Brief to the Senate Committee on Transport and Communication
Concerning Bill C-32 (an Act to amend the Copyright Act)
Presented By
The Canadian Association of Research Libraries/
L'Association des bibliothèques de recherche du Canada
(CARL/ABRC)
April 16, 1997
Executive Summary
CARL/ABRC represents the major academic research libraries in Canada, and thus speaks indirectly on behalf of the many thousands of Canadian scholars, researchers and students in all disciplines who need timely access to comprehensive, accurate information and knowledge on terms that are generally comparable to those enjoyed by their colleagues and competitors outside Canada.
The intent of Bill C-32 is to modernize Canada's copyright legislation, and to bring it into harmony with that of other major developed countries; to strengthen protection under the law for Canadian creators and copyright holders; and to bring a measure of balance between the interests of copyright holders and the users of copyright works.
CARL/ABRC supported the Bill as originally tabled in April 1996 as a compromise that, while capable of improvement, reflected a consensus on the major issues; a consensus that had been achieved through a long period of creative consultation and one which created the balance which had been promised since the passage of Bill C-60 in 1988.
However, subsequent amendments to the bill made by the Standing Committee on Canadian Heritage in December 1996 have seriously altered the balance thus achieved, shifting it to favour publishers and licensing collectives at the expense of Canadian scholars, researchers and students.
CARL/ABRC therefore respectfully requests the Committee redress the balance of Bill C-32 by removing all restrictions subsequently imposed on the educational and library exceptions, particularly those described in this Brief.
The Canadian Association of Research Libraries/
L'Association des bibliothèques de recherche du Canada
The Canadian Association of Research Libraries / L'Association des bibliothèques de recherche du Canada (CARL/ABRC) was established in 1976, and consists of twenty-seven university libraries, the National Library of Canada/Bibliothèque nationale du Canada, and CISTI-NRC/ICIST-CNRC. Membership is institutional, and is open primarily to libraries of Canadian universities which have doctoral graduates in both the arts and the sciences. The combined collections of member libraries form the largest, and in many respects, the most comprehensive library resource for study and research in Canada for users not only affiliated with a particular institution, but also throughout the world by interlibrary loan.
CARL/ABRC has three goals:
- To provide organized leadership for the Canadian research library community in the development of policies and programmes which maintain and improve the cycle of scholarly communication;
- To work toward the realization of a national research library resource-sharing network in the areas of collection development, preservation and access; and
- To increase the capacity of individual member libraries to provide effective support and encouragement to postgraduate study and research at national, regional, and local levels.
Member Institutions:
| University of Alberta | University of British Columbia | University of Calgary |
| Carleton University | CISTI-NRC/ICIST-CNRC | Concordia University |
| Dalhousie University | University of Guelph | Université de Laval |
| University of Manitoba | McGill University | McMaster University |
| Memorial University | Université de Montréal | N.L.C./B.N.C. |
| University of New Brunswick | University of Ottawa | Université de Québec à Montréal |
| Queen's University | University of Regina | University of Saskatchewan |
| Université de Sherbrooke | Simon Fraser University | University of Toronto |
| University of Victoria | University of Waterloo | University of Western Ontario |
| University of Windsor | York University |
Canadian Universities, Research and Copyright
Investment in human resources has long been one of the federal government's priorities...In this era of change, we realize more than ever the importance of building on the benefits that Canada's educational systems have bestowed and of creating a climate of life-long learning...continuous learning will help Canadians to achieve a better quality of life for themselves and their families... (1)
Canada has 78 universities and over 200 technical institutes and community colleges. University enrolment 1994-95 stood at 578,000 full time and 288,000 part-time. Women earned almost 31% of the total 3,552 doctoral degrees. In 1994-85, expenditures on post-secondary education in Canada totalled $15.9 billion, representing 2.09% of the Gross Domestic Product.(2)
Universities are the spearhead in Canada's drive towards a knowledge-based economy. They represent a $2 billion research enterprise, accounting for about one-quarter of the country's research effort. A significant and growing proportion of research is conducted with the support of--or in collaboration with--the private sector.
When the previous government passed the first phase of copyright reform into law in 1988, it was responding to demands that Canadian copyright law be changed to extend greater protection to creators. However, the government also clearly recognized that it had substantially altered the balance between the creators' rights and the users' needs. Universities received explicit assurances from the government that their concerns would be addressed in Phase II of the legislative reform.
Given the great importance to Canada's future of these over-arching research and educational objectives, and the major investments of resources necessary for their achievement, it is critically important that Canada's copyright legislation provide an appropriate balance between the rights of creators of intellectual property to receive fair remuneration for the use of their works and the public interest in maintaining reasonable access to copyright works for the purposes of education, research, teaching, and the spread of knowledge.
Canadian Research Libraries and Bill C-32
The current legislation treats academic and non-academic creators as if their interests were the same. This is not so. Unlike creative artists, most university researchers create academic materials--typically monographs and articles in peer-reviewed journals--specifically to disseminate the information as widely as possible. This is the nature of scholarly research: career advancement for the researcher depends upon the contribution of new knowledge or insight to the discipline. Direct economic gain is not usually an incentive for the scholar.
Library Exceptions
Commercial Availability
The educational and library exceptions contained in Bill C-32 fulfil a long-standing commitment made by the present and former governments. The exceptions are necessary to bring Canadian law into line with the copyright laws of comparable common law jurisdictions, and to allow publicly-funded educational institutions and research libraries to carry out their mandates properly and without unwarranted additional efforts and costs; costs which are not borne by many research institutions outside Canada.
The process of consultation and its vitiation is illustrated by the treatment of the provisions for preservation and conservation of the permanent collection of libraries, archives and museums. Bill C-32 as tabled contained the following narrow exception for dealing with deteriorating collections.
Section 30.1(1) contained three occasions on which it would not be an infringement for a library, archive or museum to make a copy of a work in order that its users could continue to consult it. In section 30.1(2) this exception was limited and did not apply where an appropriate copy is commercially available in a medium and of a quality that is appropriate for the purposes of subsection (1).
The responsibility for the rights holder to ensure that appropriate copies of the work are accessible is established by the definition of commercially available: available on the Canadian market within a reasonable time and for a reasonable price and that may be located with reasonable effort . Given that the rights holder has exercised this responsibility, the libraries, archives and museums do not require special treatment; they will buy additional copies to maintain their collections. It is only when the rights holders fail to meet their responsibilities that libraries, archives and museums require this exception. As written, this limited exception is supported by CARL/ABRC which recognizes it as an appropriate balance between public interests and rights holder interests.
By revising the definition of commercially available to include ...or (b) for which a license to reproduce,...is available from a collective society within a reasonable time and for a reasonable price and may be located with reasonable effort; all responsibilities for assuring reasonable presence in the Canadian market have been lifted from the rights holders and the balance originally achieved has been negated, effectively deleting the exception.
The change to this definition will affect a number of exceptions based on the previous balance in sections 29, 30 and 32.
CARL/ABRC requests that Bill C-32, in clause 1, be amended by replacing, in the English version, lines 31-42 on page 4 with the following:
'commercially available' means, in relation to a work or other subject matter, available on the Canadian market within a reasonable time and for a reasonable price and that may be located with reasonable effort.
Excessive Regulation
Bill C-32 as tabled provided a number of instances, within the education and library exceptions, in which the Governor in Council had power to make regulations. These instances had been discussed and the need for such regulation had been clarified. Late in the process and without consultation, the Standing Committee on Canadian Heritage amended the bill to increase the scope of such regulation. The amendments both extended the power of regulation and added a new level of regulation due to the extension of the definition of commercially available previously noted.
From the perspective of the research library community, the increased scope of regulation has the potential to impose new and onerous record keeping and reporting requirements on libraries; requirements which have been neither explained nor justified.
Educational institutions and libraries need to operate with increasing efficiency and effectiveness. Additional powers of regulation will simply encourage interested parties to make continual submissions to the government on these issues.
CARL/ABRC urges that Bill C-32, in clause 18, be amended by deleting, in the English version, lines 9 to 12 on page 35 and replacing them with the following:
CARL/ABRC urges that Bill C-32, in clause 18, be amended by replacing, in the English version, lines 22 to 27 on page 36, with the following:
CARL/ABRC urges that Bill C-32, in clause 18, be amended by replacing, in the English version, lines 30 to 35 on page 38 with the following:
Self-Service Copiers
In Bill C-32 as tabled, there was a clear exception established in matters of liability arising from the operation of public, self-servicing photocopiers. The Standing Committee on Canadian Heritage negated this exception by tying it to the existence of a contract with a collective society. The original exception exists in the copyright regimes of such trading partners as the United States and Australia and its negation has the potential to place Canadian researchers, teachers and students at a comparative disadvantage.
CARL/ABRC urges that Bill-C32 in clause 18, be amended by replacing, in the English version, lines 1 to 30 on page 38 with the following:
Fair Dealing
Scholarly Communication
Effective research requires those involved to stay abreast of the findings and opinions of colleagues. The research library is at the core of that process, and forms part of the university's raison d'être. Through the library comes access to information for the purposes of research and learning, so that new knowledge may be created, or existing knowledge, through digestion and debate, might be transformed into wisdom.
The federal government's role in this setting, has recently been explicitly defined with respect to the scientific community:
The transfer of knowledge and the sharing of scientific information and data with Canadian researchers, schools, universities, libraries and industry will be a key function of all federal departments and agencies. (3)
Research libraries respect copyright, and university researchers would not want to waive all copyright protection. However, research libraries strongly support revision of the law to allow academic colleagues and students to make a single copy without payment of any scholarly journal article for the purposes of private study and research.
Interlibrary Loan
Interlibrary loan (ILL) has long been a recognized as an important instrument to extend the boundaries of knowledge. Not even the largest library can be self-sufficient in its ownership of recorded knowledge. Through this system of lending original and surrogate copies of various works, libraries enhance the support they provide to research. Interlibrary loan is not--and never has been--a substitute for local collection development. Rather, it recognizes the global nature of enquiry, and the reality that no library can acquire a copy of all works that may be needed. In a research library, ILL traffic accounts for less than 2% of total circulations from its own collection.
Without the statutory right to engage in non-profit ILL, a non-profit library is required to obtain the permission of the rights holder, or to obtain copyright clearance through expensive licensing arrangements with a copyright collective. Canadian research libraries--and hence Canadian researchers--are thereby placed at a disadvantage in comparison with their colleagues in comparable jurisdictions, for example, the United States, the United Kingdom, Australia and New Zealand, where ILL exceptions in copyright legislation permit libraries to make and send a surrogate copy of an original journal article for the purposes of research or private study without infringing copyright.
CARL/ABRC regrets that fair dealing for educational purposes is not clarified, as is the case in the U.S.A. and Australia.
