Access Copyright Plea to Negotiate Too Little, Too Late

Howard Knopf has another post on Access Copyright and its effort to exclude 99 objectors to its tariff and to convince the Copyright Board of Canada to issue an “interim tariff” so that an important source of revenue continues to flow even as the collective demands a massive increase in fees.  Knopf points to the many legal reasons why the interim request should be rejected in his post, which comes just as Access Copyright posts a open letter to the post-secondary education community.  The letter claims that many in the education community are confused and frustrated by the current situation and professes to remain “open to negotiation so that we may continue to play a role in helping your institution reach its teaching and learning objectives.”

The letter has an air of desperation (not to mention hypocrisy given that it is addressed to the post-secondary education community, many of whom Access Copyright is seeking to exclude from the tariff hearings) as the realization sets in that the tariff process has emerged as the catalyst for many to rethink the need for the Access Copyright licence.  Much like any insurance policy, if the price is right and the policy provides value, consumers are willing to pay the annual premium.  When prices skyrocket and doubts emerge about the value of the policy, consumers tend to think about alternatives. 

That is precisely what is happening right now in the education world.  The confluence of alternate sources for the same materials through licenced databases, the growing availability of materials via open access, the importance of fair dealing for research and private study, and the over a billion dollars that are spent annually on books by the post-secondary education sector all render the Access Copyright insurance policy far less valuable than it once was.  Even with these factors, many schools were still willing to pay the annual fee when the price was perceived to be reasonable.  The demands for a massive increase – at the very time that it would appear the fee should be declining – has put copyright costs on the agenda of senior administrators and University presidents for the first time.  As they look closely, they are increasingly reaching the conclusion that they can offer students the very best materials with appropriate creator compensation and without the need for Access Copyright.  Letters providing assurances of respect for fair dealing and willingness to negotiate may be too little, too late since many schools have begun to turn the page and search for more suitable copyright licencing alternatives.


  1. Russell McOrmond says:

    About time.
    It is about time the educational sector is looking for alternatives to Access Copyright. The constant attacks by the legacy educational publishers that dominate AC against the educational sector has finally come to roost.

    At a time when they are making outrageous claims about things not in C-32 (All those silly postcards/etc ), it is obvious to the rest of us that the ultimate demise of Access Copyright will be entirely because of the policies of Access Copyright. Their campaign to pickpocket creators is becoming more and more visible.

  2. Puzzle
    Agreed, AC’s time has come and gone. It surprises me that anyone would sign such an agreement. I am curious to know the reasoning behind any Admin’s decision to sign the interim agreement. I understand 4 or 5 to date

  3. But, Access Copyright says in their letter they are “not claiming for works that are already licensed, or for uses that are permitted under the Copyright Act. The tariff process will identify works for which there is no other licensing arrangement or statutory permission. We will only capture what is being used but not otherwise authorized or permitted.”

    How then could there be a “confluence of alternate sources for the same materials.”

    Unless, someone is misstating the facts. But that never happens.


  4. I’m sure you’re well familiar with that John.

    As for the article, if schools want to move on they should be allowed to, and the letter does have sounds of desperation. “Please stay with us while we try to charge you more money!” is kind of what it sounds like. If a school wants to move on because they think your fee is going to be too high, that may be an indication you need to look at it again. I also don’t think that they should be able to exclude the objectors that they are trying to because they are all affected by this decision (some peoples thoughts about this to the contrary).

    That said, I’m not versed well enough to know if the facts about if they charge for things they don’t actually own the rights to are true or not, so I’m not going to comment about that.

  5. Avarice begone …
    Yes, it is rather confusing. Is the suggested $45 fee (or whatever it happened to be) per student already taking into account those other fair use/database sources? Or are they asking the copyright board to make that determination? The initial ask seemed to be very high and that is what sent people looking for other avenues for access. The same mentality is what plagues the consumer media industry. Do we really need extra fees to format shift or backup? Consumers don’t think so which is why many infringe. That and to avoid the pitfalls and inconvenience of DRM. Some pirate just because they are cheap but I think that is not the lion’s share of the problem.
    Digital media must cost magnitudes less to manufacture & distribute yet we don’t often see that reflected in the final sale price to the consumer (although I hear some authors are getting a high percentage which is good). Greed is it’s own worse enemy. Good will is the best way to attain and retain customers, the media industry needs to change track in that direction, stopping lawsuits and threats, or things will only get worse.

    I predict HADOPI will be an utter failure and ultimately be repealed. The UK is already backing away from it’s digital media act even before it’s fully implemented. The USA has backed down on some DCMA provisions and the US & EU judicial branches are looking into the constitutionality of even the watered down ACTA. The CPC must be taking all this into account as they consider changes to C-32 in committee, at least I hope so!

  6. Sandy Crawley says:

    Conflation leads to confusion
    The inherently adversarial process at the Copyright Board and the negotiation required within legislative process around Fair Dealing for “education” in C-32 ought not to be conflated in the wise and informed comment to this blog. At least the lawyers who post here should understand that much, if not the lay persons with axes to grind.

    I don’t suppose any others with standing at the Copyright Board have ever sought to exclude objectors there. Oh Access Copyright is such a demon. Pure market forces are so much better at deciding public policy. Take housing for example….

  7. Russell McOrmond says:

    Pure… market forces..

    You wrote as if Access Copyright is and should be outside market forces. They are a financial services agency that acts as an intermediary in a very narrow type of transaction. They no more represent creators than a credit card company does.

    If we want to talk public policy, then maybe we should be taking these government programs masquerading as copyright out of the copyright act. At least if Access Copyright were replaced with something like the PLR creators and other citizens would finally get the transparency and accountability they deserve.

  8. Sandy Crawley says:


    Sorry, to clarify: by “pure” I mean for-profit enterprises. I agree that the PLR is a fine institution that serves creators well. The same is true of Access Copyright. There’s no large institution that I can think of that serves all its stakeholders perfectly. I’m sure you know that the board of AC is 50% creators who are elected by their constituent affiliated writers, visual artists and photographers.These people are accountable (I’m one at the moment) and AC’s financial statements are on record. Transparency is always a moving target but I don’t think AC is worse at it than any other large collective that is part of a global matrix.

  9. Be careful what you ask for …
    Sandy, of course AC is not ‘evil’ they just fell into one of the seven deadly sins. Hey none of us are perfect, myself included, but in this instance the attempted overreach that AC put before the copyright board has led to consequences. If a more reasonable ask had originally been presented then I doubt that we would even be having this discussion. Then trying to shut down dissenters voices only added to the exasperation.

    Having said that, it is interesting times we live in. It must be very difficult for established systems and structures to adapt in the rapidly shifting digital landscape we find ourselves in. I suspect few industries have had to face such rapid change. Some analogies I suppose could be when the train replaced the horse drawn carriage as the national goods delivery system and the telegraph replaced the pony express for information. Yet I think for the situation today change is even more rapid.

    So I understand those working in the current realms would want to solidify their positions or even just try to make sense of it all. I do not envy you the task but I think working together rather than the adversarial approach would return better results and relations.

    Thanks for posting Sandy, we need other views to have meaningful discussions and try to find some better ways going forward.

  10. @ Russell. I agree with you. With specific regard to representation, many of the ‘members’ of these collectives are members only because a third party such as their employer or an organisation that they are connected to, has enrolled them automatically. In Australia, the membership of a collective called Viscopy, contains a lot of people who live in remote desert communities, for whom English is a second language in which they can neither read nor write. Most of these so called Viscopy members have no idea that they are members. Many other Australian artists were approached by Viscopy with offers of receiving a percentage of the photocopying levy. Few read the contract closely and therefore did not realise that they were also assigning their primary rights to this collection organisation. There is no provision for a renewal requirement in the contract, so many other members of Viscopy became members by signing a document say, 10 years ago, and have forgotten. Not surprisingly, Viscopy spent a lot of time pursuing schemes that would give it compulsory membership. It failed in this ambition.
    @ John: Do you remember the scene where HAL sings ‘Daisy, Daisy’? Perhaps Access Copyright should start practising that tune.

  11. @Sandy Crawley
    “Pure market forces are so much better at deciding public policy. Take housing for example..”

    The US housing crisis happened specifically due to the lack of adequate “consumer” protection in legislation. Something I’m sure Mr. Crawley, you already know by now.

  12. Russell McOrmond says:

    AC beyond its mandate…

    Does Access Copyright do anything beyond collecting royalties from one group and redistributing to members? Are you doing group buying, drug benefits, sponsoring conferences, awards, etc?

    If so, do you think that is appropriate to be doing with someone elses money? To be claiming to “represent” people who really have no option about joining, and must do so in order to receive money — not because they agree with the pretty extreme political positions Access Copyright takes (in lobbying, etc).

    Do you understand why many of your members think it is inappropriate for Access Copyright to be acting as if it were a government agency rather than the financial services agency it should be acting as?

    Over the years I’ve met with a number of the “creator” board members, and found a number of them indistinguishable from the publisher board members. They were very much in the mindset of “what is good for publishers is good for creators”, when in fact the opposite was often true.

    It isn’t just your government mandated customers that are seeking alternatives, it is many of your members. The link to Housing isn’t the one you think: The housing crisis happened because people were buying bigger homes than they could afford. In the case of Access Copyright it may meet its ultimate “market correction” because it tried to move beyond its mandate into controversial areas that its members and *THEIR* customers (not yours) disagreed with.

    Note: In the alternative methods of production/distribution/licensing such as Open Access, creators still get paid – likely far better than they are with Access Copyright. It is Access Copyright that is replaced.

  13. Russell McOrmond says:

    “Conflation “

    One additional thought on your belief that people are conflating unrelated issues: they aren’t unrelated. This isn’t about separate legal processes. They are interactions between Access Copyright, its (pretty much government mandated) creator membership, the educational publishers that dominate AC, and the various communities that receives licenses through Access Copyright.

    Access Copyright has the same problem that musicians have been speaking about for years: “It’s shortsighted to say ‘See you in court’ one day and ‘See you at Massey Hall’ the next,”

    Ultimately, the nastier your interactions (Including publishers like Nelson sending hyperbole to those who have participated in textbooks — which we all know is a campaign shared with Access Copyright), the more everyone who interacts with you will ultimately be seeking alternatives. Anything to no longer have to interact with AC. And if the board doesn’t realise it pretty soon, it will be beyond too little too late.

  14. Good point about alternatives
    After a Google Scholar search on an arcane topic, and with no academic affiliation, I was very surprised and pleased to find my Toronto Public Library login gave access to most of the relevant journal archives.

  15. I don’t think any of us want to go down this road.
    Ok Sandy, yes this is way off topic but in the vein of “be careful what you ask for” and the media industry …

    Disenfranchise your fans/customers enough and they may just replace you!

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  17. PLR articles
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  18. PLR articles
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  19. PLR articles
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