One year after it was completed by University of Toronto law professor Martin L. Friedland, the results on an independent study on Access Copyright and royalty distribution system has been released [
the report was emailed to me; I have not seen an online version]. The report is a stunning indictment of the copyright collective, calling for dramatic change in governance, transparency, and royalty distribution practices. Friedland begins by noting:
I have undertaken a number of other public policy studies over the years, including such reasonably complex topics as pension reform, securities regulation, and national security, and have never encountered anything quite as complex as the Access Copyright distribution system. It is far from transparent. Very little is written down in a consolidated, cohesive, comprehensive, or comprehensible manner. There is no manual describing in detail how the distribution system operates.
The report continues by examining the history of Access Copyright, comparing it to other collectives, and identifying inequities in the distribution structure. For example, it reveals that "in the distribution for 2005 under the federal government licence, the publishers received $188,256 for scholarly journals and the creators received nothing."
The report includes 20 recommendations for change, which include:
Make the System More Transparent – The distribution system has to be more transparent. As I stated earlier in this report, very little is written down. There is no manual for the staff describing in detail how the distribution system operates. The information given to affiliates is even sparser. There is a one-page description on the web site, but it contains very little information. In contrast, SOCAN makes available to its members on its web site an up-to-date 32-page document on distribution rules.
Simplify the System – The present distribution system should be simplified. Even if it were more transparent, it would still be difficult for affiliates to grasp the details. It is far too complex. As stated earlier, part of the reason for this complexity is because the details for distribution have been worked out over the past 20 years as a series of compromises, accommodations and adjustments. It is not just publishers against creators, but also compromises, accommodations and adjustments within the creator community and amongst the different types of publishers.
Eliminate Most Contract Overrides – One way to simplify the system is to eliminate the present ability to override by contract the splits determined by Access Copyright. In the early days of the collective, individual contracts could not be used to override the splits determined by the collective. Contracts cannot override the agreed splits in the UK and Quebec and in many other jurisdictions.
Periodicals – Revenue from periodicals should also be shared 50/50 between publishers and creators, whether the periodicals are magazines or academic journals. There is no reason why copying of academic journals should automatically result in 100% to the publisher given that copyright ownership should not necessarily govern reprography royalty shares.
The final recommendation focuses on the Access Copyright board itself. Friedland calls for the elimination of the 9 creator, 9 publisher board to be replaced by a board composed of 4 persons representing the publishers, 4 representing the creators, and 4 independent directors, making a board of 12 persons, plus the executive director, making a total of 13 members.
The Writers' Union has welcomed the report.
It remains to be seen how Access Copyright will respond.
The Access Copyright response is posted in this version of the report – some recommendations were accepted, while others, including the major recommendation on governance, was rejected.