Tuesday, September 27, 2011

board sends tariff objectors back to copyright school, part two

Last March, Canada's Copyright Board brought a judgment on the validity of objections to the Access Copyright Interim Tariff for post-secondary educational institutions. An organized cadre of free-culture lobbyists had flooded the CB with written objections to a perfectly fair tariff.

It's worth remembering that the interim tariff was put in place only when the good-faith license proposals of Canada's copyright licensing agency were ignored and avoided by many in Canada's university and college sector, leaving Canada's creators, publishers and copyright holders with no protection for their intellectual property and Canada's students and professors liable for any incidental infringements.

Instead of negotiating price and access, many universities chose to follow the siren call of free culture and hope that changes to the fair dealing provision would give them a broad exception from license payments for publicly available material.

The judgment of the copyright board was unequivocal. The objections of the free-culture crowd were, well, ridiculous. You can read all about that judgment in my earlier blog posting here.

You'd think the kind of public embarrassment that comes with having one's core arguments so completely undressed by an authoritative body would make the free-culture folks a bit skittish about going back to the Copyright Board with more complaints on the same subject. You'd think.

Last week, the Copyright Board released its latest decision about the latest objections from the free-culture folks claiming to represent the best interests of our country's educational system. The verdict? Wrong again. You can see the full text of the latest Copyright Board decision on their website.

Quick summary:

Universities who have opted out of the interim tariff actually need to keep using the material in the Access Copyright repertoire. They objected, somewhat bizarrely, to the Board that they needed to license the material per-clearance rather than just paying the perfectly reasonable tariff for blanket clearance - a plan that would certainly cause more administrative headaches and quite possibly even cost more.

As ridiculous as that probably sounds to you, dear reader, that's exactly how ridiculous it is, according to the Copyright Board's decision. Here's a few quotes from the Access Copyright press release on the decision:
The Board said post-secondary institutions cannot claim on the one hand that their needs of the materials in the Access Copyright repertoire are so “marginal” as not to require the Access Copyright tariff, while arguing at the same time that the same materials are so “critically important” that they need generous access to transactional licences.
"We cannot be ‘marginal’ and ‘critically important’ at the same time. It’s either one or the other,” Ms. Cavan said. “Last year, over 100 million pages were copied from over 120,000 titles into coursepacks alone. And that’s just the tip of the iceberg.”
Access Copyright represents over 10,000 Canadian creators and publishers.
Bookmark and Share


Darryl said...

"The judgment of the copyright board was unequivocal."

Interesting. Here are a few quotes from the judgement to show just how unequivocal it is:

"In this instance, Access is prima facie justified to rely on the interim tariff and let the regulatory process run its course"

"Arguably, when a collective opts for a tariff, it is in part to avoid the costs associated with transactional dealings. Such a course of conduct is rational and prima facie fair"

"Finally, the balance of convenience continues to favour Access.13 Amounts in issue are prima facie significant for Access, far less so for the institutions."

An awful lot of prima facie there for something which is unequivocal, don't you think? And of course there is the whole competition issue which is ignored in it entirety.

"We do not feel the need to address the numerous competition issues raised by the objectors. The extent that these are relevant, they are better left to later, when the Board has a full record on which to decide."

My favourite of course is this one:

"Ninth, allowing transactional licences pursuant to the interim tariff could lure institutions into a false sense of security. A transactional licence issued pursuant to the interim tariff could not provide closure. If the final tariff provides only for a FTE licence, as Access requested, then the institution that availed itself of an interim transactional licence will be liable for the full FTE price unless the final tariff provides otherwise."

So a transactional license now would make the institutions liable for the full FTE tariff if the final approved A-C tariff does not include a transactional licence option. Really? The lie of course is revealed in this paragraph:

"There is no need to address arguments concerning the Board’s jurisdiction to provide the remedy requested by AUCC. The Board’s power to vary a tariff is so wide as to allow it to substitute a completely novel formula to that which a collective proposed, as long as the tariff remains a tariff. Even though Access applied for a tariff that offers only the FTE licence, it will be open to the Board in its final decision to set royalties according to any reasonable formula it chooses, including one based on the number of copies made."

So even if the final tariff did not allow for transactional licensing, it would be a simple matter for the board to impose whatever resolution it thought appropriate.

John said...


I can't understand why the AUCC hasn't hired you as legal counsel. As confused and completely irrelevant as your legal points are here, they are actually a little bit clearer than those presented to the Board.

Darryl said...

John, I am sure you speak as the unequivocal expert on confusion and irrelevance, that we all know you to be.

pete said...

LOL. Darryl, I think you can surmise from John's mocking and out of hand dismissal of your argument, that he concedes you points.

Gruesome said...

John concedes nothing, he is JOHN

John said...

I have no quarrel with any of the quotations Darryl presents, only with his somewhat sad implication that they argue for his position (whatever that is). The decision of the Board in this case, as in the last referenced in my posting, is unquestionably in favour of collective licensing and the rights of professional creators.

Suggestions otherwise are fantasy and, coming from Darryl, unsurprising. Pulling words out of context and trying desperately to find meaning in them opposite to what they actually say is the free-culture standard MO.

Darryl said...

Heh, John, it would be difficult for anyone to quarrel with quotations. Even you. They are after all, only quotations, not the argument.

If you can't figure out what my point was, how can you possibly hope to understand the relevance (happy or sad) of any quotes I used? I was not suggesting that the board did not rule in A-C's favour. The fact that this was your take-away from what I wrote, says more about either your demagoguery, or comprehensive ability, than I care to comment on.

I'll leave my post to stand on its own. There is little more to say. At least in response to anything you have come back with so far.

John said...

Darryl, I couldn't agree with you more. There really is little more to say.

And, unfortunately, you keep saying it.

Gruesome said...

The problem is that we still fail to understand the nuance in John's vocabulary. When John says "unequivocal" we hear that there can be no doubt or ambiguity and assume he means unequivocal. However once you start to get a feeling for John's 'Nuanced Style' you can then understand the flexibility that John's use of unequivocal has.
This is perhaps why John can not understand your point.
You tried to point out that there were areas that would seem to indicate that the ruling was not unequivocal.
But John can't understand your point because his unequivocal does not equal your unequivocal.
So in not understanding he assumes you are making an argument for a contrary position to the ruling rather then just pointing out the flaw is his reasoning.
I wish I could aid you in translating John's writing, but knowing it is nuanced and understanding it are 2 very different things.
Having said all that you can't deny the entertainment value.

John said...

"The applications of AUCC and of professor Katz are denied,"

Un... e... quivocal.

But, if you guys want to keep discussing what was said in the unequivocal denial, absolutely, let's go. I like this part:

"Either the institutions can do without any Access digital transactional licence, or the parsimony they displayed in applying for such licences raises
serious enforcement issues."


or, how 'bout this:

"...nothing would lead us to
conclude at this time that transaction costs are anything but relatively high. The fact, already
mentioned in paragraph 18, that publishers are hiving off their digital transactional business to
clearinghouses serves to confirm this impression. So is the fact that the open access licences filed
with us are blanket licences."

Oh, bam!

You want to keep insisting this decision is NOT a gigantic embarrassment for the forces of free culture in Canada? Please keep insisting!

As a matter of fact, go over to Michael Geist's blog and insist on it there. See how long it takes until you get one of those e-mails from him telling you to keep it quiet.

Sandy Crawley said...

@Darryl,Gruesome & Pete,

Where equivocation and prevarication meet!

Pieter Hulshoff said...

Dear John,

Personally I think the board was correct in its decision. Under current copyright law, a copyright holder or licensing agency has every right to set its licensing policies and tariffs as it sees fit. I would not be surprised if the objections were more filed to raise a general issue with copyright law than to get a positive decision from this board.

The question remains if AC's position will in the end get it what it wanted in the first place. Fact remains that the change in pricing (I'll call it change to avoid the discussion about whether prices were raised, and by how much) has led many universities to question their licensing deals with AC, and to consider other options (like buying books directly, writing their own material or licensing from other agencies). Whether this works out positive or not for AC remains to be seen.

Gruesome said...

It only took 3 posts before you actually address Darryl's initial comment, I guess that's progress, do we see some emotional growth here?
Sanp and oh Bam aside...
I think Daryl still makes a solid point.
But more importantly these are more like pre trial motions, really of very little consequence.
Objections are now on the record. Making a case for these objections comes later and as noted by the board at first glance meats a sniff test but that's about it. Not enough I don't think to warrant going back to 'copyright school'
The real hearing doesn't even begin until October 9, 2012
I'm wondering how much damage will be done to Access Copyright by then . We're looking somewhere in the neighborhood of 500,000 or more students not paying AC for at least the next year, most likely 2 and even possibly 3.
Even at $35 a head that's 17.5 million per year in lost revenue.
And after all is said and done there's nothing to indicate that these Universities will be coming back to AC.
As I recently noted in another discussion these proceedings move at a glacial pace.