board sends tariff objectors back to copyright school

I spent some entertaining hours last evening with one eye on the Leafs game (Stanley's comin' home!) and the other reading the Copyright Board of Canada's 50-page decision in the matter of an interim tariff filed by Access Copyright.

That's right, my existence is one of neverending romance and excitement.

Anyhoo, for those with actual lives let me remind you what the interim tariff is all about.

Background:

Access Copyright is Canada's Copyright Licensing Agency, a not-for-profit collective made up of creator and publisher affiliates all of whom allow Access Copyright to licence the use of their work to governments, corporations and educational institutions.

Simply put, instead of trying to find the copyright holder, seek permission and pay each time a school uses Canadian copyright-protected material, they sign one licence and pay per-use based on tracking and reporting over a set period of time. A massive administrative simplification and savings, and a fair revenue stream directed at Canada's deserving creators and publishers. Win, win!

Access Copyright has had uninterrupted licensing agreements with Canada's post-secondary education sector (universities and colleges, primarily) since 1994. The most recent licenses were designed to expire in 2007, and were extended by mutual agreement twice, ending finally in December of 2010. The licenses address the use of AC's repertoire -- actual created works by actual creators and publishers, actually used in the course of paid education delivery -- in coursepacks (those strikingly ugly collections of bound photocopies many professors prefer over standard textbooks) or in what is called "general use" (individual photocopied handouts to students relevant to a particular class or topic of instruction).

None of these uses, by the way, are currently considered "fair" under Canadian fair dealing, and so remain uses that must be compensated for by the user.

This all sounds great -- so, why a tariff all of a sudden?

Great question. Something happened between the signing of the last licences (in 2003) and the expiration of the extensions at the end of last year. Post-secondary institutions that were once willing partners in licensing somehow developed the idea that paying for the use of Access Copyright's repertoire was unnecessary, unfair, inconvenient and/or too expensive.

Access approached their formerly willing partners to renew licences, and to update the usage lists and prices based on increased usage, cost of living changes, and -- very importantly -- new digital uses of the same repertoire. For the most part, the educational institutions said no.

Why would they say no?

Another good question. I have no real idea why they would say no. The price - though increased - remains ridiculously reasonable (less than 0.2% of total budget for one of these institutions for near limitless use of content). The repertoire is as relevant today as it was, presumably, in 2009 when those institutions last agreed to extend their licences. And there has been no change in anyone's understanding of what is and isn't permitted as a "fair" educational use under fair dealing.

Wait a minute, back up. What was that last one?

Oh, that's right, fair dealing. In 2005, just two years into a four year agreement, prominent free culture theorist Michael Geist advocated to his educational colleagues that:

"Canadian universities spend millions in copyright licenses that are arguably unnecessary. This expenditure effectively represents a subsidy to Canadian publishers from taxpayers as well as from students who are facing escalating tuition fees at a time that they can scarcely cover their monthly rent."

He then suggested that universities should:

"highlight fair dealing, the staple provision that provides students and educators with broad rights to use copyrighted works."

Geist is certainly not the only free culture theorist nudging Canadian education away from licensing copyright-protected uses of AC's repertoire, but he's the most active and unrelenting in the campaign. And it's been a remarkably effective campaign. Not only have most post-secondary institutions in Canada foregone new AC licensing, but a brand new category of fair dealing, covering the vague and ill-defined area of "education" has been inserted into Bill C-32, the Copyright Modernization Act currently before Parliament.

I mean, why bother to sign licences if the "experts" are telling you they are "unnecessary."

Which brings us back to the interim tariff.

Finding current licence partners unresponsive despite continued and new uses of the repertoire, Access Copyright did the only thing they could do -- they appealed to the Copyright Board of Canada for a tariff to replace the licences. Naturally, under the continued tutelage of Michael Geist, a number of post-secondary interests objected to the tariff.

It gets a bit legalish here, so bear with me.

The Copyright Board agreed to consider both the tariff and the objections, but since that would take quite a bit of time they have also recently agreed to grant AC an interim tariff protecting the status quo of their former licences while the larger decision is made. There were objections to that idea as well, and the document I was reading last night while the Leafs tamed the Hurricanes (3-1 on another impressive showing by the rookie netminder, James Reimer) was the Board's response to those objections.

It should be noted that despite recent claims to the contrary by free culture advocates the very logic about fair dealing removing the need for licensing leaked into the objections to the tariff encouraged by Michael Geist. From the report:

"Some Objectors also raised the possibility that Bill C-32, if adopted, may change radically the extent of uses for which the Institutions require a licence."

There's only one word for it... schooled.

I've been publicly wondering for a few days now about the sudden silence in the free culture camp, but it has all come clear. I don't know how anyone could read this response to their objections without feeling the sting of total rejection. I read the Board's explanation of its decision as an unequivocal rebuke to the faulty logic and bully tactics of Canada's most vocal free culture advocates. And I'm not sure how it could possibly be interpreted any other way.

I only hope it is increasingly clear to Canada's post-secondary education and library sectors that they've been led down a highly theoretical garden path of free culture at the cost of a lot of goodwill and good faith agreement with their traditional partners -- Canada's creators and publishers -- not to mention the cost of a lot of time, effort and resources better spent, well, educating.

The language in the report is absolutely damning (emphasis in quotes is mine):

"[objections] concerning whether the Board can or should issue an interim decision in this instance misrepresent either the nature of the regime pursuant to which the Board operates or the facts that are relevant to the case."

"The onus is on users to determine whether a contemplated use requires a licence and if so, to seek the copyright owner and ask for permission before any such use. Much of what the Objectors advanced seems to disregard this principle."

"Most Objectors sought to equate any interim decision of the Board in general, and an interim tariff in particular, with an injunction. This is simply wrong."

"To a large extent, this assumption is based on the incorrect proposition that the relationship between copyright owner and user is purely contractual."

"Professor Katz argued that the power to make interim decisions is limited to issues that are necessary and inexorably linked to the exercise of the Board’s function. This proposition misapplies a decision of the Federal Court of Appeal..."

"...in any event, it takes two to tango. In this case the Institutions have refused to even walk to the dance floor."

I could go on and on, but I know you all want to read the document for yourself. There is one final point in the decision I'd like to highlight. Some objectors tried to sell the idea that no tariff was necessary because AC could still sue any institution that used its repertoire without permission or payment. The Board concluded that this was not a valid argument since the mere existence of legal recourse is not enough to fill a legal void created by the loss of licensing.

Heads up to the MP's studying Bill C-32. The mere existence of the Supreme Court's six-part fairness test will not be enough to fill the legal void caused by the extension of fair dealing to education.