Copyright Board, Copyright Collectives, and the myth that "Fair use decimated educational publishing in Canada”

(This is a letter in an ongoing dialog with a few members of federal parliament. This email was added to the list of submissions for the Copyright Board consultation.)

David McGuinty, my MP in Ottawa South,

David Graham, MP (Laurentides — Labelle),

The Honourable Mélanie Joly, Minister of Canadian Heritage,

The Honourable Navdeep Bains, Minister of Innovation, Science and Economic Development,

Copyright Board Consultations

I would like to thank David McGuinty for forwarding the September 8, 2017 letter from Minister Joly. This was a response to my May 1, 2017 letter titled “Myth: Fair use decimated educational publishing in Canada”. My letter highlighting some of what might colloquially be referred to as “fake news” being spread globally, primarily sourced from Access Copyright, a Canadian Collective Society. The National Copyright Unit of Australia felt this myth spreading required a response^[1]

As this myth primarily relates to an ongoing dispute between a collective society and provincially funded educational institutions, it ties in directly with the current consultation on the Copyright Board of Canada^[2].

The consultation paper recognises that there has been an “explosive growth of media and related technologies worldwide”. This specific incarnation of the of the Copyright Board was created in 1989, the same year that development of HTTP, one of the key technologies underlying the World Wide Web, was initiated by Tim Berners-Lee at CERN.

We live in a world where advanced content recognition, search and online media distribution enables audiences to find and access any content that they want. Sometimes, when copyright owners allow, we are offered a variety of competing access and licensing services to choose from. Modern information and communications technologies have made redundant a sizeable portion of what the Copyright Board was historically envisioned to accomplish.

While the discussion paper suggests we can speed up processes at the board by “Reducing the Number of Matters Coming Before the Board Annually”, the paper does not discuss the need to reverse the historical proliferation of collective societies. At a time when many collectives should be recognised as decreasing in relevance, they continue to increase in political and economic influence.

I will use a few specific problematic areas to illustrate.

Orphaned Works

The incentives behind the current “Unlocatable Copyright Owners” regime administered by the copyright board are counterproductive. The purpose of the regime should be both to encourage copyright holders to be discoverable and negotiate licenses, as well as to provide copyright users protection from a previously hidden copyright holder who later surfaces. Creators, copyright holders, copyright intermediaries and commercial copyright users should all have economic incentives to make copyright holders discoverable.

Modern ICT has caused some technology vendors and governments to declare “privacy is dead”, so it is inconceivable that a copyright holder who wants to be found is unable to be found. Some responsibility should be presumed on anyone who wishes to harness the privileges which copyright offers.

• Creators, copyright owners, collective societies, or other intermediaries should never receive proceeds from the unlocatable copyright owners regime. Fees should be kept with the board to fund its own operations and support services to increase discoverability, with any surplus returned to general revenue. There should be a clear economic incentive for these groups to make all copyright holders more easily discoverable.
  
• Fees levied against commercial copyright users should be sufficiently higher than what would normally be offered by a copyright holder, to further encourage commercial users to help make copyright holders more easily discoverable.
  
• Fair Dealings should be clearly expanded to cover non-commercial uses of works for which licenses cannot be easily obtained, including for reasons of unlocatable copyright holders. There can’t be a negative impact on the market for a work when no such market exists.
  
• If a copyright owner is unlocatable, but the creator is locatable, then copyright should revert to the creator.
  
• Fees previously distributed to collective societies, but were never disbursed to later-located creators or copyright owners, should be returned to the copyright board.
  

It has been claimed that the “no formalities” requirement of the Berne convention prohibits mandating registration for exercise of any copyright related rights. The reality is that if a copyright owner wishes to get paid they must make themselves known to someone, so it is illogical to suggest that requiring copyright owners do something to make themselves discoverable is a “formality”.

What this failed regime has allowed is for entities like the Access Copyright Foundation to take money from the orphan works regime as well as other fees extracted from authors as excessive transaction fees by Access Copyright, and create their own unaccountable arts funding program^[3]. With this entity perceived as doing “good works”, the incentive to make copyright holders easily discoverable and able to receive greater direct payments for their works is diminished. This is a net-reduction in funding for authors, marketed as if it were a benefit to authors.

Educational use of copyrighted works

Nearly all uses of copyrighted works by provincially funded educational institutions is licensed with copyright owners, and not through collective societies. This includes the global growth of Open Access, as well as online databases offering subscription and/or transaction fees.

There is then a thin layer between where the use of a work is already licensed, and where the use of the work does not require a license, that is under dispute between collective societies and educational institutions. This is the dispute underlying the myth that fair dealings decimated educational publishing in Canada.

In this case the relevant parties are not educational institutions or collective societies, but provincial taxpayers and authors. I believe if provincial taxpayers were asked if they were willing to help fund creativity used in the classroom in this thin disputed area they would agree, as long as the funding was accountable and efficiently distributed. Unfortunately, with all the middle-men taking their cut (Access Copyright is said to take 30% for itself), the current regime is inappropriate.

We already have a model for a far more efficient regime active in Canada. The Public Lending Right (PLR)^[4] program funds authors directly for the lending of their works in libraries. This funding program is far superior to having this activity covered by the Copyright Act. It is better for taxpayers as the money more efficiently funds authors, rather than all the unnecessary intermediaries and all their lawyers. If applied to educational uses this would not only provide considerably more funds to authors, it would end the expensive decades-long disputes launched by unnecessary intermediaries in front of the copyright board.

The PLR is an example of using the right tool for the right job. There is a harmful misconception held by some policy makers that copyright is a valid substitute for stable arts funding.  Arts funding can be accountably targeted at creators, where the benefit of copyright tends to goes to unnecessary intermediaries -- or leaves the country entirely.

As well as initiating a Public Education Right (PER) funding program, copyright law should be amended to clarify as fair dealings the current thin disputed layer of uses.

This clarity should, however, have responsibilities attached to it. Some education institutions want to have their cake and eat ours too by having exceptions to copyright on their inputs, but royalty bearing on their outputs.  The ability of institutions to use any institutional exceptions to copyright, as well as what has been clarified under the PER regime, should be conditioned on the institution adopting an Open Access publishing regime at least on par with the Tri-Agency Open Access Policy on Publications^[5].

Lobbying by Collective Societies

Collective societies provide a specific financial service to copyright holders and copyright users. As noted by Copyright Board expert Howard Knopf, “Collectives are an exception from the basic antitrust and competition law abhorrence of price fixing and conspiracies”^[6] As such, they are not optional to copyright holders who want to get paid for some specific uses of their works. Given this, collectives should not ever be able to claim to politically “represent” repertoire members any more than a bank should be able to claim to politically “represent” me simply because I have a bank account.

Collectives have been allowed to present themselves as proxies for the interests of creators - even when they are lobbying government for policies which benefit collectives at the expense of creators.

The operation of collectives should be scrutinized far more closely by government. This should include disallowing collectives from disbursing funds for purposes other than payment to creators for uses of their works. They should not be allowed to directly lobby government or fund foundations. It should never be seen as their money to spend: if authors wish to fund such activities they can voluntarily do so with their own money, including through optional member funded associations. They should never essentially have their money be “taxed” by a collective society intermediary.

More money to authors, more efficient copyright board

With Access Copyright no longer initiating disputes, resource constraints on the Copyright Board will decrease considerably at the same time as we will see increased funding for authors.

While I used Access Copyright as an example, the same will be true of several other collective societies. Better harnessing of modern ICT and modernizing the outdated thinking in our Copyright Act will greatly reduce the number of collective societies still in operation.

There will always be a need for some small number of collective societies, and a need for the copyright board to impose rates when normal commercial negotiations fail, but we should be providing legal and economic incentives to ensure these exceptions become rare.

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[1] Myth: Fair use decimated educational publishing in Canada http://www.smartcopying.edu.au/copyright-law-reform/fair-use/myth-fair-use-decimated-educational-publishing-in-canada

[2] https://www.canada.ca/en/innovation-science-economic-development/news/2017/08/consultations_launchedonreformingcopyrightboardofcanada.html

[3] http://acfoundation.ca/about-us/

[4] Public Lending Right program http://www.plr-dpp.ca/PLR/

[5] Tri-Agency Open Access Policy on Publications http://www.science.gc.ca/eic/site/063.nsf/eng/h_F6765465.html?OpenDocument

[6] Canadian Copyright Collectives and the Copyright Board: a snap shot in 2008 http://www.macerajarzyna.com/pages/publications/Knopf_Canadian_Copyright_Collectives_Copyright_Board_Feb2008.pdf

Taxpayers should pay authors for educational uses of works, not intermediaries

Replying to a Letter to the Editor in The Varsity.

It is taxpayers and authors that are paying the costs of this ongoing dispute, one way or the other.

What we are effectively discussing is a government funding program masquerading as copyright, and because of the misdirection that this is a copyright issue we are allowing intermediaries like educational institutions, collective societies, foreign publishers, and all their lawyers, to extract the bulk of the money.

If Mr. Degen was focused on Canadian authors getting paid he would be agreeing with me that we need to redirect taxpayer money misspent with the current regime towards a program similar to the Public Lending Right. The existing Public Lending Right funds authors based on their works being loaned by libraries, and a "Public Education Right" could directly fund authors based on specific uses of their works in publicly funded educational institutions. This would be applied only to that very narrow area of dispute between what educational institutions (IE: taxpayers) are already paying, and the clear and indisputable limitations of copyright.

Nearly all of what educational institutions use is already paid for, through payments via modern databases and other established systems. This includes the ongoing growth of Open Access. It is Access Copyright that has refused to allow the payment of transactional fees for the narrow area under dispute.

While Access Copyright had a victory with this specific lower court case, they will lose on appeal as they have lost other related cases. This area of law is quite clear, and contrary to Mr Degen's misdirection have not been on side with Access Copyright's interpretation of the law. This specific case is the outlier.

While the majority of the blame for this costly dispute lies with Access Copyright, that doesn't mean taxpayers or governments should be siding with educational institutions. We should be removing all of these unnecessary intermediaries from the debate entirely.

By fighting for Access Copyright's conflicting interests rather than authors, Mr Degen is pushing for policies which continue to reduce the revenues of authors. My hope is that he will eventually side with authors.

Making a living as an author vs. off of authors.

Two articles crossed my desk today that I thought were interesting contrasts.

Hackers, Amusement Parks, and Activism: Where to Start with Cory Doctorow is a review on Tor, a site for SF and fantasy readers. Cory is a science fiction author that I'm a fan of both for his fiction storytelling as well as his political views that are well grounded in science and evidence-based thinking.

John Degen: On Creative Commons and the future of the sharing economy is a familiar angry rant from John Degen about how the "free culture movement" is trying to make it hard for authors to make a living. I put "free culture movement" in quotations as his (ab)use of that term wouldn't be recognized by those who are part of the movement, such as Cory Doctorow.

The two have a few things in common: both have released some of their own under creative commons licenses, and both are people I've sat down and spoken with in person (not surprisingly, copyright came up -- see notes from the first time I met with Mr Degen). They are both Canadians from Toronto, although Cory currently lives previously lived in London (Yes -- he can afford that as a writer :-).


There are more things they don't have in common: Cory Doctorow makes a living as science fiction author, while John Degen primarily makes his living as staff within groups that claim to represent authors (Currently the E.D. of the Writers Union of Canada, previously the E.D. of the Professional Writers Association of Canada). I say claim, as I've met a number of authors over the years who don't believe TWUC or PWAC represent their interests, and feel abandoned by those groups. As a software author I never expected to be represented by these groups, but it has always surprised me how hostile they are to my interests.


Creative Commons is not an alternative to copyright, but a series of licenses copyright holders can apply to their works. The idea is to harness a wider range of licensing models to better match the funding models and communities around creative works. It is naive to believe that business models that apply to the authoring and distribution of fiction novels applies to non-fiction educational and scientific material (textbooks, journals). This is only two very different areas of creativity which are primarily written text, and there are many more when you move from the written word intended for human audiences to computer software, or to audio, video, visual arts, photography, and so-on.


Creative Commons isn't about free as in no-money, and has never been about reducing payments to authors. You can tell Mr. Degen is trying to confuse you into thinking it is by mentioning the cost of conferences. It is about recognizing that authors are best rewarded financially and otherwise when the licensing and business model matches the type of creativity they are involved in.

Cory Doctorow understand these differences and will talk about that diversity, and how one-size-fits-all can't work and harms the interests of creators. This will be part of what will be discussed at the Creative Commons summit, support for creators who need more from their copyrighted works than a one-size-fits-all licensing model.





Diversity and choice is not a bad thing. Sometimes I really want to eat a Hamburger, but I would hate a world where I was not allowed to eat anything else. And unlike Mr Degen, I do not believe that the very existence of pasta dishes is a threat to the Hamburger.


(Note: Not the first time I've critiqued Mr. Degen's articles on this blog.)

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May 2 updates:

• Cory Doctorow doesn't live in London, and hasn't since 2015. I've been following his books and activism, but missed this change in his personal life.
• The misinformation that Mr. Degen is known for spreading, and that he never budges from when confronted with logic and evidence that contradicts his opinion, has been corrected by individuals and institutions globally. This includes Myth: Fair use decimated educational publishing in Canada from Australia.

Creator groups must Focus On Creators

When the current Heritage Minister Mélanie Joly suggested that someone saying "Without culture, nobody would be on the internet" was thoughtful, and possibly even a new idea, I became aware that this is a area of policy that is new for Ms Joly.

We now see a new campaign aimed at the Minister called Focus On Creators launched by several associations which has a similar message the Minister may not have a context for.

While I am an author of software and non-software works, and in my policy analysis and activism I always have a Focus on Creators, I do not agree that all the groups who are promoting this campaign have that same focus.  All too often representatives of these groups claim the interests of some intermediary is synonymous with the interests of a group of creators, and are focused on that intermediary.
 

Technology giveth, and technology taketh away

It is normal technological and societal progress that new technology disrupts old technology, as well as the businesses and business models that formed around the older technology.

As new communications technology comes forward the creators that embrace it will succeed, and those who do not will tend to have diminishing audiences as well as diminishing financial success. When yet another communications technology comes forward to disrupt that technology, those who succeeded with the older communications technology either need to move forward or be as left behind as those who did not embrace the previous generation of technology.

From a public policy standpoint the most important thing to remember is that while technologies and the businesses that surround them will come and go, there is absolutely no reason for the interests of any specific technology provider to be thought of as synonymous with the interests of the cultural and content industries.

Opponents to the ongoing cycle of technological change

This cycle has been true since humans first started to write stories down.  There were those who thought storytelling would die if it was written down and not kept alive by storytellers passing it down from generation to generation.


There have been quite strong personalities that have been opposed to change.

• Composer John Philip Sousa was hostile to recording, arguing in 1909:

"These talking machines are going to ruin the artistic development of music in this country. When I was a boy...in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape."

• Jack Valenti, longtime president of the Motion Picture Association of America, was also hostile to new technologies suggesting in 1982:

"I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."

• Denis McGrath, Canadian screenwriter and councillor for the Writers Guild of Canada, a little over a week ago had the following to say about Netflix:

"So if you were to take this out of the context of an argument about film and television, I would make the case that what we're talking about here is industrial dumping. We have laws against stuff like this."

While Mr McGrath's words may be the most recent, what he is expressing is similar to what has been said throughout written history.  There is no reason for anyone to believe the current technological changes are all that different than what we have seen in the past: some creators who tie themselves to a specific previous generation technology (and the companies and business models that form around that technology) will have problems succeeding, and creators who embrace the new technology under its own terms (including related business model changes) will prosper.

I've interacted with Mr McGrath only a few times over the years (as he tries to quickly end conversations), but all evidence suggests that he confuses the interests of the creators of television with the interests of broadcasters.  Broadcasters are the companies that formed around a very specific type of distribution technology, and should not be seen as being part of the content creation or cultural industries. Mr. McGrath and some others in the "small screen" (Television) industry have gone so far as to suggest that anything that uses wired and wireless means of communicating small screen shows, whether that communication is programmed or not, should be regulated as if they were broadcasters.

I provided more details for this scenario in: Ad free CBC? Why not shift money to creators?
The shortform is that Netflix is not a broadcaster.  While this claim helps the interests of companies that are actually broadcasters, it harms the interests of creators of "small screen" shows.

Creator groups must Focus On Creators

In my participation in Copyright revision process starting in the summer of 2001 I have interacted with many fellow creators from a wide variety of creative sectors.  I have come to know many of the creator groups and their spokespersons. I have formed a good sense of which ones are helping members navigate change, and which ones have confused the interests of their members with the interests of specific intermediaries (technology providers, business model services, funding agencies, etc).

As a creator I can't sign on to this specific "Focus on Creators" campaign.  While I strongly believe that related government policy should focus on creators, I do not believe the groups behind this specific campaign are actually focused on the interests of creators.

Intermediaries sometimes barriers to creators getting paid

During the DigiCanCon consultations, many creators wanted to speak about funding.   I believe it is important for the Minister and the department to be aware of some of the barriers some intermediaries have been putting up to creators getting paid.

We are often told how copyright infringement is a cause of declining revenues for creators.  If we focus for a moment on scripted content for the big screen (Movies) and small screen (Television) we see a number of barrier put up by specific intermediaries which make it hard for audiences to access and pay for that access.

• "Heritage Minister and Department must reduce barriers between creators and audiences" is an article discussing issues one Canadian writer and director came up against when making his movie available to audiences.
• "Notes from watching Supergirl via VPN" and "Space (Bell) has no Class when it comes to protecting copyright" discuss the problems with accessing and paying for "small screen" content, and how the business practices of Canadian broadcasters and BDUs are inducing people to infringement.
• Minister Joly wrong to want to bring tech companies "into the system". reiterates using both screen format content as examples.

Video creativity is not the only creative sector where we see changes in technologies, and the related changes in business models, being claimed to be a threat to creators.

• "Access Copyright activism disconnected from realities in educational publishing" discusses how some author activists, most notably specific individuals associated with the Writers Union and the Professional Writers Association of Canada, confuse the interests of Access Copyright with the interests of writers.  New technology has made direct licensing via online databases easier, as well as new peer production mechanisms possible, and the educational community is moving in that direction.  This only has an impact on fiction authors because of their ties with Access Copyright, with Access Copyright's primary money being an unrelated marketplace for non-fiction educational works that is being disrupted by modern technology.  The so-called "educational fair use" debate is largely about modern technology disrupting Access Copyright's older business services.

During the Bill C-32/C-11 consultations there was considerable discussion about the music industry.  In that case the interests of major labels were being confused with the very different interests of composers and performers.   The major labels were primarily a specialized banking sector formed around the high costs of the technology used to record and distribute music.  Technological advancement changed this business dynamic to where a successful industry flips the power dynamic to one where the interests of composers and performers must be the focus, and labels are only the "hired help" when and if needed by the musicians. In other words, a "Focus on Creators" is a focus on the interests of composers and performers, which are interests quite different from major labels whose interests often conflict with creators.  In Canada the major label interests are represented by "Music Canada", one of the groups behind this campaign.

Access Copyright activism disconnected from realities in educational publishing.

Dr Danny Kingsley recently concluded a series of articles titled The case for Open Research:  the mis-measurement problem (part 1), the authorship problem (part 2), reproducibility, retractions & retrospective hypotheses (part 3), does peer review work? (part 4), and solutions? (part 5).

Anyone wanting to understand some of the complex issues that are top of mind in academic and scientific publishing should read this series.  I found it extremely valuable.

The series discusses issues quite different than what some Canadians have been claiming are issues in academic publishing, namely the Access Copyright activism.  Their nonsense claim is that the primary problem is educational institutions using "foreign" free texts and this is pushing out Canadian non-free texts. (See: "Copyright-free" material is not edging out Canadian educational texts)  This misinformation campaign has even tried to waive the "Digital Canadian Content" flag even though modern business models allow for better localisation (making texts more Canadian) than the largely foreign educational publishers can.

Having given this a lot of thought over the years I have come to an obvious conclusion about why it seems like the educational sector and Access Copyright activists are talking about different things: they are talking about different things.

With educational and scientific publishing we are talking about largely non-fiction works created by and for the educational and scientific communities.  The authors are educators and/or scientists, and the (primary, but not exclusive) audience is educators, students and/or scientists.

What Access Copyright activists are talking about are largely fiction works created outside of the educational sector which just happen to be used in classrooms.  Think of that copy of The Handmaid's Tale used in English class, but not the physics textbook.

When it comes to budgets within the educational community the bulk of the costs are with the educational and scientific publications (journals and textbooks).  Given these sectors are predominantly publicly funded, it is unconscionable to be wasting taxpayer money by not adopting the most modern methods of production such as peer production and distribution such as peer distribution.  Fortunately these models are ideal for the bulk of this non-fiction body of works, and it is the various issues discussed in Dr Kingsley's series that have delayed this inevitable transition.

The fiction works which Access Copyright activists are talking about are at the level of being a rounding error in the budgets spent on copyrighted works by the educational sector.  These are works authored outside of the educational sector, and as more artistic works from the minds of individuals or small groups of collaborators do not lend themselves to peer production techniques.  These are works that could very easily be fully funded using a variety of techniques (I have previously suggested a transparent and accountable model based on the public lending right).

The political problem we are observing is a failure within Access Copyright itself.  The bulk of the royalties flowing through Access Copyright are destined to the very foreign educational publishers that modern business methods must replace if taxpayer are allowed any type of fairness.  Their days are and must be numbered, and we as Canadians (whether authors or not) should be cheering and encouraging this transition.

The authors of those largely fiction works created outside the educational sector may represent a minority of the royalties flowing through Access Copyright, but it is their stories that are used (abused) by the educational publishers to try to extract more taxpayer money by delaying the inevitable transition.  What these educational publishers are doing is throwing these authors under the bus, and creating a hostile environment where rather than authors getting paid well deserved royalties for the use of their works in the classroom they are being lumped together in the battle to save public education from the antiquated business models of older educational publishers.

The solution has always been obvious: the creators of these fiction works need to create separate bodies for advocacy and royalty collecting from the educational and scientific publishers. The interests of these two groups are not only dissimilar, but opposing.  What is good for the educational and scientific publishers has been very bad for the literary authors.  Too many of the existing groups have "leadership" that promotes the fiction that what is good for Access Copyright is good for writers, and this leadership must be changed if authors want to reduce their decline in income.

It is critical for the educational community to recognize this as well.  They can't be fooled by the misinformation campaigns suggesting that educators using royalty-free resources (online or otherwise) is somehow hurting Canadian authors, students, or anyone else.  Please pay attention to the lobbyists behind the curtains. We all need to recognize that it is in aid of Canadian authors, students, educators and taxpayers that the outdated business models and foreign publishers represented by that campaign be allowed (or actively encouraged) to fade away.