An open letter on Access Copyright and the Canadian copyright emergency

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      By Brian Brett

      As a former Chair of the Writers’ Union of Canada (I've been a member more than thirty years), I have been asked to sign a letter to educational institutions supporting Access Copyright’s efforts to obtain collective licensing agreements with those institutions. I will not sign. I believe the time has come for action, not words. This letter sets out my reasons and breaks the “cone of silence” that has obscured for too long some of the ugly practices of Access Copyright.

      With the recent passing of new copyright legislation that purports to allow educational institutions greater leeway in copying written material without permission or payment to its creators, the highly public refusal of many universities to sign collective licenses to copy material with Canada’s national collective licensing agency, Access Copyright, and the explosion of easy-to-share digital media, the issue of copyright protection has become urgent in the discussions among creators’ organizations, lawyers, universities and the creators themselves: people like me, without whom there would be no copyright to discuss in the first place. We are the creators of Canadian culture and we are being shafted on all fronts. Copyright matters, and the right to be paid fairly also matters. Yet more and more, the work of creators is seen as fair game for anyone to take without payment to its owners. It’s a sad age indeed when our universities think nothing of paying for expensive software and yet insist that Canada’s great – internationally renowned – poets, novelists, and essayists should not be paid for their work.

      In recent decades we have seen the gradual loss of copyright power of authors, especially new authors, to vast media empires. While this loss is now near total among newspaper chains which are demanding rights “throughout the universe” and for eternity, it is also standard procedure, naturally for publishers to bargain for as much copyright as possible, especially when dealing with young, new authors who tend to sign over too much in order to have their first works published. However, many of these are new electronic rights, which don’t revert to the author as standard rights do when a book runs out of print. This means that young authors could be stuck for life with bad contracts for their early, popular books. Coupled with the squeeze on copyright income, and the inability to quote works, today’s writers face a sorry fate. Access Copyright doesn’t even address these issues.

      For the first time in history it has become too complex and expensive to quote the music of our era for many young writers. Writers are being charged exorbitantly for quoting other writers in their poems, fictions, and essays; yet are losing their own rights and income. Meanwhile, the Canadian Government has made legislation favouring educational institutions and media empires (at the expense of creators) in the name of supporting our nation’s culture.

      As we earnestly discuss these issues, but do nothing to protect ourselves, we are seeing the rights of creators to fair compensation eroded to the point of where many are at risk of receiving nothing for their work.

      Access Copyright, created specifically to collect fair compensation for creators, is central to this discussion. While I believe that educational institutions must pay writers, and will eventually pay them, it’s also necessary to call out the ugly regime of Access Copyright, which is collecting our copyright income. Below are some of Access Copyright’s activities that have increasingly concerned creators over the last few years.

      1. After its expenses (which are high - spending approximately $10 million to collect $23.5 million in distributable income), there is $23.5 million in money for copyright distribution. Over $6 million dollars go to foreign copyright organizations. Very little, if anything, is paid back for usage of Canadian copyright material by these organizations.

      2. Access Copyright only acquires this $23.5 million by claiming to represent creators and publishers, and that paying them means supporting creators. Access Copyright then pays more than $13 million to publishers. It only pays $4.2 million to actual creators. Their remaining income, is supposed to be distributed by the publishers to their authors, according to how the publishers read their contracts. There is no evidence of this payment occurring since Access Copyright refuses to allow an independent auditing of this income. Effectively, this money has been ‘disappeared.’

      3. Access Copyright refuses to distribute, through its “Payback” program, to creators, income from works older than twenty years, yet it continues to collect that income in their name.

      4. Access Copyright continues to pay publishers the income for works whose rights have reverted totally to the authors.

      5. According to current legislation Access Copyright is now allowed to give an indemnity to educational institutions that are sued by writers not affiliated with Access Copyright, covering their legal expenses if an independent writer should sue them. However, the writer will not be able to charge what they believe their work is worth. They will be restricted to the paltry amount that Access Copyright is currently paying to writers. This means that AC arbitrarily decides for independent authors the value of their work.

      6. Access Copyright rewards textbook companies who demand that authors relinquish their copyright to their work by paying them both the publisher and creator copyright payment. Academic authors often consider textbook authorship crucial to tenure. Thus academic authors are open to being pressured by publishers out of their copyright. In effect Access Copyright is encouraging textbook publishers to undermine copyright by demanding a creators’ total copyright, and doubling the publisher’s payment for this ugly practice.

      7. Access Copyright, rather than paying out unassigned money to creators as a reward for affiliation, has created a grant foundation that makes awards to a very few writers with funds collected in everyone’s name. Why are the earnings of all writers being converted into grants to a few without our permission?

      8. While publishers clearly profit from the current situation, it is actually not their fault. The problem is structural within Access Copyright -- its constitution and the make-up of its board, and the anti-creator policies it has chosen to adopt over the years.

      Like many other writers, I have spent decades fighting for author’s rights and I can only view the copyright situation today with dismay. We've lost the fight against the federal government's new Copyright Act. Multinational corporations like Google are running over copyright like out-of-control trains. Educational institutions refuse to pay for our work, and seem to prefer the route of eventual expensive lawsuits for expropriation without compensation

      However, we can fight to make Access Copyright -- created by writers and publishers -- do what it was always meant to do -- protect our copyright and distribute to us the income we deserve from that copyright. As things stand, I can no longer advocate for Access Copyright. It is time instead for a class action lawsuit by writers against Access Copyright, which has been collecting our money in our names and yet failing to deliver that income equitably and transparently.

      While I might not live to see fair copyright in my lifetime I can only strive to achieve that for the writers and artists who follow me.

      Brian Brett is the author of eleven books of fiction, poetry, and memoir, as well as a journalist for nearly forty years. He is a winner of the CBC Poetry Prize. His latest book, Trauma Farm, won the Writers’ Trust Award for best book of non-fiction in Canada, the bookseller’s choice award, and numerous other prizes. He is an adjunct instructor of Creative Writing at UBC and a former chair of the Writers’ Union of Canada.



      Gentleman Jack

      Jun 27, 2012 at 7:22am

      help, help!

      I am addicted to wages made possible by a statute! Kids, this is a tax collector shamelessly telling you that if we stop paying our taxes, he won't have a job.

      Donald Forsdyke

      Jun 27, 2012 at 8:27am

      Two points to add to Brian Brett's excellent commentary on copyright. First, it is not just young authors who are obliged to hand over copyright to the publisher. Whoever the author, many of the publishers of scientific papers demand copyright as a condition of publication, yet it is the creators who are meant to be compensated through Access Copyright. Second, universities and other educational institutions, have much to gain from a good Access Copyright charter apart from freedom to reproduce materials. Many of their staff are themselves authors. I have authored four books and many scientific papers (see, and have already begun to receive Access Copyright "pay back" funds.

      Biting the hand...

      Jun 27, 2012 at 10:20am

      The author makes some valid points about the lack of transparency and fairness in Access Copyright's distribution scheme. On the other hand (i.e. the one that feeds him), his contention that "educational institutions refuse to pay for our work" is hyperbolic fantasy. In 2010-11, BC post-secondary libraries spent nearly $43 million on published works in one form or another (and, unlike Access Copyright, libraries make this information public - Universities that choose not to sign Access Copyright's model agreement are doing so for a variety of reasons, none of which has to do with a belief that Canadian writers "should not be paid for their work." Writers who feel they are getting a bum deal should take their complaints to their publishers, not to the universities that support and promote them.

      Bill Harnum

      Jun 28, 2012 at 6:41am

      i was in graduate school in the 1970s, in the good old days before Access Copyright. Out of my five professors, one made sure that the material he handed out in class was copyright protected, the other four simply didn't bother, because it was too hard to clear copyright from individual publishers. Access was founded to make this process easy for universities. The universities who have not signed on with Access are simply seeking for a return to the great old days when breaking copyright was the accepted practice.
      In the words of that great Mark Knofler song "Money for nothin', and my texts for free".
      Fair disclosure: I sit on the board of Access.

      Bill Harnum

      John Degen

      Jun 28, 2012 at 7:26am

      In Senate testimony this past Tuesday, UBC educator and current Chair of The Writers Union, Merilyn Simonds, sat next to Access Copyright's chief counsel and supported the copyright collective's testimony on Bill C-11. She also noted that while UBC may claim to be careful in licensing work outside of Access Copyright, the in-the-classroom use of photocopied coursepacks has not changed, and as a result Canadian writers are NOT being compensated for their work included in those coursepacks, which is, I think we can all agree, a shameful situation.

      A very small group of writers have long disagreed with Access Copyright's distribution splits. Mr. Brett belongs to that group. His opinions are NOT shared by the vast majority of Access Copyright affiliates, including 14 other past-chairs of the Writers Union (Margaret Atwood is on that list) who did sign the letter Mr. Bertt rejected. You can see that letter here:

      I agree with Mr. Brett that academic writers should not give up their copyright to publishers with such little regard for future royalties, but that is a negotiation between writer and publisher. It is not something a collecting society can retroactively impose on a legal contract.

      Kevin Schut

      Jun 29, 2012 at 9:13am

      The concept of Access Copyright is not terrible, but its practice is. It doesn't really serve either educators or writers. So I agree with much of what Mr. Brett is saying.

      However, as the commenter noted above, it is simply incorrect to say that educators do not want to pay for the content they use. Universities (and primary and secondary educators) spend millions each year on content. They simply don't want to pay for increasingly useless services of Access Copyright.

      In addition, the new copyright law does not give educators the right to wholesale copying of entire books. Fair dealing allows for reasonable excerpts. You can't complain about writers getting shafted for paying for excerpts and then expect educators to do the same thing.

      The original concept of copyright was a limited period of control of a work to commercially exploit it *in order to serve society*. It was never intended to be (and never has been) a law that made anyone pay any time anyone ever used a writer's or photographer's or game-maker's work. There have *always* been exceptions to copyright for socially sanctioned purposes, and in many countries (including the frequently pro-business U.S.) educational use gets some fairly broad user rights. Our country is simply getting in line with others. If education is not a social benefit for Canada, I don't know what is.

      Writing is definitely a tough line of work. Most writers simply aren't going to make a living off of their work, and that sucks. But the root cause of that situation is not the education sector, which already pumps millions into content creation of all kinds. If educators were asking for a license to copy whatever they wanted, whenever and wherever without paying a dime, I could see the complaint as warranted. But that's not what's being asked.

      Nicholas Jones

      Jul 3, 2012 at 3:29pm

      I am a teacher at a college and I find many of Mr. Brett's comments insulting.

      I do not engage in nor encourage copyright infringement. Neither do my colleagues. We are actually quite careful about this. We dutifully paid the Access Copyright fees in the past. When our organization decided not to sign on with the new fee schedule, we removed any copyrighted material from our courses and course packs.

      We believe in payment where appropriate. Our organization pays large sums of money to ensure that we are in line with copyright laws.

      Some educators may copy materials at will, but most educators and educational institutions do not. You really need to get your facts straight.