University Of Toronto's Lawyer In Access Copyright Deal Also Advised Access Copyright On Related Legislation

from the the-bad-deal-looks-worse dept

In a recent post about the bad deal that Canadian universities are being asked to sign with the copyright collection society Access Copyright, I asked whether it was wise for the University of Toronto and the AUCC (which represents universities across the country) to work with lawyers who have a long history of arguing to limit fair dealing, when what the schools need most is a strong fair dealing argument. I noted at the time that even though both lawyers—Glen Bloom, who represented the AUCC in the negotiations, and Casey Chisick, who advised U of T—were presumably giving the schools the best advice they could, it seems virtually impossible for someone to effectively argue both sides of a contentious copyright issue like fair dealing. Besides, even assuming good faith and full disclosure, it simply doesn't look good: both Bloom and Chisick have established relationships with clients that have a direct financial interest in limiting the scope of fair dealing, meanwhile critics of the deals they helped the schools strike with Access Copyright say the schools didn't assert their fair dealing rights nearly as much as they could have.

It's already hard to understand why U of T and the AUCC would go along with this—but it gets even more concerning with the addition of a previously unnoticed detail. According to an email I've been provided with, and a disclosure made at a conference, U of T's advisor Casey Chisick was retained at the end of 2010 to advise Access Copyright on copyright reform legislation. It's unclear if and when this ended, and when I contacted Chisick to find out, he replied declining to comment or even to confirm or deny whether the relationship existed. But what's obvious is that Access Copyright's interest in the legislation (bill C-32 in 2010, bill C-11 now), and their submissions to Parliament, revolves around eliminating the new explicit fair dealing provisions for education that are being considered, since that would cripple their entire business model.

One big question here is, will the students accept all of this? Ultimately, they are the ones paying—directly in schools that pass the cost on to them, and indirectly in those that absorb it and have to find the money somewhere else in the budget. On one side they've got law professors inside their own schools loudly and publicly criticizing the deal, saying the universities agreed to ridiculously high rates (which should in fact have gone down from the previous deal) and unfair limitations based on rights that don't even exist; on the other they've got the U of T and the AUCC insisting it's a good deal, while working with lawyers who have histories of representing, advising and lobbying for organizations with a direct interest in stronger copyright and higher licensing fees. Now they learn that U of T's advisor also apparently advised Access Copyright themselves on a related legislative issue that bears heavily on the negotiations (he's also actively registered as a lobbyist for a music collection society, the CMRRA). How exactly are students supposed to react?

Quebec (which has its own copyright clearance system for universities and is not a part of this otherwise country-wide deal) is in its third month of widespread and intense student protests over tuition hikes, which have grown into a serious movement. It's a time of unrest for Canadian education, and not a time to ask students to swallow a bad deal negotiated under so many questionable circumstances. Appearances matter, and nothing about this looks good.

Filed Under: access copyright, aucc, canada, university of toronto

Did One-Sided Legal Advice Lead To The Terrible Copyright Deal For Canadian Universities?

from the it-certainly-doesn't-look-good dept

In the ongoing saga of collection society Access Copyright's negotiations with Canadian universities, one question comes up again and again: why? The Universities of Toronto and Western Ontario, and now the AUCC, which represents schools across the country, have all accepted terrible copyright clearance deals that see fees increasing when they should be going down, and that are full of onerous restrictions and highly questionable rights claims. Multiple observers have pointed out that the universities and the AUCC have an extremely strong fair dealing argument that they could take to the Copyright Board to push for much better terms—but instead they negotiated these lopsided agreements, and the AUCC abandoned its fight at the board. Nothing about these deals seems to be in the best interest of students, educators or schools. So why were they accepted so readily?

There's one glaring problem with the situation that's impossible to ignore, though it has mostly only been mentioned in passing: the lawyers. The AUCC was represented by Glen Bloom, and the University of Toronto was advised by Casey Chisick—both prominent Canadian copyright lawyers with a history of acting for clients who are against generous fair dealing provisions. Both Bloom and Chisick argued for narrow interpretations of fair dealing during a series of important Supreme Court cases last year. Both lawyers have also acted as lobbyists for the entertainment and publishing industries, and Chisick is actively registered as a lobbyist for the Canadian Musical Reproduction Rights Agency. Chisick also expressed his own views on the need for stronger copyright laws two years ago in the Globe & Mail, and this year in the Financial Post.

In short, these are both lawyers who have spent a lot more time working against fair dealing than for it, now acting for clients who badly need a strong fair dealing argument.

This alone is not necessarily so crazy. In law, it's often prudent to get a lawyer who has experience on the other side. Although it may seem like a conflict of interest on the surface, it's probably not a breach of professional ethics. However, even setting aside those questions, the fact remains: U of T and the AUCC, working with these lawyers, failed to assert their fair dealing rights to the degree that many observers think they could and should have. It certainly seems like, for whatever reason, they got bad advice.

Perhaps copyright is not something where lawyers can easily "switch sides". For example, in employment law, firms usually specialize on either the employer or employee side of things, and rarely jump back and forth. If the Access Copyright deals are any indication, copyright may need to be treated the same way: so many of its details (especially fair dealing) are open to interpretation and debate that the philosophical gap between the two sides is huge, and it's difficult if not impossible for a lawyer to effectively argue for both. Moreover, it is a minefield for genuine conflicts of interest: if a lawyer has an ongoing client relationship with a copyright collective, they have a strong incentive not to argue for fair dealing, since any pro-fair-dealing ruling makes their own job harder and reduces their other client's income.

Why did U of T and the AUCC not seek out lawyers who were prepared to make the argument they needed? Why did they accept these terrible deals despite multiple experts telling them they could do better? Why didn't their lawyers tell them that, under the current Supreme Court rulings on fair dealing, they have a powerful argument for lower fees? The whole situation is raising a lot of whys, and students and faculty across the country are starting to want answers. The deadline for universities to indicate their "intention to sign" the AUCC model license has passed was pushed to May 15th, but it's still not clear what that even means, and with resistance to the agreement growing, this deal might not be as done as Access Copyright and the AUCC want it to be.

Filed Under: access copyright, aucc, canada, university of toronto, western university

Access Copyright Wants $45 From Every University Student For Copying & Even Linking To Copyright Works

from the linking? dept

One of the biggest problems we have with various collection societies is that, even if they're put in place for all the best reasons and run by folks with the best of intentions, over time they seem to have an insatiable appetite to grow and expand what they cover and the things they want to demand money for. We've seen it over and over again, with things like ASCAP demanding performance fees for ringtones or SOCAN (in Canada) claiming that 30-second song previews required a separate license (ASCAP tried that too...).

Sometimes these landgrabs reach absolutely ridiculous levels. Take, for example, the Canadian group Access Copyright, which charges students a copyright levy for photocopying documents. Right now, it apparently collects a few dollars per student, plus some per copy fee, that gets distributed to copyright holders. Howard Knopf, who is a member of Access Copyright, is horrified to note that the group is now asking to increase its fees by more than 1,300% to $45 per university student. Even though Knopf would conceivably get more money from this, he notes that this is a really, really bad idea. Not only is it ridiculously high, but Access Copyright wants it to cover some things over which it clearly has no rights whatsoever, including website links to copyrighted material:

Incredibly, the tariff defines a "copy" to include "posting a link or hyperlink to Digital Copy". So, that would presumably include any website with copyrighted material. For example, take this blog -- please! AC apparently expects to be paid whenever a professor posts a link on his or her website to my blog, or Michael Geist's blog or the Globe and Mail or eBay. That is simply absurd.

Merely linking does not create liability.... Linking requires neither permission nor payment. The Copyright Board should not even consider the issue of "linking", because it is not covered by copyright law. This issue is a non-starter and should be eliminated as soon as possible by the Copyright Board before a lot of time and money is wasted on it.

The same for "displaying" a copy on a computer. How, precisely, is one supposed to read anything otherwise? The concept of "display" does not occur in the Copyright Act, other than in connection with dry erase boards.

Knopf also notes that many of the other areas Access Copyright is seeking to use to cover with this exorbitant $45 fee includes areas that are clearly covered by fair dealing exceptions in Canadian copyright law, and for which there should be no fee paid whatsoever. The whole thing is clearly a landgrab for cash, and even though he might technically get bigger payouts from it himself, Knopf recognizes how ridiculous the whole thing is, and is suggesting people file comments expressing their displeasure with the plan. Comments are apparently due by this Wednesday, so if you're a Canadian, hurry up and make your voices heard. Knopf has the details of how to file your comments on his site.

Filed Under: access copyright, canada, copyright
Companies: access copyright