what's your hurry, free culture?

Yesterday, Access Copyright, the collective licensing agency for Canada's writers and publishers announced they had been forced to launch legal action against "York University, ministries of education, school boards and post-secondary institutions that copy - and promote the copying - of copyright-protected materials without a licence."

According to their statement, these actions were taken reluctantly as a last resort against intransigent former partners who have simply walked away from the legal necessity to licence the works they continue to use in large quantities.

To anyone following the now Homeric plot of copyright reform in Canada, legal action by Canada's writers and publishers, through their collective, is about as surprising a twist as the Blue Jays not being handed the 2013 World Series trophy by their opponents on opening day. Writer groups, publisher groups, Access Copyright themselves all made official submissions to government during the design and passing of last year's Copyright Modernization Act, and all unhappily concluded we would have to go to court if educational administrators used ill-defined changes to the Copyright Act as an excuse to stop paying for our work.

So, here we all are. Those pushing a free culture agenda in the educational community have always claimed that they do not condone copyright infringement, that they respect the rights of creators and publishers and truly believe Canada's cultural creators deserve to be paid when their work is used in educational settings.

Well, Access Copyright believes they have found instances of infringement, and an organized and officially sanctioned lack of respect for the rights of creators and publishers. They believe their affiliates are rightfully owed licence royalties for work used in educational settings.

Is free culture sympathetic? Of course it's not.

Today, free culture theorist and law professor Michael Geist characterized the Access Copyright legal action as a "desperate declaration of war against fair dealing." In a blog posting that admitted to not researching the actual legal documents in the suit* (they weren't online - how was a professional scholar supposed to find them?), Geist seems to conclude Access Copyright does not have a substantive argument to make.

In a talk Michael Geist gave to the Professional Writers Association of Canada in 2006 (a talk for which he was paid - I know, because I signed the cheque) he insisted that copyright infringement is against the law and that writers should take infringers to court. In 2013 apparently, legal recourse is no longer a remedy for writers; instead it's an attack on fair dealing.

Also quick out of the prejudgement gate today was the Canadian Association of University Teachers (CAUT). In a press release, CAUT decided the Access Copyright lawsuit against York University is "hopeless," that the business of collective licensing represented by AC is "obsolete" and that, bafflingly, the Supreme Court of Canada established fair dealing for research and study in 2004 (pretty sure fair dealing for research and private study predates 2004 by several generations, and still doesn't condone large scale infringement).

On their website, CAUT makes this statement about intellectual property:

CAUT actively defends the works of academic staff from expropriation and misuse by employers and other special interests.

Access Copyright believes it sees expropriation and misuse of work (much of it by academic staff, no doubt - there's a lot of writers in the academy). Not only is CAUT expressing zero sympathy for the rights of those possibly misused in this instance, somehow they figure they know the end result of this legal action. It's a confusing position for a professional association to take. Don't bother trying to protect workers against expropriation; it's hopeless.

Writer groups (like The Writers' Union of Canada, for whom I work), publisher groups and our collective licensing agency are all involved in active outreach to academic faculty, students and information workers in libraries across the country. We're working to counter an awful lot of incorrect assumptions that seem to have grown up around the need for licensing in educational settings. It's funny, when you get away from the gurus and the radicalized advocates and talk to the people who actually have to use copied materials, you hear an awful lot of regret that some administrations might be poisoning our cultural well by trying to avoid licensing, and you hear a lot of hope that at some point the courts will find a remedy for this mess.

Free culture objections to the very idea of legal action on infringement sound an awful lot like issue avoidance. We all want to know if lines have been crossed here. Why don't we let our legal machinery work the way it's supposed to?

Why the rush to judgement, free culture?

* For the record, the actual court documents filed by Access Copyright are crystal clear about what is in dispute, and it has nothing to do with any theoretical definitions of fair dealing (as suggested by both Geist and CAUT):

Effective September 1, 2011, the defendant represented to the plaintiff that it was no longer making or authorizing the making of any non-exempted reproductions of copyright-protected works within the Repertoire. The defendant asserted that the terms of the Approved Tariff were not applicable to its activities. No further royalties were paid by the defendant to the plaintiff for any period subsequent to that date. Thus, as and from September 1, 2011, all acts of reproduction of copyright-protected works within the Repertoire by Educators and the defendant’s students have been unlicensed and not in accordance with the terms and conditions of the Approved Tariff... 

As particularized in Schedule “B” herein, more than one Educator has, on and after September 1, 2011, reproduced, in whole or substantial part, and authorized the reproduction by students and third party copy-shops, in whole or substantial part, of more than one copyright-protected work within the Repertoire.

Maybe we should all reserve judgement until the court weighs the evidence?


 
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(image courtesy Access Copyright)

robbing the 99%... in the name of the 99%

In an engaging, sacred-cow tipping essay in the March 2013 issue of the Literary Review of Canada, economist George Fallis sketches a portrait of what he calls Canada’s Surprising One Percent. The subtitle of the essay brilliantly sums up our current state – Never have so many been paid so much to care so little.

Noting that Canada has enjoyed a “steady reduction in after-tax poverty” in the last three decades, and that much of that reduction is the result of the very government intervention Occupiers demand, Fallis wonders about the “jumble of incoherent complaints” that came out of last year’s Occupy protests. If the 99% in Canada is, in fact, not being slowly crushed by the unstoppable advance of poverty and a crumbling social democracy, then why do we feel so threatened?

Fallis finds his answer by taking a long honest look at Canada’s actual 1% of top wage earners, who have indeed seen their compensation packages rise sharply in comparison to the average among the rest of us. But instead of blaming just the usual caricatured fatcat bankers and robber barons of industry (though these figures certainly exist in his paradigm), Fallis posits it is the relatively new one percenters in education, media, business and culture who are failing our society, mainly by abdicating the very responsibilities of leadership for which they are so handsomely paid.

Jane Jacobs, Fallis writes, argued there are five pillars of our culture that we depend on, including higher education and the self policing of the learned professions. These pillars are showing signs of decay. Universities drift away from educating toward credentialing. Legal and accounting fraud increases; neither profession can be trusted any longer to “maintain stability, honesty, and good order for the common welfare.”

I’ve wondered elsewhere at the outright gall of extraordinarily well compensated university administrators campaigning to further impoverish the already underpaid cultural underclass, and the tenured professors enjoying guaranteed income for life (plus generous bonus and benefit packages, sabbaticals and extremely flexible work hours) who lend authority to this attack on workers’ rights by theorizing about an ill-defined common good that demands others make far less than they do.

I’ve also wondered at media supercorporations (making record profits through concentration and vertical integration) who demand more and more from their workers with no compensatory rise in pay. That is precisely what’s happening right now with freelance contracts attempting to scoop up every single income-producing right from writers while offering pay that was standard thirty years ago.

And it’s also what’s happening as a 1% class of college and university administrators, faculty leaders and chief legal counsels spread the doctrine of expanded fair dealing throughout education. In the fair dealing model, on display across the educational sector in aggressive new policy statements, writers and artists are expected to provide their work for free, while tuitions shoot ever upwards, and more and more of the actual work of education is foisted on underpaid sessional instructors. Who profits from this ironically named expropriation? Certainly not the students, who are all headed for the same kind of treatment from the 1% after graduation.

What George Fallis leaves out (though I’m hoping he’ll get into this in an upcoming book) is how the 1% manages to get away with its absurd financial success on the backs of a majority who really should have the power and will to force greater (actual) fairness.

I think the answer lies with those overpaid theorists, who have somehow managed to mask their own privilege. Nothing surprises and depresses me more in the current copyright battle over compensation for educational use than running up against the underclass of “free culture” true believers – the students, library workers and adjunct teachers who wave a fair dealing banner with all their might. To them - absurdly - artists and writers averaging $24,000 a year in real wages represent the elite and entitled.

Somehow, a handful of wealthy faculty and administrative bosses have convinced thousands of their lessers to hit the streets in a protest against paid work – a protest absolutely designed to make sure those same students, library workers and adjunct teachers will never rise to the level of economic comfort and safety as that enjoyed by the intellectual leaders of their movement.

Well played, 1%... well played.

 
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between a rock and an oddly unsympathetic place

The Rock

Today, the Canadian Media Guild put out this press release taking Transcontinental Media to task for new freelance writing contract terms. Transcontinental Media publishes some Canadian magazine staples, like The Hockey News,  Canadian Living and Style at Home, and a number of local community newspapers across the country. They are an important partner in Canadian culture in that they provide Canadian readers with Canadian stories and they provide Canadian writers with a market for those stories.  

Used to be, freelance writers would sell first Canadian serial rights to the content they wrote for outfits like Transcon. What that meant was the publisher had the first right to publish the work in a Canadian magazine or newspaper. That's what they paid for, that's what they got. The writer retained all other rights under copyright to the work, allowing her to resell the work in a non-competing market, collect it into a book, sell it to a database, etc. 

Most importantly, the writer retained the moral rights to her work, meaning control over the integrity of the writing, the by-line, the opinion expressed, stayed with the person who actually thought up and wrote down the sequence of words. What a concept.

All that has changed. As media companies concentrated, vertically integrated, converged, united, corporatized and grew, writers saw more and more of their rights demanded in contracts. Occasionally, they saw more and more of their rights taken despite contract terms to the contrary (ask Heather Robertson what that's like). To add insult to injury, even as rights-demands increased, pay rates for freelance writing stalled and even shrank. The average writer in Canada makes less today than 30 years ago.

Corporate freelance contracts are the butt of industry jokes these days, with wording that asks for a rights territory as large as the universe, and so all-encompassing that they often account for technology not yet invented. According to the CMG, this latest contract from Transcontinental even goes so far as to demand the waiver of the writer's moral rights. 

Writers groups of all sizes in Canada are joining with the CMG and calling for writers to stand firm against this latest incursion onto our intellectual property. Frankly, if the waiver of moral rights under copyright becomes a standard contract term, there might as well not be creator copyright anymore. What's the point of owning the work you create if those using it provide crap compensation, and claim every possible use for the one crap fee? 

Freelance writer, Ann Douglas, set a brave example as she resigned from her columnist contract with the Toronto Star over similarly ridiculous terms. Good for Ann... though it pains me to have to congratulate someone for quitting paid work. It will pain TorStar's readers as well, because Ann is one of the most-read parenting writers in North America.

The Oddly Unsympathetic Place

I note that it's the Canadian Media Guild (a union), the Professional Writers Association of Canada (the industry association for freelance writers), the Canadian Writers Group (an agency) and The Writers' Union of Canada (the industry association for book authors) who are doing a lot of the heavy lifting on copyright and contract issues for Canadian culture these days. That seems natural, doesn't it? One would expect associations, unions, agencies, collectives of all kinds to come together in solidarity when the rights of Canadian workers are threatened.

Why then are writers also forced to fight a rearguard battle against a bunch of other collective organizations actively promoting incursions onto our intellectual property as dire as those in these ugly contracts?

The Canadian Association of University Teachers (CAUT - a collective for the rights and interests of teachers and professors) says on their website (emphasis mine):

As the creators of intellectual property, academic staff have a strong interest in ensuring they receive credit for and control over their work. CAUT actively defends the works of academic staff from expropriation and misuse by employers and other special interests.

This suggests that they might stand with the CMG, PWAC, CWG and TWUC against rights-grabbing contracts for the creators of intellectual property. And yet, CAUT has also published a document called CAUT Guidelines for the Use of  Copyrighted Material, which spells out a number of ways CAUT advises its members to use the intellectual property of Canadian writers without permission or payment. In that document, CAUT says:

• Copying 10 percent of a work is likely to be fair. 

• Copying more than 10 percent of a work (up to and including the entire work) may be fair depending on the circumstances. 

For example: 

• Copying an entire chapter from a book is likely to be fair. 

• Copying an entire article from a periodical publication is likely to be fair. 

• Copying an entire short story, play, poem or essay from a book or periodical publication is likely to be fair.

I've noted elsewhere how strange and disappointing it is for writers to watch our traditional partners in culture walk away from licensing arrangements. With millions of dollars per year in writer royalties on the line, educational and library associations seem to be falling all over themselves to not stand with Canadian writers in our quest for fair compensation. 

Certainly, it's with growing disgust that most Canadian writers watch college and university administrations cut their costs by advising faculty to avoid paying writers and publishers for their work. In my job, I hear again and again from writers asking me if their own alma mater has signed a licence... because that same university just sent the writer a donation request. 

When I tweeted about Ann Douglas' resignation from the Star the other day, a research librarian from a unionized Canadian university tweeted back:

"[the] Star has right to offer dumb contract, and yr friend has right to refuse. no rights denied"

Let me ask all Canadian university teachers and librarians... the next time you are offered a dumb contract, do you want your union to do something about it, or will you just exercise your right to be unemployed?

And when the day of that dumb contract comes - and we all know it will - who will your union call to be the public face of your PR campaign?



 
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Book Room #16: Douglas Gibson

If the player above doesn't work for you, try this direct download link.

For over forty years, Douglas Gibson worked with the best and brightest in Canadian letters, helping to create from the ground up the collective work we proudly label CanLit.

As editor and publisher, working for Doubleday, Macmillan, publishing his own imprint, Douglas Gibson Books, and finally taking the top job at McClelland & Stewart. Gibson has worked directly with three Prime Ministers on their memoirs, convinced Alice Munro that short fiction might just be her thing, and braved the ire of the formidable Mavis Gallant.

Gibson's 2011 memoir, Stories About Storytellers (ECW Press), collects his reminiscences about the many fascinating, intimidating and brilliant writers who passed through his office. Over the course of his career, Gibson traveled across his adopted country, seeing more of Canada than most of us who were born here ever will.

These days, Gibson spends much of his time traveling the country again - this time to present a stage show based on the stories in this book. The book is well enough known, having received excellent reviews in the Canadian media, and some of the stories in it have already become legends. My hope for this interview was to get behind the stories a bit, and find out more about Doug Gibson himself.

Doug Gibson joined me in the board room of The Writers' Union of Canada and the Writers' Trust of Canada, two organizations that have been around in the world of Canadian books not quite as long as Gibson himself. We spent a delightful couple of hours chatting, and I've carved that recording down to a solid hour. I hope you enjoy the podcast. I certainly enjoyed producing it.

 
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every wolf's howl

Novelist and former wolf-owner, Barry Grills reads from his memoir, Every Wolf's Howl (Freehand Books).

Regular listeners of The Book Room know that when I load a reading from the previous interview, the next interview is not far away. Stay tuned for Book Room #16, an interview with legendary Canadian publisher and editor, Douglas Gibson.


 
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are you talking to me?

It's probably a surprise to no-one reading this blog that I think a serious conversation between library workers, teachers, students and Canada's writing and publishing sector is long overdue. I am encouraging and inviting this conversation in all sorts of ways, not all of which are being well-received. Nevertheless, talk we must.

After my posting on a library association resolution last week - when librarians lend their politics, or, information wants to be doctrinaire - a thoughtful library worker wrote her own posting on her own blog:

Fighting for the Right to Copy: In Which Copyright is Discussed at Some Length

I recommend folks go and read it.

My response is below. I wrote this as a comment on this librarian's blog. For whatever reason, she has chosen not to publish it (I don't know what her comment policy is but she certainly isn't required to publish comments). I feel my response is important - key, in fact, to any discussion going forward, because it addresses not differences in interpretation but a clear and demonstrable misunderstanding of the actual law in play - and so I publish it here myself.

Hello Sara,  

I am the author who "blasted" OLITA on my blog. I am also the Executive Director of The Writers' Union of Canada, so someone with a mandate to represent the interests of professional book authors in this country. 

Can I start this comment by asking for an agreement between you and me at least, that “blasted” may be too harsh a term? I strongly objected to a resolution passed by OLITA. I continue to strongly object. That said, I want to thank you for your reasoned approach to the topic. 

One of my goals is to open up conversation between the library, instruction and creation corners of our common enterprise, and get to a meaningful understanding based on the real facts. After I blogged the other day, I was called a jerk and a troll in public on Twitter - by librarians. So, perhaps not the best start for my project.  

I hope it can eventually be accepted in good faith that no-one in my corner wants to make the work that goes on in your corner difficult. Access to creative works - and as seamless as possible an access - is a goal we share. I understand many think that Access Copyright has done a poor job with that. I'm willing to bet that folks inside AC believe they've done a poor job of it, but certainly not for lack of trying or intention. I disagree with your characterization of fair dealing, and I hope to explain why. 

Let me get this part out of the way – I am a strong defender of fair dealing. Elsewhere within the library community, it’s been written that I don’t believe in fair dealing. Nothing could be further from the truth for me or for, I believe, any writer. It’s next to impossible to BE a writer without depending on the fair dealing provision for research and private study. We all use it in almost all of the work we do. Freedom to use short passages without permission for quoting, exposition etc. is also a cornerstone of a truly vibrant freedom of expression understanding. I love fair dealing, and I defend it in my work.  

But, fair dealing is not a one-step provision, as you’ve described it.  Thinking only about the purpose of your copying is a dangerous misunderstanding of the provision of fair dealing. You wrote “it means that if a student comes to me and says, “I’m writing a paper on the university’s architecture! Do you have any photos I can use?”, I can say, “Yes! Definitely! Sign this agreement that says you’ll only use them for research purposes and then we’ll start hunting.” 

Well, that is simply not the case, and any good lawyer without an agenda will tell you so. The purpose (or category) of the dealing is NOT the only consideration when deciding whether or not that dealing is fair. You MUST also take scope (among myriad other things) into consideration. The licenses AC offer, the respectful royalty arrangements that have been in place for decades, cover the territory between where fair dealing ends (because of the scope or amount of copying – nothing to do with purposes or categories), and the need to actually buy a full text. Licensing has NOTHING to do with fair dealing and sits nowhere at all on that same territory. That is a misreading of C-11, recent SCC decisions and the basic concept of copyright – and while I don’t believe this of you, I do believe some are intentionally misreading this to push a free culture agenda, using the complexity of the law as a screen to get busy teachers, students and librarians on side.  

So, when you say “Definitely!” to your hypothetical student, I’m afraid you are giving them very bad advice that exposes both them and you to liability for infringement. You’ve said you don’t advocate for infringement, and I believe you, but under your definition of fair dealing, infringement is almost a guaranteed outcome. In fact, it is only WITH a license like those offered by Access Copyright that you could ever say “Definitely!” 

This is not something I should be telling you. It’s something that CAUT, OLITA and your own administration should be telling you. Unfortunately, the “licensing makes fair dealing more difficult” line has populist appeal, and administrations are being lured by potential cost-cutting.  

I totally understand that librarians are uncomfortable being perceived as anti-creator, but in this instance, the math only works one way. Approximately $7.5 million was paid to Canadian creators for use of their work (not covered by any definition of fair dealing, new or old) in Canadian classrooms in 2011. That’s real money the writing community simply cannot afford to do without, and anyone advocating, as OLITA has done, to eliminate Access Copyright’s collective licenses is, in fact, advocating to take a similar annual sum from the writers who’ve earned it with their hard work. Will the elimination of those payments to authors mean reduced tuition or increased library budgets? I think we both know the answer to that question. Everyone loses when fair dealing is misunderstood in this way.  

Thanks for the posting. More dialogue to come, no doubt.  

- John Degen

Oh, and p.s. to everyone - I do NOT delete comments from my blog, and I never have. I have a comment moderation policy that I was forced to put in place after malicious and unhelpful commenting practices from a small cluster of loud free culture activists. You can find my policy here.

 
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