Saturday, June 18, 2011

open letter

An open letter to Canada’s writers and publishers:

You may or may not be aware that motions have been passed at two recent Annual General Meetings (The Writers Union of Canada and The League of Canadian Poets) questioning the fairness for writers of Access Copyright’s distribution policies and procedures. The original motion passed at TWUC’s AGM calls for “an operational separation of creators’ and publishers’ interests in collective licensing,” and directs TWUC’s National Council to investigate “how a significant reform of collective licensing in Canada can be brought about at the earliest possible moment.”

I agree with Don Meredith of the Outdoor Writers of Canada who has publicly questioned the timing of these motions. Federal copyright reform legislation is pending, and an aggressive ideological attack against the very idea of collective licensing of copyright has been launched by a small yet influential group within Canada’s post-secondary educational community, led by free-culture theorist Michael Geist. Dividing the attention and resources of a collective front in the face of such a belligerent attack on writers’ rights seems at best absurd, at worst self-destructive.

I also question the tactic of introducing motions from the floor at AGMs without fully preparing the membership by way of an honest and relevant presentation of fact. That seems – frankly – sneaky and dishonest. I am also deeply disturbed that Michael Geist seems to have been better prepared for the introduction of these motions than were the very members of the organizations involved. It seems clear Michael Geist was fed information about these motions before they were even introduced. His response has been a flurry of public attacks on collective licensing in general and Access Copyright specifically, all of them short on facts and long on hyperbole.

If we're all to have a good-faith discussion of fact, surreptitious policy hijacking and attempts to publicly embarrass our own collective are a very poor start to the process. I think it’s important for everyone to lay their cards on the table openly and honestly.

I am not onside with the criticism of Access Copyright represented by these motions. In fact, I strongly disagree with many of the “recognized facts” presented, and think the idea of an operational separation from or at Access Copyright is both unnecessary and ultimately destructive to the collective power of the cultural sector in Canada.

Having heard a number of presentations by Chris Moore, DC Reid and Cathy Ford on this subject over a number of years, I find their argument for a distribution remake and an operational separation between creators and publishers entirely unconvincing.

I wish to make two main points:

1. I sympathize with any writer’s frustration at not receiving a very large slice of the cultural revenue pie. I am a magazine writer, a novelist and a poet. I administered PWAC’s 2006 industry survey that showed just how small the average writer’s take home packet is. I get it. We are all very poorly compensated.

2. On the other hand, while I may personally want more money, I only want more of the money I myself have earned through my creative work. That is why for years with PWAC I focused on the ongoing files of "raising the rates" and "protecting rights under contract." The complaints presented by Ford, Moore and Reid seem to me to fly in the face of that latter concern, which is the strangest of ironies.

When I'm wearing my professional writer hat (I have other hats), I think of publishers as my partners in both business and culture. I have deep respect for the written contract, and feel that as writers we need to take greater responsibility for those contracts, and make them the proving ground for our incomes. We have only the value we sign our names to, whether we like that fact or not. If we want more, we must insist on more before we sign.

A very wise citizen of the cultural sector, D.B. Scott, was recently presented with the Foundation Award for Outstanding Achievement at the National Magazine Awards. In his acceptance speech, he included a call for all in the magazine sector to take another look at how we treat each other:
“In their own, long-term best interests, publishers and editors need to re-examine the way in which they treat and compensate the creators of the content upon which their magazines depend. And freelancers need to remember that everything is negotiable, but they have to speak up forcefully on their own behalf. I realize there is no line item in magazine budgets that is labeled “respect,” but respect costs nothing and lubricates magazine relationships.”

I suggest D.B. Scott’s words apply outside magazines, in fact to all the creators and publishers who make up Canada’s copyright collective. Respect is the key word as we go forward; yet the tenor of the recent attacks against Access Copyright has been disrespectful in the extreme.

Access Copyright’s distribution splits were worked out in good faith by writers and publishers many years ago in the true spirit of collective interest. To me, they seem infinitely fair. In many instances, writers get the lion’s share of the royalty split. In fact, because publisher royalties flow to writers as well, through contractual agreements, there is a compelling argument to be made that writers benefit from both sides of the so-called writer/publisher divide at AC.

All of that is not to say occasional re-examination of agreements is not called for. I welcome honest investigation and discussion; but I also think Canada’s writers (and publishers) would do better for themselves right now by directing their attention to rates and contracts, and by speaking out loudly in support of their rights under copyright.

By no means are raising rates or improving contracts easy projects. We certainly don’t make the projects any easier by distracting ourselves from their central importance, by alienating our partners, by attacking those who toil on our behalf through our collectives and associations, or by encouraging disrespect for our rights among those with an interest in removing them.

Thank you for your attention to my opinions on this issue.

John Degen


I am a creator affiliate of Access Copyright, receiving royalties from work I have published. I am also the former Executive Director of the Professional Writers Association of Canada, former Chair of the Book and Periodical Council, former Communications Manager at Magazines Canada, and former member of both The Writers Union of Canada and The League of Canadian Poets. Currently, I am the Literature Officer at the Ontario Arts Council. To avoid conflict of interest in that role, I do not publish my creative work with any publisher funded by my office and have resigned all my professional memberships. I have written this letter from my position as an independent Canadian writer, and not as a representative of the OAC. The opinions expressed in this letter are my own.

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DC Reid said...

Hi John

Yours is a good letter.

As for me:

1. I strongly support collective licensing, I just don't think AC has done a very good job of it. We get 11.3%. I would rather the UK model where we would get 50%.

2. As for motions at AGMs, that's a toughy because typical bylaws require motions to be passed at members' AGMs. And there is often a clause for members to strike a 'special' AGM for considering items outside of the usual AGM.

3. As for timing of the motions, when is a good time? The motions simply suggest that writers organizations get together and talk toward a conclusion of, within AC, increasing revenue share, more control, and a separation of writers and the publisher's admin cost sides. The present time is fortuitous from the point of view of moving to 50%. AC should want a creator's confidence, particularly the many who got the very small $176 payment and may be disenchanted with a 71.3% drop in income.

DC Reid

Ann Douglas said...

This is a very well thought out post, John. Thank you.

John said...

Mr. Reid,

I believe I made my opinion clear in my letter.

When is a good time? Not now.

The time for this examination was years ago when the initial agreement on royalties was made by our collectives partners. AC re-examined those agreemtents through the Friedland Report, and I don't think I need to point out that investigation was done to answer the same complaints that have now resurfaced.

Who is the we in "we would get 50%?" A pool of creators whose work is not actually being copied?

Your loose interpretation of the actual numbers is not helpful in the least. The same kind of biased and incorrect math has Michael Geist and company claiming AC demands a 1300% increase in its recent tariff proposal - a ridiculous, yet inflammatory suggestion that wastes creator time in refuting it.

Access Copyright is steadily moving toward a system where those whose work is most used are those who are best compensated. The fairness of such a system is unquestionable. Throwing around false numbers like a "71.3% drop in income" (income is earned money, sir, not windfall) will not convince me, and should not convince anyone else (except Michael Geist) that AC doesn't take care of creators.

I notice you did NOT make any mention in your comment of Michael Geist's convenient knowledge of TWUC's internal matters. Considering Geist's unequivocal postion on collective licensing in the educational sector, I'm not sure why anyone who "strongly supports collective licensing" would view him as an ally.

Sandy Crawley said...

Thank you John. The motion itself and more insidiously the provision of an inside track to an avowed enemy of rights collectives , Access Copyright in particular, is destructive to the interests of writers , strategically unwise in the extreme.

D. B. Scott said...

Thank you, John, for your kind words and quoting from my Magazine Awards acceptance speech.

I am not a recipient of AC license revenue, so it would be presumptuous to tell writers how such a system should work or could work better administratively or how revenue shares should be adjusted.

But I am puzzled by this "us and them" view of Access Copyright. As far as I can see, writers and publishers are equal partners in AC.The representation of creators and publishers on the board is equivalent. Over 20 years, hasn't the consistent thread been to meet the needs of both?

In the face of a concerted attack on the collective and individual rights of writers, I am also puzzled by the apparent erosion of a common front to meet the challenge.

If there was ever a time when the publishing industry needed to pursue a "big tent" strategy and hang together, it's now, isn't it?

Crockett said...

I have heard several references to the 'UK Model' and read an editorial from it's founder. He seems to think the money belongs in the pockets of the writers instead of the lawyers.

So I'm curious what extra value has AC brought to the table to justify the lower return to creators?

Would it be possible John to list the differences in approach between this model and AC ... so we don't have to rely on Micheal Geist's somewhat slanted opinion?

Crockett said...

John, I stand corrected. It was not the UK founder I was thinking of but rather the Canada PLR. As these are not directly comparable it may not be as productive an exercise to compare the differences.

But the question still stands ... what extra value has AC brought to the table to justify the lower return to creators?

An accounting of the effectiveness of your efforts may give pause (or rancour?) to your detractors.

John said...


You are correct that a comparison between the PLR (Canada) and Access Copyright is unhelpful, since PLR is not a copyright collective, has no need to engage in legal fights on behalf of its affiliates and requires next to no tracking and auditing or delivery complexity. The two bodies are completely different mechanisms, and I find the use of one to criticize the other sad and ridiculous.

The UK model for copyright royalty collection and distribution differs from the Canadian model in one important way -- in the UK, they have four separate administrations doing the work that we, in Canada, do with one.

The umbrella CLA (Copyright Licensing Agency) does all the work of license negotiation and initial collection. It then passes on royalty splits to a Publisher collective (PLS), a writer collective (ALCS), a visual artist collective (DACS), and international bodies with whom they have reciprocal agreements (including Access Copyright).

In direct contradiction to the suggestion in the two AGM motions that creators get a 50% royalty split, the CLA last year distributed approx. 37% of its royalties to the two creator collectives, with 51% going to the one publisher collective. I would assume the reasons for this are exactly the same as AC's reasons for its royalty distribution calculations. Contracts MUST be honoured and much of the publisher money will make it to creators as a matter of course.

The author collective in Britain (ALCS) has roughly 80,000 affiliates; 70,000 of whom shared the 17.4 million pounds distributed to ALCS last year. That's roughly $248 pounds per writer in a market roughly twice the size of Canada's and with a significantly higher cost of living.

My AC cheque last year was $375, and I do not write for the educational market.

When I do the math, this is a no brainer - do I want to pay for four times the administrators in order to get less money? No, I do not.

Crockett said...

Thank you John, that was very informative.

Anonymous said...

Hi John: I have been following this for some time. I run the - like ALAS we provide summary legal advice on a volunteer basis. The contractual basis upon which most creators engage with publishers often goes unchallenged particularly outside Toronto where so little legal advice and information is available. I can count on one hand the number of "copyright lawyers" in this country outside Toronto and Montreal (even less when you subtract the film/tv who practice on the production side of the equation) Whatever the merits of AC and the present system most writers have signed away what few rights they have because there are so few folks available to advise them - a fund to support accessible and affordable advice with real people/advocates in every province might address some of that imbalance. I suspect if AC spent some of its funds on developing community across this country rather than mentoring other countries on RRO's it would not find itself such an easy target. I am saddened by where we find ourselves at such a critical point in creative history.

John said...


Thanks for your comments.

I agree with you that artists and writers could always use more legal advice when approaching contracts, but I'm not sure about a couple of your other statements.

I know plenty of professional writers who are very careful with their contracts and retain the rights they want to. I listened to one such writer, Nichole McGill, presenting at The Writers Union of Canada (TWUC) conference in Toronto just recently.

Having run the Professional Writers Association of Canada (PWAC) for five years, I also know the important role organizations like PWAC and TWUC play in educating their memberships about contracts and rights decisions. PWAC and TWUC were the lead sponsors for Heather Robertson's legal team all the way to the Supreme Court and beyond.

I don't think Access Copyright actually IS an easy target. I think it takes concerted effort and a whole lot of misinformation to attack this cultural collective. The attack on AC is not broad-based, and it has very little purchase in the world of real facts - witness the Copyright Board's withering response to the ridiculous set of objections to their interim tariff.

Finally, since you mention it, I think AC's mentorship of other RRO's is an admirable example of the international solidarity of cultural workers. Furthermore, it does not come in the place of potential but unrealized sponsorship work here in Canada.

AC has long been an important sponsor for groups like PWAC, TWUC and CARFAC, and through the AC Foundation has just recently granted a number of worthy organizations to work on behalf of the Canadian cultural sector -- including a group called the Artists Legal Outreach and Education Society.

Sandy Crawley said...

Thanks for this posting John.Speaking for PWAC we look forward to the process TWUC has started to do the analysis of how collectives are structured and how AC is working for creators (writers, visual artists and photographers) and publishers.

That said, the timing and publicity given to the TWUC and LCP motion with its demonstrably inaccurate premise is unfortunate.

Don Meredith said...

Hi John,

Just to let you know that I've commented further on the issue in my recent blog post:

Don Meredith