What is Access Copyright to You?

Access Copyright is an organization that was set up as a “collective” to distribute funds to writers, termed “creators”, and to publishers. These are known as the affiliates of Access Copyright.

Authors and publishers who have put their skills to creating a book would like that effort to be paid for. Users of books, texts and illustrations in government and educational institutions are supposed to pay a licence or tariff for that use. Affiliates are each allocated a portion of that payment, depending on the amount of content they have generated. For instance, if you are the author of a text being used in UBC courses, you may receive a cheque from Access Copyright annually for something like $300. Or, it could be in the thousands. The distribution of funds has been designed to fairly pay for the works so that it encourages the further Canadian writing – authors have been getting just under one-half (46%) of the payments, publishers have been allocated about 52%, and the remainder has gone primarily to overseas publishers.

When 10% Becomes 100%

The calculation to find how much, as an example, UBC is supposed to pay comes from their full-time-equivalent (FTE) number of students in a year – say 45,000. The university is assessed that number times an agreed amount. Access Copyright has asked for about $7.00 per FTE, which would have been $315,000 (these figures are very rough approximations). If the university objects, as they all have recently, the Copyright Board is tasked to adjudicate the dispute and then issue a tariff notice.

With respect to universities and colleges, a few problems have arisen. One problem is that the Copyright Board made some peculiar decisions (which are being appealed by Access Copyright). The tariff they came up with was in the pennies per FTE, rather than dollars. This has drastically reduced the funds that can be given to authors and publishers. In the UBC example, the amount would come to about $22,000 (if they actually pay), or almost $300,000 less. UBC spent more than $26,000 just on the Royal Vancouver Yacht Club.

Access Copyright is appealing.

The excuse used by educational institutions when they appear before the Copyright Board tribunal is that the principle of fair dealing allows their instructors and students to make copies of a work, up to 10%. Even though this number is only a guideline and is subject to conditions, they then go on to say that all copying done is under fair dealing, therefore there is nothing to pay. That assertion flies in the face of every analysis done of the situation, including an 18 month study by PriceWaterhouseCoopers.

But since when have universities insisted on conforming to scientific method?

Legal shenanigans

Another issue has been that every one of the universities and colleges (all of them) have backed out of defending the suit. The result is that, without the other side being in court, the legal team at Access Copyright cannot force the institutions to disclose how many copies are being made, thereby hamstringing the suit. Cute.

That situation carries on.

Also, Access Copyright has filed suit against York University as a test case. When will it be resolved? Considering that it took 11 years for the previous case to be decided, the York University case will take a few more years. Also consider that after the last positive legal decision for Access Copyright, the same litigants again refused to accept the subsequent tariff notice. The educational institutions are taking the stand that a tariff notice is just an optional suggestion. They feel they are saving as much by not paying, as it takes to pay for the legal shenanigans, so they are deliberately wearing down the resources of Access Copyright until, they believe, it will disappear.

So What?

Why should you, as an author, care? If you are already registered as an affiliate, your annual payment for the work you did is in jeopardy. Your work will become free for all. But that is only a small part of the “So What”.

If there is no longer a financial incentive for Canadian authors to write books that are targeted at our K-12, secondary, college and university institutions, or the libraries, and if publishers no longer have books to sell them, there will literally be no more Canadian texts in school. The institutions will then be forced to buy their books from (name a few countries).

Where, then, goes Canadian culture and history? Is it downloaded from Google?

This topic may have many complexities, but that one factor remains. Without Canadian books, we lose our Canadian culture. Full stop.

An Act To Enrich the Legal Profession

At the AGM for Access Copyright held on April 15th, the new, slimmed-down and redesigned Board, along with representatives from across Canada, considered the issues. Excellent assessments were made and a plan of action, which was started last year, was further strengthened. The likely actions of those institutions that are obligated to pay us for our work was considered. It was suggested that funds from a Canadian university association are finding their way to York University to fuel their lawyers. No wonder a legal wag called the last change to the Copyright Act, “An Act To Enrich the Legal Profession”.

Access Copyright has no option but to continue that fight. We have held out our hand to our “clients”, looking for a peaceful solution. The educational institutions have not merely refrained from negotiation, they have pointedly ignored Access Copyright. Nevertheless, we must continue to sue our clients even as we continue to hold out an olive branch.

There is a mandated review of the Copyright Act set for 2017. No matter what happens, the Act will not be changed that year. It will take a while. Consider that Access Copyright, on behalf of authors and publishers, has been forced into the courts since 2004. That is likely to carry on past 2018. It has gone on endlessly! Consider how much that must have cost all sides in legal fees! Is that not a shameful waste of resources and effort that should have gone, instead, to enhancing our culture? One would think we are fighting against Martians – and yet it is the very institutions that tout our Canadian culture, that are working to destroy it.

Up the Pitchforks!

My suggestion was to do a flanking maneuver – we need to ask the politicians why the Copyright Board has made so many legally curious decisions, why their decisions have forced the waste of millions of dollars, and why are the educational institutions and libraries hell bent on stripping themselves of Canadian culture. Our symbol should be, I said, the pitchfork. We need to rouse the populous!

One of the rabble rousers on the Board is from Victoria – Michael Elcock. At a meeting with university administration he innocently asked if he could please have one of the free degrees from the university. If it was alright to freely copy his books, then he wanted a free degree. Blank stares.

At the AGM, Michael asked if we could convince a famous Canadian author to take action by demanding that her/his books be removed from all Canadian libraries. And if one author did not get their attention, how about several? Libraries thus emptied of Canadian books would certainly be a telling statement.

Be aware that the educational institutions will be grinding their propaganda machine into full bore over this year. From their boardrooms they will accuse, and cry poverty, spend more money that does not go toward education, and demand the freedom to copy our works without pay.

Access Copyright will respond, on your behalf.

 

References

Copyright Board:

www.cb-cda.gc.ca/tariffs-tarifs/certified-homologues/2016/TAR-2016-02-20.pdf

  • See Recent Decisions, Elementary and Secondary School Tariff (2010-2015), and check out “2. In this tariff… but excludes the digital copy”; with that exclusion of digital copying, the tariff is $2.41 (it would have been over $7.00). Excluding digital copying is one of the curious legal decisions. It has no basis in fact, in the Copyright Act, nor in reason.

Access Copyright:

www.accesscopyright.ca – Annual Report, including a summary of the PriceWaterhouseCoopers report.

Copyright Act:

www.laws-lois.justice.gc.ca/eng/C-42/

Supreme Court of Canada decision re, fair dealing:

http://www.canlii.org/en/ca/scc/doc/2004/2004scc13/2004scc13.html?searchUrlHash=AAAAAQAWZmFpciBkZWFsaW5nLGNvcHlyaWdodAAAAAAB&resultIndex=2

UBC Annual Report and financials:

http://finance.ubc.ca/sites/finance.ubc.ca/files/uploads/financial/documents/2015%20Financial%20Information%20Act%20Report.pdf

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