News

Access Copyright’s 1300% Tariff Increase – Deadline to Object is August 11, 2010

Howard Knopf has a must-read post on the Access Copyright proposed tariff that would increase costs by 1300% over the current rate.  The proposal is for $45 per university student, which would potential cost universities (and taxpayers) millions of dollars.  The cost for college students is $35 per student.  While the increase in costs will understandably capture the attention of the university administrators and students, it is Access Copyright’s circumvention of copyright law that I find most notable. The tariff purports to licence linking to materials, despite the fact that no licence is or should be needed for such activities.  It charges for displays which are not copies, lacks an exclusion for fair dealing (as is found in the current tariff), provides additional protection for digital locks, and features extensive, onerous reporting requirements. 

You can learn more from Sam Trosow’s detailed presentation on the tariff proposal and its implications. The Canadian Library Association has posted its objection to the tariff, which includes its concerns.  Knopf notes that anyone can file an objection by emailing gilles.mcdougall@cb-cda.gc.ca with the following information:

  • Indicate who you are and generally and why you are objecting – i.e. if you think that the amount sought is excessive and exorbitant, that AC is seeking to license rights it doesn’t have in respect of repertoire it doesn’t have, etc.
  • You don’t need any detail. Details come much, much later. Anything much longer than one or two pages is longer than necessary at this stage. And it won’t have any effect on the outcome. The objection is simply a necessary step to full participation.
  • Provide your full contact information.

The deadline to participate in this week – Wednesday, August 11, 2010.

68 Comments

  1. Sandy Crawley says:

    Knopf and Trosow on Access Copyright
    Mr.Knopf’s analysis is completely biased based on his avowed enmity towards Access Copyright and perhaps the entire field of collective rights administration. He and Trosow also fail to take into account the inevitable trade-offs that occur between interested parties in arriving at reasonable accommodations. This “call to arms” is typical grandstanding. These guys oughta run for office….

  2. Eye roller says:

    ^
    Yes, let’s keep attacking the people instead of their arguments… Really making your point there.

  3. Sandy Crawley says:

    Ah but I did…
    …point out that the basis of their arguments is unsound because their biases lead to an unrealistic assessment of the legal process of arriving at a reasonable accommodation. My point is that there is no reasonable accommodation for Knopf and Trosow short of the destruction of the not-for-profit collective, I hope your eyes can take it.

  4. Eye roller #2
    Yes I’m sure that their goal is the destruction of any and all copyright or the re-compensation of such 0_o

    I understand that in business negotiations a tactic is to first ask for the moon, and that may be what is occurring here.

    But the hyperbole of your above comment is also, ironically, biased.

  5. Bias
    Yes, their bias might be apparent, but the points are still perfectly valid.

    You are obviously “biased” against Knopf and Trosow as well. By your own “logic”, it means your point should be ignored as well. More accurately, by your logic you as an individual should be ignored.

    Biased is a qualifier, not a classification.

  6. Hey Sandy…
    …when you’re old and retired and find a lack of care workers because the majority of young people couldn’t afford post-secondary costs and ended up with low-end jobs and/or living on the street, I hope you realize whose fault it was. When the economy collapses because of a lack of quality education, I hope you realize whose fault it was. If you think handicapping universities and colleges and the young people who attend is a good long-term strategy, I kindly advise you to take your head out of your anal cavity. Don’t come whining when the repercussions come to bite you in the ass.

    Just food for thought.

  7. @Sandy Crawley
    You object but provide no factual argument to your objection. Creators these days seem to be doing everything that can, legal, and illegal to squeeze every penny out of the Canadian consumer.

    Access Copyright just won a $60 million lawsuit that will increase substantially the cost of education in this country. Now they are going after University students (who already pay an arm and leg + the kitchen sink for material) for “linking” to content? Common..

    Why doesn’t the whole content distribution chain change a bit, and creators go after the publishers for more cash rather than the consumers? If we keep going in the direction these “not-for-profit” collectives seem to be taking us, no one will be able to afford public and post secondary education.

    I think Profs should write their own course material to be honest. Get rid of those bitching like Crawley here out of the system all together.

  8. …completely unbiased…
    …and who is going to foote the cost of these changes? The universities and colleges will be forced to comply if such measures are passed, which will almost certainly mean a tuition increase for the student. At an average of more the $100 a book now in university (At least in tech / science areas), how much more do they want or expect. We’re going to end up like the US: kids coming out of university with over $100,000 in student loans and no possible way to pay it back. At least in the US, you can still file for bankruptsy and get out of it. That’s not even an option in Canada where student loans are bankruptsy exempt. This is just greed-mongering. Of all the content out there, they should be happy their material was chosen to be used in education at all. Authors and content creators should be given two options.

    ** Allow use in education
    ** Don’t allow for use in education.

    This is why so many literature courses stick to classic public domain stuff…fewer headaches when it comes to copyright. I did Frankenstein in a course and actually own a late 19th century copy, which I read instead of buying the book. But the course only said, we needed read the book…it didn’t matter which edition or where it came from. Boring book, BTW. These days they’re trying to lock universities in to specific mandatory digital editions and eleminate second-hand books. i.e. I would not be allowed to read my classic copy of Frankenstein. This is not conducive to education and creates an onerous burden on the student. Students have enough to worry about with university/college, they should have to worry about this and all the other CRAP Access Copyright wants.

    It is legislation like this that makes me crazy, legislation that will greatly affect my kids. I recently read that we’re currently suffering a shortage of qualified engineers. Why is that? Well, it’s bloody expensive, a lot of work and takes at least twice as long to complete as a trade. THEN you have to work for 4 years, in a related field, generally under a lot of stress, before you actually earn the right to call yourself a “Professional Engineer”. Today’s youth is increasingly narcissistic, valuing “play time” above all, while work is a necessry evil required to pay for the play. A trade takes less time, doesn’t create a huge burden of debt, well paid (While not as good as an engineer) and the work is generally less stressful, allowing more free time. On top of that, unemployed workers on EI can often get subsidized by EI when they’re taking a trade, there’s no such option for university. How much does an engineering degree cost versus a trade? Well an engineering degree can easily get over $40000 + living expenses by the time you’re done, depending on the school and situation. If you were to do that on student loans, you’d be looking at $600+ per month for 10 years to pay it back. A two year trade will generally run somewhat less than $10000 (Usually about $4000/year) + living expenses. However, you can often get subsidized if on EI, at least you used to able to. I did a 1-year electrical tech diploma a number of years ago and of the 20 people in the class, only 5 were paying out of their own pocket. Even if you pay for it all yourself, it’s still substantially less debt and it’s often much easier to find work with a trade.

    All in all it amounts to BAD NEWS for students and post-secondary in general.

  9. examine the real costs of education…
    before denying creators their fair compensation:

    http://bit.ly/9focji

  10. fair share
    That’s the pint Degen. According to these new rules, google news should be paying access copyright millions to be linking to other websites. Same thing for fark and digg. Do you honestly think that someone who is not well known and actually wants traffic on their site wants this? Check out Cory Doctorow. Awesome writer and has a very good sober opinion of copyright.

  11. @Degen
    “their fair compensation”
    45? Thats it? They should tax students $20,000. You know, just in case they link to more than one website! Or is that only the fair amount if we get their gradually?

  12. @Degen
    And if it were simply an increase in the tariff, I could possibly agree that $45 is not outrageous, even if the cost of textbooks is. Much of the rest of the provisions I consider to be posturing and/or plain ‘ol money grubbing. For instance…

    ** It’s no secret, like in the computer gaming industry, one of the largest things the publishing industry would love to kill is second-hand sales of university text books. Digital is the goose that laid the golden egg in this case. Digital effectively takes away the “right of first sale”. i.e. No more second hand sales…making it more expensive for student, beyond the tariff, since he/she must now buy “new”. Also, this increases the cost to the student who sells his/her text books to subsidize the next semester/years. Between not being able to buy second hand and not being able to sell your books, this could mean hundreds of dollars extra per year for an individual student…or even more in the sciences where a single book can be well over $200.

    ** TPMs can automatically expire content, forcing students to buy it again or pay to extent the license. Unfortunately, that leaves many students, especially in the tech / sciences, out in the cold, students who often need their text books for reference in future courses and beyond. The real kick-in-the-ass is that the digital copy is often the same price, or only marginally cheaper, than the printed copy.

    I have a degree in computer science, nearly another in mathematics and have done a handfull of computing grad courses, my wife is an engineer, and we both paid for it with student loans, just about $80000 between the two of us…I know full well the cost of text books. You say it’s only $45, I say the “realized” cost of the loss of other rights associated digital could be much much higher for the individual student. So I object to anything that makes already outrageously expensive tuition even more expensive.

    Also, your digital projector arguement is invalid, since it is no more of a “copy” than a chalk board. It’s still only “viewed” by the student, and is primarilly prepared ciriculum, NOT the actual copyrighted material. Only when students are given physical copies, digital or otherwise, does become a “copy”. This is also a one-time cost to upgrade the teaching facility and is the choice of the institution, not an ongoing cost to the student. Besides, institutions are often heavily subsidized and quite often get grants for such upgrades.


  13. “before denying creators their fair compensation”

    Don’t you mean:

    before denying [publishers extra profit]?

  14. @Degen
    So let me get this strait, Knopf’s calculations of $60 Million for Universities, are already on top of the $60 million owed by public education. That’s a total of $120 Million that Access Copyright wants our educational institutions to cough up to creators? How is that exactly justified to the Canadian tax payer and the students again? I personally think that fair compensation lies between the contracts with the publishers and the creators, not with the consumer who is already over taxed at a time of austerity. Do you guys want to continue to push the literary industry down the tubes?

  15. My Objection Filed
    “I am filing an objection to the Access Copyright Post Secondary Educational Institutions Tariff for 2011 – 2013. This tariff may set a dangerous precedent in the digital economy, and within social media outside of post secondary educational institutions. This in no means is fair compensation for creators, and this could have a profound negative impact on business models that are already in place in the digital economy, which Access Copyright would most certainly go after next, and use approval of this tariff as precedent in other cases outside the educational institutions which could leave social media and search engines open to billion dollar lawsuits in Canada. Many would leave Canadian soil if this were threatened thus affecting our digital economic outlook severely and putting Canadian businesses at a huge disadvantage in participants in the new global digital economy.

    This Tariff comes at a time when economically we need to make sure that our citizens are well trained, and re-trained in area’s around the new economy. Adding extra costs here to already out of reach post secondary education (for some) may also prove to have a major impact on economic policy and future outlook of the economy as a whole, when that economy remains very fragile. I implore you to ensure that you look upon your decision as a whole as it will have a significant ripple effect through economic uncertainty, and ensure that any decision made on this Tariff takes into account the economic impacts on a whole this can and will have.”

    Does anyone know if Google will be submitting an objection on this as well?

  16. If as the good Professor said last week, “fair dealing fears are greatly exaggerated” because of what the Federal Court of Appeal said in the Access Copyright K-12 tariff, why is he getting so exercised about the university tariff? Surely there will be appropriate allowance for fair dealing there as well? And as even Howard Knopf acknowledged (and as he was on the losing side at the FCA, he’s hardly impartial) the proposed tariff combines two existing tariffs and is nowhere near “1300 percent” higher. In fact, using Knopf predictions of the outcome, it’s more of a repackaging than an actual increase. Also, a few dollars a year extra (at most) is not going to bankrupt students, who spend more than this tariff in sales tax on their lockers…in fact if you really want to get all pissy about what a bad deal they get, look at how much extra they have to pay because of HST!

  17. @Bob
    Students are all ready “bankrupt” with respect to the costs of post secondary education. A “few” extra bucks, is a “few” extra bucks many do not have to cover these costs. The costs of post secondary education has gone up close to 300% in the past decade, and yes they have to pay even more now because of the HST which is exactly why creators need to look at their publishers and contracts for more compensation, and different distribution channels to adapt to the times.

    Fucking ridicules. People like Access Copyright really put to shame a profession that is based on creativity and knowledge. To attack that, is to attack the profession and industry itself. That’s sad!

  18. Michael Geist says:

    @Bob
    I’m concerned because the tariff does not account for fair dealing. I also would have thought “there would be an allowance for fair dealing” in the tariff. But there isn’t. Unlike the current tariff, which excludes copies made under fair dealing, this proposed one does not. Add in other compensation for copies that are not even copies – linking for example – and this is not a call for fair compensation for creators as John Degen states. Rather, it is an attempt to get education to pay for some activities that the law clearly states do not require compensation. It is this attempt to circumvent copyright law that has me most concerned. This is the cause, the high price tag is the effect.

    MG

  19. @MG
    “Rather, it is an attempt to get education to pay for some activities that the law clearly states do not require compensation.”

    I’m a bit confused here. I don’t agree in any case that education should pay anything more than they already have to publishers especially post secondary. But I have a few questions here.

    1)Why would we need to stress the fact that this tariff doesn’t account for fair dealing?

    2)Is there an accusation here by you that the Copyright Board of Canada doesn’t actively make it’s decisions based on current copyright laws and exemptions?

    3) Is there a reason for this accusation? Are there cases when the copyright board has made decisions in the past on tariff’s that do not coincide with copyright law in Canada?

    4) Why would we have to stress objections to this with the copyright board?

    5) If the current application isn’t within the legal limits of copyright legislation, wouldn’t it be turned down in the first place without public objections to the board?

  20. great questions JK
    I’m sure MG will be back to answer them for you.

    In the meantime, I hope you do check out my blog posting in which I attack or threaten no-one (as usual), and instead simply show that the economic math actually works for providing fair compensation to content creators for the use of their work in education.

    The high price tag for content that MG briefly refers to, is actually a tiny (really, really quite small, in fact) fraction of one year’s annual revenue for the University of Ottawa, the overwhelming majority of which does NOT go to subsidizing student costs.

    If we agree that people should be paid for the work they do in educating Canada’s students – then worries over the high price of education shouldn’t really start with the smallest sliver of the expense pie chart, should they?

    I mean, if everyone commenting here (except Sandy – Hi Sandy! – and MG, who I think has good reason to avoid the cost argument) is REALLY concerned about bankrupting students through the cost of education, where is righteous outrage about all the other costs in the pie chart? Check out the revenue pie chart – notice how much of that $806.1 million comes from the taxpayer?

    Here’s the pie chart:

    Oops, I meant to provide a link to the Financial report page that I used in my analysis yesterday, but it seems to be broken today.

  21. ^
    Typical stance defending one tiny point and ignoring all the rest of the arguments. Lrn2argue.

    For the record, I don’t see MG having too much of a problem with the actual cost of the tariff. He’s stated he has a problem with AC bypassing Copyright law to get what they want. This is an argument neither you nor Sandy have had the ability to address so far.

  22. Darryl Moore says:

    JK, did you actually read Knopf’s post? I think doing so would answer most of your questions.

    John. you say you “show that the economic math actually works for providing fair compensation”, but you don’t ever define fair. You imply that as long as the cost is significantly smaller than all the other costs then it is necessarily fair. This is silly and simplistic. If you do find that after a little thought you still believe this then I have a bill for you which is fair, for the post I just made on your blog. I would appreciate you sending me a cheque this week.

  23. I am happy to have the Copyright Board consider all the objections they receive regarding this tariff, and all the support. I like democracy.

    Clearly, the borders of fair dealing in education are not settled in Canadian law (see C-32). It’s good that this discussion is taking place.

    I personally believe that a use of content within the context of a paid educational environment deserves to be a paid use. Let’s not forget that the University of Ottawa does not provide its services or degrees free as a public good. You cannot claim “fair dealing” when auditing a full slate of classes, and then go around claiming you have a U of O degree. Universities are, essentially, selling a service and a good. Often, in doing that, they are using content that does not belong to them. This use should be paid.

    I think the price asked is fair. But that’s my opinion. Let the Copyright Board decide.

    BTW, the UofO link is fixed. Here t’is:

    University of Ottawa Financial Report

  24. hmmmmm?
    No HTML tagging here? Is that some form of DRM?

    Here’s the URL:

    http://www.report.uottawa.ca/financial-statement.php

  25. Darryl Moore says:

    John, why limit it to education then? Plenty of commercial interests reuse material and rely on fair dealing/use to do so. What about news or documentaries? What about any movie that uses famous places in their background, or book that may make use of quotes from other writers?

    I think it is unfair to treat educational institutions different from other organizations. Especially for the purpose of charging them more to access to works. They at least, are non-profit, yet you want to charge them for more uses then you’d charge a for-profit company.

    You have a funny definition of fair.

  26. Access Copyright provides content licensing for profit companies as well.

    http://www.accesscopyright.ca/Default.aspx?id=24

    And pay for use is pretty standard in the marketplace.

    Do you have other kneejerk objections?

  27. @Degen
    As I said in a previous post, I think the realized price will average out to be much higher than $45 for the individual student in the long run. Student should NOT have to worry about having to pay for every link they use or getting permission or having to pay for every citation and reference. This will not only affect the quality of education, but will encourage plagiarism. Provided students credit authors properly, they should NOT have to worry about incidental costs past the cost of the course materials and text books. I’ve written research papers with pages and pages of references, can you imagine the vast amount of time it would take to locate the actual copyright holder, e-mail them AND then have to wait for a reply? Will permission be a required part of assignment submissions? Can every copyright holder GUARANTEE a timely (Say 2 days) turnaround on usage requests? University is way too difficult on its own to have to worry about bullshit like this.

    I think every publisher executive (The real copyright holders) should have to “test drive” the new legislation they’re pushing and do a real graduate level research course. They’re only thinking of the money and not how it will adversely affect the every day student.

    I do agree that “creaters” should be compensated “fairly”, but the fight shouldn’t be brought down to the student level. The fight should be between the “creaters” and publishers. As always, the lowest level on the totem pole is being exploited…the student.

    Are publishers really hurting? McGraw-Hill posted nearly $2 billion in sales last year. hmmmm Harold W. McGraw, III, CEO of McGraw-Hill, he alone was paid almost $6 million for the fiscal year 2009. In contrast, the president of the University of Ottawa has a base salary of $395,000, probably gets a car and living expenses, travel expenses, etc. Lets be generous and say everything else gets him up to $600,000. That is still a factor of 10 less than Harold W. McGraw, III. Perhaps publishers should look at trimming their own salaries to compensate creaters before fleecing the students…perhaps that’s where the .2% should come from.

  28. Sandy Crawley says:

    Mea Culpa
    I must admit that I did cross the line in my characterizations in comment # 1. I will try to avoid the purely emotional response in future, pace Messrs. Knopf and Trosow.

    That said, I wish one of you mostly anonymous copylefters would address the central issue of compensation for use by the educational sector. Should MG and Sam Trosow be working for nothing at their respective institutions to make education more “fair” in it’s pricing structure?

  29. If the copyright board is not making decisions based on law that has been passed and interpreting the laws correctly, and cases have to go before the courts to be settled then it’s quite obvious that the Copyright Board of Canada isn’t doing it’s job. I think all sides need a reason for this politically.

    @Crawley – “That said, I wish one of you mostly anonymous copylefters would address the central issue of compensation for use by the educational sector.” – Speak to your publishers, they are already being compensated from the educational sector. If you are not getting what you think you deserve, than that’s an issue of the contract you signed with your publishers, not with the consumer.

    @Degen – No one else in the world pays creators for linking that I’m aware of. We are moving towards cloud based systems which enables publishers to throw up a pay wall. If you want to get paid for linking, than perhaps charging for the content to begin with might be a good course of action to follow, especially with the emergence of the cloud.

  30. hmmm, looks like I lost a comment.

    IamME – no-one is asking students to pay this tariff – and the whole idea of a tariff is to cover copyright-protected usage, so permission need NOT be sought for evey use.

    My posting was to show that the tariff is affordable for the parties who should pay it — the colleges and universities. It may be calculated per student, but AC wants to collect from the institutions, not the students.

    Your reference to McGraw in this context is absurd. He is CEO of a huge American corporation with worldwide tendrils. As such, his compensation package is laughably small compared to others at his level in most other sectors. And McGraw-Hill is far more than just a publisher – they even have a construction arm.

    Actual Canadian publisher and writers need fair compensation for the use of their works in education. THAT’s the purpose of the tariff.

  31. Paid for linking?
    What is this idea of getting paid for linking? In what world does that make sense?

    How is linking different from references on a research paper? Or a “recommended readings” list?

    As JK said above, if you don’t like it – charge for the content. Otherwise, for the love of god, don’t turn down free publicity.

  32. @bob Also, a few dollars a year extra (at most) is not going to bankrupt students

    Yup an extra dollar here and a few less rights there…. Nothing to worry about.

    Now this is INSANE

    (k) posting a link or hyperlink to a Digital Copy.

    Why don’t the Universities just get together and pay someone/team to write the course books for them and put them into a pool where all schools can use them. The creators get money, school can get a bit of the profit and the students can all have cheap books/e-books.

  33. @….
    As JK said above, if you don’t like it – charge for the content. Otherwise, for the love of god, don’t turn down free publicity.

    I don’t think its the authors who are doing this, this can only be fueled by the publishers who get most of the money. I don’t think any sane author would expect anyone to have to pay just to link to an article/book of theirs.

  34. @Degen
    “no-one is asking students to pay this tariff – and the whole idea of a tariff is to cover copyright-protected usage, so permission need NOT be sought for evey use.”

    The cost(s) both explicit and hidden will most likely be passed on to the student in some way shape or form.

    As I asid, I could live with the $45, it’s the other things that is of more concern.

    **Licencing linking to materials, despite the fact that no licence is or should be needed for such activities.
    Don’t make me laugh!!!

    **It charges for displays which are not copies.
    Course instruction? Seminars? Class presentations? Conference presentations? Thesis defence? etc. All forms of display which are not copies…

    **Lacks an exclusion for fair dealing (as is found in the current tariff)
    Without fair dealing, any publisher could go after any student who uses copyrighted material without explicit permission. Are they going to persue individual students? Probably not, but it’s a dangerous precident which could open students and academics up to future laibility.

    **Provides additional protection for digital locks
    A dangerous thing for any student or academic when pared with C-32

    **Features extensive, onerous reporting requirements.
    What reporting? Who must do the reporting?

    The McGraw-Hill comparison is valid and that was just for their publishing devision (MHP). My appologies though, I read the article wrong, McGraw-Hill only posted $1.5 billion in revenue, it was Scholastic Publishing (SCHL) who posted the $2 billion (Well $1.913 billion). Granted, Canadian publishers are not posting these kinds of numbers, but, like in the music and movie media industry, it’s giants like these who generally lead the fight because they have the financial backing to do so.

  35. I’d be very surprised if the copyright board approves this tariff, and if it does than politically we need to question the motives behind such an approval, and possibly proceed with criminal investigations on the boards staff if there is no justification within legislation for such an approval.

    If Access Copyright on the other hand is being over zealous with respect to this tariff, than as a not-for-profit organization they are also answerable to the public within Canadian law. I think the objections to such an approval from the public would warrant a full investigation on both entities here. I will work politically to ensure this happens if the need arises.

  36. Wow, premptively threatening criminal prosecution of tribunal members before a decision is made by an independent tribunal. That’s shockingly anti-democratic. Is this the Fair Copyright Facebook Group?

    Maybe y’all should find out why AC thinks the way it does before you run screaming to the Copyright Board – a knowledgeable objection is bound to be better received than one couched in panic and threat.

    On second thought… carry on.

  37. Jason
    My response to you is being “reviewed by the administrator.” You know what that means.

  38. …Admin reviews…
    Admin reviews seem random, not key word or user driven. They’re usually passed in a matter of minutes, but I’ve had it take as long as a day.

    BTW Degen, I’d like to say I, for one, appreciate a “rational” and educated view at the other end of the spectrum. I’m not a publisher and my interest comes as an employee of a Canadian university and large multimedia consumer. I’ve read up a great deal on C-32, but my knowledge is a little vague otherwise (Google is my friend). Many, not all, from the “pro-C-32″ camp tend to simply spew propaganda and intentionally contradict all other opinions even in the light of common sense, while at the same time, some in the “anti-C-32″ camp go completely in the other direction. The answer with both this Access Copywrite tariff and C-32 (Which are both arguabley heavy handed and anti-consumer) lies somewhere in the middle.

  39. Let’s examine the “posting a link to a digital copy” idea.

    At my work, we often create a document in a common drive, and then use the company intranet to post a link to that document, instead of attaching it through e-mails.

    Put that practice into an educational setting:

    Used to be every student would be expected to buy the same textbook edition. 1000 students in a course meant 1000 students paying tuition, and 1000 copies of the textbook at $X per copy. 1000 tuitions to the university; $1000X to the publisher, who would pay the contracted amount from that to all the creators involved; 1000 educations to the students. Simple. Win, win, win.

    Then, photocopying excerpts from textbooks became popular. Textbook sales went down, but publishers and creators were compensated with a photocopying license arrangement. 1000 student in a course meant 1000 tuitions paid; 1000 excerpt copies at $Y per copy $1000Y to the copyright collective to be fairly distributed to its members; 1000 educations to students. Also simple. Win, win, win.

    Now, if a prof wants those 1000 students to use that same excerpt, she can make one digital copy, link to it through a university intranet or, using her own website, through the internet itself. The university then claims they should only pay $1Y for the original copy.

    1000 students use the copied excerpt and received their education. 1000 students paid their tuition fee. Net loss to publishers and creators of $999Y. Win, win, lose.

    How is that, by any definition, fair?

    A link to a digital copy must be valued according to the number of students who will use that copy. We do not build a stronger society through economic sleight of hand around new technology.

  40. @Degen
    “Wow, premptively threatening criminal prosecution of tribunal members before a decision is made by an independent tribunal. That’s shockingly anti-democratic.”

    What’s I find more undemocratic is any attempt by any organization to bypass legislation and law that our democratic institutions have put forth. Degen your side has come strong against the consumer on a number of occasion with respect to it’s interpretations of law, why should we treat organizations and the private sector any different with respect to the law?

    If an organization that is set up to deal with matters in legislation and law is failing to meet it’s mandate, this should be brought to the attention of the politicians, and the public that funds these organizations including Access Copyright. They serve the public not creators!

  41. Sandy Crawley says:

    @Jason K
    Jason, you are suggesting that all the value of works to their creators & publishers should be collected at first sale and that secondary uses should be free to the cloud. Is that right?

  42. Michael Geist says:

    No fair dealing for education?
    A few responses to today’s discussion:

    In response to @JasonK, I agree that the Copyright Board will assess the tariff in light of the law. The problem is that people need to object to ensure that these issues are placed squarely on the table. Read the tariff proposal and then read the CLA objection – it clearly identifies many areas where Access Copyright is trying to shift the law or simply ignore it altogether. Obviously, the AC proposal is their starting position. However, it highlights how broken the system has become since it encourages over-the-top demands in the hope that the Copyright Board will bite. I’m guessing AC has no expectation of getting a 1300% increase, but it has tried to frame the debate in a manner that the discussion is on the size of the increase when we really should be asking if tariffs should be coming down in light of the increased availability of open access materials for educational use and the role of fair dealing.

    More noteworthy is John Degen’s responses in which he appears to adopt the position that there is no fair dealing for education – any use should be a paid use. This not the law in Canada nor should it be the law. It is striking that critics of Access Copyright are often described as “anti-copyright”, yet I can scarcely think of anything more anti-copyright than a position that says we should ignore or drastically rewrite the law around fair dealing.

    The claims that this is just about fairness gets the framing right, but the outcome wrong. It is about fairness. And fairness dictates that education – whether the universities, students, or taxpayers – should not be asked to pay for uses that the law says go uncompensated. Moreover, they should not pay for works that are freely available under OA licences (20% of all medical research right now) or public domain works or government works. And they should not pay for actions that are not copying at all. That is what fairness dictates and why the Access Copyright is so blatantly unfair.

    FWIW, I only use OA materials for my courses. All materials accessed by my students are made available under licences where no compensation or permission is requested or required. I expect that this will become the model in the months ahead in a growing number of disciplines since so much of the materials used in universities is created by the professors themselves with no desire to establish expensive licencing regimes or onerous reporting requirements.

    MG

  43. @Sandy Crawley
    you are suggesting that all the value of works to their creators & publishers should be collected at first sale and that secondary uses should be free to the cloud. Is that right?

    I have problems with this. I buy a book, use it for the course and then give it to to someone else or even lend it to another student if I’m finished early.

    Whats next, driving schools having to pay royalties to Ford/GM/etc.. for using their cars to teach people to drive?

  44. @Sandy Crawley “Jason, you are suggesting that all the value of works to their creators & publishers should be collected at first sale and that secondary uses should be free to the cloud. Is that right?”

    No that’s not what I’m suggesting at all. What I’m suggesting is an alternative business model that is currently being used by publishers. If the publisher is making information available in the cloud, and wants money for linking to that content, than put up a pay wall to obtain that compensation which a lot of publishers are currently doing, thus no need for a tariff. If it’s part of our fair dealing issues, than the Copyright Board doesn’t have jurisdiction to change that in legislation. That’s the role of Government, not the Copyright Board, nor the federal courts.

    Your publishers would have to lobby government for that. They can make a secondary sale in the cloud, it should be the choice of the consumer in a free market environment which publisher and creator gets compensated, and provides a fairer basis on compensation.

    @MG – If the system remains broken, and public mandates of these organizations are not being actively followed through, than the public should have the right to put forth legal litigation on these organizations, or have them independently investigated possibly for fraud. We have laws against that in Canada and we should in no way be relying on the Federal Court of Appeals to determine the validity in law with respect to the Copyright Boards Decisions, when that board is publicly funded to make those decisions in the first place. If they are making bad decisions with respect to law, why have a Copyright regulator in the first place, when those decisions almost always end up in Federal Court. Isn’t that costing the tax payer here? Shouldn’t that be investigated? Shouldn’t that be fixed?

    If Access Copyright is asking for things that are not within the scope of legislation that isn’t within their public mandate as a non-profit, I think there are also severe penalties that can be applied here as well. Possibly losing their non-profit status, depending on how outside the scope of their mandate they are working on.

    Interesting questions non the less, both of these organizations are now on my radar. I will continue to watch the situations here with great interest.

  45. Linking to copyrighted material.
    Degen said:
    “Now, if a prof wants those 1000 students to use that same excerpt, she can make one digital copy, link to it through a university intranet or, using her own website, through the internet itself. The university then claims they should only pay $1Y for the original copy.”

    In nearly 20 years of university, I have never had a prof link to copyrighted material. Links to journal articles and other sources which are freely available to students, sure, but never blatently copyrighted material. I’ve seen links to a description or abstract with a suggestion that I either buy a copy or borrow a copy from the library. Profs, at least the ones I’ve had, are very careful about such things. There are often copyright people and course designers also acting as a buffer to ensure such infringements do not occur. I think such infringements occur far less than publishers would like to admit.

    Degen said:
    “Used to be every student would be expected to buy the same textbook edition. 1000 students in a course meant 1000 students paying tuition, and 1000 copies of the textbook at $X per copy. 1000 tuitions to the university; $1000X to the publisher, who would pay the contracted amount from that to all the creators involved; 1000 educations to the students. Simple. Win, win, win.”

    Yes, but in those days you could sell your book and get some return on your investment. You could also buy second hand to save money. These numbers are skewed, with the exception of brand new editions, at least half of these 1000 students would be using borrowed or second-hand books…at least…especially in arts courses. It should be illegal to place me in a position where I’m forced to buy a book if I already have it or choose to buy it elsewhere cheaper. It is situations like this that causes students to complain to the ombuds office. As I’ve said before, digital is the proverbial silver bullet publishers have been waiting for to kill second-hand sales along with the right of first sale. It has publishers figuratively foaming at the mouth. The student is effectively FORCED to buy: Zero rights for the student, zero portability for the media, zero longevity for the media past the end of the course, ZERO return on investment. How is this at all fair to the student? “LOSE, win, WIN”. There needs to be balance, not heavy-handedness on either side!!

    If I were a student these days, at the cost of text books, I would demand for the option of a printed hard-copy or I would complain to the ombuds office and would encourage my children, and anyone else, to do the same. At least then one has it forever and maintains the right of first sale if one so chooses…RETURN ON INVESTMENT!!!! Aside from that, like so many, I HATE reading on the screen. If I’m only receiving “disposible” media, I expect to pay prices suiting of disposible media. I WILL NOT EVER agree to pay a large amount of money for a text book in digital format only to have it self destruct on me when the course ends. That is a glorified rental not worth more than a few dollars to me.

  46. Meanwhile, the universities have in many cases already paid for full academic access to content, through licences to journal and book publishers for e-journals and e-books. The content and academic usage of that content has been paid for already. Access Copyright has no right to charge for it again.

  47. Michael,

    Was it when I wrote that “the whole idea of a tariff is to cover copyright-protected usage,” that made you interpret my opinion in such an extreme way.

    Was it when I illustrated just exactly how creative linking might be used to circumvent copyright licensing?

    No fair dealing for education? Fair dealing is a cornerstone of education. I exercised fair dealing all the time in my studies, and I continue to do so in my professional work.

    I also pay for the copyright-protected uses I need, and have no deep political objection to doing so – one that skews my thinking so much it compromises the professionalism of my work.

    I’m not sure what to say about the fact that you “only use OA materials for [your] courses.” I guess I would expect an educator to make curriculum decisions based on criteria that go deeper than “let’s see, what is available for free?”

    I’m sure your students feel they’re getting their tuition money’s worth.

    Just for the record — you are asking your readers to object to the Access Copyright tariff proposal, and to do so based on the published objections of Sam Trosow’s CLA objection document? You are politically advocating for a defined position that will financially benefit your employer and ultimately yourself? Is that correct?

  48. @Degen
    …”Now, if a prof wants those 1000 students to use that same excerpt, she can make one digital copy, link to it through a university intranet or, using her own website, through the internet itself. The university then claims they should only pay $1Y for the original copy.”

    I am struggling to understand how this is effectively different from a prof that makes a transparency and displays it in class.

    I thought copyright law was about making copies? Are you now stating that simply clicking on a link is a copy? Although this is technically correct within the operation of the computer, you have argued against this interpretation in the past. Have you changed your position?


  49. “FWIW, I only use OA materials for my courses. All materials accessed by my students are made available under licences where no compensation or permission is requested or required. I expect that this will become the model in the months ahead in a growing number of disciplines since so much of the materials used in universities is created by the professors themselves with no desire to establish expensive licencing regimes or onerous reporting requirements.”

    Yep that is the way. Then Access Copyright will force university to use their material. Because, after all, they are immune to basic concepts of economics. You know, supply and demand? Access Copyright wants to charge high prices regardless of demand.

    “I’m sure your students feel they’re getting their tuition money’s worth.”

    I’m a student. Guess what: university IS ALREADY OVERPRICED. Taking into account inflation (and hell, even if you don’t take it into account), university is much more expensive then when baby-boomers were in university. Of course Degen, I have a feeling that you, Sandy, and the other AC-pro posters here are also baby-boomers who don’t give two shits about today’s students.

  50. RE:Degen
    Hey Degen! Has your cost analysis take into economic conditions? How about the fact that the economic recovery isn’t going as expected, or the threat of another recession occurring? Did you consider this at all? No, of course not. Your calculations are all short-term and small vision. A volatile economic environment; what a perfect time for an unnecessary rate hike and unfair rule change,

    Then again, Access Copyright’s behavior will ultimately be their own undoing, since their largest customer will pull out or become crippled. Fortunately for them, there is always public education for them to exploit.

    And I love these frequent “creator” references. Tell me, who exactly are the “creators”? I bet Access Copyright doesn’t even know. I wonder if they even look at the content.

  51. @Eric L
    Most of the creator’s with access copyright don’t agree with their positions. We saw this in an attempt by Access Copyright to try and get their members to send out a canned response to the copyright consultations. Most of those canned responses were edited to include the rights of Canadians where Access Copyright seemed to exclude those rights.

    Off side of my comments on accountability that somehow never made it through the admin and are being excluded from this blog, please note that most of the creators these days don’t look towards the economic realities, and consequences that may result. This is why now a lot of interest has been put on this tariff politically, to ensure that the Copyright Board does it’s job within it’s scope within the law.

    As MG past replied earlier, this tariff proposal rather exposes what is currently wrong with the system on whole, and have faith in those that are intent on ensuring accountability within both these organizations to ensure the public is protected. I’m sure there will be many conversations about the conduct of both the Board and Access Copyright in the very near future!

  52. @Sandy Crawley – my response to you never made it through for some reason. You stated:

    “Jason, you are suggesting that all the value of works to their creators & publishers should be collected at first sale and that secondary uses should be free to the cloud. Is that right?”

    That’s actually not what I was suggesting. My initial suggestion was to develop a pay wall for secondary uses, that many publishers have already incorporated into the cloud as a viable business model. That model is more based on consumer choice as well. I don’t agree with paying creators on a collective idea. I think the market should chose what to compensate and who. I don’t believe in a socialist system of economics like many creators do, where the market choices are made through tariffs, and legislation. I don’t think that’s fair to the economics we have chosen. I think creators should adapt to the market, rather than try to force a socialist system that society hasn’t approved.

  53. @Degen
    My previous post was much more elaborate and detailed, but they keep getting held up by the admins and show up later after several posts have already gone by.

    Degen said:
    “Used to be every student would be expected to buy the same textbook edition. 1000 students in a course meant 1000 students paying tuition, and 1000 copies of the textbook at $X per copy. 1000 tuitions to the university; $1000X to the publisher, who would pay the contracted amount from that to all the creators involved; 1000 educations to the students. Simple. Win, win, win.

    Then, photocopying excerpts from textbooks became popular. Textbook sales went down, but publishers and creators were compensated with a photocopying license arrangement. 1000 student in a course meant 1000 tuitions paid; 1000 excerpt copies at $Y per copy $1000Y to the copyright collective to be fairly distributed to its members; 1000 educations to students. Also simple. Win, win, win.”

    Yes, but in both cases above, the student had rights and a margin of control. They had a physical copy, which they owned forever and could choose to sell, so there is some potential return on investment here. They could choose to buy second hand or borrow a friend’s copy to save money. With digital, DRM, TPM, etc. the student can be forced to buy the content new, content that is rarely cheaper than printed copies, they cannot sell it, loan it out or give it away after it has been purchased, the content can be programmed to expire after a prescribed time, content would be more restricted and more difficult to obtain. There is nothing of advantage to the student here, zero return on investment here. Where is the win for the student? As I see it, it’s a “LOSE, win, WIN” situation. Where is the balance?

  54. …also…
    If I were doing courses right now, I would insist on a physical hard copies of any course textbooks in lieu of digital. At least then, I have it forever and retain the right of first sale. If I was refused I would complain to the ombud’s office and make a huge stink over it. I hate reading on the screen and digital-only text-books would not suit me at all.

    Read up on fascism…minus the violence, so much of what Access Copyright and C-32 want has serious fascist overtones. Admittedly a little contrived, but for argument sake, lets loosely consider copyright as being the “nation”.

    From wikipedia….

    **Fascists seek to organize a nation according to corporatist perspectives, values, and systems, including the political system and the economy.
    C-32 along with the new tariff are arguably heavily industry centered, taking many rights away from the consumer…pretty much all rights in the presence of digital locks.

    **Fascists believe that a nation is an organic community that requires strong leadership, singular collective identity, as such, fascists justify a totalitarian state as a means to represent the nation in its entirety.
    Copyright holders would love this kind of control and have been fighting for it for years…perhaps digital locks and TPMs paired with anti-circumvention legislation is the key to totalitarian control. Infinite rentals and pay per use!!!

    **Fascists consider attempts to create autonomy as an affront and a threat to the nation.
    Oh oh MG, I guess you’re a threat, along with most others here, I guess that explains the sometimes nasty commentary from those on the pro-C-32, pro-tariff side…and are we truly all “radical extremists”?

    **Fascist governments forbid and suppress opposition to the fascist state and the fascist movement.
    How many file sharing site have been taken down when it should have been the mass content distributors that were brought down? How long will it take to sue and bring Pirate Bay down if C-32 is passed in all it’s glory. They don’t distribute any content, they simply index content, much like Google, and have little control over what it’s users post. There is a lot of legitimate stuff on Pirate Bay, as well as a lot of illegal stuff, but they fight to stay alive. C-32 will likely be a last nail in the coffin of Pirate Bay. “…FORBID and SUPPRESS…”

  55. Michael Geist says:

    @Degen
    John,

    The massive increase in the tariff is based on compensation for usages that are not copyright protected. I arrived at my conclusion based on your comment:

    “I personally believe that a use of content within the context of a paid educational environment deserves to be a paid use.”

    As for objections, I think the CLA and Trosow analysis is very strong and highlights why people should object. The notion that I personally benefit from objecting is absurd.

    I’ll have a post up shortly on my use of materials. I don’t think my students are short-changed by using openly accessible materials. The reality is that this is pretty standard in law.

    MG

  56. Just my perspective …
    One way that I had not thought about copyright costs & eduction, was in the context of a paid education environment. It does seem fair to me, that in a paid environment, there should be some compensation to the content creator for copyright usage. However in general when it comes to education & copyright in a free education system, I think there should be greater copyright exemptions. I’m not sure the specifics but I believe that Bill C-32 requires destroying educational materials for online courses, not sure about everyone else, but isn’t this equivalent to digital book burning?; we should be finding better ways to educate people in Canada

  57. Michael,

    I’m sure IamME will not object to you using his material as open access when you are teaching your students about laws and practice around file-sharing.

    Is this where I register how personally offended I am to have been called a fascist by one of your supporters?

  58. @Degen
    I called no one a fascist, and specifically so. I only highlighted similarities between the movements in an attempt to draw attention to some of the more extreme aspects of the new Access Copyright tariff (…and C-32).

    John et al., I truely appologize if you were offended, that honestly wasn’t my intent.

  59. @IamME
    Sometimes you need to call it out honestly. Those that support Degen’s position with respect to the market, have been called fascists by a number of independent economic researchers, I prefer the term socialist. Actually one should add to that that Degen’s views are on the extreme end of socialism here, since our main socialist party in Canada has come out strongly against proposals in the past that Degen is in support of. They seem to be to undemocratic even for our socialist party.

  60. Jason,

    I’ll thank you to keep your crackpot opinions about my political beliefs out of serious conversation.

    I don’t need lectures on democracy from the person who suppressed and censored my opinions in an open forum dedicated to “fairness.”

    http://bit.ly/9hTkjr

  61. Did I read that right?
    Increased tarrifs *AND* protection for digital locks?

    Can you say total “taxation without representation”?

    They are taxing something that they aren’t allowing any authorization to do in the first place… they can’t even claim it’s for private use copies, since legally protecting digital locks on copyrighted works effectively makes it impossible to legally copy almost ANY copyrighted work, even for private use, if it was made anytime since roughly the turn of the century.

  62. @Degen
    Fairness is achieved through choices and adaptability within the market, not by forcing the consumer to pay out of pocket for product they might chose not to use or purchase. That’s not fair to the choices society has made with respect to our economic model. This is very much a serious conversation, although you seem to not understand the definition of socialist policy such as this tariff is.

    The fairness argument has been put into place by socialists within history to justify forcing socialist policy on citizens. That’s not what we have chosen in Canada. Creators can find fairness by adapting to, and dealing with the choices and opportunities the market has set out. This maybe hard for a lot of socialists like yourself to accept, but this is the reality you are faced with. Good luck at selling this tariff to a Conservative Government, and even our socialist parties in Canada.

  63. @Degen
    Also, this tariff comes at a time when we are re-focusing from stimulus to long term investment in education as economic policy. Most certainly the already high costs of education will be put on the table to deal with. This tariff has little to no chance ever making reality, and if it does, since the high costs of education will probably be an economic priority in the next election you can be sure that our legislators will be keeping a close eye on the copyright boards decision here, as it relates to law. Any decision now to raise the costs of education will come under great scrutiny over the next few months I think. It’s directly related to dealing with the fragile economics that are in play right now. The copyright board better get this one right, or there maybe some changes needed to that board in the future.

  64. @Jason K
    True enough. I had considered socialism, but one of the main beliefs in socialism is public ownership and everyone works together for the good of the state. I would class the society in Star Trek as a utopian socialist society…everyone has their purpose and just does their part for society…no questions asked. In fascism, they advocate state ownership and totalitarian control: more like what Access Copyright and the various media giants would like. In an ideal world socialism or communism has merits. I think it works better in smaller communities such as with the hutterites or mennonites. In the real world, in reality, every ideology has problems, but both fascism and socialism are extremely susceptible to unchecked corruption and can easily fall in to a gross imbalance of power, hence in my opinion, both ideologies are inherently flawed since they seem to contradict human nature.

  65. Laurel L. Russwurm says:

    I’ve a better idea: Reduce the Tariff Now
    Access Copyright does not speak for all creators. The copyright laws we have today were for the most part “rights holder” driven. But the “rights-holders” driving the changes are by and large not creators, but corporations and copyright collectives.
    [changes like overlong and over complex copyright terms/laws that are actually harmful to creators]

    My objection today went in with a suggestion to Reduce the Access Copyright Student Tariff : http://laurelrusswurm.wordpress.com/2010/08/11/reduce-the-access-copyright-student-tariff/

    The idea that educators are choosing not to use course material that they would once have been able to use under fair dealing gives me pause. That sounds very much like the “chilling” effect bad copyright laws like the DMCA and Bill C-32 have on art and culture. Creators choose not to build on existing culture for fear of legal repercussions.

    These are reasons why I as a creator am very much opposed to unbalanced copyright law. But it’s in my capacity of mother and citizen that I am most offended by this potential tariff increase.

  66. @IamME
    You are quite right about human nature. That’s one of the issues that have to be addressed in all ideologies to ensure that in democracy we have the transparency, and accountability built into the political system.

    I think what’s going on today is somewhat of a generational shift in political ideology where our generation is adapting to a very open environment with our lives in general and we are expecting the same from government. However, the boomers are set in their ways and old style ideological thinking, that unfortunately is not stable nor protects society.

    I think it’s going to be a long time before as a society come to grips with the changes needed on policy to protect economic stability, and put forth a definition of fairness vs. greed. I think we need to get rid of the greed in the system entirely in order to sustain economic stability.

    A great example of the failings of the system is the 2008 market crash in which many of those lessons learned are not being put into place in large part due to lobby influence and a culture of greed that the boomers have been responsible for implementing in economic policy and politics. Until that’s corrected, those registered education savings accounts for Degen’s kids are at extreme risk.

    A great independent look at the consequences of not putting forth policy to protect society from greed comes from PBS’s Program called “The Warning” which can be viewed online here:

    http://www.pbs.org/wgbh/pages/frontline/warning/view/

    Until we learn from those mistakes and adjust political ideology accordingly, we’re at all at a huge risk. Obama hasn’t fixed any of this in his Financial Reform package. A lot of the reason why is due to the largest lobby in Washington..the bank lobby. Government needs to be returned to its people, and we need to get rid of a lot of the lobby groups in Ottawa. Something almost all politicians in recent years have promised to fix, but when voted in have not.

  67. @IamME
    I think developing policy around transparency and accountability within government is the best way to rule out and identify the “greed” in the system. With respect to the copyright board, if decisions are being made that 9/10 end up in federal court there needs to be some questions posed to this government run entity with respect to its decision making process on legislation. Is the culture of greed an issue when interpreting legislation for tariffs? I think at this time, that’s a reasonable question to pose. This system has obviously broken down. I think it’s frustrating both consumers and creators. I think we need answers from politicians as to why this is, and how much it’s costing the tax payer at a time of historic deficits.

    Is there a way to make this system more transparent and accountable for decisions that go before the federal court of appeal? Should there be a penalty applied on the board if the federal court over turns a decision?

  68. No “link” in Copy Right Act
    What I find funny is Access Copyright attempts to give themselves rights that aren’t in the Copyright Act, while simultaneously revoking Fair Dealing from the Copyright Act in their tariff. There are privacy concerns regarding their monitoring and accounting of educational institutions’ usage. Then, we have Degen trying to defend Access Copyright with ludicrous claims.

    > I think the price asked is fair. But that’s my opinion. Let the Copyright Board decide.

    The price is clearly unfair as already stated, a jump of 13 fold that has no justification. Moreover, the total price isn’t just the $45 for universities and $35 for others. The Total Price includes accounting for every email sent and every link used by everyone in the institution, usage reporting, record keeping, survey compliance, privacy losses, penalties to any discrepancies in their audits, and so on.

    > A link to a digital copy must be valued according to the number of students who will use that copy. We do not build a stronger society through economic sleight of hand around new technology.

    No, that’s a misconception you’d like people to conform to. A link is not a digital copy and the Copyright Act doesn’t give you any right to control linking, or give you any right to remuneration through linking. In fact, there are no “link” or “linking” or “hyper link” in the Copyright Act. You and Access Copyright are doing the “economic sleight of hand around new technology” by including technology terms into your tariff and definitions.

    “We do not build a stronger society through” extortion tactics in the educational environments, be it in K-12 or in post secondary. “We do not build a stronger society through” ‘I’ve got an inexpensive education, so I am going to demand my entitlements on the next generation of learners.’

    Show me the proof where the law grants you these new rights! People like Degen love to argue around emotional arguments based on artists and authors; however, they usually ignore the proof of law in their positions, which is convenient I suppose.

    > No HTML tagging here? Is that some form of DRM?

    Seriously, do you even know what Digital Rights Management is?