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Copyright and the Canadian Writer

2012 January 12

[Note: this post is based on a piece I wrote for the January 2012 Outdoor Writers of Canada newsletter, Inside Outdoors.]

Another year has come and gone and we don’t seem to have made much headway on the Canadian copyright front. There is much change on the horizon, however, and it will affect how we do business. Indeed, freelance may well be going the way of horse-drawn carriages and buggy whips—as evidenced by a comment a budding writer made to me in an e-mail discussion. He interpreted the “free” in freelance to mean that he was writing for free, not expecting monetary payment for pieces he published. All he cared about was his byline on a story and the knowledge that people were reading it and respecting his knowledge. I tried to explain to him the real meaning of freelance, that it had to do with independent professionals (originally knights—i.e., mercenaries with lances) trying to make a living, that paying freelance writers competitive yet reasonable fees for good work maintained writing quality, and that what he was describing was writing as a hobby. That argument didn’t seem to cut much ice. Not only did he not care about getting paid for his writing, he wanted to read everything for free and then decide what he thought was good writing. But I digress, except to say that what this young writer wants he just might get, at least here in Canada

Bill C-11
As of this writing, the Copyright Modernization Act (Bill C-11) is in second reading and looks like it will pass into law soon in this new year. Despite considerable lobbying by Access Copyright (Canada’s copyright licensing agency), most major writing and publishing organizations, and individual writers and publishers, it looks like educational copying will be added to the definition of fair dealing.

What does that mean to you, the Canadian freelance writer? Educational institutions (whether primary, secondary or post-secondary) or any other organization that runs educational programs will be able to copy your work for free. Access Copyright (AC) currently receives 80% of its revenues from education. So, AC payments to you are bound to decline once Bill C-11 comes into effect. As well, AC will be spending more money going to court to define the specifics of “fair dealing”. For example, is there a limit to how much can be copied? A whole book or just a few pages? An entire magazine, article or just paragraphs from articles? An entire DVD or just a few scenes? As of this writing, this is not spelled out in the legislation, so it most likely will be left for the courts to decide. Also, there is a real threat that the new copyright act will be challenged internationally for breaking treaty obligations with regard to copyright. For example, will U.S. or U.K. or French publications be copied freely by our educational institutions when such use is not allowed by their copyright laws? The can of worms being opened by our government will keep us in court a long time.

Supreme Court
However, all is not lost. Access Copyright has substantial funds held in trust awaiting distribution to affiliates (creators and publishers) provided the Supreme Court rules in its favor with regard to licence agreements with certain school boards. The complainants refused to pay increases negotiated through the Copyright Board, and until the final court ruling comes down, AC has been holding the funds collected in case they have to be returned as a result of an unfavorable decision. These tariffs fall under the old copyright act and should be honored as AC followed all procedures laid out in law and licence agreements with the institutions involved. (Despite what you might hear, AC does not [indeed cannot] make unilateral decisions about tariffs. It must seek negotiated settlements.) The Supreme Court ruling is expected sometime in 2012 or early 2013. So, it is possible that your 2012 or 2013 Payback payment could be significantly boosted—provided AC is still around to distribute it.

Reorganizing Access Copyright…?
As I related in a previous post, while all of the above has been occurring, one of AC’s founding members, The Writers’ Union of Canada (TWUC) decided that it didn’t like the way royalties were being distributed to creators and publishers through the Payback program (although it helped design Payback). TWUC asked the 17 other creators’ organizations that are members of AC to discuss reorganizing AC, in hope of dividing it into two copyright collectives, one for creators and one for publishers. The Outdoor Writers of Canada (OWC) is one of those creator members and I represent the Outdoor Writers of Canada to AC. After some discussion, the OWC informed TWUC it thought such a discussion premature especially with regard to the current battles over copyright. Our argument was that we need a strong Access Copyright to fight these battles on our behalf!

Well, apparently the OWC was not alone in its decision. As far as I understand, only two creators’ organizations, the League of Canadian Poets and the Canadian Association of University Teachers, have agreed to discuss such a reorganization with TWUC. If you look at whom these three groups represent (book authors, poets and university teachers), you understand from where they are coming with regard to their members and Payback (i.e., if you just published books, you most likely lost revenue when Payback was implemented). Three out of 18 organizations does not make a revolution. However, the damage is done. It did not take long for AC’s detractors to cite TWUC’s motion as evidence of the need to disband AC.

I still do not understand TWUC’s timing of this motion. Writers’ organizations should be protecting the copyrights of their members, not undermining them! Access Copyright has done a lot to protect copyright in Canada and provided revenue that significantly boosted the income of many writers. Such revenue would not have been possible without AC.

Or have I got it all wrong and my young correspondent has it right? Is copyright an anachronistic concept and I should accept that my writing will be copied without compensation? If so, then it may be time for me to start looking for something else to do.

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