For those who did not know, Access
Copyright, which represents a
limited
subset set of Canadian creators and publishers, has
proposed (and will likely be granted) a yearly per-student fee for
the use of photocopiers by schools. This increase will set the rate
to $45 for Universities, and $35 for other educational institution,
multiplied by the full time equivalents (FTE). (For details,
read
this PDF)
I have some sympathy for the
economic situation these organizations find themselves in. Creators
of various types (book authors, visual artists, photographers, poets,
playwrites, etc) don't generally receive incomes that represent the
value they contribute to society. While there are exceptions, many
creators fall into the "starving artist" stereotype. I
also recognize that educational institutions are increasingly cash
strapped, being asked to do less with less, for a service (public
education) that is the foundation upon which all other aspects of a
democratic society are built.
While I have this sympathy, I
don't see what this has to do with Copyright. Copyright is a series
of activities that if done with respect to a copyrighted work require
permission, with some exceptions (compulsory licenses, fair
dealings). Requiring permission for this set of activities
facilitates a wide variety of methods of production, distribution and
funding of creative works. Copyright is not, and should never be
treated as, a government program.
I consider the question of how
much money some creators are earning, or how much money specific
users of creative works have to pay, to be entirely off topic. I
consider educational institutional exceptions to copyright to be a
government program paid for on the backs on creators, and harmful to
students. I consider royalty rates set by the Copyright
Board that ignore fair use limits or the limits of the repertoire of
a collective, effectively offering payment to collectives beyond what
is required, to be no more morally valid than premeditated commercial
copyright infringement (what some of the more extreme personalities
associated with Access Copyright like to inappropriately characterize
as "theft").
I continuously hear what I
consider to be childish whining from groups like Access Copyright
(and some of their outspoken members), as well as parts of the
educational community, talking about how poor they are. If these
groups were asking for a new government program, or increased funding
to an existing government program, I would be on their side in
support. Since each is asking for changes to copyright law that
theoretically benefit them, but which are at the expense of society
as a whole, my answer has always had to be to wish a pox on all their
houses.
There is what I consider to be
a relatively easy solution to get out of this mess that has great
benefits to most of the people involved.
Contrary to the loudly
expressed views of some of their members, Access Copyright does not
"represent creators". What Access Copyright represents is
a tiny subset of business models that may be chosen by creators and
their customers. They offer one-stop selling for authors who simply
want a royalty fee for specific uses. They also have flat-fee
royalties for uses of any works within their repertoire.
Charging royalties is not the
only way to get paid for creative works. Most knowledge workers do
not receive residuals or royalties, but are paid flat fees or
salaries that are unrelated to the number of users or uses that the
resulting works are put to. Royalties are something that is
speculative and paid after-the-fact for work done in the past, a
situation that is very different than how most workers in the economy
are paid.
A number of different
knowledge sectors are making a transition from speculative royalties
to up-front fees and salaries. While not the way it is described in
the marketing material, this is in fact what is happening with the
fastest growing part of the software sector which is the creation and
support of Free/Libre and Open Source Software (FLOSS). It is also
how the various participants in Open Access publishing are paid. Put
together, these development and funding techniques are sometimes
called Peer
Production.
I have for years been
suggesting that the educational sector move to Peer Production for
software and non-fiction works. While I wish this beneficial
transition for authors and the educational sector could happen for
all works, there are reasons why fiction and entertainment works will
tend to be stuck with uncertainty in the speculative royalty payment
system. These represent, however, a tiny fraction of the works used
in the educational sector that are non-fiction, instructional and/or
software in nature.
It needs to be repeated that
not charging royalties does not mean that the author does not get
paid. In fact, if the FLOSS sector is any indication, authors get
paid better in a fee-for-service or salary scenario than they do in a
royalty system. I believe the same will be true for the
researching, authoring, editing and other management of educational
material.
The benefits for authors of
higher salaries and to educational institutions of more manageable
budgets does come at a cost for someone, and that will be with the
minimalization or in some cases closure of businesses dependant on
the legacy royalty-based systems. I believe that traditional
educational publishers will be on the chopping block, with some of
those employees moving to work within educational institutions
directly. Organizations like Access Copyright will need to return to
providing that one-stop-shopping service for fiction works still part
of the curriculum, although many institutions may simply leave this
to an issue handled at bookstores rather than negotiations with
collective licensing agencies.
This transition isn't going to
happen overnight. Given the animosity between authors and
educational institutions, I believe the faster the transition the
better for all concerned. Access Copyright can't really stop being
Access Copyright, or stop promoting the narrow set of business models
it represents. It is really up to the educational institutions in
Canada to stop being lazy and push for this transition. The
educational sector need to stop treating Copyright as a government
program, stop asking for education institutional exceptions, stop
handing undeserved money to collective societies, and fully embrace
Peer Production in all scenarios where possible. And if the
educational sector can't move forward, they should at least stop
whining 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 Digital
Copyright Canada.
