Wednesday, September 21, 2016

Is Access Copyright "Selling the Brooklyn Bridge"?

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Jet Lowe - Wikemedia

For any millennials and others who may not be aware, “selling the Brooklyn Bridge” is a metaphor for someone selling property that they do not own.

Back in 2012, I commented on the beta version of Access Copyright’s “look up” tool. Some improvement has now been made, although it is still being called a “beta” version several years later. It does not take long to figure out why.

One improvement that I called for has been implemented. For example, one can search by author’s name without knowing the ISBN number by using the “advanced” search feature. Moreover, “In sectors where a comprehensive licence is not available” one can now, apparently get a transactional (pay per use) license for a single work. However, this leads quickly to other vexing questions that are still apparent with this lookup tool that has ostensibly evolved into a permission tool.

Leaving aside the always interesting and fundamental question of whether Access Copyright has a valid chain of title to all of the works it purports to have in its repertoire, it is still troubling that Access Copyright  apparently is still offering to license material that is clearly in the public domain.  This is still apparently a problem, even though I wrote about it in 2009. (BTW, whatever happened to its vapour-ware public domain registry that was announced more than a decade ago?)

Access Copyright seems to be taking the position that an edition of a public domain work can be protected by copyright if it happens to include illustrations, a preface, or other material that may be protected by copyright. Indeed, here is an excerpt from Access Copyright’s potentially misleading FAQ concerning this issue:
I believe a work I wish to use is in the public domain, may I copy it?

The public domain includes all works no longer protected by copyright.  Works fall into the public domain once copyright expires.  The term of copyright in Canada is typically 50 years after the death of the last living copyright owner.  When making this assessment all copyright owners are considered; [sic] including editors, illustrators and translators.
(highlight added)

It is true that in the case of joint authorship (e.g.  Rogers and Hammerstein or Lennon and McCartney), the term of protection will be for 50 years after the death of the last surviving author. However, the illustrator, the preface writer, or the designer of the cover of a modern edition of a public domain work is certainly not a joint author of the underlying work. Editors and illustrators of even first or early editions are unlikely in most cases to be joint authors for the purpose of determining the copyright term in the underlying work. The Copyright Act defines a “work of joint authorship” as “a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors”. Access Copyright should make it very clear that this is the case. Instead, it seems to imply and perhaps even suggest otherwise

The fact of the matter is that anyone in Canada is free to copy any or all of the words and works that are in the public domain in Canada that have ever been written (e.g. by Charles Dickens who died in 1870) without permission from anybody. If there is an illustration, preface or other material that might still be protected by copyright in a modern edition, permission might be required for copying such material but not for Dickens’ words themselves. The routine inclusion of a copyright notice at the beginning of a new printing or even a new edition cannot confer copyright in the underlying words, if those words are in the public domain. All that said, one must remember that there may be potential issues (depending on what is done with such material) of infringement in other countries where the work may still be protected, such as the USA which has a longer copyright term of life + 70 and the term calculation can become devilishly complex. Remember, unless Canada caves in on further term extension, the term of protection for of literary, dramatic, musical or artistic works is still life + 50 years.

Nor can Access Copyright justify extending the copyright term of a public domain work simply because there may be some minor editorial contribution in a later edition. The Supreme Court of Canada made it abundantly clear in the CCH v. LSUC case that minor and routine editorial work is insufficient to confer copyright protection:
35  This said, the judicial reasons in and of themselves, without the headnotes, are not original works in which the publishers could claim copyright.  The changes made to judicial reasons are relatively trivial; the publishers add only basic factual information about the date of the judgment, the court and the panel hearing the case, counsel for each party, lists of cases, statutes and parallel citations.  The publishers also correct minor grammatical errors and spelling mistakes.  Any skill and judgment that might be involved in making these minor changes and additions to the judicial reasons are too trivial to warrant copyright protection.  The changes and additions are more properly characterized as a mere mechanical exercise.  As such, the reported reasons, when disentangled from the rest of the compilation — namely the headnote — are not covered by copyright.  It would not be copyright infringement for someone to reproduce only the judicial reasons.

This reasoning would almost certainly apply to most new editions of public domain works, even including so-called “urtext” music editions. As I commented a few years ago in another context:
Some publishers add often trivially minor editorial changes over the course of time to make the edition supposedly more “authentic”, which also has the result of prolonging copyright claims for those who are not astute enough or content to rely upon earlier editions. The Supreme Court of Canada has discounted down to zero the value of minor editorial work in asserting claims to copyright in, for example, judicial decisions. See CCH v. LSUC, para 35 etc. There is European law that might suggest otherwise in the case of scholarly editions of music, but I don’t believe that it would be followed in Canada, in light of CCH v. LSUC. Canada has a higher "threshold of originality" than the UK, for example. …
In view of the above, I find it curious that Access Copyright is apparently offering to sell transactional licenses to a wide variety of users, even to universities, for example:

- A 1935 edition of Beethoven’s (d. 1827) 32 piano sonatas edited by Artur Schnabel (d. 1951)
- A 1912 edition of the poems of John Donne (d. 1631) with an introduction and commentary by Herbert Grierson (d. 1960)

There are no doubt countless other examples of titles on Access Copyright’s database where permission to copy the public domain material is clearly unnecessary but Access Copyright seems to be ready and willing to sell a license anyway. I should say that I have not tried to follow up with Access Copyright on any of these offers, which seem to require an ISBN account in order to proceed to get a quote and to complete the transaction. An ISBN account is something I do not need or want and which looks like a fair bit hassle. However, I would be interested in hearing – anonymously if you wish – from readers with such accounts who wish to explore this further.

As for Access Copyright’s actual repertoire, I said earlier about the Copyright Board’s Provincial Government decision (currently under judicial review):
The Board certainly seems to be resiling from its frankly untenable cheque-cashing implied agency theory in the K-12 case. See para 136:
Access can only send cheques, and thus be able to argue for the existence of an agency relationship, in relation to at most 0.005 per cent of copying from works of non-affiliated rights holders. Even if we were to accept the premise that the sending of a cheque by Access in relation to a copying event, and its subsequent cashing by the owner of copyright in the work copied, forms an agency relationship in relation to that particular copying event, it would remain that this would not happen for at least 99.995 per cent of the actual potentially compensable copying of works of non-affiliated rights holders that will occur during the Tariff period.

The Board seems to have finally refused to include works of non-affiliated rights owners – which AC had tried to include by sending out cheques to sometimes bewildered recipients whose names somehow appeared in AC’s database and received a small cheque out of the blue (para 158).

There is growing scepticism by the Board re inclusion of repertoire from foreign RROs (para 165).

So, it will be interesting if the Copyright Board will eventually have something to say about Access Copyright’s apparent willingness to license material in the public domain. There was some discussion about Access Copyright’s look up tool and the repertoire question in paras 16-24 of the Board’s decision regarding the interim Post-Secondary tariff. Perhaps the Board will have more to say about this in the Board’s decision on the “final” post-secondary tariff, whenever that may be. The hearing for that tariff (unopposed for all practical purposes, which ironically gives the Board much more inquisitorial scope in certain respects) concluded in January 2016. However, unless the Board shortens its usual (and increasingly unsustainable and unmatched in Canada) two year or more delay with respect to pending decisions, we will not know the Board’s decision until sometime well into 2018.


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