Monday, October 3, 2011

Profs and "fair" dealing

The universities’ campaign to avoid paying for what they use -- by having the copyright act declare educational uses of copyright material “fair dealing” -- got some support last week with the introduction of C-11, the copyright act amendment bill. It contains the educational exemption the education bureaucrats have long sought. While the government may make amendments to C-11, whatever the government wants is now likely to be passed quite soon.
It is striking how much professors and teachers have become involved in supporting the universities’ campaign not to pay for what they use.  When students use other people’s work without credit, the universities call it plagiarism and threaten expulsions.  But when the universities use other people’s work without credit, they call it “fair dealing.”  Even CAUT, the faculty organization, is acting as a company union on this question, defending the employer’s interest in a freebee over its members’ intellectual property rights.
I recently spoke with the British collective ALCS about this problem (among others). They were puzzled by Canadian academics’ apparent eagerness to surrender their intellectual property to their university employers and their lack of interest in having their works collectively licensed. ALCS estimates about 18,000 of its 80,000 creators are teachers and professors. I was told:  
“We have always had a strong following among academics. Our current chair is an academic, and we have always had academics on our board.  Academics are not so well paid here in the UK, so every penny counts for them, so we have had no problem there. The academic community is quite supportive of ALCS and collective licensing.”
British academics understand and support collective licensing because they are among its significant beneficiaries.  When their work is copied by their universities, ALCS sends them cheques based on the universities’ licensing payments.  There is nothing like a steady flow of small cheques to persuade creators, including academic ones, of the tangible benefits of having their works under collective license.  That process works well in Britain. The collective supports academics with money; the academics support the collective licensing principle.
Canadian academics are hostile to collective licensing, but it’s not because they are so rich. It has more to do with the fact that they gain no benefit to it and see mostly its inconveniences.
When educational texts, scholarly articles, and other academic works written by professors and teachers are copied under license to Access Copyright, Access Copyright pays 100% of what it distributes from those revenues to publishers, 0 to the creators.  It’s right there in their distribution rules.
That is, Canadian academics’ opposition to collective licensing arises from the fact that they never see the money. They see their universities and their students paying for reprography licensing, while they, the creators of a notable portion of what is being copied, get nothing.  No wonder they are susceptible to the university administrators’ proposal, “Let’s just take the stuff and call that ‘fair’.”   
To put it simply, Access Copyright has always been more concerned about putting creators’ money in publishers’ bank accounts than it has been about building a fair and comprehensive collective in which all who create value for the collective derive benefit from it.  ALCS = 80,000+ creators; Access Copyright = barely 9000.
Now we see the consequences. As ALCS told me, “Without that friendly creator face, it is hard to sell licences. The licensees want to know that the money actually reaches creators.  Having a strong creator presence and being able to show the money reaching them, that gives us leverage in licensing.”
Access Copyright certainly wants creators to front its promotional and lobbying efforts.  But it has never wanted the other side of that, never wanted to see significant amounts of Access Copyright money actually reaching creators, whether academic or not.  In the end, the money (and its absence) talks.  Since they get none of it, vast numbers of the academic creators who should be beneficiaries and supporters of collective licensing have decided to support their employers’ rights-grab rather than to defend their intellectual property rights through the collective.
It’s sad, but it’s not hard to see why.
I’ve long argued creators deserve much more money from Access Copyright.  But you might say I’m a creator, of course I’d say that.  But what is really striking now is how desperately Access Copyright has damaged itself by its greedy and short-sighted publisher-centred policies, always more concerned with streaming money to publishers than with building a strong, broadly-based, and trusted collective that could withstand the kind of challenge it now faces.

Sunday, October 2, 2011

Suggestions for Improving the Canadian Reprography Mechanism - 2011

1. Creator Ombudsman. Transparency. An ombudsman to deal with creator issues. Not on the board. No fiduciary duty. Fully and always responsive to creator wishes. One year position. Problems published on AC website.

2. Transparent Response to Creator Queries. All questions handled within seven days. With a real-time web forum and problem threads. AC needs to grow up a little and receive criticism openly, transparently, and with the intent of solving the issue, not simply defending its turf and saying no.

3. Copyright Lawyer for Writers. Writers need a copyright lawyer who is paid by AC, but is completely arms-length from AC, who is hired and fired by us. Law is not about truth. Law is about making your best argument. What we get now is law from a publisher’s, particularly large educational publishers’ point of view. We need our own advice.

4. Redo the Friedland Report. To be delivered to the Ombudsman who will deliver copies to the signatories, undigested to affiliates on AC website, to this blog and AC. AC to respond within one year. Non-redacted.

5. Lawyer’s Opinion on Fiduciary duty. A fund for creators to seek a legal opinion, arms-length from AC. One lawyer has opined that AC does fiduciary duty wrong. This is at the heart of why our reps do not represent us, and there is a lot of money that has been decided, probably in excess of $300 million.

6. New Copyright Act and the Demise of AC. A new version of Bill C-32 has been floated and it will result in the demise of AC. We don’t want our financial statement of $104.2 million frittered away by high-priced help clinging to their jobs.

Do note that a remnant of AC will remain – 15% - and then writers and small cultural publishers can get on with setting it back up 50/50. Introducing the 50% and the UK model are the most important items. There is also education revenue from the current six part test rule that AC has not been upfront and open about with creators.

7. Move to UK-like Program. The long term goal is change to the UK corporate system. One part is that writers receive 50% of the money, and publishers the other 50%. There are four corporations. One licences and collects the money, it is split and then, the second part of the system, sent to the writers or publishers corporation for distribution. Writers have complete control over our money.

We need to find a way to seize the assets in the transition so that the investments and balance sheet amounts, including accounts receivable are split 50/50.

The creator co-chair will oversee the eventual shift to the 50/50 model, and an organization more in line with the UK model of reprography. We will need quick movement when the new Copyright Bill becomes law.