Access Copyright, a business model intermediary
used by some creators, has launched a C-32
related campaign website
where they are critical of the
fair dealings reform in C-32. I believe that the fair dealings
reforms are a mixed bag of things which are "about time",
things which are excessively complex, and only some I disagree with. As a creators' rights activist I must disagree with the perspective
offered by Access Copyright, which I believe is harmful to the
interests of Canadian creators.
I must start by saying that I
question the legitimacy of Access Copyright claiming to represent
creators. On their website they continue the claim that they
represent Canada’s 600,000-strong cultural sector.
As a collective society they
exist as an intermediary between copyright holders and licensees for
specific uses of copyrighted works. People do not join Access
Copyright like they do a political party, supposedly because they
agree with the political views of the leadership. It is a way to
get money that is owed to them, nothing more. Suggesting access
copyright represents the political views of creators is like saying
that anyone who applied for the HST rebate in Ontario did so because
they agreed with the political views of Dalton McGuinty and Steven
Given this, I don't believe
that collective societies should be involved in copyright reform
process, alleging to "represent" their members. Their
views can be heard at the Copyright Board when royalty rates are
being set. It should otherwise be creators and groups representing
creators that are independent of collective societies involved in the
copyright reform process.
The site has some "fast
facts", which I will make some fast comments on.
- They claim that the new
exceptions jeopardize the economic future of knowledge workers.
- A repeat of the same as #1,
using different words
- A repeat, focusing on the
- A claim that Canada's
Creative Industry has lined up in opposition to C-32. This is true,
but for a variety of very different reasons. Access Copyright's
opposition is nearly opposite to my own opposition.
- A call to get copyright
right, something we can all agree on. This has no meaning given the
loudest debates in the copyright reform process are different
creators' disagreeing on what changes would benefit or harm creators.
Yesterday I summarized my views
on five key issues around C-32. I think it is worth taking a closer
look at the fair dealings reforms in C-32. I will do so by breaking
those proposals into three groups.
- Exceptions clearly for the
benefit of follow-on creators.
The most obvious is the
addition of "parody or satire" to our existing fair
dealings which already had "research, private study". These are clear limits on the control of past creators that is
necessary to enable new creativity. It is something that all
creators should be strongly supportive of.
Access Copyright doesn't
represent creators, but a business model. As such they want more
money to flow through them, and are generally unconcerned with the
burdens that such a system can place on creators -- especially those
whose motivation for creativity are not royalty payments.
- Exceptions that are similar
to those that would exist under US-style living Fair Use regime.
This includes time and device
shifting, backups, or non-commercial user-generated content, which
does not have a negative effect on the value of the work for the
creator. I believe the language in C-32 is excessively complex, and
that Canada would be far better service adopting a US-style living
Fair Use regime. Bill C-32 being excessively complex means that
people who are not copyright specialists will likely interpret the
terms wrong, inducing infringements that would otherwise not happen.
These are activities where the
lack of requirement for permission or payment increases the value of
the work to the audience, will increase the willingness to pay, and
thus will increase revenue to creators. This basic economic analysis
falls on deaf ears for those in Access Copyright who falsely believe
that "more copyright" will mean "more money",
when in fact the opposite is often the case. Any business person
knows that as you decrease the value of something to the customer
that sales will decrease.
These are activities which
most Canadians already believed were outside of copyright. These
exceptions will not cause a major shift in Canadian behaviour, just
legalize the common activities of Canadians. There have been false
claims that Canadian law is "weaker" than US law (meaning,
balance less tilted in favour of past copyright holders). Canadians
believe that any potentially copyright-regulating activity that was
legal in the USA was also legal in Canada. I believe the USA got
this aspect of their law better than Canada did, and has benefited
their copyright industries to effectively have more exceptions to
This grouping includes the
addition of "education" under the basic fair dealings list. The US made this more clear by including "multiple copies for
classroom use" which recognizes the benefits of allowing
educators to be able to step into the shoes of pupils and do things
which would be an exception for the individual pupil.
- Exceptions to copyright
granted to specific institutions.
This is the one area that I
partly agree with Access Copyright. I believe that the educational
institution specific exemptions to copyright in Bill C-32 (and the
existing copyright act) are a government program, paid for on the
backs of copyright holders. In fact, I believe it is harmful to
pupils to have one set of copyright rules when they are in the
confines of an educational institutions, and a different set of rules
Where I disagree with Access
Copyright is that I believe the solution isn't to pay collective
societies more money, but for the educational sector to migrate to
the use of Open Access published works. Open Access is based on
one-time payments to creators for the works, allowing for
royalty-free redistribution. Creators get paid directly, and
educational budgets are far more manageable than when institutions
rely on legacy educational publishers.
In my opinion, if the
educational sector refuses to explore alternatives to the incumbent
educational publishers and Access Copyright, then we should feel no
sympathy for their claims of budget hardships from their own business
choices. We should not be adding government programs to federal
copyright, and should leave this as an issue to be handled
The site suggest that I join them in
defending Canadian culture & heritage. I must continue to
publicly oppose their policy views in order to do my small part to
defend Canadian culture & heritage,
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