Friday, April 08, 2011

Access Copyright's Election 2011 Toolkit - About Repealing Fair Dealing

Access Copyright is entering the election fray.

Unfortunately, most of what is being said is quite misleading and/or troubling. For example, here is part of what Access Copyright has to say:

By favouring exceptions without compensation over collective licensing, the Bill [C-32] foreclosed any meaningful opportunity for rightsholders to participate in shaping emerging markets for access to content with fair compensation. Its net effect would have been to undermine existing licensing infrastructures and foreclose new revenue streams, forcing rightsholders to hold on ever more tightly to what little control over their works they would have had left instead of promoting increased access
through innovative models of licensing and distribution.

Meanwhile, Canada’s creative and information sectors would have been impoverished as creators and publishers would have been forced out of business, unable to earn a living from their craft and businesses. With Canadian voices silenced, educational institutions would have been forced to rely on American and other foreign sources for teaching materials.
While exceptions may be warranted for certain users in certain circumstances, (when reasonable access is otherwise unavailable), there is no need for an uncompensated exception when a work is available at a reasonable price and can be obtained with reasonable effort. In other words, exceptions should be unavailable whenever a licence for the use is available from a collective society.

(emphasis added)
That is a very inaccurate description of what Bill C-32 would have done.

But the corollary and conclusion are really remarkable.

Access Copyright apparently believes that we as Canadians should give up on the notion of exceptions for fair dealing for research, private study,  criticism, review, news reporting etc. - never mind satire and parody - if there is a friendly collective lurking out there that is willing to provide a license. Say - for example - for $45 per university student student per year.

Some of the questions posed by certain committee members at the C-32 hearings suggest that Access Copyright is getting through to them on such points. The response from key parts of the educational community was typically tepid.

I have to say that as a member of Access Copyright and as a copyright lawyer, it is embarrassing to see such a position being asserted when it flies in the face of what goes on in other comparable countries and what is good policy for Canada, not to mention about two centuries of common law jurisprudence and common sense.

It does not seem sensible for Canada to consider repealing fair dealing.

Providing mere beer money to most writer members and millions a year to a collective's managers, consultants and lawyers by limiting and/or charging excess rates for access to teachers and students at all levels does not strike one as brilliant policy in a competitive world concerned with innovation in the digital economy. Access Copyright's expenses exceed 25% of its revenues, which is a much higher ratio than collectives such as SOCAN.

Any government that is serious about education in Canada will ensure that copyright exceptions and users' rights in Canada are at least as generous and specific as those in the USA. Since the Copyright Board and the Federal Court of Appeal (at least in the CMEC K-12 decision) are arguably not following either the letter or the spirit the Supreme Court of Canada's landmark CCH v. LSUC decision, we do need Parliament to act - but in the very opposite way to what Access Copyright is suggesting.

In the great democratic tradition, use it early, wisely and often.  

And as you wish.


1 comment:

  1. Maybe it's time someone undertook an exposé of AC's expenses in detail. Here's what was discovered about its Australian counterpart: