The Australian copyright community has been shocked by a scandal involving the Copyright Agency, a copyright collective that diverted millions of dollars intended for authors toward a lobbying and advocacy fund designed to fight against potential fair use reforms. The collective reportedly withheld A$15 million in royalties from authors in order to build a war chest to fight against changes to the Australian copyright law. I wrote last month about my experience in Australia, where groups such as the Copyright Agency have engaged in a remarkable effort to mislead policy makers on the state of copyright law in Canada. A former director of the Copyright Agency describes the latest situation as “pathetic” noting that it was outrageous to extract millions from publicly-funded schools for a lobbying fund.
The Australian case is far from an isolated incident. A quick search reveals plenty of examples of legal concerns involving copyright collectives with corruption fears in Kenya and competition law concerns in Italy over the past couple of months as well as recent fines against Spanish collecting societies. In fact, Jonathan Band and Brandon Butler published an eye-opening article several years ago chronicling an astonishing array of examples of corruption, mismanagement, lack of transparency, and negative effects for both creators and users from copyright collectives around the world.
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Access Copyright issued a release on a 2016 Copyright Board decision on March 31st that might have been mistaken for an April Fool’s joke had it been issued a day later. Channeling White House spokesperson Sean Spicer’s penchant for implausible spin, the copyright collective commented on the board decision involving copying in K-12 schools by arguing the decision confirmed that “fair dealing does not encompass all of the copying in education.” Leaving aside the fact that no one has said that it does (hence paid access remains by far the most important method of access), the Access Copyright decision will come as a surprise to anyone who read its response to the decision when it was first released, when it called it a “deeply problematic decision for creators and publishers.”
Access Copyright filed a judicial review of the ruling only to lose badly at the Federal Court of Appeal, which upheld virtually all of the Board’s decision (the only exception was a minor issue on coding errors in its repertoire, which is the source of the reconsideration referenced in the release). Access Copyright presumably issued the announcement on a year-old decision in response to the fact that the deadline has passed for an appeal of the Federal Court of Appeal ruling to the Supreme Court of Canada. What stands – and what Access Copyright seemingly endorses with its latest spin – includes:
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Globe and Mail columnist Kate Taylor published an article on Friday titled Concordia University Caught on the Wrong Side of Copyright, which focused on a copyright violation at the Montreal-based university. While Taylor thinks that the Concordia incident demonstrates the problems with copyright and fair dealing (she writes “scofflaws in the universities have been egged on in Canada by the 2012 amendments to the Copyright Act that included a vaguely worded, broad-brush education exemption), a closer look suggests that the case actually says far more about the problems with collective licensing.
The issue at Concordia involved unauthorized scanning and online posting of several poetry books (I will have a follow-up post on the scanning issue). Once the publishers complained, the books were quickly removed. The director of the centre responsible for the posting acknowledged the error and indicated that he planned to purchase five copies of each book, which is equal to the number of graduate students who attend a weekly reading group. That would seem to be the end of the issue as no one suggests that the posting of the entire books were permitted or consistent with university policy, the issue was addressed immediately, and there was an attempt to compensate for the perceived losses.
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The Federal Court of Appeal has issued its ruling in the judicial review of the Copyright Board’s ruling involving copying in Canadian K-12 schools. The decision is the latest in a growing number of decisions that have all adopted the same, flexible approach to fair dealing. Access Copyright has spent years (and millions of dollars) losing challenges on what was readily apparent from the Supreme Court of Canada’s 2012 copyright pentalogy: the value of the Access Copyright licence is very limited in light of authorized copying and fair dealing.
The Copyright Board of Canada decision on the application of fair dealing to educational copying, granted a tariff of $2.46 per student for 2010-2012 and $2.41 for 2013-2015. That rate is not only far lower than Access Copyright had demanded, but is nearly half of what was previously certified for the period from 2005-2009 (which was set at $4.81). The Board minced no words in explaining the reduction:
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As students across Canada head back to school this week, the Canadian Association of Research Libraries (CARL), which represents 31 member libraries, issued a reminder that Canadian education spends hundreds of millions of dollars every year on content licensing. Access Copyright and the publishing community have tried to paint the Canadian situation as a free-for-all, but the reality is that educational institutions, libraries, and students are still buying books and licensing content. In fact, recent U.S. data shows that textbook costs are increasing far faster than any other education cost.
The CARL release states:
The 31 member libraries of the Canadian Association of Research Libraries (CARL) spent $293 million on information resources in 2014-15, demonstrating a clear commitment to accessing print and digital content legally and rewarding content owners accordingly. Universities are actively engaged in outreach to their faculty, staff, and students, educating them on their rights and responsibilities under the Copyright Act and ensuring that uses of material under copyright fall well within the provisions of the law. Where educational uses are more substantive and therefore fall outside of fair dealing, the content is either purchased to be added to licensed collections, or rights clearances are obtained and royalties are paid for these uses. Trained, knowledgeable library staff support these activities.
Some voices in the publishing community and associated lobbyists have stated in the media that the education market has evaporated as a result of users’ fair dealing rights. This is inaccurate. Universities continue to buy and to license access to published works, at substantial cost, using public funds and student tuition dollars.
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