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.

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if free culture is going to be so great, why are bullies in charge of it?

Helienne Lindvall is a hard-working musician with a major label career. She's also a writer of note, a Swede transplanted to New York and then London whose arts journalism is published at home in the Guardian and as far off as The Australian. She knows just how rewarding, exciting and precarious it can be as a professional artist and "content creator" in today's global digital tsunami zone. When she speaks about professional creation, folks should listen.

Unfortunately for her, when Helienne does speak about professional creation she occasionally rubs free-culture ideologues the wrong way. All her talk about respecting intellectual property, not infringing copyright and paying for music makes the FC boys angry - and when they get angry, they become bullies.

In her first column for The Australian, Lindvall relates how some of her past opinions have resulted in extended bully-sessions from the mostly anonymous free culture crowd:

...the anonymous abuse I received went to such disturbing lengths that I became so stressed, worried and afraid (I received death threats on Twitter) that I considered never again speaking out. When an indie label who spoke up in my defence had its website attacked and disabled, I felt I didn't have the strength to fight this battle on my own.

I recall a Lindvall column in which she marveled at the fact that a few famous free culture advocates get paid quite handsome sums to fly first class around the world and lecture the rest of us creative schlubs about how we should be working for free. It was funny, thought-provoking and spot-on in its criticism... and boy, did it make some folks mad. Prominent science-fiction writer and outspoken critic of traditional copyright-related industries, Cory Doctorow was one of the well-paid media gurus on which Lindvall focused. She referenced a conference organizer who'd contacted Doctorow's booking agent and was quoted his speaking fee. Lindvall mentioned that rather impressive fee in her article.

Doctorow responded immediately in her comment section (his is the fifteenth comment, with many to follow) with a slew of forceful denials about his earnings from speaking fees. He listed all the pro-bono events he spoke at in the previous six months to show just how little he'd made, and only later did he admit that, yes, his booking fee for professional gigs is actually pretty close to what Lindvall had originally reported. Yes, he does fly first class, Doctorow admitted, but only because of a medical condition. Then, in what is still (to date) the most bizarre piece of online bullying I've ever seen, Doctorow uploaded an MRI image of his... well... of his groin. With the naughty bits blacked out, he titled the photo "My hips, for Helienne."

You can't make this stuff up, folks. It's all right there for anyone to see in the comments at the link above.

Let's put aside the strangeness of someone feeling they have to prove how little they make as some sort of character reference, how in hell does expressing a public opinion about professional creation warrant Lindvall's aforementioned Twitter badgering, death threats, and the flashing of a groinal MRI in her face?

It's not for nothing I ask this question. Over the last week, I drove a couple thousand kilometers around Ontario's northeastern regions, meeting professional (and non-professional) writers, visual artists and festival organizers to talk about arts funding. It was an invigorating, educational, geographically beautiful journey - the kind of business trip that reminds me just how rewarding it is to work in the cultural sector. Such good people, such interesting conversation.

Yet the whole time I was on my mini-tour of the near north's professional creators, I trailed a cloud of Twitter complainers (one of my friends compared it to Pigpen's cloud of dust from the Peanuts cartoons). I'd be sitting in meetings, talking with artists, and I'd feel my Blackberry buzz against my leg again and again, signaling yet another attack on my opinion in the ongoing copyright debate. As you may know, I have often commented publicly on copyright, most recently with an opinion piece in the Globe & Mail defending a tariff on educational use of copyright-protected materials. As with Lindvall, my public opinions attracted vicious and increasingly weird attacks.

There are 73 comments* following my Globe piece and all but a few are clearly from the educational lobby on the other side of the issue (many from commenters who frequent this very blog, pestering my every thought with their denial), and a great many of them have that particular free-culture flair - "The dying wheeze of yesterday's man" is my favorite (it's almost poetic).  As with Lindvall, nothing I say in response to the attacks seems to make any difference. Using facts certainly has no effect.

As the situation stands, speaking forcefully in favour of creator copyright these days puts one on the free-culture hit list. Folks you've never heard of will suddenly find you on Twitter and pester you ceaselessly (they really seem to have NOTHING else to do with their time).I sometimes wonder why more artists don't speak out on this issue, but I know the answer. Who wants to be the target of that incessant negativity?

If you make too many waves for the free culture folks then maybe, like Lindvall and me, you'll even get a visit from Cory Doctorow himself. Doctorow dipped into my Twitter battle to belittle my suggestion that he and other prominent critics might actually want to meet with the Canadian copyright collective (Access Copyright) and work for positive change, rather than constantly sniping at them from afar. How could he meet with AC, he sneered, since he lives in England?*

And then - again bizarrely - he claimed he'd already met with the Access Copyright Executive Director:

@doctorow: Oh, and there was the whole day I took off work to meet with the execdir in London

The suggestion being that Doctorow had generously given of his valuable time to talk over copyright with Access Copyright, and found them inflexible and unmovable - just another failed business model in the great free-cultural revolution.

Funny thing about that all day meeting in London - it never happened. I'm good friends with the Executive Director of Access Copyright, and I definitely would have remembered her telling me she had a daylong session with Doctorow. So, I asked her about it.

Never. Happened.

When I mentioned to Doctorow he might not be... um... presenting an accurate history, I was immediately called a troll (Doctorow didn't call me a troll - that was one of his protectors - but he helpfully explained to me that I get called a troll "because of your tone is so often meanspirited" (sic)). Doctorow then dismissed me:

@doctorow: In any event, I'm done with this. I don't find discussion w you productive

 I guess not. When it becomes clear to everyone involved that the loudest critics of Access Copyright and professional creation in Canada aren't really on top of their own factual claims, how productive could their arguments be?


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* I later discovered that when Doctorow made this remark, he was tweeting from... Toronto. He is speaking about copyright and totalitarianism tomorrow evening at the Art Gallery of Ontario, about a ten minute walk from the office of Maureen Cavan, Access Copyright's Executive Director.

** Interestingly, while those professional creators in support of my views stay away from the comment pile-on, they did share my article 45 times on Twitter and 150 times on Facebook. I like to think of them as the silent majority.

image courtesy Helienne Lindvall's website

why "education" needs clarity

Last week's C-32 Committee hearings in Ottawa saw detailed objections to the introduction of a vaguely defined "education" category within the fair dealing provisions of the Canadian Copyright Act.

We can expect to hear those objections fleshed out even more this afternoon, as the committee hears from Roanie Levy, General Counsel, and Director of Policy and External Affairs for Access Copyright, the copyright licencing collective that is the direct target of a great deal of the vicious anti-copyright campaigning of the last few years.

Access Copyright represents thousands of Canadian writers and their publishers in negotiations for licence arrangements with governments, industry and the educational sector. They have recently succeeded in setting a new, reasonable tariff for K-12 schools in Canada, which allows for confident and affordable access to content for our K-12 sector. They are in the middle of negotiating for a similar tariff with the Copyright Board of Canada for the post-secondary sector.

As noted here before, prominent consumer advocate, Michael Geist, and a number of other free-culture theorists have been openly campaigning to have Canada's universities walk away not only from these negotiations but from the very idea of collective copyright licencing altogether. While Geist makes a lot of distracting arm movements about alternate licencing arrangements and open-access materials, it's clear from the statements of key stakeholders that many in the educational sector would interpret the educational fair dealing category as an invitation to avoid collective licencing fees for post-secondary classroom use.

The National Post published an excellent article on this topic over the weekend. You can see the full article here, but here are some key quotes:

"Proponents of the education clause say the change will ensure that teachers, students and educational institutions will not have to worry about breaking the law in classroom settings as technology paves the way for increasingly collaborative and content-sharing exercises.

Critics -- authors, creators and publishers like Mr. Nordal-- argue the term "education" is too broad and could lead to widespread copying of textbooks, novels, study guides and anything else that could remotely be justified as learning materials."

"The debate is helping to pit two groups of unlikely opponents -- writers and students -- against each other, said Alan Cumyn, a Giller-prize nominated author and chair of the Writer's Union of Canada.

"Really there is no need to bring in this education exception, unless you want to save money for the education sector in the short run," he said. "Where is that money coming from? It's coming from writers and publishers.

"We're not saying to computer makers that a certain percentage of computers must go free to school boards. We're not saying teachers should take a cut in their salaries. So why stop paying for intellectual property?"

Testifying in the same session with Ms. Levy are:

Brian Isaac, Chair of the Canadian Anti-Counterfeiting Network;

Annie Morin, Chair of the Canadian Private Copying Collective, and CPCC representative artist, Sophie Milman;

Ysolde Gendreau, President of Association Littéraire et Artistique Internationale (ALAI Canada); and

Glen Bloom, Chair of the Copyright Legislation Committee (Technical), from the Intellectual Property Institute of Canada

As with the hearings last week, you can watch the testimony live online at the Parliamentary website beginning at 3:30 p.m. EST.

set rhetoric to stun

(image of the Kremlin courtesy the Swedish National Heritage Board)

I've often pointed out how anti-copyright rhetoric favours gun, jail cell and shackle imagery. If one were to only casually follow the argument against strong copyright, it would be easy to conclude that corporations are plotting to use copyright and IP laws to bring about a world domination plan Doctor Evil would envy. And since some corporations undoubtedly already own remote island testing facilities, we're probably more than halfway there.

A lot of folks in the cultural community (who have also been asking for strong copyright protection, btw) react understandably poorly to these analogical predictions. After all, who enjoys being accused of nefarious plotting to subjugate the world's populace? Not me.

But, if the last ten years of political history have taught us anything, it's that fear-mongering works. So don't expect any dialing down of anti-copyright rhetoric anytime soon, certainly not with imminent committee hearings on the Canadian copyright reform legislation, and the conclusion of anti-counterfeiting treaty negotiations (not to mention the recent Access Copyright educational levy hearing in front of the Copyright Board).

Consumer advocate Michael Geist is Canada's (perhaps the world's) leader in scary copyright campfire stories, and this week has been a banner one for the University of Ottawa law professor. In a Toronto Star column timed to hit parents and students in the back to school haze, he attempts to terrify us all with visions of "a massive increase over current fees," as a result of the proposed Access Copyright tariff. In classic circular argumentation Geist points out there "seems to be a growing sense that many faculties and courses make very little use of the [Access Copyright] licence." He fails to mention, however, that the "growing sense" was planted, watered and fertilized by Geist himself on his own blog.

Geist is aware Access Copyright has stated openly they only wish to licence actual uses uncovered by individual licencing, and that the collective of writers, visual artists and publishers will be challenged by the copyright board to provide adequate proof of those uses - in other words, that a system is already in place to protect students from unfair costs as cultural workers seek payment for the use of their work by universities.

He is also aware that his very own university could pay the licence for every single one of its students with a tiny fraction of one percent of its annual budget without ever having to pass the cost on to those students or their parents. He is aware of these things; yet his column still raises the specter of unmanageable student loans and unreasonable cost increases.

I remember marching alongside my profs and their teaching assistants when they hit the picket lines to demand fair pay increases. Ask me how it feels now to have a prominent professor campaigning against a fair increase for cultural workers.

How does it feel?

Well, I'll tell you -- it doesn't feel nearly as bad as having that same professor imply that support for strong copyright and intellectual property enforcement will almost certainly lead to authoritarian suppression of dissent. Not only am I trying to stiff poor students (like my own kids -- what kind of monster am I?), but apparently I am also in league with Russian autocrats who will use any excuse to shut down NGOs who criticize the government.

Here's Geist's latest, fellow cultural workers. Read it and feel very, very guilty, because you love government repression of the masses:

How IP Enforcement Can Be Used To Suppress Dissent

Of course, writers, publishers and corporate copyright-holders actually hate this kind of oppression so much we volunteer time and money in organizations like PEN Canada to work against it. Geist knows that as well, but don't count on hearing about PEN Canada around the Geist campfire.

just another brick in the wall

(image courtesy www.grungetextures.com on flickr)

Not all that long ago, every student in a course at university was expected to buy the same textbook. Educational publishers specialized in creating these textbooks, hired scholars and writers to produce them, and regularly updated them.

Enter the photocopier, and many professors decided their students didn't need entire textbooks -- a bit here and there from a number of books would do. The coursepack, an ugly, often horribly photocopied brick of reading was born, and students everywhere bought new glasses.

To compensate educational publishers for the fact that only portions of their books were now being used, universities signed collective license agreements with Access Copyright, a collective of publishers, writers and visual artists. Revenues from the licenses flowed back to the collective and were distributed to the publisher and creator affiliates. Every effort was made to ensure the price paid was fair and the money went to those who deserved it.

Enter the Internet, and educational practice has changed again. Professors now either scan works to create easily transferable digital files, or they simply find articles online and have their students access them that way. Yet the meat of the activity has not changed - Canadian creators and publishers continue to produce excellent materials for use in classrooms; professors continue to use those works; and students continue to learn from them.

Keeping with the times, Access Copyright has recently proposed a tariff covering all uses, photocopied and digital for a simple per-student fee. The tariff is currently before Canada's Copyright Board and will be adjudicated in due time. Unfortunately for Canada's hardworking cultural creators and publishers, not everyone in the education system is keen to do digital business with Access Copyright.

Prominent copyright critic and University of Ottawa law professor Michael Geist objects to the tariff. He makes a number of sensational accusations about the proposal -- that it ignores fair dealing, that it requires onerous reporting, but mostly that it costs too much.

Of course, one of the functions of the Copyright Board is to decide fair pricing. Think of the Copyright Board as a slightly less exciting version of baseball arbitration. Access Copyright is saying they are a great pitcher (of established educational content), while critics like Geist say AC’s arm is not worth the money. The arbitrator hears both sides and makes a decision on price that both parties should honour.

Except, Professor Geist has decided to unilaterally forgo arbitration and is instead proposing that education ignore the Copyright Board. Geist recently blogged that it might just be time for Canadian education to “walk away” from Access Copyright’s educational repertoire.

Much of the panic around the cost of the tariff is based on the assumption that students themselves will have to pay the bill. The numbers tell a different story. The cost to provide copyright coverage to all of Canada’s 1.5 million post-sec students has been calculated by critics at $60 million. Yet just one representative Canadian university -- say, the University of Ottawa -- could reasonably pay the fee for all of their full-time students with a tiny 0.2% of their budget. It would be entirely unnecessary for them to pass the cost on to students.

Despite the indisputable affordability, Geist is advocating a walk out. He suggests "with the prospect of such a dramatic increase in costs, education must self-assess to determine whether it actually needs these licences.” He then proudly claims that only open access materials are used in his classroom. What this means, presumably, is that students of Internet law at the University of Ottawa learn only from what Geist can provide for them through licenses that require no compensation to the original creator of the work. In other words, if Geist didn’t write it himself, or it’s not free, he won’t teach it.

This seems a shockingly arbitrary and irresponsible policy that will only place artificial (and highly political) limits on education. Students pay good money for their education. Shouldn’t they get the best for that money, rather than the cheapest and most-aligned to the prof's political leanings?

Geist’s walk-out is a version of the brinkmanship one often finds at the baseball arbitration table. Why pay for proven major league quality when a minor leaguer will come cheap? Yet, how many World Series have been won with minor-league pitching?

Canadian writers and publishers produce educational assets proven through decades of continuous use. If Canada is really focused on leading the knowledge economy, we walk away from such assets at our peril.

Tear down that wall

The Toronto Star has published a strong call for amending Bill C-32 (The Act to Amend the Copyright Act) as it pertains to copyright and educational use. The paper states "in one notable respect the initiative is flawed: the government, lobbied by provincial ministers of education, has included “education” in the bill’s “fair dealing” section of the bill, which allows copying within certain limits." The Star calls for Parliament to "rethink and take a hard look at the fair dealing section when Parliament resumes sitting in the fall and Bill C-32 goes to committee."

I have asked for the same rethink at the committee. Responding to my request for more discussion about a broad educational exception, Heritage Minister James Moore seems open to talking. Just another example of how open and consultative this latest round of copyright reform has been.

the real cost of education

(image courtesy the Netherlands Nationaal Archief)

On his Excess Copyright blog, lawyer Howard Knopf is advocating to have folks complain to the Copyright Board about a recent Access Copyright tariff proposal. Notice the clever similarity between Knopf's blog-name and the name of Canada's Copyright Licensing Agency. It's no accident. Knopf is a long-time critic of collective copyright licensing in Canada.

Access Copyright currently holds licenses with Canadian educational institutions (K-12 and post-secondary) designed to compensate creators and publishers for the large quantity of photocopying (beyond fair dealing) that goes on in the service of education. The recent proposed tariff aims to follow education's natural move away from photocopying and toward increased use of digital copies of copyright-protected work.

The principle behind AC's tariff proposal is quite easy to support (I believe). While educational tools may change, payment for those tools will always be required. After all, in the move from chalkboards to data-projectors, did schools get the data projectors for free?

I'm also guessing that outfitting a school for data projection costs quite a bit more than slate and chalk.

Won't someone think of the students!?

So, why is Knopf asking people to complain about the new AC tariff proposal? Here are a selection of quotations to help us understand:

"AC wants educators and students (i.e. taxpayers) to pay for much stuff and uses that are or should be free, if the law is properly understood and applied."

"AC wants to take $45 per year from each of university students and $35 for each of the college students per [year?]. That’s about $60,000,000 a year for those who keep track of taxpayers’ money"

"Think of all the advanced research chairs or library books that could be bought for these tens of millions of dollars."

That last quote is a doozy. These are the (frustrating) arguments Canada's professional creators, producers and publishers have been battered with for years now.

Paying for copyright-protected content is so expensive! Think of the poor students and their educational debt-burden! Think of all the other great things all that money could buy!

The way I read his posting, Knopf believes most educational uses of content should be free. He even bemoans the fact that the proposed Bill C-32 (An Act to Amend the Copyright Act) will not solve the problem of paid content since C-32's already broad educational exception is not broad enough.

Having paid off student debt in the past, and anticipating quite a bit more of it in the future (unless my kids get baseball scholarships, as planned), I am just as concerned with the cost of education as Mr. Knopf is. The numbers Knopf quotes are pretty scary. So, I went in search of more information.

Sixty Million Dollars

Knopf calculates that the total AC tariff for every Canadian college and university student (of which there are 1.5 million) will be $60,000,000. That's a big number. Knopf also makes the interesting assumption that this cost will necessarily have to be paid by the students themselves.

But let's keep in mind that the tariff will cover the legitimate copyright costs of every single student in every single post-secondary institute in the country. How many post-sec institutions are there in Canada? I just asked Google that question and came back with a list of roughly 2000.

Following Knopf's lead down the path of simple mathematics:

$60,000,000 divided by 2000 = $30,000 per institution.

Now, $30,000 is a far less scary number. Of course, $30,000 represents a very inaccurate mean number, since the actual cost of the tariff is calculated per student. Still, you'd think just about any post-sec in Canada could afford to pay $45 per student for educational content themselves without passing on that cost to the students themselves.

Could they? Let's see:

Picking a Canadian post-sec completely at random, I see that the University of Ottawa's Annual Report balance sheet for the year 2007-08 shows a revenue of $806.1 million.

Wow. What was that number again?

$806.1 million. That's almost one Billion dollars.

Okay, and that year they had 35,548 students. Under the proposed tariff, therefore, U of O would be looking at a total tariff cost of roughly $1.6 million.

Could they afford to pay that $1.6 million without adding it to the student burden?

Well, as an expense, the tariff represents a minuscule .2% of their total revenues. How does that compare with some of their other expense percentages?:

Maintenance and utilities = 3.7%
Supplies = 4.5%
Furniture & Equipment (data projectors?) = 5.5%
Scholarships & Bursaries = 5.9%
Buildings & Renovations = 13.3%
Other = 11%

All of which combined comes to 43.9% of the expense picture for the University of Ottawa (just one of 2,000 Canadian post-sec institutions). So where do their other expenses go?

Salaries & Benefits = 56.1%


What are the real costs of education in Canada?

Well, I don't claim to know what all of the real costs are, but looking at this one representative university tells me one thing for certain -- fair payment for copyright-protected content hardly even registers as a cost at all.

University of Ottawa could take .2% from its Salaries & Benefits line, move it to the Supplies line and every single U of O student's content usage would be paid for. What's more, Salaries & Benefits would still represent 55.9% of total expenses.

But why attack the Salaries & Benefits of Canada's hard-working educators? I think they are worth every dollar they're paid. Why not just devote .2 of the 11% in the mysterious Other expense line to paying the copyright tariff. In fact, just 7% of that Other line would be able to pay the tariff for every post-sec student in Canada.

Wow, one randomly selected university could reasonably afford to pay the entire tariff for every student in the country, without touching any of their currently identifiable expense lines.

Imagine that.

One last point

At the end of his call for objections to the tariff, Howard Knopf discloses that he is an affiliate of Access Copyright and that he does receive a share of the license payments each year:

"I do cash their little cheques each year, and hopefully redistribute the sum to good causes."

I'm not sure what Mr. Knopf means when he says that hopefully he redistributes his AC money to good causes. I am also an AC affiliate, and I also receive a cheque each year. While my cheque is almost certainly the same size as Knopf's, I don't consider it little, and I know for certain that I redistribute it to a good cause.

My AC cheque goes into Registered Education Savings Plans for my kids.

massaging the message

One of the things I find most interesting about the copyright debate is seeing my position(s) defined for me by others. I read an awful lot of assertions like Degen believes such and such, and he's wrong because...

Recently, I've learned from others that I fully support Bill C-32, that I favour a late 20th Century model of creator’s rights, that I want content locked up against fair dealing, that I support censorship, and so on. Step into this debate and you could spend so much time defending yourself from ridiculous assertions, your actual opinion may never be heard.

Which, I guess, is the point.

So, yesterday I reported about Access Copyright's legal victory at the Federal Court of Appeal, and about their concern that this win for creators could be cancelled out by ill-defined changes to copyright law. I wrote "the introduction of an overly broad exception to copyright for educational use would all but eliminate fair compensation for this established use."

Bill C-32, the federal government's Act to Amend the Copyright Act does indeed contain new educational exceptions, and they are not defined as clearly as many creator groups, Access Copyright and I would prefer. If interpreted in an overly broad manner, they could provide a legal leg-up for the kind of tariff challenge Access Copyright has just finished defending. I am certainly not the only one who thinks this way. Lawyer and publishing consultant, Gary Rodrigues, writes:

"Based on an amended Copyright Act, the Ministers of Education might ask for a review [of] the new tariff before it is fully implemented."

I have mentioned my own concern about overly broad interpetation, informally, to both federal ministers responsible for C-32 (on Twitter!) and have been reasonably assured definitions will tighten up through committee work. I think that would be a great outcome, and I have hope that this recent Court of Appeal ruling will help with the tightening process.

Today, I am informed by the prominent consumer advocate, Michael Geist, that my concerns about an overly broad exception to copyright "bear little relation to reality," and that the recent Court of Appeal ruling proves I'm worrying for nothing. Well... good, then. I hope Dr. Geist advocates strongly for that interpretation at the C-32 committee.

But wait, I'm mistaken -- Dr. Geist actually wrote "fears that the extension of categories will wipe out all revenues bear little relation to reality." I see the problem. When I wrote the introduction of an overly broad exception to copyright for educational use, Dr. Geist read the extension of fair dealing categories.

Of course these two things are NOT the same, nor did I ever mean for them to be. I have called for better definition around fair dealing for a long time (in my copyright consultation submission, for instance), and am happy to talk about category extension - I think parody, for instance, is an important freedom. Yet somehow, I find myself prominently advocating a position I do not hold on this country's central site for consumer-focused copyright discussion. And this... let's call it a misunderstanding... is, I guess, how the copyright debate maintains its momentum.

Meanwhile, three comments into the discussion of my newfound opinion on Dr. Geist's blog, we find this gem:

"I just don't get the need to be compensated for ones work being used to teach kids or others. If I had a school teacher pick up my work and use it to teach kids about the world I'd be more then happy to see my work get used for free. Why the hell could you not want that?"

Clearly, concerns about overly broad exceptions to copyright are completely unfounded. I will stop worrying.

what are 3 million books worth?

That's a question the framers of Canada's Bill C-32 are going to have to ask themselves after a recent Federal Court of Appeal decision to support a 2009 tariff certified by the Copyright Board of Canada. The tariff was under review at the request of all provincial Ministers of Education (except Quebec's) and a number of individual school boards.

Access Copyright, Canada's Copyright Licensing Agency sent out a press release yesterday announcing the ruling, calling it "an important decision for rights holders not just in the education sector, but in every field of creative endeavour."

Access Copyright has shown that over 250 million pages of work are photocopied for use in the Canadian K-12 sector, an amount roughly equivalent to 3 million books. Access Copyright's Executive Director Maureen Cavan notes:

"That's 3 million books that have not been sold. As long as reproduction is compensated, creators and publishers and the thousands of knowledge workers supported by this industry can survive. Take away the compensation, and you will jeopardize a Canadian industry that provides Canadian children and their teachers with Canadian content."

On the other hand, the introduction of an overly broad exception to copyright for educational use would all but eliminate fair compensation for this established use. While happy with the Court of Appeal ruling, Access Copyright General Counsel, Roanie Levy, worries about the unintended effects of copyright amendments under C-32.

"The decision is bitter-sweet when you consider that the federal government's proposed changes to the Copyright Act could impair future compensation for reproduction of materials used in education."

250 million of anything is bound to have important economic value - even 3 million is not a figure one would ordinarily discard with the wave of a hand. Undoubtedly, the special committee on C-32 will be hearing a strong message about knowledge workers and education from the creator sector. After all, everyone else gets paid for their work in education. It would be odd, and rather expensive, if writers and publishers find themselves caught up in an exception to that rule.

Especially when the presumed reasoning behind an educational exception - providing easy and worry-free access to a large pool of creative work - is the very reasoning behind the tariff. From AC's info page on the tariff:

The tariff is designed to allow you to make copies that would not be covered by fair dealing or available through the public domain . It simplifies your job by eliminating the need to ask permission every time you want to make a copy.

The tariff provides permission to copy from a vast repertoire of commercially published books, magazines, journals and newspapers, and ensures that creators and publishers are paid when their works are copied.

weapons down, please

Last week, I posted about TV writer Denis McGrath’s challenge to those on the copyleft to take more responsibility for the inflammatory and inaccurate rhetoric that seems to sprout up and spread like dandelions whenever anybody in power utters the words “copyright protection.”

I think McGrath highlights a very serious problem for Canadians as we try to figure out how to fit our laws and practices into the digital world – these discussions are necessarily complex and require subtle, good-faith conversation between all interested parties. Sensationalist campaigning and absurd conspiracy theorizing do exactly nothing to foster that kind of conversation.

And yet, those approaches persist. And really, as far as I can tell, they are just getting worse; over-the–top conspiracy advancement is now the banal, unsurprising starting point from which I’m expected to defend my rights as an artist. Have a look at this Vancouver Film School award-winning short “explaining” digital rights management, which is of course a tool of copyright enforcement. I first saw this video on consumer advocate Michael Geist’s blog, where it is advanced as some sort of accurate illustration of real concerns in ongoing copyright reform. Thanks to vimeo for the embed code.

terms&conditions from mediamold on Vimeo.

You may not have heard it, but at the end of my copy of the video the narrator addresses me directly --“John, as an artist, why are you holding a revolver to the heads of innocent consumers? Why, John? Why do you want to shackle the downtrodden book-buyers of the world and force them into a grim, lifeless, Orwellian future? What possible reason can you have for participating in this dehumanizing lockdown of culture? Don’t you like people and freedom, John?”

I tell you, it’s flabbergasting. To his credit, Michael Geist qualifies his own thoughts on DRM with this pre-video passage:

“Note that most of the debate around copyright reform does not argue against the use of all DRM. Rather, it focuses on the need for balance in the implementation of legal protection for DRM, by arguing that existing exceptions (described by the Supreme Court of Canada as "user rights") should remain effective even where a publisher has implemented a restrictive DRM system.”

Of course, that doesn’t stop the comments section of that thread from giving immediate legitimacy to the ridiculous fear-mongering in the video. And that is the very nut of McGrath’s criticism last week, isn't it? Leadership on these ideas does not stop with the embedding of a video. Contextualize (please!), and when that doesn’t take, contextualize again.

I’ve been in this discussion for the better part of a decade now, ever since a colleague of mine showed me this cool site called Napster but couldn’t quite explain to me how the musicians were being paid when he downloaded their songs. I’ve heard all the arguments for open content and unrestricted file-sharing. I’ve read Lessig, Doctorow and Geist at great length. I am aware of the theoretical terrain.

I’ve advanced the professional writer’s perspective (aka, my perspective) here, on other blogs, in many comment streams and in the mainstream media. For my sins, I have been accused of all manner of anti-consumer, anti-user, anti-freedom, anti-democracy, anti-humanity thoughts and behaviors. After all that work to protect my rights, and after all that scorn, my central question remains unanswered – if I’m not allowed to decide if, when and/or how my work travels the various digital highways and byways, how am I being protected as a professional artist? Note, my request is not for control over something someone else has or does or wants to make; it’s for confident control over my own work.

Russell McOrmond, a person I admire and respect despite our ongoing and potentially irreconcilable disagreements over key copyright concepts, can quite dispassionately and with limited rhetoric explain his complex, subtle position on DRM – see for instance, The Two Locks of DRM. I have my disagreements with what he says in that essay (and even more so with how others might interpret his thoughts); nevertheless, Russell’s writing is a far more helpful addition to the copyright reform discussion than the video above. And yet, I see on his own blog today that he likes this video. Sigh. Like I said, potentially irreconcilable.

My own quick thoughts on DRM, by the way:

Attempts to protect or manage digital rights with technology probably wouldn't exist if real value was not being threatened. DRM exists as a proposed solution to a real problem, which also exists. If the problem went away, my guess is DRM would as well. See, no maniacal eyeball watching you from the screen -- just some thoughts about actual copyright concerns.

So, my request for the coming weekend – can we please put away the revolvers, handcuffs, chains, scary-looking safes, and weird dystopias? I promise, if we ever find ourselves in a true Orwellian nightmare, I will fight for the rebel alliance in my Mad Max outfit. In the meantime, can established, professional artists just ask for a law that protects our work without being accused of ruining everything that is fine and good?

settling with Google

Access Copyright General Counsel, Roanie Levy explaining the Google settlement to an overflow crowd in Toronto.

Access Copyright presented one of their many cross country seminars on the recent Google Books Settlement (also available as webinars, I believe) this afternoon at the Harbour Castle Westin Hotel on Toronto's waterfront. The room filled beyond capacity very quickly and, not wanting to turn anyone away, AC arranged for more chairs. In the end, the audience spilled out the back doors of the meeting room and into the foyer.

If you are a professional writer or publisher of books in this country, and are reasonably certain your books were available for sale in the United States (including through online services such as Amazon.com) before January 5, 2009, you are automatically part of the class in this class-action settlement. That means you are eligible for compensation if your works were digitized by Google as part of their sweeping library book scanning project. A minimum of $45 million in compensation (total) for this initial digitization will be paid out to authors and publishers at a rate of $60 per book, and $15 per insert (single essays, stories, poems, etc. within a larger work such as an anthology). Registration of claims for compensation will run until January 5, 2010. Once you have claimed and received compensation, you have effectively given Google permission to continue to use your digitized work in their Google Book Search service, but with some interesting and potentially lucrative side benefits for the copyright owners. Ad revenue for online texts will be shared with the authors and publishers, and Google will also provide a sales engine for online works.

If for whatever reason you do not want any part of this settlement or Google's services, you may opt out of the settlement and request that Google remove your works from their online archive. You must opt-out before May 5, 2009.

Kudos to the entire staff at Access Copyright for doing diligent and important work in spreading the information about this settlement throughout Canada's writing and publishing sector. Supreme kudos to Roanie Levy, Access Copyright's General Counsel and Director of Policy and External Affairs for explaining the settlement in detail and taking many, many questions from the floor. Amazing work on a very important legal milestone for writing and publishing in the digital age.

I can't possibly explain all the details here. Writers and publishers owe it to themselves to be completely informed about this settlement. The best places to start are Access Copyright's website, and the Google Settlement site itself.

A great day for respect.

important news for Canadian writers and publishers

Access Copyright, the Canadian copyright licensing agency has today sent out a special notice to its affiliates calling our attention to details of the recent Google settlement in New York. The notice is also available on their website at this link.

Access Copyright has also prepared an article entitled "Why the Google Settlement Matters to You," and I'll quote from it here:

Google first announced its intention to undertake a massive project to digitize books and make them available to users in 2004. Academic libraries, including Harvard and Oxford, entered into partnerships with Google to digitize the libraries’ collections of works. However, in many cases the digitization was done without permission from the copyright owner.

In 2005, the Authors Guild, Inc. and certain authors and publisher representatives of the Association of American Publishers separately sued Google for copyright infringement.

In 2008, the parties reached a settlement agreement, which, if approved by the court in a hearing scheduled for June 11, 2009, may affect almost every book in the world, and consequently, almost every copyright owner (creator, publisher, heir or other rightsholder) who has copyright in one or more books. In fact, the settlement notice advises copyright owners to “assume that you own a U.S. copyright interest in your book”. If this applies to you, you are considered part of the settlement class for this agreement.

This is an important moment in the evolution of writing and publishing. I urge all Canadian writers and publishers to learn as much as they can about the settlement, and either register to take part in it or opt-out of the settlement altogether.

Access Copyright plans a series of web seminars and an in-person information presentation at their head office in Toronto. Here's what they have to say about that:

Web-based seminars will be offered on the following dates (all times in Eastern Standard Time):

Thursday, January 22, 2009 9:30 a.m. – noon
Monday, January 26, 2009 9:30 a.m. – noon
Wednesday, January 28, 2009 1 p.m. – 3:30 p.m.

Based on demand, we may add additional web-based seminars in February. Please stay tuned for more details.

A seminar on the Google settlement will also be held at Access Copyright’s offices at One Yonge Street in Toronto on Thursday, February 12, 2009 from 1:00 to 4:00 p.m.

the advance of reason

Many folks sent me this link today -- thanks to all, especially Sandy, who was first. Sandy, you win a beer.

This article by Simon Doyle in the Hill Times shows how those most invested in copyright reform are being cautious and judicious, and taking their time to study Bill C-61 before re-engaging with government to express their likes and dislikes, and to suggest potential amendments.

It's a lot less exciting than endless speculation on our apparent rapid descent into fascism, but it's so damn Canadian it fills me with pride. I particularly like how consumer advocates are included under the umbrella label, "lobby groups." How can this term be a stand-in for "evil emissaries" if it applies to everyone?

And I hope regular readers of this blog have noticed the appearance of a new feature. I've joined iCopyright, a new copyright tagging service promoted in Canada by the good people at Access Copyright. It's still being tested, and is in early stages, but it does look to be a seamless and simple system for all involved in the use and commerce of online intellectual property -- certainly the written kind. Gone is the excuse, "but there was no indication that I couldn't just use it for my own purposes." I mean, that excuse was never valid, but with iCopyright's clickable licensing interface, respect for online intellectual property has never been easier.



Copyright 2008, John Degen. To reproduce or distribute, visit: johndegen.icopyright.com