The Copyright Pentalogy: Copyright Collective Management

This week I wrote about the need for reform of the Copyright Board of Canada. Copyright collective management is addressed in two chapters of The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, an effort by many of Canada’s leading copyright scholars to begin the process of examining the long-term implications of the copyright pentalogy. As I’ve noted in previous posts, the book is available for purchase and is also available as a free download under a Creative Commons licence. The book can be downloaded in its entirety or each of the 14 chapters can be downloaded individually.

First, the complexity of copyright collective management is a recurring theme in debates over whether the Copyright Board of Canada, the Copyright Act and industry practice result in multiple payments for use of the same works. Jeremy de Beer describes this as “copyright royalty stacking” in his important chapter that unpacks “the layering of multiple payments for permission – through a certified tariff, collective blanket license or individual contract-to use copyright – protected subject matter.”

The chapter notes there is reason for optimism as the decisions, along with recent copyright reforms, may reduce copyright royalty stacking. While this may result in reduced revenues for copyright management organizations in the short term, the longer-term effects may be more positive, with increased certainty, reduced transaction costs, and a growing market. Creators – whether individually or acting through collective management organization – would be the net beneficiaries, with more commercial opportunities and innovation in the distribution of creative works.

With copyright collectives involved as parties in all the copyright pentalogy cases, the implications of those decisions are particularly pronounced for the collectives and the future of copyright collective management. Daniel Gervais sharply criticizes the Court’s decisions, which, he says, “can be seen as a frontal assault on collective management of rights.”

Gervais assesses the ESA, Bell and Alberta (Education) decisions, finding each wanting. He maintains that the decisions adopt a binary view of copyright-good vs. bad, control vs. free-when the reality is far more nuanced. Gervais argues that collective management organizations better reflect that nuance and that a system that effectively replaces collective management with fair dealing runs the danger of creating greater uncertainty and lost revenues for creators.

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