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Why Access Copyright?
Is there anyone who could provide a rationale for why an institution would need an Access Copyright (AC) licence after the Supreme Court decisions and the new Copyright bill is finally passed?
1. Fair dealing allows us to copy more than does the AC licence.
2. What is in the AC repertoire anyway?
3. Does AC even have a digital repertoire?
4. Fear of being sued under the old law was overdone with the possibility of huge statutory damages. With the new law, these damages are limited to a maximum of $5k and the owners to prove actual monetary damages
5. Their indemnity clause is irrelevant.
6. AC cannot sue in any case. Only copyright owners can sue and if all they can get is $5k is this a realistic fear.
6. The authors are barely compensated as AC uses the money primarily for exorbitant salaries and litigation. The leftover goes to publishers who filter some down to authors.
What am I missing? Reality is never this black and white. There must be some benefits to signing on with AC.
Rory McGreal
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Comments
Is your question rhetorical?
I have seen rationales for continuing with Access Copyright, but none have come from disinterested or impartial parties: they've come from the organization itself, from the Writers' Union of Canada (notwithstanding strong dissent from WUC members, like its own former chair), and from one particularly pernicious troll affiliated with a government arts funding agency.
So the question may be rhetorical. (Unless by "benefits" you mean benefits accruing to AC itself, not to signing institutions.)
Mark A. McCutcheon August 17, 2012 - 12:04pm
I thought the 1997 copyright ammendments required post-secondary institutions to be apart of a collective. So if AC is the only literary collective for English Canada and AC is only providing a single type of licence then the rationale is either accept the licence or make another alternative.
Personally, I think another alternative would be great because an organization that is more responsive to creators, consumers and institutions that can offset AC's advocacy would be a good thing.
Eric von Stackelberg August 18, 2012 - 11:26am
Whether that requirement stays on the books under C-11 is worth looking into. C-11 does have a sneaky little set of clauses that pose a potential "big copyright grab" for Access Copyright, as Ariel Katz suggests: http://arielkatz.org/archives/1347
That said, in light of the SC's quintet of rulings, the basic rationale for a PSE collecting society as such is profoundly weakened. I would also wish to point put again that, despite the lobbying hype to the contrary, universities and the education sector more generally are already very responsive to and financially supportive of authors and creators, in the substantial library acquisitions and subscriptions we pay for, the texts we assign, and the events we sponsor. That the collecting societies' lobbying continues to pit creators against educators misrepresents the interests of both and is beyond reprehensible, it's simply vile.
Mark A. McCutcheon August 18, 2012 - 12:21pm
I agree the collectives behavior is vile, but at the same time I believe you are overstating the educations sector support for authors and creators. The erosion in less than a decade of the ability for individual authors to making a living in creating content says to me that the system is dysfunctional. New models are necessary and the educational sector is the major purchaser in this sector and universities could be a major source of knowledge to conceptualize new models unless the intention is to abdicate this to for-profit organizations. I believe the numbers show that more than 50% of universities have chosen to support the status quo (accepting the AC licence) which is not in the interests of their students or faculty especially considering the SC rulings.
I respect that AU has taken a stand, but I still maintain a more active role by universities would be advantageous in creating a more functional system.
Eric von Stackelberg August 19, 2012 - 3:20pm
Eric, your assessment leaves out necessary context: public funding for the arts -- both for individual artists and for organizations that employ artists -- has not been maintained in a way that will actually provide living incomes for artists. Instead, this use (and generation) of public wealth has been increasingly shifted to the private sector. (It has been suggested, even, that this is because artists have a habit of saying things corporate governments do not like to hear.)
The same thing is happening to university budgets, with the responsibility for carrying the cost of creating a well-educated public increasingly shifted to individual students reconceived as businesspersons "investing" in their futures. The enforcement, via AC, of copyright costs being downloaded to individual students is another step towards the neoliberal university, where everything is an individual investment.
Maybe this is just a case of misdirection: making creators and educators scramble to become more "fucntional," while budgets are pissed away on super-prisons and corporate tax cuts. If that's the case, then a functional system won't start with better buying behaviour from universities; it would start with adequate public funding for artists and educators.
sarah beth August 19, 2012 - 3:54pm
ALL
My questions could be interpreted as rhetorical and partly so, but I really would like to hear what the arguments are for signing with AC. Does anyone know of any? Am I misinterpreting the Supreme Court pentology or the six point test??
Rory McGreal August 20, 2012 - 1:59pm
Writers and artists have always struggled to make a living and I would agree with Sarah that the plight of artists and writers has more to do with budget cuts and a non-supportive government than universities. I would like to see some evidence of fair dealing in schools and universities undercutting sales. Education is the biggest supporter of Canadian writers.
All the best.
Rory
Rory McGreal August 20, 2012 - 7:02pm
In Alberta (Education) et al v. Access Copyright, the court wanted to see precisely such evidence too. No evidence was produced to connect educational copying with declining sales. As the decision states:
In CCH, the Court concluded that since no evidence had been tendered by the publishers of legal works to show that the market for the works had decreased as a result of the copies made by the Great Library, the detrimental impact had not been demonstrated. Similarly, other than the bald fact of a decline in sales over 20 years, there is no evidence from Access Copyright demonstrating any link between photocopying short excerpts and the decline in textbook sales. In addition, it is difficult to see how the teachers' copying competes with the market for textbooks, given the Board's finding that the teachers' copying was limited to short excerpts of complementary texts. If such photocopying did not take place, it is more likely that students would simply go without the supplementary information, or be forced to consult the single copy already owned by the school.
This lack of evidence is what makes the collecting societies' attempts to pit creators versus educators so galling.
Mark A. McCutcheon August 20, 2012 - 7:24pm
My comments are opinion based on observations not assessment because I have no access to the data necessary for rigour. I am pointing out that education is the primary consumer, I thought the figure was something like 77% of Access Copyright's revenue was from educational sector, and since it has not been practical to use that for leverage (as demonstrated by a bad deal in the model licence) then an ageement to switch to something that is more representative with an updated operational model (and governance) is more appropriate than going back to AC. As to the question of whether there is value to an institution dealing with a collective becomes a question on whether the supply chain is more efficient or not. Theoretically a responsive organization would decrease middlemen allowing increases to the the writers and artists returns usually from 3-5% to something more significant while decreasing costs to the end users.
I believe in the copyright group there is some material referencing the decreasing ability to making a living as a freelance writer. I disagree with the premise that budget cuts and non-supportive government are the problem because if the writer gets 5% that means for every $100 increase someone other than the writer gets $95. You might as well be repeating Wall street bailouts. Times have changed and the risk distribution and supply chain need to change with them. Now I understand these figures are actually significantly better than a writer should expect from Access Copyright but I don't see how a person could be expected to live on this and it is my understanding that this has been getting worse over the last decade.
As far as the economic impact of fair dealing I suspect it would be easier to generate a solid argument that fair dealing increases economic benefits rather than reduces it. There was an excellent document on the economic results of IP practices that I will link if I can find it again.
On my leadership comments the educational sector is the largest aggregation of consumers of this material and I expect a significant source for the creation of materials. Most of my comments are based on readings which suggests that the knowledge to create an appropriate solution exists either in the institutions or closely affliated with them. The information necessary to design the operations or business model is most likely available through the use patterns in a University. It is not my intention to suggest that this should be off-loaded to Universities as I would disagree with that as it could distract from research and instruction. But rather Universities could play a significant role in getting the ball rolling as it should be designed so that they also benefit from this in the longterm.
Eric von Stackelberg August 20, 2012 - 11:48pm
Yes, the majority of Access Copyright's revenue has been from the education sector; but expert critics (like that former WUC chair) have long argued that AC spends too much of that on overhead and lobbying, and far too little on actually remunerating creators.
AU is collaborating with other universities to ensure our copyright practices adhere to the new copyright law (expect a formal communication about this in the days ahead), and preliminary talks in this collaboration include considering alternative collecting bodies and systems (such as you've sketched and Knopf argued for in 1999). So you could say we are assuredly getting the ball rolling.
I quite agree with your hypothesis that fair dealing increases economic benefits to creators in its capacity as promotion. I have been convinced of this since I worked in permissions and editorial in the burgeoning book e-tail industry in the late 1990s. So I would welcome seeing the study you mention.
I disagree, though, that public investment in arts is to be dismissed. Cultural production cannot be fairly compared to the financial sector - or any other production sector, in fact. Cultural production obeys what Peter Grant and Chris Wood describe as "curious economics" that are unique to cultural and entertainment industries. Grant and Wood's book Blockbusters and Trade Wars (which I'm pleased to see the library has as an e-book) is a very accessible introduction to these "curious economics" and the corresponding arguments for robust public arts investment.
Mark A. McCutcheon August 21, 2012 - 8:22am
See this US Report:
Rogers, T., & Szamoszegi, A. (2010). Fair use in the U.S. economy: Economic contribution of industries relying on fair use Retrieved from http://www.ccianet.org/CCIA/files/ccLibraryFiles/Filename/000000000354/fair-use-study-final.pdf
Fair use is as important to the US economy as is copyright and possibly more so.
All the best.
Rory
Rory McGreal August 21, 2012 - 12:15pm
Excellent to hear the ball is rolling on options. From an outside looking in perspective I had the impression it was every institution for itself which works in the short-term for some organizations but could be problematic over the longterm. Most of my comments on the appropriateness of an alternative collecting society is based on Knopf's 1999 article. My comments on changing the operations or business model and supply chain so that it benefits both education and the creators are more from the social enterprise side and moving risks.
At this point I do not have an opinion on public investment in the arts but I look forward to the book you identified. My point is the old system of maybe 3-5% and many middlemen is no longer necessary. Put the processes and systems in place where creators recieve a larger percentage of the compensation and then modify the investment Otherwise the additional investment goes to parties that are already well rewarded.
Or more specifically I do not believe large publishers (foriegn or domestic) need more of my money.
Eric von Stackelberg August 21, 2012 - 12:39pm
Oh, I understand better now what you mean by the 3-5%, and I agree. Royalty rates could increase with fewer intermediaries, and the Internet affords various opportunities to eliminate intermediaries and reconfigure distribution and marketing. It's worth bearing in mind that while all cultural industries partake of "curious economics," different sectors provide very different kinds of contracts to creators, entailing different ratios of remuneration - and exploitation. Music label contracts are notoriously exploitative: artists don't retain copyright, rarely see royalties, and generally make what living they can on concert ticket and merchandise sales. Doug Saunders, in a Globe and Mail column, once likened the standard big label, multiple-album recording contract to being given a credit card with 600% interest. And I know one indie artist who has blogged extensively about the perils of big label contracts and the virtues of not signing them.
An interesting study on this subject appeared in 2009 in the Times Online. Interestingly, it has since vanished from the Times Online website, and that's why I've linked to this webcrawled archival version housed at the Internet Archive's Wayback Machine: http://web.archive.org/web/20091115091151/http://labs.timesonline.co.uk/blog/2009/11/12/do-music-artists-do-better-in-a-world-with-illegal-file-sharing/ This archival version omits the graph that the article discusses; happily, another reblogger has archived that graph too. It may be the article got its stats wrong, but it may also be that the Times pulled a piece that could be construed as detrimental to publishing in general.
Mark A. McCutcheon August 21, 2012 - 1:17pm
In regards to the ball that is rolling can anyone comment on whether part of the strategy would include an approach to offset Access Copyright's advocacy and would the solution focus on institutions as consumers or an attempt at a fair deal for both consumers and creators and the governance and operational model to support that.
Eric von Stackelberg August 29, 2012 - 12:21am