The most objectionable aspect of the Copyright debate

For those who did not know, AccessCopyright, which represents a limitedsubset set of Canadian creators and publishers, hasproposed (and will likely be granted) a yearly per-student fee forthe use of photocopiers by schools. This increase will set the rateto $45 for Universities, and $35 for other educational institution,multiplied by the full time equivalents (FTE). (For details, readthis PDF)

I have some sympathy for theeconomic situation these organizations find themselves in. Creatorsof various types (book authors, visual artists, photographers, poets,playwrites, etc) don't generally receive incomes that represent thevalue they contribute to society. While there are exceptions, manycreators fall into the “starving artist” stereotype. Ialso recognize that educational institutions are increasingly cashstrapped, being asked to do less with less, for a service (publiceducation) that is the foundation upon which all other aspects of ademocratic society are built.

While I have this sympathy, Idon't see what this has to do with Copyright. Copyright is a seriesof activities that if done with respect to a copyrighted work requirepermission, with some exceptions (compulsory licenses, fairdealings). Requiring permission for this set of activitiesfacilitates a wide variety of methods of production, distribution andfunding of creative works. Copyright is not, and should never betreated as, a government program.

I consider the question of howmuch money some creators are earning, or how much money specificusers of creative works have to pay, to be entirely off topic. Iconsider educational institutional exceptions to copyright to be agovernment program paid for on the backs on creators, and harmful tostudents. I consider royalty rates set by the CopyrightBoard that ignore fair use limits or the limits of the repertoire ofa collective, effectively offering payment to collectives beyond whatis required, to be no more morally valid than premeditated commercialcopyright infringement (what some of the more extreme personalitiesassociated with Access Copyright like to inappropriately characterizeas “theft”).

I continuously hear what Iconsider to be childish whining from groups like Access Copyright(and some of their outspoken members), as well as parts of theeducational community, talking about how poor they are. If thesegroups were asking for a new government program, or increased fundingto an existing government program, I would be on their side insupport. Since each is asking for changes to copyright law thattheoretically benefit them, but which are at the expense of societyas a whole, my answer has always had to be to wish a pox on all theirhouses.

There is what I consider to bea relatively easy solution to get out of this mess that has greatbenefits to most of the people involved.

Contrary to the loudlyexpressed views of some of their members, Access Copyright does not”represent creators”. What Access Copyright represents isa tiny subset of business models that may be chosen by creators andtheir customers. They offer one-stop selling for authors who simplywant a royalty fee for specific uses. They also have flat-feeroyalties for uses of any works within their repertoire.

Charging royalties is not theonly way to get paid for creative works. Most knowledge workers donot receive residuals or royalties, but are paid flat fees orsalaries that are unrelated to the number of users or uses that theresulting works are put to. Royalties are something that isspeculative and paid after-the-fact for work done in the past, asituation that is very different than how most workers in the economyare paid.

A number of differentknowledge sectors are making a transition from speculative royaltiesto up-front fees and salaries. While not the way it is described inthe marketing material, this is in fact what is happening with thefastest growing part of the software sector which is the creation andsupport of Free/Libre and Open Source Software (FLOSS). It is alsohow the various participants in Open Access publishing are paid. Puttogether, these development and funding techniques are sometimescalled PeerProduction.

I have for years beensuggesting that the educational sector move to Peer Production forsoftware and non-fiction works. While I wish this beneficialtransition for authors and the educational sector could happen forall works, there are reasons why fiction and entertainment works willtend to be stuck with uncertainty in the speculative royalty paymentsystem. These represent, however, a tiny fraction of the works usedin the educational sector that are non-fiction, instructional and/orsoftware in nature.

It needs to be repeated thatnot charging royalties does not mean that the author does not getpaid. In fact, if the FLOSS sector is any indication, authors getpaid better in a fee-for-service or salary scenario than they do in aroyalty system. I believe the same will be true for theresearching, authoring, editing and other management of educationalmaterial.

The benefits for authors ofhigher salaries and to educational institutions of more manageablebudgets does come at a cost for someone, and that will be with theminimalization or in some cases closure of businesses dependant onthe legacy royalty-based systems. I believe that traditionaleducational publishers will be on the chopping block, with some ofthose employees moving to work within educational institutionsdirectly. Organizations like Access Copyright will need to return toproviding that one-stop-shopping service for fiction works still partof the curriculum, although many institutions may simply leave thisto an issue handled at bookstores rather than negotiations withcollective licensing agencies.

This transition isn't going tohappen overnight. Given the animosity between authors andeducational institutions, I believe the faster the transition thebetter for all concerned. Access Copyright can't really stop beingAccess Copyright, or stop promoting the narrow set of business modelsit represents. It is really up to the educational institutions inCanada to stop being lazy and push for this transition. Theeducational sector need to stop treating Copyright as a governmentprogram, stop asking for education institutional exceptions, stophanding undeserved money to collective societies, and fully embracePeer Production in all scenarios where possible. And if theeducational sector can't move forward, they should at least stopwhining about the financial and other costs of their own decisions.

Russell McOrmond is a self employed consultant,policy coordinator for CLUE:Canada's Association for Free/Libre and Open Source Software,co-coordinator for Getting Open Source Logic INto Governments (GOSLING),and host for DigitalCopyright Canada.