Proceedings of the Standing Senate Committee on
Banking, Trade and Commerce
Issue No. 7 - Evidence - June 15, 2016
OTTAWA, Wednesday, June 15, 2016
The Standing Senate Committee on Banking, Trade and Commerce, to which was
referred Bill C-11, An Act to amend the Copyright Act (access to copyrighted
works or other subject-matter for persons with perceptual disabilities), met
this day at 4:15 p.m. to give consideration to the bill.
Senator David Tkachuk (Chair) in the chair.
The Chair: Good afternoon and welcome to the Standing Senate Committee
on Banking, Trade and Commerce. My name is David Tkachuk, and I am the chair of
this committee. Today we are working on Bill C-11, An Act to amend the Copyright
Act (access to copyrighted works or other subject matter for persons with
As indicated in the summary of this bill, the amendments proposed in Bill
C-11 would facilitate access for persons with perceptual disabilities to
copyrighted materials, while ensuring that the interests of the copyright owners
are safeguarded. I understand that this bill received unanimous consent in the
other place, and we are now delighted to receive it and consider it.
You have received the clause-by-clause briefing binder, senators, supplied by
the department, as well as a copy of the bill, the legislative summary and a
briefing note from our analysts. If you are missing any of these materials,
please check with the clerk, and she will fill up your folder.
It gives me great pleasure now to welcome, for the second time before our
committee, the Honourable Navdeep Bains, Member of Parliament for Mississauga —
Malton, and appointed as Minister of Innovation, Science and Economic
Development on November 4, 2015. Minister Bains, thank you for appearing before
us on your bill.
Accompanying the minister are his officials from Innovation, Science and
Economic Development, Paul Halucha, Associate Assistant Deputy Minister,
Strategic Policy Sector; and Robert Dupelle, Senior Policy Advisor, Marketplace
Framework, Policy Branch.
Minister, please proceed with your opening remarks, after which we will go to
a question and answer session.
The Honourable Navdeep Bains, P.C., M.P., Minister of Innovation, Science
and Economic Development: Thank you very much, senators. It is great to be
On a personal note unrelated to the discussion today, I want to thank you for
your work on internal trade and your timely report. It is greatly appreciated.
As you know, in the other place we have had some interesting discussions around
the importance of growing the economy in internal trade. I am working closely
with my provincial and territorial counterparts. On a personal level, I thank
you for the work your committee has done to advance that important issue for us,
in particular now as we are dealing with slow economic growth, so there is a
sense of urgency there. It is much appreciated.
Senator Massicotte: Will you get it done?
Mr. Bains: That report definitely helps, and that is the goal.
Today, as you know, I am here to speak on Bill C-11, which will allow Canada
to join the Marrakesh Treaty to facilitate access to published works for persons
who are blind, visually impaired or otherwise print disabled.
With me here today form my department are Mr. Paul Halucha, Associate Deputy
Minister, Strategic Policy Sector, and Mr. Robert Dupelle, a senior advisor on
copyright policy who acted as Head of Canada's delegation to the 2013 diplomatic
conference to conclude the Marrakesh Treaty.
First, I would like to acknowledge all the efforts and cooperation that have
gone into moving this legislation forward in a timely manner. These are
important steps we are taking toward becoming one of the first 20 countries in
the world to join the treaty. Presently, 17 have ratified. If this passes in a
timely manner, the hope is that we will be number 18.
I would like to also take this opportunity, chair, to thank my colleague, the
Honourable Carla Qualtrough, Minister of Sport and Persons with Disabilities,
who played a pivotal role in helping to move this legislation through the House
of Commons. She also made a very important announcement on Monday where she
announced $2 million in funding to CNIB to help publish additional materials. We
are very excited not only with this legislation but with the resources we're
providing the not-for-profit sector to be able to advance these initiatives.
I would also like to take this opportunity to thank my honourable colleagues
in the house, the Honourable Pierre Poilievre, who is here as well, and who has
been extremely supportive and determined to see this bill become law. I would
like to also acknowledge Mr. Brian Masse, who understands the importance of this
legislation. He slowed leadership in the calls for cooperation among members for
the passage of this legislation. Finally, I would like to thank Senator Peter
Harder for agreeing to act as the bill's sponsor in the Senate.
I am pleased to acknowledge the spirit of overwhelming cooperation that
enabled Bill C-11 to move through the House of Commons and the Senate. These
changes have been long overdue for those who are blind, visually impaired or
otherwise print disabled. The passage of this legislation would be an
opportunity for Canada to be a global champion for accessibility.
I am proud to be here today to speak on Bill C-11 and to recognize the almost
1 million Canadians who live with blindness or partial sight. Furthermore,
around 3 million Canadians are what we call "print disabled." That is, they
suffer from impairments that make it difficult for them to read books. That's
almost 1 in 10 Canadians — a number that is expected to grow as the population
Earlier this week, at an event hosted by the Canadian National Institute for
the Blind, CNIB, I was moved to hear the story of one of my own colleagues and
the difficulties she faced as someone who is legally blind. Hearing her
experiences and how she overcame many obstacles highlighted for me the
importance of this legislation. In fact, hearing her talk about the importance
of accessible books to read to her children really brought home to me the
importance of the issue, because I, too, am a father of two young girls, aged 8
and 5, so I understand where she was coming from.
Many print-disabled Canadians do not have enough access to information
because of a shortage of books in accessible formats, preventing them from fully
participating in our society. That is why the Marrakesh Treaty was specifically
created. The goal of the treaty is to address the worldwide shortage of reading
material for persons with print disabilities. The treaty establishes
international standards that will allow the cross-border exchange of published
works in accessible formats on a global scale.
As part of the treaty, Bill C-11 includes changes to Canada's copyright laws.
The proposed amendments would expand the current exceptions for persons with
print disabilities in the Copyright Act, providing greater flexibility for
users. The bill expands the range of works that may be exported; it permits the
making of large-print books; it provides greater flexibility to circumvent
digital locks in order to provide access; and it provides greater legal
certainty for not- for-profit organizations seeking to send copies abroad.
Canada has been on the record for some time now that it intends to join the
Marrakesh Treaty, and there have been considerable opportunities for
stakeholders to assess the proposed implementation changes. Bill C-11 has
received strong support from a range of stakeholders: the Canadian Association
of Research Libraries, the Canadian Association of University Teachers, the
Canadian Council of the Blind, the National Federation of the Blind and, of
I am also aware of the concerns raised by senators in relation to certain
safeguards, namely, commercial availability limitations and a regulation-making
power that could be exercised in the future to require royalty payments. I would
like to take this opportunity to address those concerns today.
Commercial availability limitations will ensure the exceptions will not apply
where copies in accessible formats are already available in the marketplace
under reasonable terms. If you think about it, the not-for-profit sector wants
that; they need the help and support of the private sector.
These limitations are important safeguards for authors and publishers, and
they incentivize the development of commercial products that meet the needs of
persons with print disabilities. Our discussions with not-for-profit organizes
indicate that they would welcome this, as I said, to address the shortage of
Commercial availability limitations have been in place since the exceptions
for persons with perceptual disabilities were introduced into the Copyright Act
in the 1990s. When amendments to these exceptions were made in 2012, including
adding a new export exception, these changes were accompanied by similar
limitations. So we have a track record there.
Bill C-11 amends these limitations in order to ensure that there is greater
legal certainty for users.
Under subclause 1(5) of the bill, a clarification is made to the commercial
availability limitation that applies to the exception for making and providing
accessible-format copies in Canada. The amendment would clarify that, for the
limitation to apply, the book would need to be in an accessible format that
meets the needs of the specific user, not just any accessible format; for
instance, if the particular user needs the book in Braille format, it is not
enough that it is available commercially in audio format.
Under subclause 2(1) of the bill, the amendments would make it easier for
not-for-profit organizes to export accessible-format copies by shifting onto the
copyright owner the burden of determining whether a work is already commercially
available and by limiting the remedies that may be sought against not-for-profit
organizes who are acting in good faith.
In terms of exports to the Marrakesh Treaty countries, in order for the
commercial availability limitations to apply, the onus — and this is the key
part — would be on the copyright owner to demonstrate that the work is in an
accessible format that is commercially available in the foreign markets under
reasonable terms. Even if a copyright owner can demonstrate that a work is
already commercially available in the destination country, the remedies that
could be sought against a non-profit organization would be limited to an
injunction, such as a court order to prevent the organization from providing any
further copies of the work in question to that country.
With respect to royalty payments, which is the other issue that has been
raised, there is currently no obligation under the accessibility exceptions for
the non-profit organizations to pay royalties. Under the current Copyright Act,
non- profit organizations would only be required to pay royalties if a
regulatory power is exercised. These provisions are maintained in Bill C-11 to
ensure that there is flexibility to adapt to future circumstances. Regulatory
processes require public consultations, and any future decision of whether to
exercise this power would need to take into account the impact on the non-profit
organizations and users, including their ability to take full advantage of the
exceptions in the act.
Canada has an opportunity now to play a positive international role by
helping to bring the Treaty into force in the short term. To this end, I hope
that I can be of assistance to the committee today.
Thank you again for the opportunity to speak on this important topic. I am
pleased to take any questions that you may have.
The Chair: We will begin the questions.
Senator Black: With your concurrence, Mr. Chair, I have a couple of
questions in respect of Bill C-11, and then I would like to ask another question
of the minister arising from our report that was released this week on
The Chair: I would like to keep it to the bill.
Senator Black: Very well. That is why I wanted to raise it, so you
wouldn't have to rule me out of order.
Minister Bains, in terms of the spirit of this bill, I am very supportive of
the initiative. I want to understand, though, the protection of the rights, as
you have alluded to, for writers and publishers.
Let us take an example that I will be able to work with and perhaps folks
viewing will understand. Alice Munro, one of Canada's great writers, has a whole
series of brilliant short stories. What rights do she and her publisher have so
that she will be able to earn her entitlements for her creativity? In this whole
process, does anyone get hurt? If so, is it the publishers and the authors?
Mr. Bains: No, and you raise a good point. The proposed changes
promote inclusivity and maintain a critical balance between the interests of
copyright owners and users, while allowing a non-profit organization to
efficiently use resources to create a global community.
With respect to the individuals, they will be fully protected. Any material
that is printed under the Marrakesh Treaty and under the provisions will be
designed simply through the not-for-profit organizations for the purposes of
those who are visually impaired or blind.
If there is any example of where they are being compromised, I believe there
are remedies in place to deal with that. Perhaps Mr. Halucha will speak to that.
Paul Halucha, Associate Assistant Deputy Minister, Strategic Policy
Sector, Innovation, Science and Economic Development Canada: I will add to
what the minister said. To the extent that her publisher determines, for
example, that she is not publishing a visually adapted version — a version in
Braille or audio book for the visually impaired — then once Canada signs on to
the treaty, there would be a space where an organization, an NGO like CNIB,
could adapt the work and make it available.
Senator Black: That's without payment.
Mr. Halucha: That is right — without payment at this point.
Mr. Bains: The key part is to make those works available without
payment. The idea is that the production of those materials would be supported
primarily through not-for-profit organizations. That is the announcement I
alluded to earlier with Minister of Sport and Persons with Disabilities, Carla
Qualtrough, who will be providing the resources. There is no onus on the private
sector or the publishers to do so, which puts the onus back on the organizations
to provide those materials.
Senator Black: If the CNIB wishes to have Ms. Munro's work made
available to those who are visually impaired, she or her publisher must do it.
Mr. Bains: She would not be able to prevent them from printing that
material. They have the ability to do so, but neither she nor her publisher
bears the cost of doing that.
Mr. Halucha: Effectively, it is an exception. The publisher determines
that they want to fulfill a market need if they can make a sufficient profit.
With the way the bill is structured, we encourage bringing those adapted
versions of the works to the market and selling them. It is only in instances
where they don't that the exception kicks in.
From the global perspective, the minister talked about the situation in the
south where less than 7 per cent of the works are available and there is a
crisis to have available books. It's absolutely important to fill the market
Senator Black: That is a great initiative. Did you consult with the
organization that represents authors in Canada and/or the publishers'
organizations? If so, can you report to us on their point of view on this?
Robert Dupelle, Senior Policy Advisor, Marketplace Framework Policy
Branch, Innovation, Science and Economic Development Canada: We did
consultations leading up to the negotiation of the Marrakesh Treaty. We also did
consultations following the conclusion of the Marrakesh Treaty. We were asking
for input in terms of stakeholders' views on the treaty and current positions
that were in existence as of 2012 in our Copyright Act and how they saw that the
treaty should be implemented. We spoke to organizations that assist the blind.
We heard from schools, authors and publishers' organizations.
Senator Black: That is what I want to know about.
Mr. Dupelle: In terms of the exceptions as they exist, especially for
activities in Canada, there has been a commercial availability limitation, as
Minister Bains alluded to earlier, since the 1990s, so the system is working
well. If a publisher or an author, to the extent that they still hold the
copyright for the work in question, wants people or organizations such as the
CNIB to make something available, then the copyright owner can provide a licence
to allow someone to do that for sure.
To the extent that an organization wants to go ahead and make a copy, the
exception is so they don't have to seek authorization and can make the adapted
material for the person who needs it. However, there is a limitation. If Alice
Munro's publisher has put an adapted copy of that work on the market and it is
available under reasonable terms for someone who has a perceptual disability,
then the institution assisting them should buy it. At the same time, I want to
add as well that the exception goes beyond non-profit organizations as it allows
persons with perceptual disabilities to make an adapted copy for themselves,
again provided it is not available to them under other terms.
Senator Black: What was the view of the publisher's association to
what you just explained?
Mr. Dupelle: I believe that they are happy to see that there is some
consideration for the creator's interests. Copyright is all about balance. It's
a complicated subject matter, but that's what it boils down to. In terms of the
provisions that have been on the books since the 1990s, the changes in 2012 and
the changes proposed in this bill are all about finding that proper balance. It
is the same debate and the objectives are the same in terms of negotiating the
treaty. It is a matter of finding that balance between the interests of creators
and the interests of users. In this case, it is the interests of users with
perceptual disabilities. That has to be a factor in terms of deciding where that
The fact that there is a safeguard with respect to commercial availability,
protecting works that are already commercially available, is something that
authors and publishers will be happy to see.
Senator Wallin: Audio books are already a revenue stream for authors.
Sticker prices aren't cheap, but they're already in the market. What is the
relationship there? What happens?
Mr. Halucha: As for the audio book formats that those of us who have
perfect sight are able to enjoy, the same format is not used by the visually
impaired. They have a different system. It is an audio device designed for them
that enables them to more easily move within the book and to find their way in
chapters. It is not a perfect substitute.
Senator Wallin: Okay. They are allowed to do that even though there is
an audio product on the market?
Mr. Halucha: That is correct.
Senator Wallin: My second point is on reducing restrictions on the
export of non-Canadian authors to a third country. What does that mean, exactly,
if a British author is available here and we wants to export that product in a
different form to the United States?
Mr. Halucha: The idea under Marrakesh is to create a network where
everyone, within the exception and to the extent they respect the rules, is able
to move the copies within the country.
The example we use is not perfect because the work is on the market, but it
is the Harry Potter series of seven volumes. It would be expensive for every
single country to produce an adapted work. The cost can be as much as $5,000 or
$6,000. It enables them to pair it up in different countries and make a single
copy of the work and then share it.
Under the existing law, we had a limitation whereby you could only export
works that were by a Canadian author or to the country where it was being
exported. We are breaking that down to have a network effect and the benefits of
being in a network.
Senator Wallin: Do you want to jump in, Mr. Dupelle?
Mr. Dupelle: No, the last point was the one I wanted to make.
Senator Wallin: Thank you. I am completely supportive of this.
Senator Massicotte: Thank you for being with us, minister and
Obviously, all of us appreciate the merits of this bill and see the purpose.
We are all inclined to be in favour of it, but we want to make sure it is fair,
using your words about balance.
In your presentation, you mentioned a bunch of organizations that support the
bill but they are all organizations that have profited from the exception to the
Copyright Act to get access to works of art, if you wish, without payment. I
will come back with the same question regarding the publishers and the authors.
You spoke about balance. I buy that, but that is not the answer. What are they
saying? Did they like it? Why are they not named on the list of associations
supporting this bill? What is their beef? What is their concern? Why are they
not favourable to it?
Mr. Bains: I'll briefly start off and have my officials chime in. I
went through this set of questions with them as well when we were preparing the
legislation and reviewing the legislation.
The producing authors, on balance, are on side. I know that there are a
couple of individuals who are experts on copyright matters who have expressed
different viewpoints with respect to particular provisions, but, on balance, I
have not met any artist or a producer who is opposed in any meaningful way that
I have come across.
Senator Massicotte: You and the department also?
Mr. Bains: That would need clarification.
Mr. Halucha: I've met extensively with publishers and publisher groups
in Canada and authors groups, and there is broad support for Marrakesh. On
copyright issues, as the committee knows, often, those who are opposed aren't
hesitant to speak out against it. I think you should not confuse the fact that
they are not putting out press releases in support with any indication that they
Senator Massicotte: Mr. Dupelle referred to witnesses or comments
previous to 2012, really, to the act itself. That's a long time ago. Relative to
this amendment, have the authors and publishers expressed an opinion more
recently as to what is being proposed, or are we referring to our memory of what
they said four or five years ago?
Mr. Halucha: No, we've met with them in the current calendar year.
I've met with them and discussed Marrakesh. Absolutely, as I said, they are
supportive. They recognize —
Senator Massicotte: What is the one issue that bugs them the most? You
said some don't like it, but, overall, on balance, it's positive. But what's the
Mr. Halucha: The minister was talking about some of the copyright
academics who have raised the issues that were brought up by the Senate
committee today. I would not say those are the same issues that have been raised
I think the commercial provision to ensure that there is the space for them
to come on and exploit the market was the principle concern for them. The other
thing that they wanted to be assured of was that the provision was not a proxy
for additional piracy. Writ large, that's the big issue for music, movies and
When we met with them, we were very careful to explain that, effectively,
we're not weakening copyright in instances where they are producing works and
are coming onto the market. The exception has the commercial availability
provision, which we hope will encourage them to enter this marketplace. The fact
is it's not a marketplace that brings them a lot of profit right now, which is
why they're not as present, which is why there is a real need to have the treaty
come into force. It's really fixing that market failure.
They understand that they're not losing their ability to enforce their
copyright. They have that ability to come on the market should they choose to
and to avail themselves of the profits they would earn there and to be
innovative in that space. We really hope that they will be innovative.
Senator Massicotte: I'm in favour of it, but, if I'm a publisher or
the author of a book — I suspect it will never happen —
Senator Black: It might happen.
Senator Massicotte: I'll write about you.
Senator Black: You won't find a publisher.
Senator Massicotte: I would say that if you look at the burden you're
imposing upon them, people worry about exceptions and abuse of what the
intentions are, but, even if there's abuse, it basically says they have to prove
that the commercial availability is relative to that specific need. Even if they
take all the measures, the only right they have is injunction. There's no
penalty unless it's abusive. I highly suspect that many will look at this and
say, "Forget it; I'm out of here."
In here, you do say, though — the wording of the act is pretty good — that
you can obviously translate this into access for the blind, for, let's say, a
non-profit, if there's a specific need for it. That legislation is pretty good.
But then you say that they can export it to another organization that has a
similar need. There may be another organization in Europe that has a broad
mandate to serve all kinds of people, including the blind, but I find the
wording less tight there. In other words, it's mainly for the blind, but it can
be 40 per cent for those other members of the organization. How do you deal with
that? How do you manage that? How do you police that? You're talking the whole
world, and that's gone now. The author, forget it; he is not going to run after
Mr. Bains: Again, the idea is, as mentioned before by the officials,
really to tie into that network.
Senator Massicotte: I have no problem with the idea, but how do you
police abuses relative to exports to organizations that have a general interest
in the blind? Poor author; poor publisher. All you can do is injunctions. He has
to go way out there. Forget it.
Mr. Bains: The onus is definitely on the authors. That's how we've
made it. That is one of the issues that will be brought forward to you as well.
I'm not sure, Paul, if you want to speak to that?
Mr. Halucha: From a design perspective, you're absolutely right. We
designed the legislation in order to put the burden on the writers and
publishers. We did that because, effectively, the market is not well populated
with their works at this point. If they were producing adapted works and were
present in the marketplace, I think we would be in a different circumstance. The
fact that the world came together and put in place this treaty is a real
indication of the need.
The last thing we wanted to do was design a treaty where there were such
burdens on NGOs that, effectively, they would be disincentivized from taking
advantage of the exception and providing the works. That was the reason for, as
the minister said, shifting the burden over.
We could imagine circumstances where we would be hearing stories, in two
years, of just litigation on this. Instead of having a treaty that's producing
new adapted works, we would have court cases. That is the design bias. It's
towards having a treaty that functions. We're comfortable with that.
Mr. Dupelle: If I could just make a couple of small points: First, one
thing to keep in mind is that the limitations, especially in terms of exports,
and the shifting of the onus has to do with Marrakesh Treaty countries. This is
about the Marrakesh network. Ensuring that there are proper safeguards is
certainly something that was taken into consideration during the negotiations of
the treaty. If a copy is being sent to another country and it's a Marrakesh
Treaty country, you can expect there will be some safeguards there. Each country
may be implementing it in slightly different ways, taking different approaches,
but all the countries will have some kind of safeguard. Maybe they'll have
something to do with rules around the authorized entities that are allowed to
circulate copies, but there will be some safeguards.
Another point in terms of the issues that came out through discussions with
publishers and authors is that it wasn't so much around how we structured the
commercial availability limitations. I think they were more concerned about
loopholes. Paul mentioned earlier someone being able to take advantage of the
exception for some nefarious purpose. As we walked them through the provisions
and how they functioned, I can give an example. A question was raised in terms
of an import. If you export a copy to another country and you have a commercial
availability limitation, what about if that copy were to circulate back and find
its way back into Canada? That won't happen because, when it comes to imports,
the same commercial availability limitation applies to imports as it does to the
activities that take place in Canada.
Another concern that they had had to do with moral rights. The Copyright Act
protects copyright, which effectively means things like copying and performing,
et cetera, but it also protects moral rights, which are more related to the
identity of the author and their reputation. Moral rights protections will
continue to apply even though these exceptions are here. There is an onus on the
non-profit organization to make a copy that still reflects the integrity of the
work, for instance. Those were things that they were happy to see protected.
Mr. Bains: Just to add to that in terms of the safeguards, because you
went through the points, I'm not sure if you mentioned also the limited ability
to circumvent digital locks. Can you speak to that as well?
Mr. Dupelle: Certainly, and that is another concern that really is a
concern from both sides. The provision after these amendments, I think, would
make the right balance between the two parties. Users on the one side were
concerned about an "unduly impair" condition, and they saw that as creating a
chilling effect because they don't have the technical knowledge in order to know
whether they're unduly impairing the lock on the content in order to provide
access to it, so that's been removed.
However, in that place is a very clear requirement that they can only
undertake these activities solely for the purpose of assisting the person who
has the perceptual disabilities. The rights holders that we spoke to were happy
with that because they saw that the same principle was applying.
Senator Massicotte: I missed that. Are you saying, therefore, that the
export right only applies to countries that also signed the Marrakesh Treaty?
Mr. Dupelle: The export has a framework that has two parts. Currently,
under the Copyright Act, there are a number of restrictions, but you could
conceivably send the copy to any country. But there are quite a few
restrictions. It has to be a Canadian author or an author of the destination
country, for instance.
In order to make changes in order to strike the right balance, we didn't want
to deprive organizations of the ability to send it to countries that aren't yet
Marrakesh Treaty countries. Strictly speaking, none of the countries are
Marrakesh Treaty countries because the treaty hasn't come into force yet, but
countries are starting to join and file their instruments of ratification or
accession and formally join. They will all be members once the treaty comes into
Senator Massicotte: The point I'm getting at is that you mentioned
earlier we should get comfort from the fact that the export is to a country
signed on to the Marrakesh Treaty, but that's not necessarily the case?
Mr. Dupelle: Correct. There's essentially a two-part framework. We
didn't want to deprive sending copies to countries that aren't part of the
Marrakesh Treaty, so there is a commercial availability limitation that applies
but the onus stays with the non-profit organization. Now, if they're exporting
to go a Marrakesh Treaty country, then we expect that there will be protections
in place in those countries. The whole point is to create a safe network in
order to exchange copies, and there's an onus that is now being shifted to the
Senator Enverga: Thank you, minister, for coming here today. I'm
actually very supportive of this bill, especially after your answers to my
questions from my speech.
Going to the royalties, you just told us that there is no intent for the
government to establish regulations for royalties. Is that true?
Mr. Bains: That's correct, yes.
Senator Enverga: Can you tell us why you included it in this bill, in
clause 2(4)? You also mentioned flexibility; can you expand on that, please?
Mr. Bains: Again, they can explain more specifically how it's going to
be monitored going forward, but, as indicated in my remarks, there is absolutely
no intention by us to trigger any kind of royalties. That is not the intention,
but that provision does exist and there's a reason for that, specifically, going
forward. Paul can speak to that.
Mr. Halucha: It's actually not a new addition to the Copyright Act.
It's part of the 2012 amendment, so it has been on the books for roughly four
years at this point. At that time, Marrakesh was still being designed, so we
were making assumptions on what could be included and what would be needed in
order to comply with the treaty, so the regulation-making authority was added at
that point. It's not a new addition.
As the minister noted, any time we move forward with regulations, that
requires publication and extensive consultations on the substance of those
regulations. Should a future government decide to enact those regulations, there
would be consultations.
There are other regulating powers that we have in the Copyright Act that
we're not implementing at this point, like the notice regime, for example. We
had authority under that to also enact regulations. The government determined to
enact it without using its regulatory power, but we didn't strike the
regulations from the books at that point, recognizing, as in this case, in the
future it's very hard to predict how the environment is going to evolve. In
particular, we hope there will be a lot more market activity in this space, and
I think it would be a great day in the future if, at some point, there were
enough profits in this space and enough market penetration and market service
that something like royalties would be considered.
Mr. Dupelle: The provision related to royalty payments is in the bill
due to consequential amendments. So it's not a new provision, as Paul just said.
Senator Enverga: Flexibility was also mentioned. What does that mean?
Can you expand on that? What's the flexibility all about?
Mr. Bains: I don't understand the question. Flexibility regarding
Senator Enverga: Flexibility with regard to royalties.
Mr. Bains: Again, is there's no intention. As Paul mentioned, this
could be a possibility down the road if there's a scenario where we actually
increase the level of publications, but I don't foresee that any time in the
near future. That's why that provision still exists, because it was part of the
The Chair: Just so I'm clear, if the publisher provides a product for
that market — say, the blind market — and it's easily commercially available,
then there's no exception because the market already provides it.
Mr. Bains: That's exactly it. If you look at it, that's what the
not-for-profit organizations want as well, because they know they don't have the
capacity to publish at that rate. Right now, I think the global number is 7 per
The Chair: So the publisher isn't losing any money because blind
people aren't buying the book anyway. Facilitating them using the book, if it
proves popular, might provide incentive for publisher to say, "Maybe we should
provide to that marketplace." I really don't see any loser here.
Senator Enverga: Thank you, chair. Another concern some people
expressed to me is about the wording of the section called "Available in other
country," and the part that states:
. . . available in the other country within a reasonable time and for a
reasonable price and may be located in that country with reasonable effort.
In your opinion, what does "reasonable" mean and how is this determined? I'm
certain all three related uses are for type, price and effort. Could the
minister please enlighten the committee as to how this is to be determined?
What's your role in this determination?
Mr. Bains: We can all think of the example where a book selling for
$500 would be unreasonable; right? So we understand where the threshold would be
uneasonable. How the reasonability is determined, again, is maybe something the
officials can speak to regarding the discussions around that, specifically.
You're absolutely right that that can be interpreted differently from country to
country. There has been a fair amount of discussion on this, and I believe
Robert can speak to it.
Mr. Dupelle: Certainly. Commercial availability is not defined in the
act as a defined term, but for the purposes of these exceptions, it has a very
similar wording. It has to be available in a reasonable time, at a reasonable
price and located with reasonable effort; those kinds of concepts.
I think reasonableness functions well as an undefined concept. I think it
would be up to a court to determine, based on a given set of facts, what is
reasonable, bearing in mind that the need of persons with perceptual
disabilities is a very particular one. I think that would be something that a
court would take into consideration.
I think there would be a danger in trying to qualify it too strictly,
especially given that a reasonableness standard can be a technology-neutral
Senator Black: I have a few things. The first thing is that at its
root — I'm quick to identify with my colleagues and say I agree with where we're
going here — this is a socially-directed policy. It has been determined that the
legitimate and economic needs of people with sight challenges should be
respected, and this is one of the things that needs to be done to respect that.
That's the genesis of this; correct?
Mr. Bains: Correct. I would say the emphasis should be fairly placed
on the economic aspect of it as well. Just imagine the fact that people are not
able to reach their potential because of this challenge they're living with.
Senator Black: Yes. In doing that — and I think this is what my
question and Senator Massicotte's question were endeavouring to get at — what
does that balance look like? In fact, it looks it's like a teeter-totter where
one end is way up and one end is way down: one end is the publishers and the
authors, and the other is the community that we're talking about. But it's been
determined for social policy reasons that that is correct. That is what I hear
you to be saying.
Mr. Halucha: It is for economic reasons as well.
Senator Black: I understand, and my question reflected that. Tell me
whether there would be thoughts about, perhaps, a community of people who are
disabled and have issues with driving. Would we expect to see you addressing
that? Could we expect to see some legislation around furniture manufacturers
that need to ensure that tables are designed in a different way? My question is
not prejudicial at all. It is simply: Have you considered how far this could go?
Mr. Bains: The reality is — and I got the number wrong before — that
less than 5 per cent of works each year are found in the format needed by those
who are visually impaired. We are actually intervening because the market has
clearly been unable to fulfill that gap. That's why we're intervening.
With respect to furniture and other aspects, I believe the market is playing
a much more active role.
Senator Black: That's a great answer. Are any other members of the G7
proposed signatories to the Marrakesh Treaty?
Mr. Bains: If we were to ratify, we would be the first G7 country.
That's why I'm talking about demonstrating global leadership on this issue when
it comes to accessibility. There are a bunch of countries here, and Australia is
mentioned as well. I would say that we would be the first G7 country, if we were
to pass this bill, to be part of the 20 countries needed to ratify.
Senator Black: Perhaps you could provide us with the list.
Mr. Bains: Absolutely. I would be glad to do so.
Senator Black: What is the position of the U.S.?
Mr. Halucha: The U.S. is studying how to implement.
The Chair: Are they part of the Marrakesh Treaty, though?
Mr. Dupelle: They have expressed their intent and interest in
ratifying the treaty. My understanding is that currently they are considering
how to implement.
Mr. Bains: Mr. Chairman, a question was asked about what the
publishers' views are on this bill. I received a letter today — it was brought
to my attention by my team just now — that the Canadian Publishers' Council is
also supportive of Bill C-11. When I went through the various endorsements, I
didn't have an opportunity to update this one because it was received just
today. I wanted to bring that to the attention of the committee.
Senator Greene: Is there any risk to Canada that you are aware of or
could think of that would happen if the U.S. did not sign the Marrakesh Treaty?
Mr. Bains: I don't think it's a risk but rather an opportunity for us
to demonstrate leadership in this. It would provide a unique advantage to our
citizens and other countries that ratify Marrakesh. The risk would be borne by
the U.S. side as they would disenfranchise their population. Again, we would be
in a much stronger position dealing with a marginalized population. It would put
us in an advantageous position compared to our peers in the U.S.
The Chair: Thank you, minister.
Continuing our meeting on Bill C-11, An Act to amend the Copyright Act
(access to copyrighted works or other subject-matter for persons with perceptual
disabilities), I am pleased to welcome the Honourable Pierre Poilievre, P.C.,
Member of Parliament for Carleton, Ontario. I understand the subject of this
bill has been a passion of yours for some time and that you have been working
tirelessly in this regard. Thank you for appearing with us today. Please proceed
if you have opening remarks. After that we will go to a question and answer
The Honourable Pierre Poilievre, P.C., Member of Parliament for Carleton,
Ontario, House of Commons, as an individual: Thank you very much, senator
and committee, for including me here today. The reason for my presence is that I
was the Employment and Social Development Minister when this bill was previously
introduced in the last Parliament by my colleague, the Honourable James Moore,
Minister of Industry. Of course, there was a policy overlap, given the portfolio
I represented at the time. I have since been a champion of the bill from the
opposition benches. I would like to thank Minister Bains, Minister Qualtrough,
and Rob Oliphant, Member of Parliament for Don Valley West, all of whom have
championed this bill. There's been a collaborative effort among us to bring it
to this stage and before you today.
Some members of the committee might wonder why a rock-ribbed, free enterprise
Conservative is interested in this particular bill. I want to tell you why I
encourage people who share my outlook on the world but are in the Senate to
quickly pass this proposed legislation. The reason is that normally with a bill
designed to help one group, we end up imposing costs on everyone else. Any
program that spends tax dollars must collect those dollars from the people who
work to earn them in the first place. Winston Churchill once said that a country
trying to tax itself to prosperity is like a man trying to pull himself off the
ground by standing in a bucket and pulling up on the handle.
This bill is unique and different in the sense that it will give a quarter of
a billion blind people around the world access to a quarter of a million
additional books at no extra cost to taxpayers or to the user. Mr. Chair, if
this seems to defy the laws of physics, that is because it does, in a sense. We
are no longer dealing with the traditional laws of physics in the modern,
digital economy. It used to be that if you had one book and I had one book and
we traded, we still had one book each. But in the digital world, if we each had
a digital copy and we share one with the other, we each have two books. That is
the awesome power of multiplication that this bill harnesses.
Countries that accede to the treaty amend their copyright laws to allow the
visually impaired and groups that serve them to make a copy of an accessible
book in audio, for example, and share those copies within and across borders. A
book recorded in London, England, becomes available to a blind reader in London,
Ontario, and vice versa. That is important because the blind suffer from what
has been called a "book drought," whereby only 7 per cent of publications or
fewer are available in an accessible format.
In adopting this treaty and the bill that implements it, we will avail
Canada's visually impaired of over 270,000 books and publications produced
abroad. Basically, we will be removing a legal barrier that will allow those
books to flow into our country. Simultaneously, books produced here in Canada,
for example in the Don Valley location of the Canadian National Institute for
the Blind, will become available to the visually impaired around the world.
Senator Black and Senator Massicotte raised some important questions. I am a
big defender of property rights. I view them not only as essential for our
economy but also as foundational for civilization itself. The reason we have
copyright, a form of property rights, is that no one will pay for something they
can get free.
The minister, I believe, has designed this bill carefully to avoid the
free-rider problem. It is true that no one will pay for something they can get
free, but we are talking about books that the reader cannot get at all. They are
not currently available in accessible formats. It is not as though we will be
foregoing a sale because a book is available over here but I will get it over
here for free of charge. The book is not currently available over here, and that
is why the treaty avails it to me notionally as a visually impaired reader.
If the publisher or the creator makes the decision to produce the publication
in an accessible format, then the copyright exemption no longer applies. Mr.
Chair, as you pointed out in your question, the result is that this bill
actually creates a new incentive for the publishers and the creators to do the
right thing and make these products available to the visually impaired. In so
doing, they will profit, because we are talking about a quarter of a billion
people around the world — an enormous market, and one that will, over time, give
impetus to more commercially available products of this kind.
In the meantime, that should not stop us from moving ahead with a treaty that
will fill the gap that currently exists in publications around the world.
If you have any doubts about the importance of this bill, you need only heed
the words of the CEO of the World Blind Union, Penny Hartin, who said in Ottawa
the other day: "This is the biggest development for literacy for the blind since
Braille was invented."
If we adopt this treaty and ratify it via passage through your chamber before
summer, we will be the eighteenth country to do so. That will bring us to the
brink of the magic number 20, upon which the treaty takes broad effect. Doing
so, Mr. Chair, would be a welcome rain breaking the drought for many deserving
book-lovers around the world who suffer, through no fault of their own, from
I encourage you to work together in order to see that this is achieved before
we rise for the summer.
The Chair: Thank you.
I will give a quick update on what is happening in the Senate Chamber right
now. Currently, nine senators have spoken, and the list of senators keeps
changing. There is still a long time to go, so I don't think we will have a
problem. That is just to update you, so you don't have any anxiety whatsoever,
Senator Black: Thank you for your initiative on this. As I think we
heard from the last panel, we all accept that this is a social policy
initiative, and I think it's commendable. I think you picked up the tenor of
this room that I will be surprised if we don't support this.
But it's important that we recognize that there are costs. I wanted to test a
few things with you. You indicated in your comments that there is no cost to the
visually challenged or to government, but you would agree with me that there is
clearly a cost to somebody around this policy, and that "somebody" would be the
publishers. I am not saying that is good or bad, but that is the reality. Do you
Mr. Poilievre: I don't agree, because the minister has drafted the
bill in such a way to create an exemption for published materials that are
already available at a reasonable price in accessible formats. If a publisher
has produced J. K. Rowling's works and those are available at a price comparable
to what they would be for the rest of the public, then the reader would be
expected to pay the market price. It is only in instances where the publisher
would not be selling the product anyway. The publisher is not foregoing revenue
they would otherwise enjoy. There would otherwise have been no transaction
because the product is nonexistent.
Senator Black: I agree with that, but in order to produce a product
that is now existent, there is a cost.
Mr. Poilievre: The production of the accessible format will not be
borne by the publisher; it will be borne by nonprofits like the CNIB. Those
costs already exist, because the Government of Canada already funds CNIB to
maintain recording studios, pay voice talent and produce digital formats of
Braille and large print. Those costs are already in existence.
What I said in my remarks is that there are no additional costs to the
availability of these 270,000 books that will be travelling across and within
Senator Black: That is very helpful.
Let us take the Harry Potter series. If the U.K. does not sign on to the
Marrakesh Treaty, would those books be available?
Mr. Poilievre: That is a good question. That is a question that we
would have to ask —
Senator Black: My guess would be "no."
Mr. Poilievre: The U.K. has signed on already.
Senator Black: Have they? Are they going to be a signatory?
Mr. Poilievre: They are a signatory now. The question is whether they
will be a ratifying party, and that remains to be seen.
Senator Black: That was the genesis of my question around the G7,
because the great publishers in the world are in the U.K. and the United States.
If they are outside this agreement, there is less value to it, obviously.
Senator Wallin: There was an exception that dealt with that. The
minister addressed it.
Senator Black: Was there?
Senator Wallin: It says "Currently, an author's nationality restricts
exports of accessible material" et cetera. Now they have said that whatever
country has launched that effort will be allowed to do it.
Senator Black: Okay. I don't know how they will do that, but that is
Senator Wallin: I don't know, either.
Senator Black: I appreciate your answers.
The Chair: Senator Black, we cannot control what others do. We can
only control what we do.
Senator Black: I agree. It is just so I understand how effective this
The Chair: That is what we'll try to do, and we'll see what happens.
Senator Enverga: I understand that this was sort of your baby from the
Mr. Poilievre: I would say James Moore was the lead. I was the second
fiddle, because I was in a related ministry at the time.
Senator Enverga: I know you have some inkling about how it will look
on behalf of Canadians, but is this the bill that you envisioned it to be at
this time? Is this the bill that you want to be passed, if you were the minister
Mr. Poilievre: It is. I think the present minister and the present
government have drafted it with the appropriate exceptions and have, I think,
addressed some of the legitimate concerns about preserving and protecting
copyrights. If we were in government today, I think you would see a very similar
bill before the upper chamber today.
Senator Enverga: Great. Thank you.
The Chair: With that, if there are no further questions, thank you for
being here, Mr. Poilievre.
I am pleased to welcome, on our third panel, the following witnesses. From
the Canadian National Institute for the Blind, Diane Bergeron, Executive
Director, Strategic Relations and Engagement; Thomas Simpson, Specialist,
Operations and Government Affairs; from the Canadian Library Association,
Victoria Owen, Member, Policy Committee; and from the Canadian Association of
Research Libraries, Susan Haigh, Executive Director.
I understand that Ms. Bergeron and Ms. Owen each have an opening statement,
after which we will go to into questions and answers. Mr. Simpson and Ms. Haigh,
I understand you are here to assist with questions, if need be.
Ms. Bergeron, please proceed.
Diane Bergeron, Executive Director, Strategic Relations and Engagement,
Canadian National Institute for the Blind:
Honourable senators, thank you so much for inviting me here today.
I want to expand on some of the things that were mentioned by the previous
speakers throughout my presentation.
In fact, only 7 per cent of the world's published works today are available
in a format that someone who is blind, partially-sighted or otherwise print
disabled can access. In developing countries, that number drops to 1 per cent,
which is a direct cause of why only 10 per cent of children in developing
countries have access to education.
In Canada, the unemployment rate for people who are blind is currently
approximately 70 per cent. Not 17 — 70. The majority of the 30 per cent or so
who are employed are significantly under-employed based on their education.
Having the availability to access published works provides people access to
information, education, culture and their communities. How many times a day do
you pick up something to read? How many times a day to you listen to a book? How
many times a day to you turn on your television? Access is there for
information, but if you are blind, partially-sighted or someone with a print
disability, you don't have that same access on a daily basis.
They were talking earlier about the Harry Potter books, and I want to
emphasize what that means and how that works. Harry Potter is, in fact, in
Braille, audio and DAISY format. There are many formats that we can access, and
the reason is only because the author, J.K. Rowling, gave permission for her
books to be recorded. In Canada, we have access and, in fact, the book was
recorded many times. Canada made a copy, the U.K. made one and so did the United
States. Eight copies of book one of Harry Potter were created in an audio
format, costing each of those organizations approximately $1,500 to $2,000
apiece to create those books.
With the Marrakesh Treaty and the changes to this copyright legislation,
Canada, the U.S., the U.K. and so on could get together and determine that
Canada would record book 1, the U.S. will do book 2, the Royal National
Institute for the Blind in the U.K. will do three, and we will share them.
Instead of having eight copies of one book, you have eight books for the same
price as having eight copies of one book.
It doesn't change the cost or the funding going to the copyright holder,
because although we talk about blind people being able to get these books for
free, I don't own those books. I get my books through libraries. I would suggest
that many people in this room go to a library and get a book. You don't pay the
copyright holder when you get a book. You go and access it for free, for a
period of time, to allow you to read that book. You do not own it. It is no
different for people who are blind and partially-sighted in accessing these
The people producing the books are organizations like the CNIB. They are
considered authorized entities or trusted intermediaries. It is only trusted
intermediaries who can do this, and they provide books through library systems
in their countries. That book is not owned by the person who is blind.
If I choose to purchase a book, I have to buy the book in Braille, if it's
available, or in audio, if it's available, if that is what I am looking for.
I did also want to talk about what " commercial availability" means in the
sense of use by the person requesting it.
I can listen to a book; in fact, I am a great fan of Audible.com and I listen
to many books, typically for pleasure, but they don't have the navigation
systems that a DAISY book has. You cannot mark the books the same as you can
with a DAISY book. If I am going to read a book and I want to refer back to it
in various places and highlight sections, just like you would highlight the
print in a book, I have to have it in different format and those audible books
will not help me.
If you are deafblind, audio books will not help you. You need it in Braille.
When I read to my daughter when she was young, I read print Braille books: print
on one side with the pictures, and Braille on the other, because she is sighted.
I was reading the Braille, she was seeing the print. That is how I helped my
daughter learn to read. That is very important for those of us who have
There is an entity called the Accessible Book Consortium, or ABC, an
organization that has been brought together by trusted intermediaries and
authorized entities around the world. They have come together and created a
catalog of books available for them through their entities and their libraries.
To date, they have gotten permission from authors to create approximately 45,000
books, with permission to be shared around the world, but there are still
approximately 250 that they haven't gotten to yet.
Part of the reason that they haven't is that every time they want to do this,
they have to contact the copyright holder, get permission and go through that
process. Marrakesh would change that, and every one of those books would then
become available to us. We can go from 7 per cent to 20 to 50 — imagine the
availability of what we could have and how many books we could read.
I also want to talk a bit about the fact that, in today's society, we
legislate a lot of things. If someone wants to build a building, they cannot do
so unless it is accessible for people with disabilities. However, websites and
books don't have the same requirement. This legislation helps to deal with that.
The CNIB does their due diligence, and so do all the other trusted
intermediaries. When we get a request for a title that is not available to a
person, we go out and do research. We determine whether it is available
commercially in an alternate format that this person is looking for. If so, we
work through the publisher to get a copy. If not, then we go ahead and record
the book, keeping in mind it could take six months to put that book together.
So, six months later we release the book to our clients and members and
through the Centre for Equitable Library Access. During that six-month period,
it is possible that the copyright holder might have created an accessible
version of that book exactly the same as we did. Before we send it to another
country we will also do another search. We follow a two-part system in due
diligence to make sure we are not putting out books that are already provided in
an alternate format that is available to the people we are serving.
I don't see this as taking any cost away from any publishers or copyright
holders. I think it is important for us to remember that, as Mr. Poilievre
mentioned, I'm not buying the book that is in print. What I am doing is getting
a book provided to me through the library and I am reading that book, and the
good thing is I'm then telling all my sighted friends about that book, and they
are all going out and buying it. So I think copyright holders are benefiting
because I am advertisement.
In closing, I would like to say that as I grew up and lost my sight, I didn't
read very much. I didn't have the books that were available. Even though we talk
today about only 7 per cent of books being available, they weren't available to
me as I grew up, but they became more so. Now I have more access and I read
approximately five books per week because I am now an avid reader. I wish that
would have been available to me when I was a child. Thank you.
The Chair: Thank you, Ms. Bergeron.
Victoria Owen, Member, Policy Committee, Canadian Library Association:
Good afternoon, and thank you for the opportunity to speak to you about Bill
C-11, the bill to ratify the Marrakesh Treaty.
I am the chief librarian at the University of Toronto, Scarborough, and I am
here to speak today on behalf of the Canadian Association of Research Libraries
and the Canadian Federation of Library Associations. Joining me today is Susan
Haigh, Executive Director of CARL; and Valoree McKay, Executive Director of CLA.
Prior to my tenure at the University of Toronto, I served for 12 years as the
director of library services at the CNIB Library for the blind. In 2013, as
Chair of the International Federation of Library Associations' Copyright and
Other Legal Matters Advisory Committee, I represented the library community as a
delegate at the diplomatic conference in Marrakesh where the treaty was
Canadian libraries are pleased to see the priority that the Parliament of
Canada is placing on the ratification of the World Intellectual Property
Organization's Marrakesh Treaty by preparing enabling legislation, Bill C-11, An
Act to amend the Copyright Act.
From my tenure at CNIB Library, I know firsthand the difficulties and
challenges in ensuring Canadians with print disabilities have equitable access
to works in copyright. We want to change the number of books available to people
with print impairment, from between 5 to 7 per cent to 100 per cent. Our law
needs to move us towards that goal, to redress the imbalance and eliminate
unnecessary barriers to access.
As one of the first of the 20 countries to ratify Marrakesh, Canada will be
in the vanguard of the legislation that enables equitable access. We can be very
proud of that and thus commend Parliament for its multi-party support for this
Still, the Canadian Association of Research Libraries and the Canadian
Federation of Library Associations urge Parliament to go a step further and
eliminate two unnecessary barriers that are in the bill: commercial availability
We are concerned that the enabling legislation includes a limitation
pertaining to commercial availability in section 32(2). While blind and print
disabled people would no doubt relish the ability to purchase books and material
in a bookstore or online in the same manner as other Canadians, the fact is that
Braille and searchable digital audiobooks are not commercially viable.
Otherwise, there would be a developed marketplace for accessible materials.
Producers today can make use of the NISO EPUB3 format for interoperable e-books.
Yet, they choose not to do it, thereby excluding access by persons with
The added step of conducting a thorough check and search of the market adds
uncertainty to the process and takes resources away from the production of
alternate format works.
Second, libraries are concerned about the potential for royalties to be
established by regulation in section 32.01(4). The lack of a viable market for
accessible materials places the burden of making the work accessible on the
individual or the organization. There is no loss in terms of production costs to
mitigate through the payment of royalties; rather, a royalty payment encumbers
the end user that the marketplace has not served.
We believe that introducing royalties for Braille or searchable audiobooks or
other accessible materials creates a barrier to access. Bill C-11 is an
exception to copyright. Exceptions that ensure access to information for people
who are blind or print disabled should be guaranteed without a payment scheme.
Royalties are not required by the treaty and neither is the limitation on
commercial availability. We ask Parliament to consider the removal of both
sections, the limitation of commercial availability and the provision for
Overall, the Canadian library community supports Bill C-11 because it
positively impacts Canadians, and we believe Canada's acceding to the Marrakesh
Treaty will have benefits for the print disabled in this country and
internationally. I would urge you to make it a flawless bill.
The Chair: Thank you, Ms. Owen. We will now have questions.
Senator Enverga: Thank you for your presentations, Diane. As you know,
when I arrived here in Canada over 30 years ago, one of the first organizations
I volunteered with was the CNIB. I am so impressed by the passion of the
volunteers of CNIB. That's why I've been supporting and advocating and hosting
the Vision Health Month here in Ottawa. In that case, thank you for being here
My question is for you, Ms. Bergeron. I'm happy about this bill and about the
Marrakesh Treaty. However, if there is anything that you would like improve in
this particular bill, what is it? Do you have anything else to say? What else
can we do to improve this?
Ms. Bergeron: If we lived in a perfect world, we wouldn't need to have
organizations like the CNIB at all, and we wouldn't need to have exceptions in
the Copyright Act because publishers would be producing the books in an
alternate format at source. But, unfortunately, we don't live there right now.
I would say that the commercial availability piece is something that we work
with. The Copyright Act itself will be reviewed in 2017. Right now, we need to
get this bill through, and that gives us a year to try it out, to see if there
are any problems and any concerns that come forward. But, at this point,
operationalizing this is essential. The Accessible Books Consortium has been
working toward making sure that they are prepared to operationalize the
Marrakesh Treaty and make it as successful as it can be. As it is is the way we
need to put it forward.
If I could, one thing that you reminded me of is that this bill and acceding
to the treaty is going to do a huge thing for Canada and for people who are
coming from other countries. Right now, in Canada, you can only access alternate
format books that are produced in English or French. The Accessible Books
Consortium produces their books in 55 different languages, so that means
Canadians, people living now in Canada, who don't speak English will be able to
access formats that they can read in their own languages. That's huge. We need
to do this now.
Senator Enverga: Thank you, Ms. Bergeron. I have a question for Ms.
Owen. As far as I understand it, the CLA, the Canadian Library Association, is
in the process of being dissolved into a new federation. Is that correct?
Ms. Owen: That's correct.
Senator Enverga: Are the views that you expressed here today an
opinion shared by all of your member organizations? Will there be an opinion
change at this point, or is it going to be the same?
Ms. Owen: I would say that it would be the same. I'm here with the
Canadian Association of Research Libraries and the Canadian Federation of
Library Associations. We have prepared a joint statement, and all the libraries
in the federation agree that the national library organizations represent their
voice in Ottawa. So, yes, there is broad support. Do you want to say anything
Susan Haigh, Executive Director, Canadian Association of Research
Libraries: It's a joint committee at the moment that is working on copyright
matters for the library community. CLA still exists for a short time more, and
it's a joint committee that Victoria is representing. The CFLA is coming, but,
at the moment, the copyright work is between the Canadian Association of
Research Libraries; the Canadian Urban Libraries Council, which is the very
largest of the public libraries; and the Canadian Library Association, which is
a member-based organization as well. We're speaking for the library community as
Senator Enverga: I'm relieved, and I'm so happy about that. Thank you.
Senator Massicotte: I just have a quick question on the technology.
With the digitization of all of the content, are we getting close to a point
where nearly all books will be digitized and easily converted, without much
cost, into a format that can be read by the blind? Are we getting there?
Ms. Bergeron: We're getting there, but there's still a high cost. I
can give you an example. Audiobooks are obviously becoming more available. We
can take an audiobook and digitize it into a format that includes DAISY and so
on, and there's e-pub, as Victoria was mentioning.
Where it becomes a little bit more difficult is, if you take a book, my
Canadian cookbook, a regular book that sits in most kitchens in Canada, sits on
a shelf, mine is nine volumes in Braille and takes an entire shelf in my pantry
because it's huge. It's very costly to produce. Instead of doing that, what we
have been doing is creating electronic Braille, which is a BRF file. Electronic
braille can be sent through the Internet or downloaded off of the Internet and
put onto a device. This device here is actually a refreshable Braille display. I
can read a book on this little device, but this one costs $3,500. If I'm one of
the 70 per cent of people who are unemployed, or if I'm under-employed, I'm not
going to be able to afford this device. Therefore, although technology is making
things easier, the cost of technology from the user side makes it more
With regard to publishing books, often I get the question around the idea
that every book out there right now seems to be available in electronic format
that you can read on your computer, Kindle or whatever it is. Yes, that's true,
but they have a protection on it, and as soon as you put a protection — they're
usually also PDFs — it stops the screen readers from being able to read them, so
they're no more accessible. I can't download a book off the Internet like
everybody else. It won't work with my screen readers.
Senator Black: It's very helpful that you're here. I'm glad that
you're the second panel, because I think we're all in the position that we want
to be helpful. My question was the same as Senator Enverga's: Does this meet
I've heard a bit of a contradiction here. Ms. Owen, you have clearly said
that in the best of all worlds, senators, you have the opportunity to amend the
clause dealing with commercial availability and the clause dealing with
royalties. We can certainly report that to the Senate — that's the process. We
might amend it and then it goes back to the House of Commons, and we would not
get it done by summer. Then I hear Ms. Bergeron saying, "For goodness sake, move
ahead. Get this done. We'll worry about amendments at some subsequent time."
What do you want us to do?
Ms. Owen: We don't agree, Diane.
Ms. Bergeron: I think we do agree, actually. I think the agreement is
that we support the bill. Victoria, you can correct me if I'm wrong, but I think
what I'm hearing is that if it's a choice between delaying this and possibly not
getting this through, it needs to go through. We've been living without books
long enough. The famine has been going long enough.
Senator Black: And you could subsequently move for amendments?
Ms. Owen: Yes, we could, but I would say it's very difficult. Once
something is through, it's like the work is done and, from what I understand,
it's like nobody seems to have an appetite to keep opening the Copyright Act.
So, for me, I would like to see it done properly so that we don't have that
added step of checking for commercial availability and there isn't that spectre
The Chair: That's the good thing about being in the Senate. Senator
Enverga, how old are you?
Senator Enverga: I'm 60 years old.
The Chair: He's here for another 15 years, Ms. Owen. I don't think
that's going to be a problem.
Senator Black: If I may, Ms. Owen, on the royalty issue, I understand
that royalties will be dealt with, if at all, in regulation. Is that correct?
Ms. Owen: That's correct, yes.
Senator Black: Which is a heck of a lot easier from your point of view
to work with government to ensure either you have appropriate regulations or, in
this particular case, no regulations.
Ms. Owen: Yes, that's true. It's there. I think it would be —
Senator Black: Still not ideal from your point of view, though?
Ms. Owen: No. I would like a clean bill. Also, I would like to say
that neither of these are required by the treaty, and I would say almost all of
the other ratifying countries don't have these encumbrances to the bill.
Ms. Bergeron: Except for Australia.
The Chair: Okay. If there are no further questions, thank you,
witnesses. Thank you very much for your testimony. We're going to suspend for a
couple of minutes and then come back and look at clause-by-clause consideration.
Senator Enverga: Mr. Chair, I'm wondering if this would be a "victory
event" for this particular bill. Can we take a picture with the witnesses?
The Chair: During the suspension. If you want to take a picture, you
can take it right away, but then we're coming back to work in three or four
(The committee suspended.)
(The committee resumed.)
The Chair: I call the meeting back to order. Is it agreed that the
committee proceed to clause-by-clause consideration of Bill C-11, An Act to
amend the Copyright Act (access to copyrighted works or other subject-matter for
persons with perceptual disabilities)?
Senator Massicotte: I agree, but in an ideal world I would have loved
to have as witnesses the publishers and the authors. We just met a lot of people
in favour, but we didn't meet anybody opposed. Despite that, I agree, but in an
ideal world, we should have heard from the other side.
The Chair: We didn't turn anybody down who wrote in. The publishers —
I don't know if we invited any, but they knew the bill was here, obviously, so
they've could have come forward.
Senator Massicotte: Ideally, you should always hear everybody's point
Senator Day: Chair, I will be supporting your proposal as well, but
with reservations. I normally like a bit of time after having heard from
witnesses before proceeding to clause-by-clause. I think it gives us a chance to
reflect on this, and haste makes waste. We're hastily moving through this, but I
understand the situation, and I will reluctantly support the initiative.
Senator Black: Mr. Chair, it might be, subject to your direction,
helpful if we had a quick conversation on this divergence of opinion we just
heard on the last panel, because there is a divergence of opinion. Do we move
forward and approve the bill as proposed, or do we consider whether amendments
to those two provisions are relevant? We can do it as we go through the clauses,
or we can discuss it now.
The Chair: My view is that the users are the people who are visually
impaired. They want the bill. I understand what the libraries are saying, but
amendments can always be made to a bill. That's my own personal opinion.
Senator Black: That's a conversation we should have.
Senator Massicotte: Senator Black, why don't you share your opinion.
What are your thoughts on that?
Senator Black: My opinion is that we should listen, as Senator Tkachuk
has said, to the voices of the community with a very real encouragement that,
after a year's point, if there are issues with access or costing, we should
encourage them to come back here and we should take this case up.
The Chair: We can put that in as an observation.
Senator Massicotte: Or maybe the other alternative is to pass the
bill, but we authorize you to send a letter to the minister highlighting the
concern and keep on guard for the issues.
The Chair: I'm more than willing to do that.
Senator Tannas: We heard that Australia, with whom we are aligned on
many things and in many ways of thinking, has adopted a similar regime. Other
signatories haven't done that, but not a lot of big names have gone before us;
right? We still have to hear from America and Great Britain, where, as somebody
said, the two big publishers are.
Why don't we ask that their actions be monitored? If we're somehow out of
step with what Great Britain and the United States have done, then we could
revisit it. It would be brought to our attention.
Senator Massicotte: As a committee, we're very focused on the subject
matter. We're not the government, and we're not the administrative branch. It's
hard for us to monitor. I'd prefer to say all that in a letter to the minister
and make sure his government and his department reviews all that.
Senator Tannas: We can make that observation or request.
The Chair: We can always call them back.
Senator Day: We could send a letter, and I think that's a good idea.
In some way, we have to bring this to the attention of the minister. You will
recall that when he spoke, he was aware of those two issues. He said that he
would speak a little more to those. He's on top of the issues of royalties and
commercial availability. He knows they are the two issues.
Senator Black: We should underline them under observations, as Senator
The Chair: Do you want an observation or a letter? I don't know if we
have to do both.
Senator Massicotte: I prefer the letter, in particular since he's
aware of it.
The Chair: I think we should go with the letter. Is it agreed?
Hon. Senators: Agreed.
Senator Black: One point of clarity on something Senator Tannas
raised: I heard that Australia does not have those two exemptions in their
legislation, but I may have misheard.
The Chair: Would one of the officials who can answer this come back to
the table? You are Mr. Dupelle, I believe.
Mr. Dupelle: Correct.
The Chair: Would you help sort this out for us?
Mr. Dupelle: In terms of the Australian framework right now — I can't
speak authoritatively about another country's law — my understanding is that
they have a system that has a commercial availability limitation. They have
deposited a notification with the World Intellectual Property Organization who
oversees the Marrakesh Treaty. That's a requirement under the article that
allows you to have a commercial availability limitation. They have a range of
provisions that apply to persons with perceptual disabilities. They have various
exceptions. They have general exceptions. They have some statutory licences in
place for certain activities.
My understanding is that they're in the process of considering additional
changes, even though they've already deposited their instruments of ratification
with Marrakesh. They are considering additional changes to their law. My current
understanding is that the proposals would retain the commercial availability
limitation, but they would move their royalty payment provisions into
Senator Black: That's interesting and helpful.
Senator Day: Entering into the treaty is an executive matter, but
prior to the government being able to do that, they need this bill passed to
meet the requirements under the treaty provisions?
Mr. Dupelle: Yes. That's correct. The amendments in Bill C-11 need to
receive Royal Assent before Minister Dion can ratify the instruments of
accession with WIPO. An order-in-council would need to be sought to provide
authority for Minister Dion to deposit those instruments.
The Chair: There's some solace in the fact that this bill has been
around for a year. It was introduced in June 2015.
Senator Enverga: I think we're good with a letter.
The Chair: I'm usually not that crazy about passing a Liberal bill,
but today I make an exception. It's been around for a year.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: We're agreed. Thank you, honourable senators. Well done.
Senator Black wants to ask one question before we adjourn.
Senator Black: I have a couple of things in relation to the report. We
did great work, and I think our clerk and our writers did a fabulous job of
bringing the report together. It was a fine piece of work in a short period of
time. I want to acknowledge that.
A couple of things flow from it. It would be interesting to hear back from
the communications lady in the next week or so. She could report to us on how
that initiative went so we can learn from that. As a communicator, is she happy
with the outreach? Did we get pick-up across the country? Are we in print? How
was the social media? I would like some data.
Senator Massicotte: She said she would do that.
Senator Black: We should know that for future planning.
Second, I'm really pleased with the press that we have received. I love that
we said to get this done, and if you haven't got it done by July 1, 2017, then
off to the Supreme Court. I'd like to invite the minister back for updates in
October and maybe March.
The Chair: It's on our calendar.
Senator Black: He can come back and tell us how they're making out.
The Chair: I had in mind to ask for updates. We're going to let the
current process carry. He seemed fairly keen about it. I actually met him on a
sidewalk, and we talked about this. He appreciated the report for sure, which
will provide some stimulus, especially with all the press we got, for the
negotiators from the provinces as well.
Senator Day: I'm not in my office very much, but has somebody gathered
together some of the press coverage?
The Chair: I'm sure communications already has done that. An email
came out on the Senate summary of communications. It was fairly extensive. We
did really well.
Senator Day: Good.
The Chair: I had Robin send around to you the Maclean's piece,
so we've got that. All in all, we're moving right along on this. Keep at it. If
you think people in your region could use a phone call or just an urge along
where we might more press, please do so.
Senator Tannas: I'm on Danielle Smith's radio program in Alberta.
The Chair: That's great.
Tomorrow we have the budget officer first thing. Then we'll have time to talk
about future business. I wasn't planning on having any meetings next week. We'll
just see how it goes. We've had a very successful spring, and it would be nice
to end it tomorrow. We don't have to make a decision because we can circulate
over the summer; and I'll make sure we do that. We could try to put a number of
ideas on the table for what we may look at in the fall. Meeting adjourned.
(The committee adjourned.)