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.
As I also
commented in my blog about the Board’s decision re
Access Copyright’s K-12 tariff:
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.
HPK
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