Wednesday, December 04, 2019

Some Thoughts While the Suspense Builds re Court & Copyright Board’s Rulings re Access Copyright + December 9, 2019 Deadline, My Big Fat Canadian Royalty Cheque and an Alternative Collective Of The Creators, By The Creators, and For The Creators

The deadline of December 9, 2019 is approaching in a few days for filing objections to Access Copyright’s proposed post-secondary tariff for 2021-2023.

Meanwhile, we wait with baited breath for a decision from the Copyright Board on the 9 year + old proposed original post- secondary tariff and a decision from the Federal Court of Appeal in the Access Copyright v. York University case that was heard nine months ago. Whichever side loses that court case is almost certainly going to seek leave to appeal to the Supreme Court of Canada. And if leave is granted, as would likely be the case, there will be potential interveners lined up to ensure that all the necessary arguments are fully, forcefully, and finally addressed on high.

A heads up on the release of Copyright Board decisions has traditionally been announced by email distribution to parties shortly in advance of a late Friday email to interested parties and posting on the Board’s website as a prelude to a Canada Gazette official publication the next day. Another Friday is about to unfold, just before the December 9, 2019 deadline for objecting to the next proposed tariff. Could this be the big moment we have all been awaiting for so many years?

Federal Court of Appeal decisions are usually announced shortly after 9 AM to an email distribution list to which anyone can subscribe (here’s how and a hint to the Copyright Board on how to do this without spending much if anything) and can come any day of the week. There is usually no advance warning, as there is with the Supreme Court of Canada and, very rarely, in the Federal Court. Interestingly, the Access Copyright v. York University case is the only exception I know of in the Federal Court where extraordinary advance warning was given of that extremely controversial decision.  Some aspects of the current situation recall the expectation in 2017 of a key court decision at about the same time as a deadline objection at the Copyright Board – and in the current situation the long overdue decision of the Board itself of a 9 year old proposed tariff. Is this going be in some respects like déjà vu all over again from 2017?

Speaking of Access Copyright and the holiday season, the annual cheques for members recently arrived, as they normally do in time for the holiday.  I am proud to say that I have been a fly on the wall member for several years as a member of Access Copyright and this year my big fat Canadian royalty cheque this year was enough for a nice lunch or so-so dinner for two with so-so wine at a so-so restaurant. I have some anecdotal basis to believe that my “Payback” royalty might even be a bit more than the average or median. But I’m sure not about to quit my day job in the hope of relying on my writing royalties.

The leads to the very serious point that collectives and Copyright Board tariffs are a very poor and inefficient way of rewarding actual creators. They are terrific at rewarding executives of the collectives and some of the lawyers who deal with these collectives’ cases at the Copyright Board and sometimes in the courts and too often do too little or nothing to prevent these cases from going on for many years. Very few individual creator members of any Canadian copyright collective make more in a year from their collective in royalties than even the most junior lawyer on a collective’s outside legal team bills for one hour.

In this context, I was reminded recently about an article I published 20 years ago , which raised some eyebrows and generated some legal opinions, proposing an alternative to Access Copyright – or CanCopy as it was then called, until use by myself and others of the rather irreverent nickname “Can’t Copy” likely helped to prompt a rebranding.

Here’s the Title and Abstract:
Copyright Collectivity in the Canadian Academic Community: An Alternative to the Status Quo?
In this article, the author makes a number of pointed criticisms of the activities and operations of CanCopy, which is the sole copyright collective to represent English-language publishers and authors in Canada. The author notes that professors, graduate students and others, who create large numbers of the publications used in colleges and universities, receive little in the way of compensation from CanCopy. To remedy the situation, it is suggested that academics in English Canada should take steps toward establishing a second reprography collective to compete with CanCopy.

Here's the article – which in many respects is still interesting and potentially applicable today or in the future. At some point, an alternative collective to Access Copyright and other existing collectives may be worthy of consideration. With today’s technology, such a development might be more obvious and practical to implement than it seemed 20 years ago.

Further and in the alternative, as lawyers sometimes say, the possible drama and disruption that hopefully won’t but very well may unfold as the result of the Copyright Board’s and the Federal Court of Appeal’s forthcoming decisions may call for legislation to finally fix some of the existential issues that Access Copyright has brought into focus and may even have created


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