Access Copyright: Reduce Fair Dealing, No Taping TV Shows or Format Shifting

The Government continues to post copyright consultation submissions (still lots to go one month after the consultation concluded) with many making for interesting reading.  Access Copyright's submission is worth noting for two reasons.  First, rather than simply arguing against flexible fair dealing, it argues that the current fair dealing provision as interpreted by the Supreme Court of Canada is actually too broad.  It states:

Rather than an expansion of fair dealing, Access Copyright believes that it may be necessary to qualify the fair dealing provision as set out by the Supreme Court of Canada in the CCH decision, in order to ensure that Canada is compliant with the three-step test. Access Copyright contends that the fair dealing provision as interpreted by the Supreme Court of Canada conflicts with the normal exploitation of a work and causes an unreasonable loss of income to creators and publishers.

The collective goes on to say that research should be limited to non-commercial instances only (the Supreme Court of Canada ruled that there was no such limitation).  Access Copyright also takes aim at format and time shifting, submitting "that good public policy should not be dictated by legalizing common public practices." It is particularly concerned with format shifting, arguing for additional compensation for such exceptions.


  1. Good Public Policy?
    Access Copyright also takes aim at format and time shifting, submitting “that good public policy should not be dictated by legalizing common public practices.”

    Couldn’t the opposite also be true? In that “good public policy should not make common public practices a contravention simply to preserve outdated business models”.

  2. Good Public Policy?
    “that good public policy should not be dictated by legalizing common public practices.”
    This is a humourous statement. Discarding common beliefs and morals during lawmaking in a supposed democracy!

  3. Darryl Moore says:

    Interesting that they try to present an EU law designed to harmonize copyright laws across the EU (EU Directive 2001/29/EC) as though it is somehow binding upon us. The relevent treaty of course is Berne which states “It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” This is the same clause that the US uses to justify many of their fair use excemptions as well as the non-requirement of small businesses to pay license fees for their waiting room music feed. One would think if the arguement works for the US, then it should work for the rest of us too.

    Our collective organizations are enormous power hungry beasts that, per capita, far outweigh their American counterparts. We need good strong fair use laws that will strip these organizations down to a manageable size and make copyright fair for everyone.

  4. Darryl Moore says:

    RE: Good Public Policy?
    On the surface you have a good point crade, however keep in mind that slavery, denying woman the right to vote, and beating ones childern with a stick were also all common practice.

    Something being common practice alone does not mean the law should bend to it. It should not be dismissed out of hand either and the law makers should considder carefully whether outlawing a common practice is a good thing.

  5. @Darrel Moore,
    I am not saying I agree with everyones morals, but I still think the law should reflect the majority of the peoples morals in a democracy. I am not neccessarily preaching that democracy is the bestest way to go, but I do think that is part of the ideological package.

    In the cases you mention, the majority was convinced (more or less) and so the law changed. If nearly everyone (including the slaves and women of course) still believed that slavery / denying women the right to vote was morally correct, the law wouldn’t have changed, or wouldn’t have lasted if it did.

  6. off topic

    On twitter stopthetvtax is astroturfing heavily. It is quite annoying to see huge infrastructure monopolies fighting against the public, the govt and the CRTC (who are wholly useless). I understand they have a position but it feels like they are abusing their monopoly powers to astroturf people.

    Dr Geist if you could give even a link to the twitter astroturfing it’d be helpful. I don’t really want to support the CRTC here but who is the lesser evil in this case? Rogers etc don’t want to pay for sharing content that if were in their shoes we’d be in jail already.

  7. Access Copyright is to copyright law as the Taliban is to modern Islam.

  8. Darryl Moore says:

    No no.

    Access Copyright is to the American public as the vcr is to the boston strangler.

    Um no…that’s not it…

    Access Copyright is to the public as the boston strangler is to a woman at home alone.

    YES, that’s it. It’s taken 30 years but i fixed it. That is what Jack Valenti was trying to say all along. It must be.

  9. Access Copyright = Morons

  10. Laurel L. Russwurm says:

    Access Copyright obviously has an agenda
    More copyright = more income. Not necessarily for the artists…

    People are more likely to give more credence to a non-profit organization than one that is clearly for profit, because the thinking is that non-profit indicates the organzation is on the side of the angels. What must be remembered that non-profit does not mean they do what they do for free.

    The only thing that non-profit means is that the organization can’t make a profit. In fact, it is probable that most successful non-profits have handsomely remunerated staff members. For example, it is also possible for non-profit organizations to own real estate.

    Personally, I’m far more impressed by the model espoused by Cory Doctorow.

  11. except that (a) even the senior staff at Access Copyright probably earn a lot less than a U of Ottawa professor and (b) it doesn’t own real estate.

  12. Laurel L. Russwurm says:

    A stake is a stake
    Sorry Bob, I’ve no idea what either earn. That isn’t at issue. What is at issue is that Access Copyright has a stake in Canadian copyright law.

    The reason I mentioned remuneration was to draw attention to the fact that this is not necessarily an altruistic organization. Maybe it is, quite frankly I don’t know much about them. But it is clear that they are an organization which earns its income from collecting royalties and then paying them out to artists and publishers. I am not saying there is anything wrong with that. Its probably even a good deal for the members. What I am saying is that Access Copyright has a less than altruistic motivation for seeking more restrictive copyright law.

    I have a problem with their “repertoire payment”. This is yet another instance of collecting royalties and making distribution payments based on estimates. In the early days of radio, it was considered reasonable because it was the only way to determine royalties due for airplay. Although inaccurate, accuracy would have required too much manpower. So it was better than nothing. But in today’s world we have technology that can track just about anything. I don’t think that guessing flies any more. It would seem child’s play to create software that could accurately track air play and then pay royalties accurately.

    If it is important to collect royalties for artists, it is even more important to collect the correct royalties and pay them to the correct artists.

    I don’t understand how Access Copyright ends up with an annual unclaimed pot of cash they don’t know who to pay. Is this money collected for creators or publishers who are not members of this collective? Wherever it originates, this “repertoire” pot is split among members who have signed up for these payments. Call me crazy, but I don’t think its good for anyone to be collecting royalties in error.

    Like the CD levy, my problem is that any money collected is likely not going to the correct artists.

    The thing that disturbed me most about the Canadian Copyright Consultation was the disproportionate value that seems to be placed on the ideas of collectives like this one whose words may or may not be an accurate reflection of their membership’s ideas and needs. Although collectives may represent their membership, they also represent themselves. They may not even perceive it as a conflict of interest. Because what’s good for the collective is good for the artist, right? Well, not necessarily. The thing to remember, even if they speak for all of their membership, they do NOT speak for all Canadian writers.

    Maybe I’m wrong, but I think that the creators should have the biggest say about copyright, yet it looks like they are getting the least.

  13. Then what are laws for?
    Clearly Access Copyright doesn’t understand the purpose of laws. Laws are a system for enforcing basic moral standards. It’s supposed to follow the mores of the society it governs, such that all (or at least a vast majority) of people under those laws will agree that it’s in their best interest.

    By that definition, common public practices should directly define the laws. If the majority of people do it, clearly they believe it is acceptable behavior, and therefore it should not be criminalized. That’s why drinking alcohol and smoking tobacco are legal, despite the costs of both of these acts. It’s also why legalizing marijuana is often revisited.

  14. Their history profs are weeping…
    Actually, isn’t the basis of over a thousand years of English common law the principle that laws themselves are formed out of common practice ? I appreciate and respect ‘Access Copyright”s view of what should constitute the basis of good law and public policy, but their views sound about as reasoned, sound, and informed as the Raelians…

  15. James C makes a good point…
    If the majority are doing it, by the very principle of democracy, it is/should be law!

  16. “Copyright owners should be given time to develop and test new services and business models for the delivery of content in the digital environment. The introduction of a format shifting exception for books could undermine the development of emerging business models. At the very least, the government should ensure that any restriction of the copyright owner’s reproduction right be accompanied by fair compensation.”

    1) They’ve had the same time to develop new models as everyone else using technology and/or the internet… what is this business kindergarten?

    2) Why do we overlook the constant addition of additional fees and taxes impacts the development of emerging business models and solutions unrelated to digital content (or related to legal uses of digital content)

    3) Why do we keep confusing “copyright owner” and artists? The propaganda keeps saying we are compensating artists with all these taxes when the reality would seem to be that we are compensating the publishers and organizations that distribute content or at those organizations that seem to exist solely to restrict our use of content we have paid to use. How much of all these fee’s do artists get? How many artists are actually represented by these fee’s?

    4) Why do these organizations overlook the obvious – they are failing to deliver solutions that meet peoples needs. Punishing people for meeting their own needs is not only counter productive, it breeds further dissent and makes it more difficult to create a new business model because people have quit looking to you for a solution.

  17. @Gregg
    Usually, if no harm comes of some practice – it need not be regulated to begin with.

    Regarding copyright, whose natural state is communal, society has recognized the need to protect creators by temporarily granting a monopoly entitlement.

    The problem is that some chose to forget: 1) the natural state (i.e. public domain) of expression; and 2) what the word temporary means.

  18. @MarcR
    Agreed, however the instances where an activity being made illegal even if little or no harm comes from doing this responsibly are numerous. The various attempts at prohibition over the years are perfect examples of this. Rather than go after irresponsible use, they go after all use. Imagine if 5 people intentionally or through negligence hit people with cars, so the government banned the use of cars.

    However the comment about ‘Copyright owners should be given time to develop and test new services and business models for the delivery of content in the digital environment”. What a load of crap. They’ve had time, and have chosen to not do anything about it. Extending the time they have until they are ready provides them with absolutely zero incentive to do anything (in fact, in the short term it is better if they do nothing under this model; since doing something would cost them money it would negatively affect the company’s bottom line). They’ve made their choice, now they must live with it.