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?
Posted by Christopher Moore at 8:09 AM