Thursday, December 02, 2010

AC's Tries Negative Option to Sustain Digital Rights Licensing

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.



  1. I believe the government of Canada will be giving Access Copyright these rights -

    30.02 (6) of the current draft of C-32:

    The owner of the copyright in a work who, in respect of the work, has authorized a collective society to enter into a reprographic reproduction agreement with an educational institution is deemed to have authorized the society to enter into a digital reproduction agreement with the institution — subject to the same restrictions as a reprographic reproduction agreement — unless the owner has refused to give this authorization under subsection (5) or has authorized another collective society to enter into a digital reproduction agreement with respect to the work.

  2. That's an astute comment. The previous subsection in the bill does allow and author to "opt out" - i.e. negative option. But this is a very unsatisfactory provision - and maybe even unconstitutional. It's injecting unnecessary and intrusive elements of contract law into the Copyright Act. Last I heard, contract law is the domain of the provinces. This also smacks of a back door major step towards "extended collective licensing", a very controversial and "socialist" concept not embraced outside of the Nordic countries. The trouble is that none of AUCC, ACCC or CMEC are likely to protest.

    Anyway, this still isn't the law and C-32 may not survive the next election.


  3. Now that's interesting. Access Copyright must believe that they can get away with this, either as a matter of law, or because the copyright owners will find this of value.

    After all, they couldn't be stupid enough to try a digital land grab without backup, could they?

  4. I think you'll find that they already have the major educational publishers on board anyway, so this won't make much difference