Copyright: Get It Right, by not following Access Copyright proposals

(First published on IT World Canada blog)

Collective Society Access Copyright, a business model intermediary used by some creators, has launched a C-32 related campaign website where they are critical of the fair dealings reform in C-32. I believe that the fair dealings reforms are a mixed bag of things which are “about time”, things which are excessively complex, and only some I disagree with. As a creators' rights activist I must disagree with the perspective offered by Access Copyright, which I believe is harmful to the interests of Canadian creators.

I must start by saying that I question the legitimacy of Access Copyright claiming to represent creators. On their website they continue the claim that they represent Canada’s 600,000-strong cultural sector.

As a collective society they exist as an intermediary between copyright holders and licensees for specific uses of copyrighted works. People do not join Access Copyright like they do a political party, supposedly because they agree with the political views of the leadership. It is a way to get money that is owed to them, nothing more. Suggesting access copyright represents the political views of creators is like saying that anyone who applied for the HST rebate in Ontario did so because they agreed with the political views of Dalton McGuinty and Steven Harper.

Given this, I don't believethat collective societies should be involved in copyright reform process, alleging to “represent” their members. Their views can be heard at the Copyright Board when royalty rates arebeing set. It should otherwise be creators and groups representing creators that are independent of collective societies involved in the copyright reform process.

The site has some “fast facts”, which I will make some fast comments on.

1. They claim that the new exceptions jeopardize the economic future of knowledge workers.

2. A repeat of the same as #1, using different words

3. A repeat, focusing on the educational exceptions

4. A claim that Canada's Creative Industry has lined up in opposition to C-32. This is true, but for a variety of very different reasons. Access Copyright's opposition is nearly opposite to my own opposition.

5. A call to get copyright right, something we can all agree on. This has no meaning given the loudest debates in the copyright reform process are different creators' disagreeing on what changes would benefit or harm creators.

Yesterday I summarized my views on five key issues around C-32. I think it is worth taking a closer look at the fair dealings reforms in C-32. I will do so by breaking those proposals into three groups.

• Exceptions clearly for the benefit of follow-on creators.
  

  The most obvious is the addition of “parody or satire” to our existing fair dealings which already had “research, private study”. These are clear limits on the control of past creators that is necessary to enable new creativity. It is something that all creators should be strongly supportive of.

  
  Access Copyright doesn'trepresent creators, but a business model. As such they want more money to flow through them, and are generally unconcerned with the burdens that such a system can place on creators — especially those whose motivation for creativity are not royalty payments.
  

• Exceptions that are similar to those that would exist under US-style living Fair Use regime.
  

  This includes time and device shifting, backups, or non-commercial user-generated content, which does not have a negative effect on the value of the work for the creator. I believe the language in C-32 is excessively complex, and that Canada would be far better adopting a US-style living Fair Use regime. Bill C-32 being excessively complex means that people who are not copyright specialists will likely interpret the terms wrong, inducing infringements that would otherwise not happen.
  

  These are activities where the lack of requirement for permission or payment increases the value of the work to the audience, will increase the willingness to pay, and thus will increase revenue to creators. This basic economic analysis falls on deaf ears for those in Access Copyright who falsely believe that “more copyright” will mean “more money”, when in fact the opposite is often the case. Any business person knows that as you decrease the value of something to the customer that sales will decrease.
  

  These are activities which most Canadians already believed were outside of copyright. These exceptions will not cause a major shift in Canadian behaviour, just legalize the common activities of Canadians. There have been false claims that Canadian law is “weaker” than US law (meaning, balance less tilted in favour of past copyright holders). Canadians believe that any potentially copyright-regulating activity that was legal in the USA was also legal in Canada. I believe the USA got this aspect of their law better than Canada did, and has benefited their copyright industries to effectively have more exceptions to copyright.

  
  This grouping includes the addition of “education” under the basic fair dealings list. The US made this more clear by including “multiple copies for classroom use” which recognizes the benefits of allowing educators to be able to step into the shoes of pupils and do things which would be an exception for the individual pupil.
  

• Exceptions to copyright granted to specific institutions.

  
  This is the one area that I partly agree with Access Copyright. I believe that the educational institution specific exemptions to copyright in Bill C-32 (and the existing copyright act) are a government program, paid for on the backs of copyright holders. In fact, I believe it is harmful to pupils to have one set of copyright rules when they are in the confines of an educational institution, and a different set of rules outside.

  
  Where I disagree with AccessCopyright is that I believe the solution isn't to pay collective societies more money, but for the educational sector to migrate to the use of Open Access published works. Open Access is based on one-time payments to creators for the works, allowing for royalty-free redistribution. Creators get paid directly, and educational budgets are far more manageable than when institutions rely on legacy educational publishers.
  

  In my opinion, if the educational sector refuses to explore alternatives to the incumbent educational publishers and Access Copyright, then we should feel no sympathy for their claims of budget hardships from their own business choices. We should not be adding government programs to federal copyright, and should leave this as an issue to be handled provincially.

The site suggest that I join them in defending Canadian culture & heritage. I must continue to publicly oppose their policy views in order to do my small part to defend Canadian culture & heritage,

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Russell McOrmond is a self employed consultant, policy coordinator for CLUE:Canada's Association for Free/Libre and Open Source Software, co-coordinator for Getting Open Source Logic INto Governments (GOSLING),and host for DigitalCopyright Canada.