization, and they certainly produce a very substantial portion of the news programs.

Our concern, though, really is with the interpretation that would be given by the marketplace to news and news commentary programs. In workshops we have had with the education community, it has often interpreted it to be anything they feel contains material that is newsworthy. That would be, and probably could be, everything we produce and distribute.

The Chairman: Thank you. I believe, Ms Phinney, that the question you put to Madame Lamarre -

Ms Phinney: No, it's fine, thank you.

The Chairman: It's okay? All right.

[Translation]

Mr. Leroux.

Mr. Leroux: Mrs Lamarre, earlier you referred to neighbouring rights. I find all of this rather unclear. You spoke of copyright and neighbouring rights without making any real clear distinction between the two.

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One of your member organizations, a collective known as SOCAN, has proposed a definition with a view to clarifying the concept of copyright and neighbouring rights. Are you aware of the proposal they have made with a view to clarifying these two distinct areas?

Mrs. Lamarre: Are you referring to Clause 90?

Mr. Leroux: Yes, exactly.

Mrs. Lamarre: Yes, I am aware of it, but the Front des créateurs has not taken any position on that. We have left that up to individual associations.

Mr. Leroux: I guess that's why you stated earlier that you approach the issue from a broader perspective.

Mrs. Lamarre: Yes, from a more general perspective.

Mr. Leroux: I would like to come back to the instruments currently in place - in other words, collectives and the Copyright Board.

The legislation we're currently considering provides for a number of exceptions. Some highly detailed exceptions have been set out, particularly for educational institutions, libraries, and so forth. Would you say that the reason there are so many exceptions here is because it is felt that collectives and the entire arbitration system within the Copyright Board simply don't work?

Mr. Del Busso: I really don't think the two issues are connected. My interpretation is that the legislator is allowing himself to be guided by the principle we referred to earlier: the need to strike a balance between users and copyright holders.

In the various provisions of the Bill, there seems to be a preoccupation with the idea that, yes, some things should be allowed, since it makes no sense to prevent a teacher from giving a course because of permission to be obtained or something having to be done. But I don't think this in any way undermines the credibility of copyright societies - quite the reverse. As I see it, all of this can only facilitate the work of the societies.

I would add - since you asked this question a little earlier - that the ideal solution - if it could be achieved - would be to have one stop-shopping - in other words, some means for users to easily determine from whom they should seek authorization. The fact is, the more complicated it is to get authorization, the more people are tempted to break the law.

Mr. Leroux: A little earlier, Mr. Fisher described the situation saying: We deal with school boards and a lot of different institutions of varying size. However, Mr. Fisher, last week, university associations, cegeps, teachers and tutors all came to tell us that the copyright societies are the big operations and that we are in their clutches.

That is what they told us. I was just wondering to myself whether that perception on both sides might not be attributable to a specific problem. Mrs. Lamarre referred somewhat to the difficulties associated with instruments currently available, such as collectives and the Copyright Board, with an arbitration system of sorts.

I'm trying to understand why some people are saying that collectives are monopolies that create a lot of problems for some people, and yet your concluding comment, Mr. Fisher, was that you have to deal with a lot of big organizations, and that causes problems for you. What is going on? Who is dependent on whom?

[English]

Mr. Fisher: I don't think there's a misunderstanding. For example, I think if you were to examine the negotiations that took place between the provincial departments of education and CANCOPY, you would - if you were a reasonable person, and I think you are - come to the conclusion that the negotiations took so long because the provincial departments of education did not want to have to pay for what they had been doing for years illegally.

I think the colleges and universities are in much the same position. Their budgets are tight, in spite of the fact that they have billions of dollars. They don't want to have to pay - it's that simple. That's why the negotiations are difficult; that's why they see collectives as a problem, because the collectives have some strength and therefore require them to pay as the law provides. I think that is fair and reasonable, but I think that explains the difficulty.

[Translation]

Mrs. Lamarre: I just wanted to add that there is a need to distinguish between the role of the Board when it looks at royalties, the fees being demanded, and the legal obligation users have to obtain permission.

Copyright is first and foremost an exclusive right to authorize or prohibit the use of a work.

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Secondly, there is the matter of setting royalties. I believe the Copyright Board fulfils its role quite appropriately in that respect. We see this with SOCAN, which goes back regularly.

There is no doubt that users have a certain perspective, as do copyright societies. I speak for copyright societies. People often say that the societies are a problem for one reason or another. If they represent everybody, they form a monopoly and users are not happy. But if they don't represent everyone, they're not effective. So, it is a problem for them as well.

I think some people will always be able to find fault with collectives.

Mr. Leroux: You realize what the perception is. We may not necessarily share that perception, particularly since there is a system of arbitration and a Copyright Board.

Mrs. Lamarre: Yes.

Mr. Leroux: People can always go before the Board. I'm trying to understand how these instruments are used. Do you think they are effective?

Mr. Del Busso, the very idea that institutions might no longer be responsible for photocopiers probably makes you shudder.

Mr. Del Busso: I think we probably already have enough reasons to shudder.

Perhaps I could just briefly remind you of the issue here. Copyright holders are inevitably perceived as spoilsports. I would remind you that every time this is done - and you can just imagine the thousands of times it is done every week in school boards, cegeps, universities, and so forth - people should be asking themselves: Do I have the right to photocopy this book? How much do I have to pay? And from whom must I seek permission?

These are not things that concern teachers.

Mr. Leroux: Mr. O'Brien talked about this practice. I was a university lecturer and I know that pursuant to agreements with the UNEQ, we had to fill in a sheet indicating we were making photocopies. Every student had to go to copying services and, based on the bibliography I had given them, get the excerpts they needed.

Is that a practice that is easily measured? Earlier you were talking about what is measurable, but you added that this is only the tip of the iceberg. Is this kind of thing widespread?

Mr. Del Busso: If you actually did that, I want to wholeheartedly congratulate you.

Mr. Leroux: Well, it was actually the university that, in cooperation with lecturers, designed a system of preparing photocopies for students based on each lecturer's reading list. So, it was controlled.

Mr. Del Busso: Right.

Mr. Leroux: Is this a commonly used system, or was this just an initiative taken by the university where I taught?

Mr. Del Busso: It's a relatively common system. The reason I said this was only the tip of the iceberg is that with this kind of directive, the control is practically nil.

You can do that sort of thing within university walls, but as soon as you leave the campus, there are lots of photocopy services where no standards of any kind can possibly be enforced. We obviously recognize that enforcing standards is not easy. That's why collectives are a good overall solution to the problem.

If the process of securing permission is too cumbersome, that is where things get difficult and the system becomes practically impossible to implement.

The Chairman: Mr. Bélanger.

Mr. Bélanger: Mrs. Lamarre, I got the feeling, listening to your presentation and those of a number of witnesses who came before you, that there is a very deep conviction among authors that copyright is inviolable. On no account is anyone going to get away with not paying. There seems to be a clear determination to treat copyright as a fundamental principle.

I would just like to explore with you for a minute how far that determination extends with respect to the issue of copyright in perpetuity. I would like to come back to the matter of copyright in perpetuity for unpublished works. I would also like to take a couple of minutes to talk about residuals. We didn't really discuss this in committee.

And thirdly, I would like to address the concept of book lending.

Mrs. Lamarre: Renting.

Mr. Bélanger: Yes, rental. We'll come back to that.

.2040

In your view or the view of those organizations you represent, why should authors be granted protection in unpublished works in perpetuity, when that work is held by a public institution?

Mrs. Lamarre: We have to be careful here. First of all, the reason creators consider their copyright to be an exclusive right is that the Act currently recognizes it as such. This is not simply a figment of their imagination. The primary characteristic of copyright is that it is a right of ownership over intangible property.

Mr. Bélanger: Fine; we agree on that.

Mrs. Lamarre: It is different from a right of ownership over other property.

Mr. Bélanger: Well, I don't think we should venture onto that kind of dangerous ground. For example, if someone writes a novel that isn't published, there is no problem; we don't question the author's right in that situation. But if an unpublished work is now held by an archive, what you're saying is that there should be no...

Mrs. Lamarre: If it's in an archive, it has to have been published.

Mr. Bélanger: No, there are some works held in archives that have not been published.

Mr. Del Busso: Yes, that is the case with some of Jules Verne's works, for example, in which there is still copyright because they aren't published. By definition, copyright takes effect when a work is published. Otherwise, the problem does not arise.

Mr. Bélanger: Would you go so far as to apply that to a public collection when there is no known heir? Would you go that far?

Mrs. Lamarre: To a public collection?

Mr. Bélanger: Yes, the unpublished work of an author with no heir; the unpublished work of someone who has died. Would you say that there is a copyright in perpetuity for such cases as well?

Mrs. Lamarre: Some provisions of the Act provide that in the case of a protected work for which there is no copyright holder, an application may be made to the Copyright Board for what is called an untraceable holder licence. In such cases, one must demonstrate that one has been unable to identify the owner of copyright in the work in question, and then one can obtain...

Mr. Bélanger: So, you do agree that there should be some limitation?

Mrs. Lamarre: Yes, of course.

Mr. Bélanger: With respect to residuals, could you tell us exactly what you mean by that? How far does the right to residuals extend?

Mrs. Lamarre: How far? Well, residuals are simply an author's right to benefit from the increased value of a work. Let's take the case - and this is an actual case - of the artist Jean-Paul Riopelle, who is fairly well known. One of his works was sold early in his career, when he was not very well known, and a number of them were sold during the fifties for about $1,000 each. That same work was resold a number of times and, of course, collectors buy them back and engage in speculation on these works. Sometimes there can be tax benefits to purchasing and reselling a work.

So, over the years, that work has been resold a number of times. In these specific examples I am citing, that same work apparently sold for $1.2 million U.S. in the United States in 1992. So, the work increased in value over the years, but the artist never benefitted in any way from the profits generated.

Mr. Bélanger: So, you are saying that every time a work is resold, the artist should be given a percentage of the appreciation in value.

Mrs. Lamarre: Yes. This is a right that is already recognized in French law and in the laws of other countries, and it is quite an important right. For visual artists, it can even be more important than reproduction rights. With visual art works, we are talking about original works that do not depend on reproduction for their survival. A book must be reproduced in order to be disseminated. But it's different for artistic works. An original work is sold, but it can be reproduced in a catalogue, and so forth.

Mr. Bélanger: And can residuals be bequeathed to one's heirs?

Mrs. Lamarre: Yes.

Mr. Bélanger: So, they are valid as long as the work exists?

Mrs. Lamarre: It's a shame I didn't bring the information with me. It's up to 50 years after death, whether the work has been published or not. I can tell you that the origin of this was an engraving made by an artist by the name of Forain. He was the one responsible for recognition of residuals in France. It showed the children of a dead artist looking through the window, observing an auction in progress where their father's work is being sold. The children are very poor, and they see their father's work being sold at the auction for a great deal of money, and yet they get nothing out of it at all.

Mr. Bélanger: With respect to book rental, what exactly are you proposing?

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Mrs. Lamarre: We're proposing that a rental right be recognized for all kinds of works, so that authors can authorize or prohibit the rental of copies of their publications. For instance, libraries should have to request permission from the author before they rent bestsellers.

Mr. Bélanger: Individuals as well?

Mrs. Lamarre: Individuals do not get involved in rental?

Mr. Bélanger: No, but they do resell books. Would this apply only to rental?

Mrs. Lamarre: Yes, to rental.

Mr. Bélanger: Not resale?

Mrs. Lamarre: That's correct. It's pretty well the same principle as for video clubs. In other words, permission would have to be obtained through general licences and part of the money collected - let's say $4,25 - would be paid to the author.

[English]

The Chairman: Mr. O'Brien and Mr. Peric.

Mr. O'Brien: First of all, I want to be clear. I've great sympathy for the argument that school boards should be purchasing these materials, or the right to use these various materials, as they do anything else. I think that is just a matter of simple justice.

Where it gets caught up may well come down to a choice, given the fiscal realities. If there's a big increase in these materials, we may very well be looking at a situation where teachers and students will be asked to make do without the materials they currently have. I know that's not a solution to resolving the problem with a proper agreement.

You seem to be saying a blanket agreement would be the best way to go. If that's true, I support this. How in the real world do we make that come about? For the teacher who is going into a classroom, at whatever level, they simply want to access the best materials they can for their students without the hassle of trying to figure out if they're going to be sued or not.

Quite frankly, if you don't appreciate that many teachers in this country at all levels are working daily with that added unwelcome stress, then you haven't been in a classroom lately. Could I get a response?

Mr. Fisher: First of all, I think it can be done, because it's being done in Australia, and it works. Our association is prepared to give an undertaking to make a serious effort to form the collective and put it into place.

It would require proper legislation. It would mandate that all programs that are broadcast or retransmitted in Canada are covered under the agreement. Then we would endeavour to negotiate an agreement with each board of education or provincial department of education that would facilitate the off-air taping of the programs. You would administer it under the guidance or the authority of the Copyright Board so that the user has the protection of applying for relief if it's felt that the fees and terms and conditions are unwarranted.

Mr. O'Brien: Thank you.

Mr. Chairman, I think it was Mr. Fisher who used the phrase ``the educational community''. I sensed an attitude there that somehow it's a monolith, and of course it's anything but that. The elementary ``panel'' is the word I would use, or the word ``system''. It is significantly different from the elementary or post-secondary ``classroom''. We are really talking about three distinct levels within this educational community. Then we have life-long learning, which is adults who've left the system and who've returned, so you could even talk about a fourth.

What problem, if any, does that present, from your point of view, in negotiating an agreement that would apply to these four distinct levels that most people in education would identify?

Mr. Fisher: It would vary from province to province, because each province is organized differently.

In British Columbia the minister of education is responsible for all four, as a matter of fact. There it would be relatively easy to negotiate with the province.

In Ontario it would be more difficult because of the split between colleges, universities and the K-to-12 schools. Certainly the vast majority of students would be covered by an agreement that could be negotiated with the provincial department of education.

Colleges and universities have an association, and through their association they negotiate agreements with CANCOPY. I would think that same pattern could be followed.

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The distant learning is a more difficult one, because in Ontario it is conducted by a variety of agencies, including colleges, universities, and local boards.

Mr. O'Brien: I have a final question, Mr. Chairman.

The Chairman: The final final.

Mr. O'Brien: Yes, the final final. I promise.

Ms Lamarre I believe is the person for this question, and it deals with the disabled. We recently had excellent presentations from the CNIB and other groups that work with the visually impaired and hearing impaired.

Am I misunderstanding your position? Are you opposed to all exceptions for disabled persons - period? Is that your position?

[Translation]

Mrs. Lamarre: Yes, we are opposed to there being any exceptions whatsoever, since collectives are prepared to take into account the different categories of users and charge royalties appropriate to each category.

I know that Mrs. Fortier, who is with SODRAC, negotiated an agreement with the Canadian National Institute for the Blind for the spoken reproduction of literary works, what are commonly called talking books. If I'm not mistaken, the rate is $1 for the first copy and ten cents for each additional copy.

In fact, what we're asking is for compliance with the principle that authors should be in a position to authorize or prohibit, and thus, to control uses of their works, while at the same time negotiating a royalty that provides fair access to different classes of users, based on their means.

That is really what we are stressing here and that is where the role of the Copyright Board-

The Chairman: Go ahead, please complete your answer.

Mrs. Lamarre: I just wanted to say that this is something that should be the subject of free negotiations between the parties. I'm afraid I'm not in much of a position to discuss the CNIB case. I would prefer that you discuss it with Mrs. Fortier, if you're interested in getting more details. I believe it is a satisfactory agreement. But if the parties are unable to reach an agreement, I would remind you that the role of the Copyright Board is to examine the means, requirements and rights of each and to set a fair rate.

[English]

Mr. O'Brien: Thank you.

The Chairman: Mr. PeriG.

Mr. PeriG: My question is for all three witnesses. Could you describe the structure of your organizations? Is there a membership fee? How many full-time employees do you have and from which funds do you pay them?

The final question is for Mr. Fisher. What is the reason for imports? Is there a demand for imported products, or is there a shortage of domestic products?

Mr. Fisher: I can answer first.

The Chairman: We will start with the second question first, and if you can reply to it briefly

[Translation]

...I will ask the three panelists to answer the first question.

[English]

Mr. Fisher: I think there are a variety of reasons why there is a considerable amount of imported product.

To begin with, we are very close to the United States. Their materials are readily available to us, and there are a great number of transborder exchanges involving the educational community.

As you can see, with $20 million or $21 million worth of business in the marketplace and productions costing $50,000 or $100,000 each, it's not likely to encourage a very substantial investment in Canadian productions. Canadian productions have been largely for television, and because of the low level of fees for broadcast rights the producers are dependent upon revenue from other sources. The non-theatrical and educational markets represent a very substantial portion of that.

[Translation]

The Chairman: I'm going to ask our three panelists to answer the first question. Please begin, Mr. Del Busso.

Mr. Del Busso: Well, I am not sure I understood the question, but-

[English]

The Chairman: Would you repeat your first question, please?

Mr. PeriG: Yes. Could you describe the structure of your organization? How many full-time employees do you have, how do you pay them, and from which fund? Is there a membership fee?

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[Translation]

Mr. Del Busso: There is a registration fee to be a member of our association. Overall, that represents approximately one third of our overall budget, which is about $300,000 per year.

Members' dues account for between $96,000 and $100,000 and the rest comes from a variety of services we provide. It can be professional training courses, exhibitions we mount abroad, or grants, which thus far have been provided by the Canada Council as well as the Quebec Government.

We have six full-time staff members that receive a salary consistent with levels of compensation for professionals performing this kind of work.

[English]

Mr. Fisher: Our organization is composed of just over twenty members. It's a volunteer organization. Our members pay a small fee of less than $1,000, together with assessments for special expenditures such as participating in the copyright discussions. We have one part-time executive director, who coordinates our activities.

[Translation]

Mrs. Lamarre: The Front des créateurs is a coalition that is formed solely for the purpose of making representations on Bill C-32. It sprang from the Canadian Coalition of Creators and Copyright Holders, a Canadian group that has been around since about 1985, or Phase I.

So, there is really no formal structure and associations take part in activities on a volunteer basis. We have no staff. There is only myself as coordinator.

[English]

Mr. PeriG: Thank you.

[Translation]

The Chairman: I guess we have concluded our work.

I would like to extend my sincere thanks to all of our witnesses for being with us and for their presentations.

Mr. Leroux: Mr. Chairman, if you don't mind...

The Chairman: Did you want to ask a question? I have no objection.

Mr. Leroux: I just wanted to come back to what my colleague, Mr. Bélanger, was saying about protection in perpetuity. What is the change involved? We're talking here about Clause 7, on page 11 of the Bill.

This deals with posthumous works; it relates back to your question, Mr. Bélanger. In relation to what Mr. Bélanger was saying, what does the Bill actually change as regards protection in unpublished works in perpetuity?

Mrs. Lamarre: I would just like to make one comment with respect to Clause 7 of the Bill. I want you to know that the French version of the clause, particularly in sub-clauses (3) and (4), is different from the English version. I just wanted to point that out.

Mr. Leroux: Is there a big difference?

Mrs. Lamarre: Well, it is a little tortuous. Let's just say that reading the clause in French is somewhat laborious.

Mr. Bélanger: But it is a Bill.

Mrs. Lamarre: Yes, I understand, but I just wanted to point that out.

Mr. Bélanger: According to you, it is tortuous.

Mr. Leroux: Yes, and it's important to point that out.

Mrs. Lamarre: Under the current system, unpublished works are protected in perpetuity. Authors's right of ownership over their works is respected, and protection is guaranteed for a period of 50 years from the date of publication.

If the works are used and if royalties are collected, they are paid to the heirs.

The Bill says that if a protected work which is unpublished on the day the author dies - it is rather complicated - if published before the coming into force of the clause, protection will be assured for a period of 50 years. If the work has not been published on the day the Bill comes into force and the author died less than 100 years before it comes into force, then the period of protection of 50 years begins in the year that it comes into force. If the author died more than 100 years before the Bill comes into force, then the period of protection is five years.

Once again, this is tantamount to expropriating authors' proprietary rights. I must say that this affects not only written works, but exchanges of correspondence, personal journals, and so forth.

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Mr. Leroux: That's exactly what I was trying to get you to say. It does go that far. It is possible to recognize that an artist's correspondence...

Mrs. Lamarre: In that case, it is a literary work. It seems fairly clear that if some authors know that those writings could be published without there being any kind of compensation paid, they may be tempted to destroy them.

Mr. Bélanger: Copyright would remain with the person who wrote the letter, but the one to whom he wrote it would have to find it.

Mrs. Lamarre: It would be held in archives. Sometimes, to get a better understanding of an artist, access to that kind of correspondence can be extremely useful.

Mr. Bélanger: I'm wondering whether that would also apply to Cabinet documents.

Hon. Members: Ah! Ah!

Mr. Leroux: Mr. Chairman, does that complete this session?

The Chairman: Mrs. Lamarre, have you finished?

Mrs. Lamarre: I just wanted to add, in closing, that I do know the writer Marguerite Yourcenar, who is now dead, planned for some of her works to be published 50 years after her death, so that her heirs could benefit from the economic spin-offs they would generate.

The Chairman: Thank you once again, Mrs. Lamarre, Mr. Fisher and Mr. Del Busso, for enlightening us this evening with your comments and presentations.

[English]

Thank you very, very much for appearing before us. We appreciate it.

[Translation]

Mrs. Lamarre: Thank you very much.

[English]

The Chairman: The meeting is adjourned.

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