Creators' Access Copyright

Profs and "fair" dealing

2011-10-03T10:16:00.000-07:00

The universities’ campaign to avoid paying for what they use -- by having the copyright act declare educational uses of copyright material “fair dealing” -- got some support last week with the introduction of C-11, the copyright act amendment bill. It contains the educational exemption the education bureaucrats have long sought. While the government may make amendments to C-11, whatever the government wants is now likely to be passed quite soon.

It is striking how much professors and teachers have become involved in supporting the universities’ campaign not to pay for what they use. When students use other people’s work without credit, the universities call it plagiarism and threaten expulsions. But when the universities use other people’s work without credit, they call it “fair dealing.” Even CAUT, the faculty organization, is acting as a company union on this question, defending the employer’s interest in a freebee over its members’ intellectual property rights.

I recently spoke with the British collective ALCS about this problem (among others). They were puzzled by Canadian academics’ apparent eagerness to surrender their intellectual property to their university employers and their lack of interest in having their works collectively licensed. ALCS estimates about 18,000 of its 80,000 creators are teachers and professors. I was told:

“We have always had a strong following among academics. Our current chair is an academic, and we have always had academics on our board. Academics are not so well paid here in the UK, so every penny counts for them, so we have had no problem there. The academic community is quite supportive of ALCS and collective licensing.”

British academics understand and support collective licensing because they are among its significant beneficiaries. When their work is copied by their universities, ALCS sends them cheques based on the universities’ licensing payments. There is nothing like a steady flow of small cheques to persuade creators, including academic ones, of the tangible benefits of having their works under collective license. That process works well in Britain. The collective supports academics with money; the academics support the collective licensing principle.

Canadian academics are hostile to collective licensing, but it’s not because they are so rich. It has more to do with the fact that they gain no benefit to it and see mostly its inconveniences.

When educational texts, scholarly articles, and other academic works written by professors and teachers are copied under license to Access Copyright, Access Copyright pays 100% of what it distributes from those revenues to publishers, 0 to the creators. It’s right there in their distribution rules.

That is, Canadian academics’ opposition to collective licensing arises from the fact that they never see the money. They see their universities and their students paying for reprography licensing, while they, the creators of a notable portion of what is being copied, get nothing. No wonder they are susceptible to the university administrators’ proposal, “Let’s just take the stuff and call that ‘fair’.”

To put it simply, Access Copyright has always been more concerned about putting creators’ money in publishers’ bank accounts than it has been about building a fair and comprehensive collective in which all who create value for the collective derive benefit from it. ALCS = 80,000+ creators; Access Copyright = barely 9000.

Now we see the consequences. As ALCS told me, “Without that friendly creator face, it is hard to sell licences. The licensees want to know that the money actually reaches creators. Having a strong creator presence and being able to show the money reaching them, that gives us leverage in licensing.”

Access Copyright certainly wants creators to front its promotional and lobbying efforts. But it has never wanted the other side of that, never wanted to see significant amounts of Access Copyright money actually reaching creators, whether academic or not. In the end, the money (and its absence) talks. Since they get none of it, vast numbers of the academic creators who should be beneficiaries and supporters of collective licensing have decided to support their employers’ rights-grab rather than to defend their intellectual property rights through the collective.

It’s sad, but it’s not hard to see why.

I’ve long argued creators deserve much more money from Access Copyright. But you might say I’m a creator, of course I’d say that. But what is really striking now is how desperately Access Copyright has damaged itself by its greedy and short-sighted publisher-centred policies, always more concerned with streaming money to publishers than with building a strong, broadly-based, and trusted collective that could withstand the kind of challenge it now faces.

Suggestions for Improving the Canadian Reprography Mechanism - 2011

2011-10-02T08:06:00.001-07:00

1. Creator Ombudsman. Transparency. An ombudsman to deal with creator issues. Not on the board. No fiduciary duty. Fully and always responsive to creator wishes. One year position. Problems published on AC website.

2. Transparent Response to Creator Queries. All questions handled within seven days. With a real-time web forum and problem threads. AC needs to grow up a little and receive criticism openly, transparently, and with the intent of solving the issue, not simply defending its turf and saying no.

3. Copyright Lawyer for Writers. Writers need a copyright lawyer who is paid by AC, but is completely arms-length from AC, who is hired and fired by us. Law is not about truth. Law is about making your best argument. What we get now is law from a publisher’s, particularly large educational publishers’ point of view. We need our own advice.

4. Redo the Friedland Report. To be delivered to the Ombudsman who will deliver copies to the signatories, undigested to affiliates on AC website, to this blog and AC. AC to respond within one year. Non-redacted.

5. Lawyer’s Opinion on Fiduciary duty. A fund for creators to seek a legal opinion, arms-length from AC. One lawyer has opined that AC does fiduciary duty wrong. This is at the heart of why our reps do not represent us, and there is a lot of money that has been decided, probably in excess of $300 million.

6. New Copyright Act and the Demise of AC. A new version of Bill C-32 has been floated and it will result in the demise of AC. We don’t want our financial statement of $104.2 million frittered away by high-priced help clinging to their jobs.

Do note that a remnant of AC will remain – 15% - and then writers and small cultural publishers can get on with setting it back up 50/50. Introducing the 50% and the UK model are the most important items. There is also education revenue from the current six part test rule that AC has not been upfront and open about with creators.

7. Move to UK-like Program. The long term goal is change to the UK corporate system. One part is that writers receive 50% of the money, and publishers the other 50%. There are four corporations. One licences and collects the money, it is split and then, the second part of the system, sent to the writers or publishers corporation for distribution. Writers have complete control over our money.

We need to find a way to seize the assets in the transition so that the investments and balance sheet amounts, including accounts receivable are split 50/50.

The creator co-chair will oversee the eventual shift to the 50/50 model, and an organization more in line with the UK model of reprography. We will need quick movement when the new Copyright Bill becomes law.

2011-09-20T12:02:00.000-07:00

PaidContent.org (ah, there's a concept) has a story from inside the Google deal. In the United States, the publishers look like settling with Google. But the authors, represented by the Authors' Guild, find the compromise unsatisfactory and are holding out for better terms.

This is the most natural thing in the world. Publishers and authors may very well understand their interests differently and ask their organizations to pursue different strategies in complex fields like this one.

But what happens when much of the authors' copyright money is tied up in an organization in which the publishers hold a veto. If Access Copyright finds itself "neutral," the publishers will have no trouble litigating or settling as serves their interests. But who's gonna front the money to the authors if their own money is unavailable to them?

Writers - Focus on the Money

2011-09-18T13:49:00.000-07:00

The most important thing that writers should focus on in reprography is the money. It makes no sense to be arguing fine points about education this or that, the international writer’s ‘stamp’, or any other small issue, until the money argument is solved.

With Payback, the already low base payment of $612 dropped to $175, a drop of 70%. Eighty percent of writers got less money. But at the same time, the financial papers of AC report a bulging balance sheet of $104 million. It has to be admitted that reprography does not constitute meaningful income. But we can make it so.

I do not think it makes any sense to have the approach that, well, we help AC now and during the period that a new Copyright Bill is passed, and then they will do nice things for us. That has not been true for the past 23 years. I think it is the opposite approach that makes sense: if you want our support, give us 50% of the money. It is precisely when the reprographic mechanism is in need of support that writers have their greatest advantage for a pragmatic solution.

How much? Take the cheque you received and multiply it by 13 and you get roughly the amount of the cheque you will receive. For example, those large number of writers who got the $175 payment would get, when the balance sheet assets and accounts receivable were fairly distributed a cheque for $2275. And for those currently at the $1000 level, that means a cheque of $13,000. As Stats Can says a writer’s average income is $15,000, that means a cheque for $13,000 almost doubles income. Does a writer want this money? Sure. It begins to redress the issues of writers being essentially shoved out of their own organization to the bottom of the pile for more than two decades.

Arguing sensibly, with our own lawyer negotiating, the deal would be inked before writers supported the system. Remember, if a new Bill makes AC collapse under its own administrative costs, it is not a problem for most writers. That is because the high priced help will leave, and 15% of current revenue would still be coming in. And all the new assets added to the current $104 million balance sheet will still be there to be divvied up.

But there is even more money than this. I know mentioning Michael Geist is heresy to most writers, but when you are thinking pragmatically, you have to consider at least one thing that he has said. He points out that currently - and this would remain so even after new legislation - there is a six point test for determining fair dealing and that means some of the education return of about 75% of annual revenue will still come in. This is extra money in excess of the cheque of 1300% above your current cheque. I say show writers the money. And until that issue is resolved writers should not get distracted by dinky issues.

Writers Not So Happy with Reprographic Payment

2011-08-20T11:40:00.000-07:00

Copy and paste this weblink and read the article in the Globe and Mail on education payments for copied material: http://www.theglobeandmail.com/news/opinions/opinion/heading-back-to-school-hope-youve-memorized-the-copyright-act/article2131989/.

I am a writer like John Degen, but my take is different.

About 75% of the money made from schools, colleges and universities goes to the large educational publishers. These eliminate royalties at the first step for writers, and substitute fee for service, so the publishers get 100% of the royalties when they sell their books to students. Over the years, this fee for service payment goes down because of inflation. Then they come at the end and pick up the entire royalties paid for copying.

Writers get a small payment from the repertoire class. Last year the baseline was $175. That's all. This does not comprise meaningful income. 80% of writers got less than the previous year's baseline of $612, also a figure that does not comprise meaningful income.

The point is that schools, colleges and universities think they are paying money to writers, but they are not. Writers get virtually nothing. Writers don't like this but the reprographic corporation primarily reflects the interests of large educational publishers even though the copying payment was introduced for writers.

I would say that any university that pays this money will be pretty unhappy to learn that the money does not go to writers, artists, creators and so on. But that is what happens with writers receiving about 10% of revenue - in a system that was designed to give us a financial lift for our copyrighted material.

Many universities and other educational institutions have refused to pay the new tariff and have instead chosen to appeal to the court. Most of Access Copyright's Statement of Financial Activities, has a large asset of over $100 million, most is these 'accounts receivable' that it so far can't bring in, and part is part of the $63 million in cash and cash equivalents. If writers were to get only 50% of this asset, then we could begin to say that writers get some financial benefit from our copyrighted work. That base payment of a very small $175 becomes about $2275 - not meaningful income for the lowest paid writers, but enough to make a mortgage payment with a little left over.

This is the writer's reality. Don't think that reprographic money gets to writers. It is less than 10%.

Don Meredith on what not to do

2011-08-02T06:09:00.000-07:00

Don Meredith, blogger and Outdoor Writers of Canada active member, is not keen on the idea of creators seeking a better deal at Access Copyright -- not at this time anyway, and seemingly not as long as copyright matters are being debated or Professor Geist has opinions. His recent thoughts on the question are here. I'm sure we will take up his points before long, but meanwhile take a look. Comments are open.

Access Copyright and the Robertson v. Thomson case

2011-06-27T08:09:00.000-07:00

Writers can now begin to claim payments from the second settlement in the group of class action lawsuits widely known as Robertson v. Thomson. This one involves a settlement with the Toronto Star, ProQuest, and other publishers. The deadline for applications to share in the payments is October 31, 2011. Information on the process is available here. Claims forms can be downloaded here.

Payments in the first Robertson v. Thomson settlement went out to eligible writers last winter. I have met writers who say they received more money in that one payment than they have in a couple of decades of Access Copyright payments.

What was Access Copyright’s role in Robertson v. Thomson?

On the face of it, minimal. Access Copyright always declared itself neutral in Robertson v Thomson. It was a civil suit between independent parties, the collective declared, and Access Copyright had no role.

That’s odd when you think of it. Access Copyright is a copyright organization. It has some of Canada’s best copyright lawyers on staff or on retainer. It always stands up for copyright and against copyright abusers. It is one of the most active copyright litigators in Canada.

Furthermore, the defendants in RvT used many of the classic anti-copyright argument to justify their appropriation of other people’s work. (See an analysis of the case here.). RvT was settled after the defendants agreed to make handsome payments to the plaintiffs but, had the trial continued, the decision would surely have been among the most important copyright precedents in recent Canadian history. How could Access Copyright stand idly by as vital decisions in copyright law were being adjudicated?

There is one crucial difference between RvT and all the copyright case AC litigates constantly. The alleged abusers of copyright here were not copy shops, universities, Departments of Education, or online free copiers like Pirate Bay. Here the abuses of copyright were charged to publishers.

At Access Copyright publishers are special. They control half the board and can veto any Access Copyright action. Unlike the usual anti-copyright forces, the specific publishers defending themselves against accusations of copyright abuse had their representatives right on the board of the copyright collective.

There is one kind of copyright abuse to which Access Copyright always turns a blind eye: abuse of creators’ copyright by publishers. Access Copyright cannot ever defend creators’ copyrights against publishers who seek to abuse them. Its very structure forbids it.

Creators' copyright advocates did take RvT to court, despite Access Copyright’s refusal to. Thanks to the availability of class action lawsuits and years of heroic work by Heather Robertson and her allies, they succeeded. But the lesson seems clear.

Access Copyright collects millions of dollars a year on behalf of creators. But Access Copyright exists in its present form to prevent creators from using their own money to defend their copyrights as they might choose to. (When publishers’ rights are threatened, however, publishers can rely on Access Copyright to marshall the support and the money of creators behind efforts at redress.)

The claims administrator in the Robertson lawsuis is now paying out the millions of dollars that the defendant publishers put up to make the copyright-absue case against them go away. And creators have set an important precedent against new forms of copyright abuse -- no credit to Access Copyright.

But few creators have the ability to litigate against their publishers. Few can contemplate the years of heroic unpaid struggle and effort that Heather Robertson and her team undertook. How many other RvT situations – situations of publishers abusing creator copyright, particularly in new technology fields where law and custom are unsettled – go unlitigated because Access Copyright prevents creators from using their own money to defend creators’ copyrights?

Some creators cannot help thinking: Publishers and creators have many copyright interests in common -- but not all. If there was a creator-run collective, one wholeheartedly committed to supporting creators' copyrights, then suddenly creators would have both the money and the means to assert and defend their own copyrights – no matter who the abusers were or how many seats they held on Access Copyright’s board.

Will we get from here to there?

Access Copyright's 2010 Financial Statments

2011-06-21T15:32:00.000-07:00

I was asked to give a talk to writers about Access Copyright's 2010 financial report sometime ago. You may find their report at: http://www.accesscopyright.ca/media/6371/2010_annual_report.pdf.

Here are some of the comments that I made.

1. The auditors stated in their Basis for Qualified Opinion that the copying records had the issue that 'the completeness of which is not susceptible to satisfactory audit verification.' Acknowledging that other reprographic mechanisms have similar problems, the auditors went on to say: 'we were unable to determine whether any increase might be necessary to licence fee revenue, provision for royalties for distribution, excess of revenues over expenses for the year, accounts receivable, undistributed royalties and net assets." Hmm.

2. AC spends money on mentoring other RROs in the Caribbean/China and so on. Perhaps writers would rather the money for these junkets be sent to writers instead.

3. Operating budget expenditures include: professional fees of $851K, and $730K in Copyright Board applications. One might ask, who are these paid to? Are they paid to staff members? or to businesses in which staff members might have a financial interest?

4. Expenses are $8.7 million and this is the figure that is used to calculate many others. If one adds the amount sent to the Cultural Foundation, $491K, it brings expenses up to $9.19 mil, or 27.2%. Pretty high.

5. If a writer wants to know what the board members are responsible for, look at 2(f) Undistributed Revenues. This clause means that, among other things, the $63.5 million in Money Market Funds were left there, and base payment Payback authors received $176 each due to their own representatives on the board.

6. 2(h) Tariff under appeal. Basic education providers have appealed the tariff the Copyright Board thought was reasonable. As education may win on appeal, should AC be treating the possible money as 'deferred revenue'?

7. 2(k) Revenue Recognition takes the novel approach in 'deferring' what it has not received and 'accruing' what it may never get in the same clause. That's interesting, and perhaps a bit unfair. I mentioned that I have a friend who spent his career at the federal Auditor General. I will be asking him his thoughts on the financial statements. I will let you know what he says in due course. This and most of the rest are examples of why writers who are AC members should have basic accounting and legal advice, paid by AC, but at arms-length from it, so that we can receive advice from professionals hired to tell us what our best position is.

8. Cash and Cash Equivalents are held in Money Market Funds of $63.6 million. The latter are usually thought of as too risky an investment for money that has to be invested at low risk. The other thing is most writers would rather have the money. Those funds represent 1673.7% of what writers received under Payback. Do remember that board members make the decisions on how much money goes to writers.

9. Nowhere in the financial statements, nor in the annual report itself, does AC mention that writers received a small $3.8 million. The balance sheet, on the other hand, notes that AC has assets of $104.2 million. This amount is 2742.1% more than what writers received. Having made the calculation myself, I now find it hard to believe how disproportionate it is. I think most other writers will think the same.

10. Footnote 7 is where the figures on the Cultural Foundation may be found. I have had numerous specific requests to find these figures. There is $4.3 million in these funds. Had the board distributed these amounts, writer payments would have more than doubled.

11. Let me show you a comparison of Total Revenue versus Total Expenses.

2007 2008 2009 2010

Total Revenue 37.3Mil 36.8 34.8 33.8
Total Expenses 7.1 Mil 6.7 8.2 8.7

Percentage 19.0 18.2 23.6 25.7

Here is the point: revenue is dropping and expenses are rising. And expenses have risen 22.5% in four years. And, as I mentioned above, if we add the $491K sent to the Foundation rather than distributed to writers, expenses were $9.19 million. or 27.2% of total revenue.

These are big figures and illustrate once more that writers could use some advice from a lawyer and an accountant telling them what is in their best interests.

Worth reading: John Degen on Access Copyright

2011-06-20T11:36:00.001-07:00

John Degen's widely read blog includes his thoughts on Access Copyright -- and a slew of comments

In a Time of Copyright Reform Writers Need to Talk

2011-06-18T11:42:00.000-07:00

Don Meredith’s point of when is the right time to address issues with AC makes sense. If the new bill that replaces Bill C-32 is essentially the same bill as before then it will have big consequences for AC. My read on this is that AC as we know it will simply collapse if such a bill goes through, and that’s one of the scenarios for which writers need to prepare. Now, as never before, writers need information they can trust, they need to share that information and then they need to come to a conclusion. These are very good reasons for signatories coming together at this time in a joint committee. This should have happened years ago when writers agitated for the Friedland Report.

I think the chances of a new bill going through are pretty high. But saying that collapse of the current reprographic mechanism is likely does not mean that it will disappear entirely. (And in case you did not know there are other reprographic mechanisms out there for collective licensing). I am just being practical here, and for the moment, thinking through what it would mean for writers if AC did not survive in its present formulation. We all believe in collective licensing, but we need collective licensing that meets a writer’s needs.

In the likely collapse outcome, AC will not cease to exist. But what will happen is that a remnant of revenue will remain, but it will be so low that the highly paid staff will leave because their salaries – likely in the $150,000 to $300,000 range – as well as benefits, pension contributions and severance can no longer be supported. (If I had been working there when Bill C-32 came out, I would have immediately begun looking for another job - that’s what bureaucrats do).

How much revenue will remain? Well, if we accept, for the moment, AC’s estimate of what it gets from education – it says 85% - that means that 15% of revenue, or $5.06 million will still be coming in. My historical perspective on this is that education revenue is more like 75% of total revenue. So the upper boundary on revenue remaining could be higher, more like $8.4 million. This top level is 221% of what writers received this year under Payback – and so a writer may actually get a higher cheque under the new copyright bill, perhaps even double what you got this year. In this scenario, writers will have to pick up the pieces and re-establish the original purpose of AC, so the promise it held for us may actually occur for the first time.

In the beginning, the reprography bylaws were drafted in the belief that only writers would be part of the program – visit Flora MacDonald’s speeches in Hansard and make your own judgement. A decision was made early by writers that the cultural publishers, essentially the regional presses that publish our non-fiction, fiction and poetry, would be let into the system to share with us. But now, when our baseline payment of $175 is less than a copyright lawyer makes in an hour, we creators need to come together, talk over what will be done to resolve the situation and make it happen.

You should know that there is quite a lot of off operating budget money that has not been distributed. The balance sheet shows $104.2 million in assets – we would like this protected. Then there is the invested money - between $24 and $63.7 million - that we would like distributed. And there is the Tariff under appeal that AC has billed and thus counts as an asset, under Accounts Receivable in its financial statement as $56.9 million (Footnote 4). In addition, there is the Cultural Fund of $4.5 million. I was not interested in such a fund, and I would like that money returned. It represents more than doubling the payment you received last year.

So, there are many subjects that writers need to talk over, and to do this we need some specialized advice. We have always needed legal and financial advice because we are volunteers who work late nights to figure reprography things out after our day jobs have ended. What is required is a pot of money created for us at AC so that we can seek arms-length, independent advice regarding the many questions that will come out of our joint committee of signatories. Writers need to think through many questions: do we want the publishers in with us? Or do we want our money separate, as is done in the UK, and is included as so in the TWUC motion? There are many other subjects that writers need to talk about a great deal to establish where we will go.

Regarding the invested money between $24 million and $63.7 million, I will be asking an accountant to give me his best estimate of that money. When I have it, then I will let writers know. This is another example that suggests writers need advice, so it will inform the talks we have with one another. Writers have always needed some independent advice: we need a lawyer and an accountant. People who work for us and give advice from the perspective of a writer.

We tend to forget that law is not about truth. Law is about making your best argument. What we have had in AC is lawyers who give advice mainly for the interests of the large educational publishers. Writers don’t need money spent on this, as many writers have been reduced to fee for service, and thus lost their copyright due to the disparity of power between an educational publisher and a writer. We need the advice of some technical people and should have had it from the beginning in 1988.

One of the scenarios to be talked over, when writers are properly informed, is to consider what we want in return for our support for AC. As mentioned in the TWUC motion, writers want: more money, more control and lower administrative costs. We want to move toward 50% of revenue. It makes a lot of sense to move right now, and to offer our support to the present reprographic mechanism in return for moving from the very small 11.3% of revenue we currently receive. The new bill represents a big change. And now is the best time to secure 50%, when AC needs our support. We can all support that kind of collective licensing.

Andreas Schroeder on counting the pennies

2011-06-16T13:51:00.001-07:00

[Andreas Schroeder, the British Columbia writer and teacher of writers, was among the creators of Canada's Public Lending Right program and remained a board member for most of its twenty-five years of operation. PLR now delivers about $10 million a year to about 18,000 Canadian writers in compensation for the use of their works in public library lending programs. On May 26, 2011, as part of the commemorations of the program's twenty-fifth anniversary, Andreas Schroeder spoke in Toronto on “Canada’s PLR: The Untold Story.”

In this excerpt from that talk, Andreas notes that collectives and PLR do different things and are not directly comparable. But there may be lessons to draw from the cost-control attitudes he finds in PLR, and not so much elsewhere.]

…I’m old enough now to have seen the following phenomenon too often. Writers – in fact artists generally – produce the highest level of cultural expression, yet tend to get paid at the lowest level of the cultural food chain. That’s why we created the Writers’ Union, and that’s why we created PLR. But what really troubles me is what so often happens when artists of whatever stripe finally get it together to do something about this. Hundreds, even thousands of volunteer hours get poured into the crusade; dozens, sometimes hundreds of artists take time away from their art to put their shoulders to the wheel -- and sometimes, if they’re lucky, they actually manage to make their point and win the day. Resources are made available, a program is established, staff is hired, and the artists can finally go back to creating their art, relieved that the goal has been accomplished.

And maybe it has, but flash forward a couple of years and here’s what we see far too often: the program is still operating, but a shiny new office building has been acquired, the staff has quadrupled or worse, the administrative costs have gone through the roof, and the artists, for whom the whole undertaking was created in the first place, are now getting a mere fraction of the money. Does that sound familiar? Why does that keep happening? Well the answer is obvious: the artists have left the building. There’s nobody left to adequately represent their interests – either that, or the people on the board won’t or can’t do that job anymore. We looked at half a dozen such programs when we were designing ours, and I want to tell you: that was one outcome we were determined to avoid.

And we have. Canada’s PLR program is arguably the leanest, most economically run program of its kind in Canada (and actually, in the world) with over 92% of its budget paid out to Canada’s writers each year. That’s an administrative rate of less than 8%; compare that with similar collective programs costing as much as 30% of their total budget, and you’ll get a sense of what I’m talking about. There are collectives in Canada serving only half as many writers or artists as PLR, with staffs that have ballooned to over 50 employees; compare that with the PLR program, which started out in 1986 with 4 employees serving 5000 writers, and today, despite now serving over 18,000 writers, still operates with exactly that same size of staff: 4 employees.

Now people will say: that’s not a fair comparison; you don’t have the legal costs, or a lot of the travel costs, or jury costs, or whatever. And we’ll say that’s right, we don’t, but do you know why? Because we specifically designed the program not to need those things. It can be done. You just take a good hard look at all your cost benefit ratios. Travelling all over the world to set up reciprocal arrangements with foreign countries that will never return more than a few dollars annually may look enterprising, but it won’t do your clients much good. Neither will using your program’s budget to fund cultural events and festivals all over the country, all of which comes right out of your clients’ pockets too. And then the artists or writers wonder why their cheques are so small at the end of the year. There are a number of European PLR programs that do that sort of thing too, and we became convinced that if they actually let their affiliated writers vote on such initiatives, they’d never get them passed. Over at PLR, aside from two extremely modest PLR birthday celebrations over the years, and attendance at the international PLR conference every two years by its chair and its executive secretary (and even that’s been recently cancelled), Canada’s PLR program has never spent a nickel of its clients’ money on anything but the express purpose for which the program was designed in the first place. I think that’s a model to which all collective-type programs in this country should aspire…

Don Meredith comments

2011-06-16T06:04:00.000-07:00

(Don's attempts to use the comment function are being sidetracked somewhere, and as we have not yet worked out the bug, we're posting his comment here:)

I want to thank Dennis Reid for his detailed explanation of the League of Canadian Poets support of the TWUC motion to reorganize Access Copyright in favor of more revenue for creators. There is much food for thought in that information, and I hope to take the time to compare that information with my understanding of how AC works.

That said, I wish to make an observation that might explain some of the de facto (and not so de facto) pushback I’m receiving from many of the creators I represent with regard “killing the goose that lays the golden egg” (as was quoted to me). Those creators are nominally called “outdoor writers” but include magazine and newspaper writers, book authors, photographers, broadcasters, videographers and assorted government and industry “information officers” (who regularly write on outdoor subjects for their employers). Personally, I earn the bulk of my writing income from magazine articles and columns, and less so from the two novels I’ve published (which qualified me for a TWUC membership). While Dennis reports an overall drop of income from AC for poets, I must report that a poll I made of the members of the Outdoor Writers of Canada showed that 60% of those who did receive a payment from AC in 2010 received a larger payment than they did in 2009 (some of those payments were in the $1000 to $5000 class). Why? Because most of these writers also publish photographs to illustrate their work in either magazines or books, and many are very prolific indeed. Thus, the expansion of the repertoire system through Payback, that included payment for photographs as well as the number of articles and pages published, provided many of the writers I represent to AC with significant increases in their income. As would be expected, these writers are somewhat defensive of that income.

That’s not to say that how AC is run and how revenue is distributed is not a concern. It is. However, it has been made clear to me that a more important challenge is on the horizon that could render all this arguing among the creators moot. If Michael Geist and the federal government are successful in placing educational copying in “fair use”, then a whole different landscape with regard to AC will be presented.

I’d be curious to know how writers other than book authors (TWUC) and poets (LCP) feel about this issue (e.g., where does PWAC stand). Have they supported the TWUC motion?

Backgrounder: Joining the Joint Committee on Reprography Reform

2011-06-15T14:43:00.000-07:00

The League of Canadian Poets voted to join the new joint committee established by TWUC AGM’s motion to look into increased revenue, increased control and decreased administrative cost for writers at Canada’s reprographic mechanism, currently Access Copyright (AC) (See League motion post).

League members considered a lot of information before voting to join with other writers’ organizations to seek change in the current system. The new Payback system, introduced this past year has taken what was already a modest sum of $612 for repertoire writers and reduced it to a $176 base payment. Anything above this figure is considered a ‘supplementary’ payment.

After 23 years of waiting for a program designed to reward writers for their copyright, members receiving the base payment watched their income drop 71.3%. Overall, almost 80% of writers got less this year under Payback than last year. Looked at from another perspective: baseline poets and writers received less this year than a copyright lawyer makes in an hour.

It has been widely disseminated that AC staff are highly paid, for example, that the salary and annualized benefits of the executive Director, Maureen Cavan, are reported in the $300,000 range. An income of this category typically carries an additional severance package of $300,000 to $450,000. That means that the ED salary is equivalent to 1704.5 baseline poets, or virtually all the poets in Canada. League members received this information soberly.

What writers want is 50% of revenue. Other systems deliver this. The United Kingdom does and this is why the TWUC motion mentions working toward instituting their system here in Canada. Were the UK system in place in Canada, writers would have received $16.9 million in 2010. This represents an increase of 444.7% in creator Payback cheques, or a base payment of $782.74. Writers would like this money.

While revenue for writers has been disappointing, there is another side to the story. Administrative costs have been equally disappointing. AC spent $8.7 million on itself last year. Its estimate of what it gave to writers is $3.8 million. That means that for every dollar sent to a creator, AC spent $2.28 on itself. Writers find that pretty annoying. As AC has refused to give out administrative salaries, an observer has to estimate them by considering Australia, where their system is far more transparent. Read what is public knowledge there: http://www.theaustralian.com.au/news/arts/copyright-staff-get-more-than-they-give-to-authors-and-artists/story-e6frg8n6-1225831556653.

Comparable systems have much lower cost. The UK for instance has a 9% rate; Copibec in Quebec has a 13% rate. But AC’s ratio of cost to total revenue is 25.8%. This is another reason for changing the reprographic system here. If costs were cut in half to $4.35 million, that could more than double what writers receive - 114.5% more money.

The League vote was unanimous, with zero nays and one abstemption. League members voted to work with other writers’ organizations, and those writers with no AC representation for a better financial deal, more control and reduced costs. The League and its members strongly support collective licensing, but the AGM mood was that the current system needs change.

The benefit of working together is better information for all members of the signatory groups. There has been little independent information revealed to AC members. In fact, the information revealed has been quite the opposite. The annual report for 2010 has a section where one Payback author reports how great the new system is: http://www.accesscopyright.ca/media/6371/2010_annual_report.pdf.

But the report does not contain any direct information on Payback payments – the $3.8 million figure, for example. This figure was derived from the Creator Co-chair Penney Komb, mentioning it in an information dialogue sometime later, along with a series of bar graphs that illustrate what writers received from Payback. They were not included in the Annual Report; nor were writers informed that they receive only 11.3% of revenue. There is good reason for this because such information does not reflect positively on AC. But they are examples of what independent, arms-length, writer-centred research turns up, and information that will be in a future post. It is also the kind of information that joint committee members would share in their decision-making process.

In summary, the main reason for joining the joint committee for writers and their organizations is: more money, more control and reduced costs.

Q&A: Why did the Writers Union motion come forward now?

2011-06-15T06:21:00.000-07:00

Q. Don Meredith, who follows Access Copyright matters for the Outdoor Writers of Canada, and blogs here, reports a problem with our comments function, so we are posting what would have been his comment:

I am a bit puzzled by the timing of this TWUC motion. Although I agree with much of what it says (to a point), I find it difficult to muster much energy to pursue the matter when on the horizon the federal government is about to reintroduce its amendments to the Copyright Act. If those amendments include placing educational copying under 'fair use' then that bill could render the TWUC motion moot. Educational copying provides the bulk of revenue to AC. Without it, an argument over how revenue is distributed will be quite different, especially considering how AC's clout on the legal front will be diminished. Perhaps we writers should be more careful in picking our battles and when to fight them.

A. I can't speak for all the members of the Writers' Union (or of the League of Canadian Poets) who voted for this measure. Questions like yours were raised and discussed. But the motion was supported by writers who have been among the leading voices and most prominent creators in the legislative fight to defend copyright and collectives, last year and for many years.

There is no slackening in the Union's commitment to strong and effective copyright legislation or in its opposition to wholesale exemptions for schools, universities, and other institutions whose work depends on our copyrights. The Union works closely with Access Copyright on copyright legislation matters and will surely do so as long as Access Copyright holds the franchise for our copyright and collective licensing interests.

Last year's battles in Ottawa confirmed just how central creators are to the defence of copyright and of collective licensing. Creators were front and centre throughout the debate, and Access Copyright depended heavily on creators to make the case for its survival.

I think it is fair to say that many writers found themselves asking why it is that Access Copyright depends so much on creators to provide its legitimacy -- and yet leaves so many creators deeply dissatisfied with the way it represents our interests. For many of us, I think, the fight for effective copyright legislation and the fight for effective collective licensing processes go hand in hand. It is because we are serious about the one that we are serious about the other. This is the right time to do both. If we withheld action awaiting the end of copyright debates, we would surely wait forever.

In any case, the Ottawa officialdom has long said that once the "first" stage of copyright legislation is done, one of the next things it plans is a review of how collectives fulfill the mandate they have been given. If we are not prepped for that, we risk being ignored in that process again.

Just my opinion, Don, but it reflects what I have heard.

League of Canadian Poets votes on Access Copyright

2011-06-13T05:37:00.000-07:00

At its Annual General Meeting this weekend the League of Canadian Poets passed the following resolution [BIRT = Be it resolved that]:

Regarding the TWUC Motion on Creator Copyright:
a) Support for TWUC motion on creator copyright: Whereas the Writers' Union of Canada strongly approved the following motion at its 2011 Annual General Meeting:
"Recognizing that collective licensing of copyright is a vital interest of the creator community, but that creators receive an inadequate share of the revenues of Access Copyright and are unable to control how the copyright income raised in their name is managed
And Recognizing that key differences in the copyright interests of publishers and creators will always prevent Access Copyright from fully and effectively representing creators' copyright interests,
Moved that one solution is an operational separation of creators' and publishers' interests in collective licensing, for instance, by the British model of a creator-run distribution collective that controls and distributes the half of collective revenues that belong to creators,
And Moved that National Council direct an investigation as to how a significant reform of collective licensing in Canada can be brought about at the earliest possible moment."
BIRT the League of Canadian Poets supports this motion and will send a representative to the joint signatory committee investigating creator copyright.
b) Contribution of material to creator copyright committee: Whereas members of the LCP, notably Cathy Ford and Dennis Reid, have undertaken considerable research over the last five years into creator copyright at Access Copyright:
BIRT the League representative to the joint-signatory investigative committee on creator copyright present research and recommendations from the League to that committee for consideration; in addition, the League recommends that the committee consult with Dennis Reid and Cathy Ford as appropriate.

Access Copyright acknowledges the debate

2011-06-03T13:54:00.000-07:00

Access Copyright posted a release on its website responding to the Writers' Union resolution of next week. There is a breakthrough here: Access Copyright acknowledges, perhaps for the first time, that "The distribution of revenues ... has always been contentious." and "the debate is ongoing." (Oddly, however, parts of its statement suggest Access Copyrigh thinks it is debating a "Mr. Geist" rather than the Writers' Union)

In the statement, Access Copyright defends its revenue distributions with its usually bewildering explanations of its policies. It even claims to have implemented the Friedland Report of 2007, which recommended sweeping changes to distribution processes -- and which the publishers' caucus vetoed even before the final text of the report had been received.

Interestingly Access Copyright makes no response to the other half of the Writers' Union's declaration: that key differences in the copyright interests of publishers and creators will always prevent Access Copyright from fully and effectively representing creators’ copyright interests. More on that to follow.

Update, June 13: My friend Penney Kome, who is Co-Chair of the Board of Directors of Access Copyright, sent the following comment some days ago. I regret the delay in publishing it, as we are still working out comment procedures for the website.

How bizarre to say the publishers "vetoed" the 2007 Friedland report when in fact Friedland did submit the final version and the Board spent two years working through the report's 23 recommendations and dealing with every one of them. The contract override is gone, all the splits are now 50-50 or 100-0. The Board did reject Friedland's recommendation to split royalties on Out-of-Print works 50-50, and voted unanimously that the creator should receive 100% as is current practice. Friedland recommended that distribution of creator repertoire should be weighted so that those who publish more should receive more, and Access adapted the CLA Payback system to Canada. Access posted the Board's response to every recommendation online. The result may not have been what you wanted or anticipated, but the report was neither vetoed nor ignored. Why would you post information that is demonstrably untrue?

Penney is mistaken in suggesting I have knowingly posted untruths. The world is a complicated place (as Access Copyright often demonstrates), and well-meaning people frequently disagree without untruths being the cause. In this case, her account of the board's work does not show mine to be untrue. The publishers' caucus did reject Friedland's report as soon as they saw the draft report, and two years of the board's subsequent work did not change that. Professor Friedland's Report called for a fundamental reorientation of distribution policies, but the changes actually made (some of which Penney lists above) included only those that publishers and staff were willing to accept. Those fell far short of significantly reorienting the division of revenues between publishers and creators. At a recent Writers Union workshop, Access Copyright lawyer Roanie Levy said Access Copyright implemented as much of the Friedland Report as was possible, and that seems an accurate statement -- given what was possible.

Creators -- Payback claim registration is today

2011-05-31T07:03:00.000-07:00

The size of the Payback payment you could receive next fall will depend on the record Access Copyright assembles for you this summer -- and the deadline for your entry is today. It can be done in much less than a day if you are motivated, so it's worth getting started even today. Access Copyright has been known to extend deadlines too, so you might get away with being a little late.... but don't count on it. Go to Access Copyright here and look for the Payback link that will come up.

Update, June 2. Access Copyright will continue to accept paper-based submissions for its Payback program until June 15. Details here.

Writers Union votes on collective licensing reform

2011-05-29T13:15:00.001-07:00

After a long and searching discussion, the Annual General Meeting of the Writers' Union in Toronto passed the following resolution by an overwhelming majority this weekend. It is hoped that other creators groups will take up the proposal for their own consideration

Recognizing that collective licensing of copyright is a vital interest of the creator community, but that creators receive an inadequate share of the revenues of Access Copyright and are unable to control how the copyright income raised in their name is managed;

And recognizing that key differences in the copyright interests of publishers and creators will always prevent Access Copyright from fully and effectively representing creators’ copyright interests;

Moved that a solution is an operational separation of creators’ and publishers’ interests in collective licensing, for instance, by the British model of a creator-run distribution collective that controls and distributes the half of collective revenues that belong to creators;

And moved that National Council direct an investigation as to how a significant reform of collective licensing in Canada can be brought about at the earliest possible moment.

The union also affirmed that it will continue to work with Access Copyright and other partners in the all-important fight to defend intellectual property and the principles of collective licensing.

Paying for news online - what's the AC connection?

2011-05-26T06:13:00.000-07:00

The Wall Street Journal and the New York Times do it. Does that mean it can work for the Victoria Times-Colonist and the Montreal Gazette?

Following the Times' lead, the two Postmedia-owned papers are testing the idea that maybe people will not be able to go on getting their news free, according to the Halifax Chronicle-Herald. After a certain number of online reads a month, users will be asked to pay for online access to the two papers' sites.

It's hard to deny the rationality of that. Reporting news costs money, and who should carry the freight but the users? The internet is free as in speech, not necessarily free as in beer. The question for the Gazette and the Times-Colonist is, not to put too fine a point on it, will people pay for lousy newspapers?

The Gazette has long been in class-action litigation with Montreal writers whom it would not pay for online uses of their work. Many leading Montreal freelance journalists will not work for the Gazette. Something similar recently happened at the Halifax Chronicle-Herald: several of its leading columnists have been forced out for refusing to surrender their rights to their own work. (Follow that story at HoweNow.) In effect, newspapers are attempting to collect for online copyrights even as they deny the same rights to the writers who ~~provide~~ used to provide the lively local content and opinion that makes a local paper worth reading.

The newspaper industry's campaign to undermine copyright is a creator-copyright issue, obviously. If we had a creator-centred copyright collective in Canada, the folly of the newspaper industry in attempting simultaneously to defend copyright (theirs) and making war on copyright (creators') would be an important news story in itself.

But at Access Copyright, publishers, including newspaper publishers, hold half the board seats, and so Access Copyright cannot and will not defend copyright when it is creators who hold copyright and publishers who threaten it. Who speaks for creators? Why cannot creators spend their own money to defend their copyright interests?

Payback Deadline next Tuesday

2011-05-25T06:49:00.000-07:00

Payments to creators who have affiliated* with Access Copyright are related to the size of the repertoire of works that they have made available for copying.

Once a year, creators are invited to update the account of the amount of material they have published -- through the Payback system at Access Copyright.

This year's deadline is Tuesday May 31. We recommend creators complete the Payback process.

We certainly have issues with Payback -- and we'd be glad to publish creators' queries and comments here. But if you are not "in" the Payback process, the money you are entitled to will go to someone else.

Payback starts at the Access Copyright website. Look for the Payback icon or logo, and click on it to enter. There's a username and password to negotiate, and then you are in.

What you mostly need is a piece of paper to calculate the number of books or book contributions, magazine articles, journal articles, and newspaper articles you had published in each given year, and the total number of pages in each of those categories. When you have that assembled, enter it in the online form. No vast bibliographies, no ISBNS and ISSNS.

*"Affiliated." We plan to start a glossary of the language of Access Copyright. Watch for it, or suggest entries.