Monday, June 27, 2011

Access Copyright and the Robertson v. Thomson case

Writers can now begin to claim payments from the second settlement in the group of class action lawsuits widely known as Robertson v. Thomson. This one involves a settlement with the Toronto Star, ProQuest, and other publishers. The deadline for applications to share in the payments is October 31, 2011.  Information on the process is available here.  Claims forms can be downloaded here.   

Payments in the first Robertson v. Thomson settlement went out to eligible writers last winter.  I have met writers who say they received more money in that one payment than they have in a couple of decades of Access Copyright payments.

What was Access Copyright’s role in Robertson v. Thomson?

On the face of it, minimal.  Access Copyright always declared itself neutral in Robertson v Thomson.  It was a civil suit between independent parties, the collective declared, and Access Copyright had no role.

That’s odd when you think of it.  Access Copyright is a copyright organization. It has some of Canada’s best copyright lawyers on staff or on retainer.  It always stands up for copyright and against copyright abusers. It is one of the most active copyright litigators in Canada.

Furthermore, the defendants in RvT used many of the classic anti-copyright argument to justify their appropriation of other people’s work.  (See an analysis of the case here.). RvT was settled after the defendants agreed to make handsome payments to the plaintiffs but, had the trial continued, the decision would surely have been among the most important copyright precedents in recent Canadian history.  How could Access Copyright stand idly by as vital decisions in copyright law were being adjudicated?

There is one crucial difference between RvT and all the copyright case AC litigates constantly.  The alleged abusers of copyright here were not copy shops, universities, Departments of Education, or online free copiers like Pirate Bay.  Here the abuses of copyright were charged to publishers.

At Access Copyright publishers are special. They control half the board and can veto any Access Copyright action.  Unlike the usual anti-copyright forces, the specific publishers defending themselves against accusations of copyright abuse had their representatives right on the board of the copyright collective.

There is one kind of copyright abuse to which Access Copyright always turns a blind eye: abuse of creators’ copyright by publishers. Access Copyright cannot ever defend creators’ copyrights against publishers who seek to abuse them.  Its very structure forbids it.

Creators' copyright advocates did take RvT to court, despite Access Copyright’s refusal to. Thanks to the availability of class action lawsuits and years of heroic work by Heather Robertson and her allies, they succeeded.  But the lesson seems clear.

Access Copyright collects millions of dollars a year on behalf of creators. But Access Copyright exists in its present form to prevent creators from using their own money to defend their copyrights as they might choose to. (When publishers’ rights are threatened, however, publishers can rely on Access Copyright to marshall the support and the money of creators behind efforts at redress.)

The claims administrator in the Robertson lawsuis is now paying out the millions of dollars that the defendant publishers put up to make the copyright-absue case against them go away. And creators have set an important precedent against new forms of copyright abuse -- no credit to Access Copyright.

But few creators have the ability to litigate against their publishers. Few can contemplate the years of heroic unpaid struggle and effort that Heather Robertson and her team undertook.  How many other RvT situations – situations of publishers abusing creator copyright, particularly in new technology fields where law and custom are unsettled – go unlitigated because Access Copyright prevents creators from using their own money to defend creators’ copyrights?

Some creators cannot help thinking: Publishers and creators have many copyright interests in common -- but not all.   If there was a creator-run collective, one wholeheartedly committed to supporting creators' copyrights, then suddenly creators would have both the money and the means to assert and defend their own copyrights – no matter who the abusers were or how many seats they held on Access Copyright’s board.   

Will we get from here to there?


DC Reid said...

If there was a creators-run collective, writers could do a great deal more with the lawyer that we would have. Chris makes a good point that at AC currently the great deal of money spent on lawyers really only benefits the large educational publishers, or publishing concerns. In a comment received from AC, it was pointed out that there should be a larger distribution to writers because the lawyer bills benefit others, but we have paid our share, and received nothing for it.

The lawyer on staff's salary, can conservatively estimated at $250,000 and above (please remember that estimates are required only because AC will not give out the figures).

But the legal costs are far higher. Professional fees are $851 thousand, and the Copyright Board applications are $730 thousand for a total of $1.6 million, or about half of the total given to writers. Multiply your cheque by 1.42, or simply add half of what you got to what you got to see what you would have got. But there is more. The travel and etc. budget of $305 thousand would partly contribute to legal costs. And there is the unanswered question of whether any staff member received income out of the amounts, or a closely related firm.

What else could we do with a lawyer in a creator-run collective with 50% of the revenue? Well, we could change the contracts that writers have to sign for print-based books due to the disparity of negotiation power between a publisher and a writer. The disparity separates creators from a long list of rights, as well as makes writers indemnify the publishers who take those rights, not to mention moral rights and other admin clauses like: accounting for sales twice per year but only paying once - after returns, a practice that makes a writer receive money for a book sold as much as 15 months before. And so on.

In a kerfuffle over the Beta Project in BC, the executive Director of BC books, Margaret Reynolds, told writers that if they don't like contracts then they should not sign them. Every writer I have shown this comment to simply laughed. Perhaps she should move from her job and become a writer.

The disparity is real, and accounts also for the very low amount of money what writers receive from AC.

DC Reid

DC Reid said...

Here is the other half of my comment above:

Even a publisher as benign as the CBC - that incidentally wants our support now in its application for a licence at the CRTC - takes moral rights from a writer. You may recall that we pay $1 billion each year out of our taxpayer pockets to the CBC, only to have them turn around and strip writers of moral rights and not even think it is wrong.

While the moral rights issue illustrates how prevalent a practice as 'assigning' moral rights is, you may have noticed that Bill C-32 went on for pages about moral rights, proving only that the legislation is a decade out of step with current practice.

Think of how different it would be if writers had our own lawyer in our own (or a drastically modified AC structure) collective with $52.1 million of the balance sheet some 1371.1% greater than we got last year, ie., the very small $3.8 million. That would be a much better world for writers. We could change those contracts.

If you want to understand how different things could be, go read Amazon's contract and then compare it with what you have to sign at a print-based publisher. The A contract is about using a sales machine. It is in essence a fee for service contract. It has none of the 'assignment' clauses that can, in some contracts, go on for pages.

Oh and A royalties start at 35%, whereas one publisher I know recently reduced royalties to 6%. Sad, if it were not true.

Oh and do remember that all epubs should be included in your annual Payback packet to Access Copycaust.

The Heather Robertson case shows that it is indeed hard for a writer to go to court. It should not be this way. Bill C-32 should have established an arbitration mechanism within Industry - something that writers could use because we can't afford to take anyone to court.

But with our own admin structure, either in AC, or not, and 50% of revenue that very small base payment of $175 would jump to $2412.96. I suspect writers would like this extra money. I am a writer and I would like it.