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Killing the Goose

2011 July 28

[A discussion about the proposed reorganization of Canada’s Access Copyright.]

We writers are a funny lot. We often work for wages well below the poverty line, or in many cases, for nothing — writing on speculation hoping somebody will see our hidden talents and pay us handsomely after the fact. However, to justify the reality that much of what we write will never see the light of day, we often state to ourselves and others that our speculative writing is really only for ourselves to satisfy some inner need for artistic expression, and whether we get paid is not important. All of which might or might not be true, depending on who we are and what motivates us.

Regardless of who we are, those are pretty noble gestures in a world that is largely driven by greed. But then along comes some seemingly “free” money* and watch the nobility cloak drop from our shoulders as we squabble among ourselves for a fair share of the booty. This is what is happening here in Canada with regard to Access Copyright, the reprographic collective that was established in 1988 to protect the intellectual property of Canadian copyright holders when such property is copied.

[* The royalties received for copying one’s work of course are not “free”. They are indeed earned by the writer who often does not receive sufficient payment upfront for work done.]

The Goose

Back in 1988 the major copyright concern was the photocopying of  books and articles by schools, businesses and libraries. With the advent of relatively cheap photocopying machines, it was easy for anyone to take a book or magazine off a library shelf and copy parts or all of it for his or her own use. Canadian copyright law, like such laws in other countries, stated that such copying was illegal unless the copyright holder was adequately compensated. However, it was not easy for a reader to track down such copyright holder and arrange payment, but it was easy to copy the work. So, copyright was regularly violated and hence writers and publishers banned together to develop a system that would allow readers to easily pay for such use and ensure that the creator of the work was fairly compensated.

It was not an easy task. Violators had to be tracked down, compensation demanded, and when not forthcoming, legal action taken. Thus, Access Copyright assembled a staff that included  copyright lawyers to negotiate licences and sue violators on behalf of creators and publishers. At first, government money was used as “seed” funding, but as AC sold licences and won settlements in court, it quickly became a self-funding agency.

As a result, writers were encouraged to register with AC so they could share in the revenue. If licences specified that specific authors be compensated then those writers would receive royalties from AC for that copying. Many other licences were negotiated where flat fees were paid to cover all copying — specifically with school boards, universities and libraries — where specific creators and publishers were not identified. AC classified the royalties derived from the latter as ‘repertoire’ and distributed them equally to all registered creators annually.

The Golden Egg

As these payments grew in size with the increasing number of licences negotiated, some creators started taking issue with the equal distribution of these repertoire royalties. Why was it that all registered creators were receiving equal payments when many had published for years while others had only a few pieces published? Thus, AC commissioned a study to determine if there was a better way to distribute the repertoire payment, among other concerns. Other reprographic collectives in other countries (there are many) were investigated and sure enough there was a better way to do it: catalog each creator’s published work and pay according to the amount of material published. As well, provide compensation for illustrators and photographers for the work they have published.

Payback

Therefore in 2010, AC overhauled its repertoire payment system under its new Payback program. Registered creators were required to submit an accounting of the number of works and pages published in the last 20 years, and if registered as an illustrator/photographer, the number of images published during that time. Sure enough, when Payback payments were made last fall, writers and illustrators were paid according to the amount of publishing done. [A more complete description of Payback can be found at www.accesscopyright.ca.]

Many creators were happy with AC for delivering on making the repertoire payments more fair. I represent the Outdoor Writers of Canada (OWC) to AC and I took a poll of our members with regard to their satisfaction with the Payback program after its first year. Sixty percent (60%) of those who received payments received more money than they had in previous years, and 68% were satisfied with their payments. Like other writers, outdoor writers are a diverse group, and many are very productive, writing for newspapers, magazines, and authoring books among other things. Many are also photographers that illustrate the many pieces they publish each year with their own photographs. So, a 20 year portfolio of work could very well be significant in terms of compensation for material copied; and indeed it was for many (and yes, I received a significant increase). I am also sure there are many other periodical writers who greatly benefited from the Payback program or they understand that as their careers continue their benefits will increase.

However, some writers who have only published a small number of works over the last 20 years and who do not regularly publish photographs or other images received Payback payments significantly lower than what they had received in previous years, and guess what? They are unhappy.

The Killing

Despite being a founding member of Access Copyright (helping set up the collective and participating on its board of directors where decisions about royalty distribution were made), The Writers’ Union of Canada (representing book authors) passed a motion at its Annual General Meeting this spring to separate “creators’ and publishers’ interests in collective licensing” because “key differences in the copyright interests of publishers and creators will always prevent Access Copyright from fully and effectively representing creators’ copyright interests.” In other words, TWUC wants AC to be broken into two agencies, one representing the creators and the other the publishers. (Unfortunately, there is no mention which agency would do the collecting of the revenue, or would both do it…?) However, no arguments are presented about how the interests of creators and publishers are being misrepresented.

What prompted this motion? Although I am a member of TWUC, I was not at the AGM and can only speculate based on some of the subsequent discussions I have read (e.g., Creator’s Access Copyright). Some creators have always had a beef with how AC conducts its business, especially the expenses AC incurs, which of course reduce the royalties available for distribution to creators and publishers. Comparisons are made with a similar program, the Public Lending Right Commission (PLR), which pays authors for the loaning of their books by public libraries. However, the two programs could not be more different. The PLR depends on government funding through the Canada Council for the Arts—in other words, taxpayers’ money. It does not have to go out and negotiate licences for its funding from businesses, schools and organizations or take legal action against violators of copyright law. Therefore, the expenses of the PLR are much lower than those of AC, and they should be. No, AC is a completely different kettle of fish that requires considerable staff to negotiate and maintain licences, to continually be vigilant to copyright violations and to seek redress. As well it is researching and seeking to find licensing solutions to the ever-changing world of digital copying which is the biggest challenge to copyright facing all creators and publishers.

Still, the criticism of Access Copyright expenses continues. Now, I’m no expert on AC but as the OWC representative to it, I have attended a couple of its AGMs, and I have studied its last two annual reports (2010 report available on the AC web site). Yes, its expenses take a significant portion of the budget, but to my mind for good reasons (as listed above). I have no doubt that some of those expenses could be lowered through greater efficiencies etc. and that is why there is a board of directors (made up of representatives from creator and publisher organizations) to look after such things.

Timing

So why make this motion now? In my opinion, the timing could not be worse. Copyright law is under attack in this country as educational institutions, boards and ministries seek so-called “fair dealing” status for the copying of material for educational purposes. Fair dealing means that such copying would not be subject to copyright protection. In the last parliament the minority Conservative government introduced a bill (C-32) that would have amended Canada’s Copyright Act including placing educational copying under fair dealing. Much of the revenue AC receives is from educational copying, and if that revenue should cease, royalty payments to creators and publishers would be greatly reduced. Indeed, the very existence of the reproductive collective would be at risk. (As well, such an amendment would violate the international Berne Convention for the Protection of Literary and Artistic Works, of which Canada is a signatory.)

Fortunately, Bill C-32 died on the order paper when the minority Conservative government was defeated in a motion of non-confidence last spring. However, in the federal election that followed the Conservatives won a majority government and undoubtedly will introduce a bill similar to C-32 into parliament. Now, such a bill amending the Copyright Act is necessary as the current act is way behind the times, especially in terms of digital technology. However, if the government has not learned the error of its way with regard to educational copying, the bill could be a disaster for creators, publishers, and in the long term, the quality of content we all read.

My point is that Access Copyright has been in the forefront of the opposition to the particular educational amendment. They had the funding and expertise to research the issue and provide much needed information for creators and publishers to lobby Members of Parliament about how the educational amendment would affect publishing in this country. As a result, AC has been under considerable attack from the powerful proponents of the educational amendment. One of the most vocal proponents is Michael Geist, a law professor at the University of Ottawa, who is especially upset with having to pay for copying material. He has been attacking AC in blogs and elsewhere. However, he seems to have difficulty reading and understanding AC’s annual reports (see AC’s rebuttal to Geist [PDF]).

Unfortunately, some creators have taken this misinformation to heart, and the result—in my opinion—has been the TWUC motion to re-organize Access Copyright. However, to my mind that is playing right into the hands of those who wish to take creator’s copyright away. Geist argues for a free market of information on the Internet, with the emphasis on “free.” If he succeeds, there will be less funding available to finance quality writing in this country. He is already citing TWUC’s motion as evidence that AC must go.

So, again I ask the question: Why make this motion to split or significantly reorganize Access Copyright now when there is so much at stake in this country with regard to the protection of copyright? Could not the issue be raised once the copyright amendment act has been passed, and we have better knowledge of what the new landscape will look like? Or are some writers so upset with no longer receiving an equal portion of the repertoire royalties that they are willing to destroy the goose that lays the golden egg?

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From → Copyright, The Biz

7 Comments
  1. I very much agree with you, Don, and spoke on the floor of the TWUC agm as such.

    I made a post on my own writer’s blog about this back in June. Here is the link to what I wrote:
    http://doreenisthewizardofwords.blogspot.com/2011/06/changing-landscape-for-canadian-writers.html.

    The motion was carried and I don’t see the point in your making this post now. We can’t change what the delegates voted!

  2. Thanks for your comment Doreen. The reason I’m posting this now is that there is much discussion outside of TWUC on whether to support the motion or not. I think it needs to be made clear that not all writers support the motion and are indeed concerned with what the motion might mean to the future of copyright in Canada. I think the motion was ill-timed and based on a lot of misinformation that is diverting our energies away from more important issues.

  3. Well said, Don! Another peculiar aspect of the TWUC motion is that the movers have said they admire the UK Authors’ Licensing and Collecting Society http://www.alcs.co.uk/ model for collecting and distributing royalties for secondary rights — and yet their chief complaint seems to be the Payback system, which is modeled on the ALCS’ system, right down to the name. Actually, the Access system is more generous. It’s based on the last 20 years’ of a creator’s work, whereas the ALCS only counts the last 3 years of work.

  4. Thanks for this, Don. It’s an excellent summary history, and should help other writers understand what’s really going on.

    Michael Geist continues to mention the TWUC and LCP motions as part of his well-organized attack on collective licensing in Canada. One of the immediate results of that attack is the ill-advised withdrawal of at least 26 post-secondary institutions in the country from the Access Copyright interim tariff, which is set to take the place of longstanding license agreements between the collective and colleges and universities. In effect, those writers currently attacking AC are helping to make the case for universities to refuse the tariff, which weakens collective licensing and promotes an environment of confusion and belligerence that will result in expensive and time-wasting litigation in order to correct the copyright balance.

    I’ve been warning of the free-culture attack on writers’ rights on my own blog for years now, but this opt-out encouraged by Geist has broader implications – student and professor rights are under attack as well, as universities impose tight restrictions on what can be used (and therefore taught) in the classroom – all to avoid paying licence fees:

    http://johndegen.blogspot.com/2011/07/respect-copyright-of-canadian-artists.html

    We need more writers like you, Doreen and Penney to explain to association members everything that’s at stake in this “investigation” of AC. The Geistian misinformation is powerful stuff. It doesn’t need help from those whose rights are most threatened by it.

  5. nice post don.

  6. What’s up it’s me, I am also visiting this site regularly, this website is truly fastidious and the
    people are truly sharing good thoughts.

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