The most objectionable aspect of the Copyright debate

(First published on IT World Canada blog)

For those who did not know, Access Copyright, which represents a limited subset set of Canadian creators and publishers, has proposed (and will likely be granted) a yearly per-student fee for the use of photocopiers by schools. This increase will set the rate to $45 for Universities, and $35 for other educational institution, multiplied by the full time equivalents (FTE). (For details, read this PDF)

I have some sympathy for the economic situation these organizations find themselves in. Creators of various types (book authors, visual artists, photographers, poets, playwrites, etc) don't generally receive incomes that represent the value they contribute to society. While there are exceptions, many creators fall into the “starving artist” stereotype. I also recognize that educational institutions are increasingly cash strapped, being asked to do less with less, for a service (public education) that is the foundation upon which all other aspects of a democratic society are built.

While I have this sympathy, I don't see what this has to do with Copyright. Copyright is a series of activities that if done with respect to a copyrighted work require permission, with some exceptions (compulsory licenses, fair dealings). Requiring permission for this set of activities facilitates a wide variety of methods of production, distribution and funding of creative works. Copyright is not, and should never be treated as, a government program.

I consider the question of how much money some creators are earning, or how much money specific users of creative works have to pay, to be entirely off topic. I consider educational institutional exceptions to copyright to be a government program paid for on the backs on creators, and harmful to students. I consider royalty rates set by the Copyright Board that ignore fair use limits or the limits of the repertoire of a collective, effectively offering payment to collectives beyond what is required, to be no more morally valid than premeditated commercial copyright infringement (what some of the more extreme personalities associated with Access Copyright like to in appropriately characterizeas “theft”).

I continuously hear what I consider to be childish whining from groups like Access Copyright (and some of their outspoken members), as well as parts of the educational community, talking about how poor they are. If these groups were asking for a new government program, or increased funding to an existing government program, I would be on their side in support. Since each is asking for changes to copyright law that theoretically benefit them, but which are at the expense of society as a whole, my answer has always had to be to wish a pox on all their houses.

There is what I consider to be a relatively easy solution to get out of this mess that has great benefits to most of the people involved.

Contrary to the loudly expressed views of some of their members, Access Copyright does not ”represent creators”. What Access Copyright represents is a tiny subset of business models that may be chosen by creators and their customers. They offer one-stop selling for authors who simply want a royalty fee for specific uses. They also have flat-fee royalties for uses of any works within their repertoire.

Charging royalties is not the only way to get paid for creative works. Most knowledge workers do not receive residuals or royalties, but are paid flat fees or salaries that are unrelated to the number of users or uses that the resulting works are put to. Royalties are something that is speculative and paid after-the-fact for work done in the past, a situation that is very different than how most workers in the economy are paid.

A number of different knowledge sectors are making a transition from speculative royalties to up-front fees and salaries. While not the way it is described in the marketing material, this is in fact what is happening with the fastest growing part of the software sector which is the creation and support of Free/Libre and Open Source Software (FLOSS). It is also how the various participants in Open Access publishing are paid. Put together, these development and funding techniques are sometimes called Peer Production.

I have for years been suggesting that the educational sector move to Peer Production for software and non-fiction works. While I wish this beneficial transition for authors and the educational sector could happen for all works, there are reasons why fiction and entertainment works will tend to be stuck with uncertainty in the speculative royalty payment system. These represent, however, a tiny fraction of the works used in the educational sector that are non-fiction, instructional and/or software in nature.

It needs to be repeated that not charging royalties does not mean that the author does not get paid. In fact, if the FLOSS sector is any indication, authors get paid better in a fee-for-service or salary scenario than they do in a royalty system. I believe the same will be true for the researching, authoring, editing and other management of educational material.

The benefits for authors of higher salaries and to educational institutions of more manageable budgets does come at a cost for someone, and that will be with the minimalization or in some cases closure of businesses dependant on the legacy royalty-based systems. I believe that traditional educational publishers will be on the chopping block, with some of those employees moving to work within educational institutions directly. Organizations like Access Copyright will need to return to providing that one-stop-shopping service for fiction works still part of the curriculum, although many institutions may simply leave this to an issue handled at book stores rather than negotiations with collective licensing agencies.

This transition isn't going to happen overnight. Given the animosity between authors and educational institutions, I believe the faster the transition the better for all concerned. Access Copyright can't really stop being Access Copyright, or stop promoting the narrow set of business models it represents. It is really up to the educational institutions in Canada to stop being lazy and push for this transition. The educational sector need to stop treating Copyright as a government program, stop asking for education institutional exceptions, stop handing undeserved money to collective societies, and fully embrace Peer Production in all scenarios where possible. And if the educational sector can't move forward, they should at least stop whining about the financial and other costs of their own decisions.

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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.