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Copyright Consultation Submission

September 2009

The ACP is the national voice of Canada's independent book-publishing industry. We represent 125 publishers from across the country, all Canadian-owned and — operated. We publish Canadian authors in every genre, from poetry to cookbooks, fiction, textbooks, scholarly and reference works, children's books, biography, travel, how-to, and everything in between. Most of our members are small to medium-sized companies, independently owned, conducting business at the intersection of enterprise and culture.

Our industry's revenue depends entirely on copyright. We do not sell advertising space, or performance tickets, or merchandise spun off from our primary products, and the copyright on which we stand, on which all forms of Canadian culture stand, is crucial. Today we operate in an environment in which "copy" is being entirely redefined. "Book" is being redefined: UNESCO's long-standing definition, universally accepted, is now obsolete, and nothing has replaced it. Even national borders and jurisdictions are getting cloudy, as US authors and US publishers sue a US corporation (Google) in a US court, and the outcome will affect virtually all Canadian books.

The ACP therefore commends the decision to launch a national consultation on these issues, and greatly appreciates the opportunity to participate.

We believe that Canadians seek copyright law that will allow publishers and authors to effectively protect their rights and livelihoods and give them the confidence to offer their books through digital platforms, and at the same time will not create unreasonable obstacles for readers who simply wish to enjoy the books they have purchased, students and scholars who want to pursue their research endeavors, or librarians who strive to make the world's literary legacy accessible to the public.

Fair dealing

The current scope of fair dealing represents a sound balance of reasonable access and reasonable protection, and we believe that balance should be maintained. Broadening the scope of fair dealing will damage the infrastructure that produces works of expression, and that is a very high price for a country whose cultural expression competes with the behemoth next door. Narrowing the scope will invite abuse and ultimately undermine respect for copyright and the law. The ACP strongly urges that fair dealing remain defined as it is in current law, effectively and appropriately balancing the interests of creators, producers, and users.

Educational Exceptions for Publicly Available Materials

The ACP has consistently maintained that that an exception to the Copyright Act that allows educational institutions to make derivative uses of material available through the internet is unnecessary and undesirable. If such exceptions are to be incorporated in new copyright legislation, we consider the language presented in the last consideration of copyright revisions, Bill C-61, to be the furthest that any educational exception can be extended. We strongly believe that any additional broadening of the educational exception beyond that limit will not preserve a reasonable balance of interests.

Technical Protection Measures (TPMs)

We believe that copyright law should prohibit the circumvention of TPMs to a degree that would satisfy the World Intellectual Property Organization copyright treaties, but that would also provide for fair dealing, retail competition, security research, the protection of personal information, and accessibility for the disabled.

• Penalties for circumventing TPMs must apply only to cases of actual infringement. There is no merit in penalizing individuals who circumvent TPMs but do not distribute the unlocked materials or otherwise infringe on copyright in a fair-dealing context.
• The use of proprietary TPMs tied to reader or player devices must not be allowed to create an uncompetitive retail environment, or a retail environment in which Canadian content is only minimally visible or available to Canadian consumers.

Formats

We believe that effective copyright law is based on principles of protecting works of expression, regardless of format. Attempts to embed specific terms relating to specific technologies will inevitably weaken new legislation. Technology changes much faster than law, and when users engage with new formats for which the law provides no parameters on access, respect for copyright is eroded.

Notice and takedown

The ACP supports a notice-and-takedown system, which obliges internet service providers to take down infringing material upon receipt of a notice of infringement from the rightsholder. The alternative, a notice-and-notice system, leaves a heavy burden of legal action on the author or publisher whose rights are being infringed. When the rightsholder is a large corporation, the costs of pursuing infringements may be manageable, but for the vast majority of Canadian publishers and authors (small businesses and individuals), the legal costs of enforcing infringements in a notice-and-notice system are simply beyond their means. Law that cannot be practically enforced is law that will be ignored and ultimately devalued.

Digital Interlibrary Loans

If C-61 had become law, it would have given any library the right to make digital copies of complete articles from printed scholarly journals, to deliver those copies to anyone in Canada (provided the digital file is only made available for five days and not otherwise distributed), and to allow the recipient of the digital copy to make a permanent hardcopy.

This provision would effectively mean that significantly fewer libraries would need to subscribe to print journals, as it would be trivial for any library to serve that journal to users nationwide. In other words, this provision mandates an (admittedly limited and cumbersome) open-access regime for all printed scholarly journals. In this situation, publishers would be obliged to either cease publication of print journals, migrate their journal distribution to a digital-only model, or significantly raise the price of their offerings.

While making academic work available to the public on an open-access basis undoubtedly serves a public good, this is only feasible when the acquisition, peer-review, and publication of the work is wholly funded through public funds or private endowments. Failing that, the public good is best served by a copyright regime that enables scholarly publishers to earn enough revenue from the sale of their works to sustain or even grow their publishing programs. No Canadian university press is wholly supported through public funds or private endowments; all must generate sales revenue in order to sustain their publishing programs. The digital inter-library loan provisions of C-61 failed to recognize that reality, and thus presented a scenario that would significantly diminish their ability to publish scholarly journals.

The ACP recognizes that libraries would like to move beyond the current system of mail and fax-based inter-library loan. However, that system contained a number of built-in checks and balances that could not be replicated by a digital inter-library loan system. The ACP therefore recommends that any system of digital inter-library loan be recognized as a scale of reproduction that falls beyond the scope of fair dealing, and that materials transmitted through this process be subject to a license administered by Access Copyright. A fair tariff could therefore be negotiated by affected parties or ruled on by the Copyright Board of Canada.

Many library associations, including the Canadian Library Association, take the position that digital delivery of inter-library loan is fair dealing under the legal precedent of CCH Canadian Ltd. vs. Law Society of Upper Canada. The ACP disputes this assertion on the grounds that the cited precedent was developed in the context of print and fax distribution. In this context, this practice did not unduly damage the market for the work. While this case did not discriminate on the basis of distribution medium, the ACP believes that the substantially greater impact of digital reproduction on the market for a work puts the legitimacy of claims to fair dealing under question in the context of digital distribution. A compensated system is therefore the most desirable compromise, which would allow libraries to continue to digitally distribute material to a national constituency without depriving scholars and publishers of their right to derive revenue from their investment in scholarship. It would likely even allow more flexible distribution than the C-61 exception permitted.

This is one example of how broadening the scope of fair dealing would damage the ability of publishers to do business. It also demonstrates that within the current scope of fair dealing, interests of creators, producers and users can be fairly and productively balanced. That is our goal and, we believe, the goal of all involved in copyright reform.