As I pointed out on October 26, 2010:
Many if not most creator and publisher affiliates have refrained from giving AC any digital rights.
It now looks like AC is going to attempt use a "negative option" scheme to get digital rights it currently does not have in order to try to sustain the basis of its proposed $45/$35 tariff.
Previously, creators were asked to specifically agree and check off their agreement to license a the "digital conversion right" and the "digital importation right". Now, AC is apparently purporting to do this by negative option. Here is the November 15, 2010 communication (with my highlight and underline) to creator affiliates, of which I am one. Here is the key excerpt:
Access Copyright's board of directors also approved a change in the way we license works for digital uses. We will now license the scanning and posting of works from a paper source the same way we currently license photocopying; on an exclusions basis. This means that, unless you tell us otherwise. we will license users to scan, post and distribute portions of your works.
(emphasis added)
Based upon the documentation I have seen, this simply won't work. It's an attempt at a unilateral amendment not permitted by the basic agreement. If there is other documentation or an opinion that AC will reveal that leads to a different conclusion, I'd like to see it. Moreover, this seems like a pretty explicit admission that, at least in respect of creators, AC does indeed lacks the digital rights for which it is all ready to collect about $50 million a year, i.e.the difference between the $11 million it now collects and that $60 million it seeks. The current publisher affiliation agreement also holds back digital rights, unless specifically agreed to - so it may be that AC is also trying to rely on "negative option" with the publishers as well.
Hopefully, this will be raised before the Copyright Board, which will hopefully reach the right conclusion. If intellectual property is to be taken seriously as "property", then "chain of title" matters.
There is stormy weather is ahead for AC, if AUCC or ACCC choose to push this button. If they don't, others definitely should.
HK
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