The Federal Court of Appeal delivered its long-awaited copyright ruling in the York University v. Access Copyright case last month. This latest decision effectively confirms that educational institutions can opt-out of the Access Copyright licence since it is not mandatory and that any claims of infringement will be left to copyright owners to address, not Access Copyright. The decision is a big win for York University and the education community though they were not left completely happy with the outcome given the court’s fair dealing analysis.
The decision also represents a major validation for University of Toronto law professor Ariel Katz, whose research and publications, which made the convincing case that a ‘mandatory tariff’ lacks any basis in law”, was directly acknowledged by the court and played a huge role in its analysis. Professor Katz joins me on the podcast this week to talk about the case, the role of collective licensing in copyright law, and what might come next for a case that may force Access Copyright to rethink the value proposition of its licence.
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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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University of Toronto law prof Ariel Katz embarks on an important research project on copyright collectives.
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Earlier this year there was a fair amount of buzz about a Canadian Heritage commissioned study on copyright collectives. Conducted by Toronto lawyer Craig Parks, the study came to the public's attention after Parks launched a blog that invited contributions and public comment. It was an interesting approach, though critics noted that Canadian Heritage was not providing any support for the blog initiative and there seemed to be a lack of transparency about the process.
Documents obtained from a recent Access to Information request provides a bit more background and raise a series of new concerns. It would appear that the study was commissioned late last year with final contractual details ironed out in early 2006. Mr. Parks submitted his report, A Report on the Copyright Collectives Operating in Canada, on March 31, 2006. The report is effectively divided into two parts. The first part is a review of the collectives with unattributed comments highlighting specific benefits and problems. The second part is a directory of the collectives with contact information, key personnel, collective members, licenses, as well as a description of the role of the collective and its relationship with the Copyright Board. The prime source of the material in the study was a series of telephone interviews lasting an average of one hour each. Mr. Parks does not disclose who he spoke with, but rather that he "stopped counting after 50."
Interestingly, Parks notes in the introduction that "I can say that a more comprehensive survey would have yielded diminishing returns in terms of new and different comments in the areas of concern." Despite that view, he went back to Heritage in early May with a proposal to extend the contract to conduct some face-to-face interviews with the prospect of revising the March report. The revised report is due in mid-October.
In reviewing the ATIP documents, I encountered both substantive and procedural concerns.
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