Is Access Copyright "Selling the Brooklyn Bridge"?

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 1915 edition of Charles Dickens (d. 1870) A Christmas Carol

- A 1912 edition of the poems of John Donne (d. 1631) with an introduction and commentary by Herbert Grierson (d. 1960)

- A 1912 edition of Charles Dickens (d. 1870) A Christmas Carol

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

What's Wrong With This Picture And Where Does it Come From?

What’s wrong with this picture and where does it come from?

It is presumably meant to be an illustration of the fact that a musical composition embodied in a sound recording may be in the public domain while the sound recording may still be protected by copyright, or vice versa. That may not be totally obvious to everyone.  So far, so good – at least in theory.

Both examples superficially seem to take into account the 2015 Canadian legislation extending the copyright term for sound recordings to 70 years from publication, which was a gratuitous and un-debated (because it was buried in a budget bill shortly before an election) gift from the previous Government to the American recording industry.  This was a true triumph of lobbying over logic and evidence, but I digress. Be that as it may, this change came into effect only in 2015 and is not retroactive. Indeed, the Government did make it absolutely clear that this term extension windfall would not revive expired copyrights in sound recordings or performer’s performances:

2015, c. 36, s. 82No revival of copyright82 Paragraph 23(1)(b) and subsection 23(1.1) of the Copyright Act, as enacted by section 81, do not have the effect of reviving the copyright, or a right to remuneration, in a sound recording or performer’s performance fixed in a sound recording in which the copyright or the right to remuneration had expired on the coming into force of those provisions. (highlight added)

Therefore, the example where the CD was presumably fixed and published in 1945 is clearly wrong. The copyright in that sound recording would have entered the public domain in Canada at the latest 50 years after the end of 1945 -– in other words December 31, 1995. The copyright in this example would not have been revived by either the 2012 or the 2015 legislation so as to get any extra term of protection. In any case, it should be needless to say that there were no CDs in 1945. State-of-the-art at the time was 78s. Even LPs did not come on the market until 1948. CD’s arrived in the only in the 1980’s.

The non-retroactive application of the 2015 twenty year term extension for sound recordings is very important – because there’s a treasure trove of high quality classical, jazz and rock recordings from the 50’s and early to mid-sixties that have now entered the public domain in Canada – subject, of course, to possibly still extant copyright in the music embodied therein. Indeed, there is a very important case (Stargrove) relating to this unfolding at the Competition Tribunal*, which Michael Geist has covered extensively.

The example on the left suggests that if a composer died in 1800 (nine years after Mozart’s death), his or her work entered the public domain in Canada in 1850. However, the first Canadian copyright legislation was not in place until 1832.  The life + 50 term did not become the law of Canada until 1924 and is still the law for literary, dramatic, artistic and musical works.  Therefore, the example is not useful. It would have been more interesting and informative to have a more recent date of death, such as 1911 – the year of death of Gustav Mahler (one of the most important composers of the 19^th and 20^th centuries), concerning whom we have seen even recently surprising confusion and overreaching claims of copyright protection.  See here and here.

These examples show a disappointing misunderstanding of Canadian copyright law, both current and historic. This might not be particularly noteworthy, given so many other misinterpretations and errors that we have seen over the years emanating from trade associations, universities, Government institutions and even authors of books and blogs about copyright, some of which I have chronicled over the years.  Oversimplifying copyright law, despite the best of intentions, can sometimes be dangerous. However, in this case, the source of this problematic posting about Canadian copyright law happens to be the Copyright Board of Canada itself.

It’s from the Copyright Board’s latest attempt to explain – and perhaps to justify - its resource intensive “orphan works” regime. This information is presumably addressed to lay readers. The information provided is certainly not helpful to copyright lawyers.

True, some kind of orphan works regime is required by s. 77 of the Copyright Act. However, why it requires so much resources and has achieved such dubious results is another matter. This regime uses up at least one staff FTE and presumably some member time, since only a Board member can issue a ruling. As I commented in 2014:

…. Even if it is only one person or FTE equivalent who works on these files, I would respectfully suggest that this is one person too many. One person year (FTE) per year since 1989 translates at a probably conservative cost estimate of $75,000 per year, including benefits, to about $1,875,000 to date for a process that was clearly absolutely unnecessary in at least 19% of the files and probably a great deal more (perhaps involving insubstantial copying or fair dealing?) – even under the existing legislation. To the extent that more senior staff, including legal staff, and Board members themselves, may have gotten involved, the real cost may have been substantially more. The Board itself recently states  that “a target of 45 days was set between the file completion date and the issuance of the licence”. This suggests that a lot of time may be spent on these files. 

The Board may have well spent more than $2 million of public money to direct about $75,000 or so to collectives through about 277 licenses in circumstances where the collectives have generally nothing to deserve this little windfall.  It should be pointed out that collectives, as required by s. 67 of the Copyright Act  "must answer within a reasonable time all reasonable requests from the public for information about its repertoire of works, performer’s performances or sound recordings, that are in current use."

Barry Sookman, William Vancise (the former Copyright Board Chair) and I got into a heated discussion about all this back in 2014 at Fordham, which I recounted here in a lengthy blog that was very critical of how the Board described and implemented its orphan works regime and why it is a model that has not been and should not be followed anywhere else.  Here’s Barry’s unconvincing response.

I also had some critical words at the time about how the Board had failed to recognize and inform the public about the meaning, significance, and potential of “fair dealing” to obviate the need in many cases to worry about permissions, much less any need to seek a an unlocatable owner license from the Board. I said at the time in 2014:

The Board could easily provide a useful service to the public by updating its website on providing guidance as when a license is NOT needed in the case of an unlocatable copyright owner. As of now, the Board has apparently not updated its website since 2001 on this issue – and thus ignores several key Supreme Court decisions and legislative changes since then. The Board still continues to suggest that:

"You also do not need a licence if the intended use is not protected by copyright. There are a few specific exceptions to the copyright owners' exclusive right to authorize the use of their works "or any substantial part thereof in any material form whatever". For instance, fair dealing for the purposes of research or private study is allowed. So is copying of sound recordings for a person's own private use. However, the courts tend to interpret these exceptions restrictively."(highlight added)

 Quite apart from the inexplicable reference to private copying, the above material was dubious in in 2001, when the Board’s website on this subject was apparently last modified. It has been clearly very wrong ever since the Supreme Court's landmark 2004 ruling in CCH v. LSUC which confirmed that “Research” must be given a large and liberal interpretation in order to ensure those users’ rights are not unduly constrained.”

 The statement is even more blatantly wrong since the SCC’s “pentalogy” decisions in 2012 and the inclusion of “education”, “parody” and “satire” in the fair dealing provisions of the legislation. It should not take more than a few minutes of the time of one of the Board’s four lawyers to update this page by providing, at the very least, links to the current statutory framework as found in s. 29 of the Copyright Act and the three Supreme Court of Canada decisions on fair dealing plus the Cinar decision rendered since 2004 and indicating how these decisions are relevant.

 It appears that the Board has now done a somewhat but not a much better job of explaining “fair dealing” with the following language:

Sections 29 to 29.2 of the Act provide a number of exceptions by which it is possible to use a work without authorization. They are fair dealing for the purpose of research, private study, education, parody, satire, criticism or review and news reporting. What constitutes fair dealing is determined in conformity with criteria established by the courts that are related to the purpose, character and amount of the dealing, the alternatives, the nature of the work and the effect of the dealing on the work.

Courts have interpreted these exceptions as a user’s right. Some of these exceptions require certain conditions to be met (for example the mention of the source for a criticism, review or news reporting)

However, this stops far short of explaining that the Supreme Court of Canada has made certain aspects of the law of fair dealing crystal clear.  For example, it is the law of Canada that “As an integral part of the scheme of copyright law, the s. 29 fair dealing exception is always available “must be given a “large and liberal interpretation” and that the “availability of a licence is not relevant to deciding whether a dealing has been fair”.  These are not my words. They are the words of the Chief Justice of Canada writing for the Court in CCH v. LSUC.

At the very least, the Board should have provided links to the CCH v. LSUC, SOCAN v. Bell and Province of Alberta v. Access Copyright which are the seminal fair dealing decisions of the Supreme Court of Canada. Decisions of the Supreme Court of Canada are the final and binding on all, which is something that some copyright lawyers and even the Board itself on occasion have seemed sometimes reluctant to accept.

It would have also been useful and trivially simple for the Board to provide hyperlinks to the various other exceptions and statutory provisions referenced in this update. For example, instead of simply referring to section 29 of the Copyright act, why can’t the Board refer to it as “section 29 of the Copyright Act” with an embedded hyperlink?

It would have also been useful for the Board to provide examples, with hyperlinks to its own decisions and announcements, to many of the situations where unlocatable licenses are not needed and where seeking them is a waste of everyone’s time. Perhaps the most obvious example is that of architectural plans filed in countless city halls across Canada for which copies are frequently needed for purposes of home renovation. It took the Board many years and a lot of public pressure from your’s truly for the Board to finally relent on this particular point. Who knows how much time and money was wasted because of the Board’s long standing incorrect approach to this particular issue? At one point, as I documented, about 29% of the licenses issued by the Board involved these architectural plans.

It is commendable that the Board has somewhat improved its information with respect to unlocatable copyright owners and partially corrected some long-standing misinformation, albeit with some new misinformation. However, it would be desirable if the language of the posting could be consistent as between “insubstantial” and “unsubstantial”. It would also be desirable if the Board could refrain from careless use of the word “use”, since many non-expert readers may get the wrong impression that any “use” of a copyrighted work requires permission. For example, reading, watching, listening to, talking about, writing about, criticizing, reporting about a lecture given in public, quoting insubstantial excerpts from, quoting substantial excerpts in a manner consistent with fair dealing, linking to, footnoting, reading from in a public lecture, and probably many common “uses” don’t require anybody’s permission. It is not very helpful for the Copyright Board to provide perfunctory information and then simply tell folks to:

“If you think that you don’t need a licence for the use you intend to make, you could choose to obtain legal advice to confirm that one of the above-mentioned situations applies to you.”

Finally, the Board should make it clear that these licenses have costs – sometimes hundreds of dollars in license fees imposed by the Board. This is in addition to any expenditure in terms of time or legal fees to obtain the license. It would be better still if the Board simply stopped charging for these licenses – because they are simply a windfall to a collective that likely has done nothing to deserve the money. For example, quite apart from its limited actual repertoire, Access Copyright has gone to the other extreme and shown remarkable chutzpah for a long time by being willing to license the use of works that are clearly in the public domain, for example a 1915 edition of Charles Dickens (d. 1870) “A Christmas Carol”. One of the more stranger of many strange licenses issued by the by the Board is the license for the publication of two “jokes” – yes, “jokes”. This is subject to a payment of $7.50 for each joke to Access Copyright. I’m NOT joking! Here’s the ruling.

The Board has a budget of about $3.5 million a year, and a staff five times larger than any other copyright tribunal anywhere else in the world (including the USA Copyright Royalty Board). Surely, with these resources, it can come up with a more accurate and useful explanation for laypersons as to when and how to go about seeking a license when the copyright owner is unlocatable.

HPK

*PS: Update September 21, 2016. I've been alerted to the fact that the Stargrove case at the Competition Tribunal has been settled:

http://www.ct-tc.gc.ca/CasesAffaires/CasesDetails-eng.asp?CaseID=388

http://www.ct-tc.gc.ca/CasesAffaires/CasesDetails-eng.asp?CaseID=383

While the settlement is presumably confidential, it would seem that you can still get the Beatles' 1964 CD "Can't Buy Me Love" and several other early Beatles albums for $5.00 each at Canadian Walmart.  That would seem to suggest that the Canadian music industry blinked and backed down.