Knopf Copyright Collectivity in The Canadian Academic Community An Alternative To The Status Quo PDF

Copyright Collectivity in the Canadian Academic Community: An..., 14 I.P.J.
109
14 I.P.J. 109
Intellectual Property Journal

1999-2000
Article
Copyright Collectivity in the Canadian Academic Community: An Alternative to the Status Quo?
Howard P. Knopf1
Copyright (c) 1999 by Howard P. Knopf
In this article, the author makes a number of pointed criticisms of the activities and operations of CanCopy, which is the sole
copyright collective to represent English-language publishers and authors in Canada. The author notes that professors,
graduate students and others, who create large numbers of the publications used in colleges and universities, receive little in
the way of compensation from CanCopy. To remedy the situation, it is suggested that academics in English Canada should
take steps toward establishing a second reprography collective to compete with CanCopy.
*110 CONTENTS
1. 110
INTRODUCTION
2. 112
BACKGROUND
3. 115
THE 1988 COPYRIGHT AMENDMENTS
4. 115
THE 1997 BILL C-32 AMENDMENTS
5. 117
THE SUCCESSFUL POLITICS OF COLLECTIVE MOVEMENT
6. 119
THE ESSENCE OF THE BARGAIN WITH CANCOPY
7. 120
LEGAL QUESTIONS CONCERNING THE CANCOPY SCHEME
8. 122
LEGAL CHALLENGES TO CANCOPY
9. 123
ESTABLISHING A COMPETING COLLECTIVE
(a) The Option 124
(b) Analysis 125
(c) A New Collective? 127
(d) Can Two Collectives Co-Exist? 129
(e) Form of New Collective 130
10. 130
CANADIAN NON-COPYRIGHT PRECEDENTS
11. 130
FINANCING OF A NEW COLLECTIVE
12. 131
ADMINISTRATION, FACULTY CENTRED OR INDEPENDENT COLLECTIVE?
13. 131
CASH FLOWS
14. 132
CONCLUSION
15. 132
APPENDIX I
(a) The “Outsider” Problem 132
(b) Bill C-32 and the Outsider Problem 137
1. INTRODUCTION
Few Canadian academics expect, or actually ever receive, any remuneration for the photocopying of their scholarly works.
However, quite apart from all of the money spent at the post secondary level by institutions, faculty and students in Canada
for text books, journals, databases, library acquisitions, subscriptions, computer software and the countless other products
that embody intellectual property, the Canadian post secondary system in English Canada alone is currently paying about
$5.5 million a year to a small but rich organization *111 in Toronto named CanCopy2 that does an extremely effective job of
representing publishers and influencing the copyright laws of Canada. This is supposedly in consideration of the right to
Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 1
Copyright Collectivity in the Canadian Academic Community: An..., 14 I.P.J. 109
photocopy works that academics and other scholarly writers have written, often while they have been earning salaries and
often getting SSHRC or NSERC or MRC or Canada Council grants by way of supplement. At the per student FTE level, this
is not a lot of money. Maybe about $10 a year, or even less, depending on the institution and some other variables. Most
university students can easily spend this in beer money at one lunch. The real issue is what is happening to your intellectual
property, as well as your ability and that of your students to generate new intellectual property by having efficient access to
and building upon older intellectual property. And we are also talking about today’s costs. CanCopy is growing at the annual
rate of at least 30 per cent. Today’s beer money will be tomorrow’s sustenance.
Another organization called the ERCC (Educational Rights Collective of Canada), in association with Can Copy have also
recently filed a new tariff before the Copyright Board that seeks $5.00 per student in a post secondary institution in respect of
off-air taping. This will amount to a charge of at least $7,500,000 on its face in the community college system alone based
upon a total enrolment in the college system of 1,550,000. 3 In the university system, the figures may be even higher,
depending on the number of part time enrollees who count for the same as FTEs under the proposed tariff.
The recent revisions to the Copyright Act are intended to effectively force universities and colleges to belong to a collective,
but there is no requirements that such a collective must be CanCopy.
Make no mistake: CanCopy is in many respects a worthy organization. They have been brilliantly successful as lobbyists,
partly because *112 of their own abilities and partly because of the failure of their adversaries to match these abilities.
CanCopy has a single-minded purpose to its existence. CanCopy’s adversaries sometimes see themselves as caught up in a
mix of subtly interplaying agendas, the subtlety of which is so great that it seems to elude anyone’s attention, much less
understanding and agreement. CanCopy’s strategy has been brilliant, even if some may not be fond of it. They are hugely
successful, in objective terms, much more so than their counterpart organization in the U.S.A. 4 Therefore, in looking at
alternatives to the current CanCopy regime, the question must be addressed as to whether the academic community should
start their own collective.
It seems more than worthwhile to consider the idea of a copyright collective of academics, for academics and by academics.
This may be sound presumptuous. Or, it may be an idea that is ripe for pursuit. Or, it may be a utopian exercise in tilting at
neo-conservative windmills in the age of Bill Gates and the ever merging and contracting circle of information age
oligopolies and outright monopolies. Or, it may be a nonstarter because of the unique and frankly sometimes incestuous
culture of bureaucracy and politics that affects the Canadian post secondary educational and research system.
2. BACKGROUND
The photocopier, and more lately the personal computer, have resulted in an extraordinary change in post secondary
education. The XeroxTM machine, which achieved widespread proliferation in the 1960s, led to two major developments on
campuses.
The first was that students and professors could copy extensively from books and periodicals for the purpose of their own
research. In practice, the only limitations on such copying were the limited number of installed self-service machines, and the
limited number of nickels, dimes and a quarters that one could afford or carry in one’s pockets.
*113 The second was that in the 1970s to the 90s, high-speed and high-capacity photocopiers, Docutext, and now PC based
desktop publishing technology became so accessible and inexpensive that is now easy for individual faculties and other units
of post secondary institutions to get into “publishing” activity by creating and reproducing custom designed course packs and
packages that are distributed free or at low-cost to the students of the professors who assemble them, usually with the goal of
providing useful excerpts of a broad range of current materials to students who could not possibly afford to buy or be able to
efficiently borrow or access all the sources from which the materials were copied.
It was not long until publishers began to realize that the billions of copies being made each year could generate very
substantial revenues, even at the seemingly innocuous rate of only to 2 to 5 cents per page, and even if only a small amount
of the copying resulted in a collection. Moreover, publishers worried that the widespread use of photocopiers for both
research and “course packs” might be displacing sales that could have otherwise taken place.5
The main problem faced by publishers in collecting revenue from this activity was that it was not economical to do so
without a collective mechanism in place. The laws of many countries, including Canada, were seen to present serious barriers
(even if more perceived than real) to the establishment of such collectives. Until 1988 with the coming into force of Canada’s
Bill C- 60 “Phase I” copyright revisions on June 8, 1988, only collectives in the musical performing rights field enjoyed any
reliable degree of immunity from competition laws. On their face, a collective of authors and/or publishers whose purpose
was to set rates for photocopying of material owned or controlled by their members and collecting the resulting proceeds
raised serious competition law issues at the time. Moreover, any individual non-commercial defendant would never be liable
under the old laws to damages of more than a few dollars, since damages were basically limited to lost profits, or maybe even
the value of the copied book itself. This would never have justified a lawsuit, even of costs could have been recovered (which
was certainly possible).
The Canadian musical performing rights collectives, which came into being as result of the monumental Parker commission
report of *114 1935, have enjoyed a special and sanctioned regime under Canada’s copyright laws since 1938. Their
privileged immunity from prosecution for criminal conspiracy came at the cost of the regular oversight by the Copyright
Appeal Board as it was known until 1988, and currently, the Copyright Board.
The call for changes to copyright legislation to benefit print book and journal publishers began in the late 1960s and early
1970s. A now somewhat quaint but surprisingly prescient article from 1970 written by an early pioneer in the Canadian
Reprography collective field calls for the following steps to be taken in Canada:
We, therefore, start with the following propositions which would be applicable to any new legislation:
1. A new copying right could be created by statute. This right should be capable of being separately
assigned just as the performing right can be assigned to a royalty collecting agency.
2. There should be no requirement for prior authorization by the copyright owner for copying, but the
user should be required to pay for such reproduction at a set rate of, say, two cents per page.
3. Libraries, schools, research and other institutions wishing to copy copyrighted materials should be
licensed to do so.
4. A central clearing house should be established and operated by a joint board of authors, publishers
and librarians. This agency would collect and distribute copying royalties.
5. It may not be necessary to limit the number of pages of a work that might be copied by a licensed
copier although it might be advisable to limit the total number of copies made at one time.
6. Photographs, works of art, prints, maps, music and dramatic works should be excluded from these
copying provisions.
7. The reproduction for personal use of minor extracts should still be subject to the principle of “fair
dealing”, but the fair dealing principle should be clearly embodied in the relevant copyright statute in
wording that would make these limits clear.
8. It should be made an offence for anyone to have in his possession photocopies of a copyrighted work
each page of which had not been properly authenticated by the stamp of a licensed copier. It should also
be made an offence for an unlicensed copier to supply copies of a copyrighted work to any person, or for
a licensed copier to supply copies without properly stamping such copies and collecting the appropriate
royalties.
9. Consideration might be given to the desirability of providing royalty stamps to be affixed to copies
made by unlicensed copiers copying for their own use beyond the defined limits of fair dealing for private
study.
*115 10. All copying machines should be required by law to have a notice affixed and clearly visible
explaining that it is unlawful to have in one’s possession photocopies of a copyrighted work not
authenticated by the stamp of a licensed copier or which have not affixed to them the necessary royalty
stamps.
11. The Copyright office should assume responsibility for the administration of ISBN in Canada.6
With the exception of the recommendations referring to the quaint stamp regime idea (which recalls the 1765 Stamp Tax
imposed by England that helped lead to the American Revolution) and the government administration of the ISBN system,
this scheme has largely been adopted.
The organization most closely associated with the collective administration fox reprographic copying in Canada is, of course,
CanCopy. Or, as Harry Arthurs (former President of York University) calls it, “Can’t Copy”. In typical Canadian fashion,
there is a Quebec counterpart called COPIBEC.
3. THE 1988 COPYRIGHT AMENDMENTS
Almost immediately following the entry into force of the Phase I copyright amendments on June 8, 1988, the corporate
predecessor to CanCopy came into being. Its income in 1989 was $27,000, with expenses of $169,000 and just one employee.
In its most recent audited statements, CanCopy disclosed annual revenues of and more than $18 million with a staff of 35. Its
annual growth rate has been virtually exponential and has been as much as 50 per cent per annum, usually at least 30 to 40
per cent.
The main impact of Bill C-60 was simply to remove the possibility of prosecution under the Competition Act for behaviour
as an illegal conspiracy. However, the real breakthrough for CanCopy came to us in Bill C- 32, which was passed in April of
1997 as virtually the last item of business before the election held in that year.
4. THE 1997 BILL C-32 AMENDMENTS
Bill C- 32 made several changes that were particularly beneficial to CanCopy. In fact, many these changes were, in effect,
drafted by CanCopy or with CanCopy in mind, and reflect an extraordinarily *116 successful effort at lobbying and
regulatory capture of a very willing and uncritical bureaucracy. These changes include the following:
● establishment of a number of extremely narrow fair dealing exceptions (such as of the right to manually make copies on a
dry erase board), which were doubtless intended to have the effect of excluding, by virtue of expressio unius exclusio
alterius, any hope of a broader American style “fair use” regime. The failure of the establishment academic community as
represented by AUCC to achieve, much less to even demand, the more liberal American system of open ended, evolving and
technology neutral “fair use” was a serious and perplexing disappointment to those who watched Bill C-32 and who
understood the consequences of what was unfolding.
● establishment of minimum statutory damages ranging from $500 to $20,000 for infringement of copyright in each work
● establishment of a new concept of a “wide injunction” proceeding that may be brought by a party, even without a direct
interest in the copyright in question or when this work is not yet in existence.
● establishment of the new and probably unique, by international standards, concept of “commercially available”, which
includes situations where the work is available through a collective and will have the effect of taking away certain fair
dealing exceptions where a collective is in operation for the type of license in issue.
● elimination of the common-law exception for liability for contributory infringement in connection with freestanding
photocopying machines in cases where a collective is in operation
● severe curtailment of parallel importation of used textbooks
● partial establishment of the Nordic socialist concept of “extended licenses”, whereby virtually all authors are forced to join
the prevailing collective.
Most critically, the new law makes certain key exceptions and safeguards conditional upon a university or college belonging
to a collective. Most notably, these include exceptions for liability for activity at free standing copiers, and limited immunity
from the potential harshness of statutory damages (normal minimum of $500 per work infringed). This supposed advance for
educators — actually it detracts *117 from the common law7 — is only available for universities and colleges that belong to a
collective.
However, nothing in the law indicates that any university must utilize CanCopy as its collective for these purposes. There is
no impediment to dealing; with another collective to take advantage of these provisions, limited as they may be. The only
impediment is that there does not yet exist another collective with which to deal.
In essence, a collective is defined simply as an organization that carries on the business of collecting and distributing
royalties and levies, or represents two or more copyright owners. Thus, it would be easy in principle to set up a new
collective that meets the statutory definition. I will return to this concept in due course.
In terms of the very limited “good news” for the academic community in Bill C-32, there were some relatively minor
concessions on the issue of inter-library loan practices, which are of very limited utility in any event and are already obsolete
given the rapid technological shift to digital media.
5. THE SUCCESSFUL POLITICS OF COLLECTIVE MOVEMENT
CanCopy has been extremely adept not only at lobbying both at the federal and provincial level, but at securing lucrative
licensing agreements at both levels of government. Indeed, this was crucial to their initial business plan. While these
agreements have been relatively small items in the government scheme of things, typically negotiated at the middle
management level by bureaucrats apparently eager to deal with CanCopy, they have been extremely lucrative to CanCopy
and basically provided them with early cash flow of several million dollars per year. The first agreement with the Federal
Government, for example, was worth about $13,000,000. This has enabled CanCopy to undertake the very aggressive
lobbying and litigation campaign that has the led to its spectacular growth and success.
In fact, CanCopy has received very little effective opposition from any of its major “clients”. The closest event to a contested
confrontation occurred in 1996 when CanCopy sought to raise its per page licenses on its expiring licensees from 3.5 to 5
cents a page, a more than 40 per cent increase. Rather than avail themselves of the right to a hearing before the Copyright
Board, the AUCC basically agreed to the increase. *118 Would CanCopy have actually gone to court when the previous
licenses with the Canadian universities expired and tried to obtain an injunction? Injunctions are not normally given when
money will redress the problem and the balance of convenience favours the defendant. Could CanCopy have shut down the
photocopiers in Canadian universities as the fall term was about to commence? Could they have achieved significant
damages awards under the law at the time? We shall never know because the matter was settled.
While CanCopy appears to be in an adversarial relationship with many of the institutions they license, it is interesting that
CanCopy and some of the organizations that represent these licensees have been getting advice from the same sources in
certain instances. Moreover, the AUCC (which represents University management) has been negotiating in respect of rights
that are probably owned by professors, and not university entities (such as presses), given the general thrust of collective
agreement and practices in Canada. It is ironic that CAUT 8 has allowed this to proceed as far as it has.
The strength of CanCopy has been its offer of a generally irresistible package to academic, library, and financial
administrators that purports to provid a broad-based blanket license for most of the photo-copying activities that occurs inside
the institution, along with ostensibly cost-saving measures in terms of internal personnel and resource requirements.
Moreover, given the current combination of awe, fear, and awareness, but often ignorance, as to important “details” such as
case law in respect of intellectual property, most university and other post-secondary officials have been quite eager to
comply with CanCopy’s demands, and have simply passed the costs along to the students and taxpayers. A fortiori for
governments.
There is a culture in academia and the library community that is very averse to risk, and seems determined to avoid certain
types of litigation at any cost. This has been well documented by an American law professor named Kenneth Crews.9
In fact, the one instance of which I am aware of, a reported copyright judgment against a university in Canada was at the suit
of student, not a Publisher or CanCopy.10 It involved the University of *119 Ottawa. This is not without irony because the
University of Ottawa was also implicated in a very notorious and messy criminal action involving copyright law, where
CanCopy and collectives generally suffered a serious embarrassment and setback in the courts.11
Nevertheless, prior to the enactment of Bill C-32 and even now, there were many good reasons why some institutions or
organizations may have chosen or may not need take licenses from CanCopy. Although the risk calculus has changed
somewhat since Bill C32, and will change even more with the imminent proclamation of the statutory damages regime, there
are still certain fundamental questions as to CanCopy’s entitlement to demand blanket licences from post secondary and other
user institutions. There are also still questions why the AUCC, CLA, and the other bastions of the post secondary
establishment, are so eager to endorse these licenses. There are alternatives.
Before we look at alternatives, let us examine the strengths and weaknesses of the CanCopy regime.
6. THE ESSENCE OF THE BARGAIN WITH CANCOPY
In the University situation, the license basically has the following features:
1. The University pays a “Part A” license fee of $2.50 per annum per FTE. This ostensibly permits “for free” distribution of
materials in the class room, subject to certain severe limits. This material need not be accounted for in terms of record
keeping. Of course, this raises interesting questions as to how the money can be property distributed.
2. The Universities and CanCopy agree to disagree on what is meant by fair dealing. This probably means that, in the end, the
Universities are paying for reproduction that they need not pay for because anything that is copied and falls within the
meaning of fair dealing is simply legal and ought not generate any compensation. CanCopy, of course, sees it the other way
around and is forever threatening to raise the “Part A” rates to compensate for what they see as abuse of their generosity in
allowing the “free” copying under “Part A”.
*120 3. The University pays an additional amount of “Part B” licensing revenue of $0.05 per page (with escalation
provisions) for material that is sold to students and others, i.e. course packs. Record keeping is required for this material, in
order that supposedly accurate distribution can be made to the copyright owner.
4. If the University and College administrators do not enquire too deeply as to the issues behind the questionable indemnity
scheme and the lack of chain of title (see below), they are getting a relatively worry free, though not bureaucracy free,
situation.
5. Most institutions do require substantial resources to keep track of the records required to comply with CanCopy
agreements. Moreover, there has been a noticeable increase in inefficiency in some circumstances, as copying becomes more
centralized in order to fit into the institution’s compliance model. This can increase turnaround time as well as costs.
7. LEGAL QUESTIONS CONCERNING THE CANCOPY SCHEME
There are some interesting questions that can be asked about the CanCopy regime arising from the fact that it does not have
an adequate legal chain of title for much, if not most, of the “repertoire” used by Canadian universities, and the scheme is
based upon a legally questionable indemnification scheme. This is what is sometimes called the outsider” problem, which
includes how to deal with the repertoire of those who have not joined the collective. It is in the ultimate interest of both the
collective and the user to solve this problem.
By CanCopy’s own admission, according to current figures, they have only 3,698 Canadian creator members. Whoever these
members may be, they are clearly only a small fraction of the number of professors in the post secondary system and other
scholarly or academic authors (of which practising lawyers are a prolific example).
Also, by CanCopy’s own claims, they have a “repertoire” of only 1.7 million works to which they have any claim to a chain
of title. Given the global “repertoire” of books and periodicals that exists and for which access is needed by serious scholars
and teachers, this is probably a fairly small portion.
The analysis in Appendix I of this paper is taken from a brief I filed in 1996 with the House of Commons Heritage
Committee on behalf of Algonquin College in respect of the hearings on Bill C-32. *121 Unfortunately, the Heritage
Committee repeatedly refused to permit the presentation or public debate of this brief, which was far more critical of
CanCopy than anything filed by AUCC or CAUT.
I have attached the lengthy quote from the 1996 brief because these underlying problems still remain. It is still worth
questioning whether taxpayer’s and student’s dollars should be spent without question on a scheme that is so inherently
structurally problematic.
At least if the money were finding its way back to creators — even if they do not belong to CanCopy — the scheme would
seem more justifiable. However, CanCopy has an ever increasing “Undistributed Royalty” account that stood at over $18
million at the end of its last fiscal year. The interest on this is almost $1 million a year, even at today’s low interest rates.
Even CanCopy is having trouble figuring out how to distribute this money, much less attribute it to its rightful owners.
Other legally questionable problematic areas of CanCopy’s scheme of operation are these:
• CanCopy itself is arguably engaging in copyright infringement by way of “authorization” contrary to s. 3 of the Copyright
Act, which makes one who authorizes infringement just a guilty as one who does it. CanCopy explicitly, by way of its
promotional literature and its model agreement, authorizes licensees to copy “published works”, except those few on the
exclusion list, where CanCopy admits that it has no authority to do so. 12 Authorization means, essentially, to sanction,
countenance, and encourage others to infringe copyright. 13
• CanCopy is offering to indemnify institutions against copyright infringement actions brought by third parties, if the
institution copies such parties’ repertoire without authorisation. Indemnification for illegal acts has always been problematic
at common law. For example, it was the case at common law that contracts of *122 indemnification with respect to libel were
unenforceable. However, because of the plain need for public policy grounds to Provide for a regime whereby responsible
publishers can obtain libel insurance, modern statutes override this common law bar. 14 There is no statutory override in this
instance. If it is correct that the CanCopy’s agreement inevitably involves the committing of an offence 15 or other serious
illegality, then it is illegal and void.16 Among other possible consequences, it is simply not enforceable by either party.17
• The Insurance Act18 of Ontario and similar legislation in other provinces requires that anyone who sells insurance or
operates an insurance undertaking should be licensed. It is at least arguable that the indemnity scheme offered by CanCopy in
its AUCC model agreement and elsewhere is an insurance scheme. CanCopy is offering to pay for damages sustained due to
an unforeseen event at the suit of at third party. The last I checked, CanCopy was not licensed under the Insurance Act of
Ontario.
Given this background, the question then arises whether there are any alternatives to the current CanCopy regime.
8. LEGAL CHALLENGES TO CANCOPY
CanCopy’s licensing practices and the amounts that it charges could be contested before the Copyright Board or the courts or
both.
Under s. 70.2(1) of the Copyright Act:
Application to fix amount of royalty, etc.
70.2 (1) Where a collective society and any person not otherwise authorized to do an act mentioned in
section 3, 15, 18 or 21, as the case may be, in respect of the works, sound recordings or communication
signals included in the collective society’s repertoire are unable to agree on the royalties to be paid for
the right to do the act or on their related terms and conditions, either of them or a representative of
either may, after giving notice to the other, apply to the Board to fix the royalties and their related terms
and conditions.
*123 Furthermore, the filed tariff in the off-air taping matter could be opposed.
Unfortunately, the Copyright Board has become a forum where only very well funded users can fully participate. Recent
inaugural tariffs applications have become highly adversarial and more intrusive, litigious and expensive than even “normal”
civil litigation. Unless the recently appointed judicial Chairman and new members are able to reverse the trend of the recent
few years, the Copyright Board will soon become one of the most expensive fora in which a Canadian citizen or taxpayer can
participate. This could have been avoided by legislation or even regulations in many cases. However, the Ministers
responsible have chosen to leave much in the way of law making, as well as rate setting, to the Copyright Board, while at the
same time providing it with little in the way of resources. This, of course, favours established or incumbent collectives —
even if they need to borrow money for the cost of mounting the hearing and starting the collective.
Moreover, almost every major Copyright Board matter seems inevitably to involve judicial review in the Federal Court. In
part this is because a long line of cases have held that the Copyright Board has little if any adjudicative function to rule on the
law, except to the minimum extent necessary to deal with the narrow matter before it.
The opportunity to litigate by way of counterclaim or pre-emptive claim could also arise for a number of reasons in some
scenarios if CanCopy were to attempt to force a license on an unwilling user who preferred to risk being sued for
infringement and could raise valid defences as an alternative to proceeding before the Copyright Board. Such defences could
be as simple, in some cases, as the fact that certain institutions may be able to clear all of their copyright needs directly
without the assistance of CanCopy, or with their involvement only on a limited transactional basis.
These matters involve very complex factual and strategic determinations and no general principles should be taken from the
foregoing, other than that there may be options in particular cases. Qualified, expert, and independent counsel should be
consulted in all cases.
9. ESTABLISHING A COMPETING COLLECTIVE
There are 30,000+ university professors in Canada. Many are prolific authors of material that is used by other professors and
students for research, and excerpts of which are sometimes incorporated into *124 course packs. Copyright license fees for
this material are now being collected by CanCopy, an organization founded and dominated by publishers. CanCopy’s income
for 1997-1998 was more than $18 million of which $5.5 million came from universities and colleges. These figures are rising
at an average annual rate of about 30 per cent.
Very little of this money appears to find its way back to professor/ authors. Few such authors are believed to earn more than
$75 to $100 a Year from reprography royalties from CanCopy. At the close of the 1997-1998 financial year, CanCopy had
more than $18 million in undistributed royalties, and no apparently adequate systematic way of determining to whom this
money belongs.
(a) The Option
There is significant interest in establishing a second reprography collective in English Canada. There is probably enough
potential revenue in the system to sustain such a collective. The existence of such a collective would result in more
competition, efficiency and less arrogant behaviour on the part of the existing collective. Some significant portion of the
revenues could be used for socially and academically useful purposes.
However, there will be significant costs and risks in establishing such a collective. Not the least of these risks is that
CanCopy, like any good monopolist, will likely attempt or offer to “meet or beat” any terms that the new collective may offer
and thereby prevent it from getting off the ground. From an economic standpoint, this may be a short term satisfactory result
in the mind of some, but the benefit would be transient. In any case, the start up costs still need to be paid for.
Some organization will need to become more actively engaged in the copyright arena in order that this and other
philosophically and politically related policy initiatives achieve sufficient credibility and resources. Although both AUCC
and CAUT have shown some interest in this issue in the past, neither organization seems willing at present to take the
responsibility, devote the resources, or risk the political consequences of proceeding unilaterally on such a possibility. It
would seem that the CAUT potentially has the will but not the way, while the AUCC potentially has the way but not the will.
In the short term, this exercise could cost users more money and is not without legal or political risks. However, in the long
run, it may be viable and could bring much more efficiency and academic integrity to the campuses of Canada.
*125 (b) Analysis
CanCopy is very unpopular in certain academic circles because of the “copyright chill” that has been introduced onto
campuses, the perceived inefficiency and problematic legal basis of their operation, the new photocopying bureaucracies on
campuses, and the fact that institutions are being forced, in effect, to pay for the use of material in their own classrooms,
when it has already been paid for at least once by the taxpayers. 19
The resulting payments are not necessarily going to any apparent good or logical use or distribution. In fact, CanCopy’s
“repertoire reward” scheme set up a “repertoire fund” and purports to allocate funds that arise from sources where
insufficient bibliographic information is available to creators in equal shares who have signed up before years’ end, and to the
publishers, notwithstanding that the creator’s work does not show up in sampling or other tracking methods. This suggests an
effort to sign up creators and to reward signers with the royalties of those who have not signed. This begs the question of fair
distribution amongst deserving creators, and suggests the misuse of funds that might rightfully belong to those who have not,
for whatever reason, signed with CanCopy.
Interestingly, CanCopy distributes 100% of the collections from scholarly periodicals to publishers on the assumption that the
relevant rights are always assigned to the publisher.20 This, of course, may be the desired norm as far as publishers are
concerned, but it is not always the case.
There are numerous other examples of controversial or legally problematic practices by CanCopy. As earlier indicated,
CanCopy’s basic premise entails the licensing and indemnity for the use of repertoire in which it often has no rights. This
may raise issues under insurance legislation and clearly raises questions in terms of their legal capacity to offer such licenses
and to enforce them. The fact that universities have chosen to participate in this questionable scheme of convenience does not
render it any the less problematic.
*126 CanCopy sometimes sends gratuitous cheques of a few hundred dollars to small associations and professional
organizations with apparently no strings attached in consideration of past copying of their repertoire. However, there is
implicitly if not explicitly a suggestion that the organization also become formally affiliated with CanCopy and obtain a
license from CanCopy at a cost that would normally greatly exceed the proffered revenues.
CanCopy has also used the advocacy tool of disseminating a legal opinion from a prominent lawyer concerning making
photocopies of periodical articles and book excerpts by business and commercial firms in Canada. This opinion would strike
most readers as favourable to CanCopy’s apparently very narrow view of the allowable ambit of fair dealing in Canada,
namely that the copying of an entire article or a book chapter can never be fair dealing, at least in business or commercial
firms. The opinion deals with very complex questions of Canadian and American law in less than two pages. Suffice it to say
that not all copyright experts would agree with its conclusions.
Interestingly, those who believe that fair dealing can never encompass the whole of a work should note the thorough analysis
of Canadian and Commonwealth law by Glenn Bloom21 in 1994.22 He concludes that the reproduction of an entire work
under Canadian law as it then was “may in certain circumstances be within the scope of fair dealing”.23 He also specifically
concluded that:
By applying these factors and observations to the copying by a student of an entire periodical of a
scientific and technical nature for the purposes of the student’s private study, it is readily apparent that
fair dealing excepts the copy from copyright infringement.24
To the best of my knowledge, CanCopy does not circulate Mr. Bloom’s analysis.
In any event, careful note should be taken of a Canadian appellate decision subsequent to both of these analyses. In Allen v.
Toronto Star, the Ontario Divisional Court stated:
*127 In our view, the test of fair dealing is essentially purposive. It is not simply a mechanical test of
measurement of the extent of copying involved. We were referred to the case of Zamacois v. Douville,
[1944] Ex. C.R. 208, 2 C.P.R. 270, a decision of Angers J. in the Exchequer Court of Canada. To the
extent that this decision is considered an authority for the proposition that reproduction of an entire
newspaper article or, in this case, a photograph of a magazine cover can never be considered a fair
dealing with the article (or magazine cover) for purposes of news summary or reporting, we respectfully
disagree.25
This could clearly inject a new and very important element in the law of fair dealing in Canada.
(c) A new collective?
The question arises as to whether a new collective, possibly with an even broader based membership than university
teachers26 would be useful and viable.
Competing collectives have a long history in the world of copyright. Canada had competing major collectives in the musical
performing rights area for about 50 years, until recently when the two major societies, namely CAPAC and PRO CANADA
merged in 1990.27 The USA has had three competing collectives in the performing rights area for over 50 years, one of which
is privately owned. The second largest U.S. music collective, BMI, which was also active in Canada for about 50 years, was
initiated by disaffected users (broadcasters) who were unhappy with the licensing practices of the monopolistic main
collective at the time in 1940.
The strategy of a competing collective must entail some or all of the following:
◆ operate more efficiently with lower overhead than the incumbent
◆ be less burdensome on users in terms of reporting
◆ charge less to users than the incumbent
◆ pay more to copyright owners either directly or indirectly than the incumbent, or at least pay earlier or in the form of
“advances” to attract new members at little actual cost, or pay in a way that is *128 more acceptable, such as for the purpose
for a Canadian research fund, “genius award” or other acceptable purpose.
◆ provide better service to creators and users
In the musical field in the USA, this strategy has proven to be very successful and pro-competitive. It also worked well in
Canada, until the merger of the two societies in 1990.
This strategy might work particularly well in the present milieu because CanCopy has the following weaknesses:
◆ CanCopy is trying without success to fairly and logically distribute revenues from a very disparate group of users to a very
large group of unascertainable owners.28 Many if not most of the actual creators of copied repertoire have no owners. actual
legal affiliation with CanCopy. Cancopy’s undistributed revenue is almost the same as their income, namely about $18
million. This ratio of virtually 1:1 for revenues received as compared to revenues distributed in the course of a given year is
very controversial and probably reflects a number of factors, including its incomplete repertoire base, inadequate database of
ownership, inadequate technology, and lack of an underlying accepted formula or algorithm for distribution.
◆ CanCopy paid insufficient attention initially to efficient technology to “manage” a collective.
◆ CanCopy has had the luxury of dealing with politically motivated users who have signed deals that sometimes appear to be
very favourable to CanCopy at the taxpayer’s expense. It has concentrated on lobbying (at which it excels) and not on
systems.
On the other hand, an academic collective could rely on the following strengths:
◆ The new collective could start with new technology. This would involve a combination of “off the shelf” and custom
software. Government funding or subsidy may be available to pay for this in whole or in part.
◆ The new collective’s initial users might likely be universities and colleges that are members of AUCC and ACCC
(Association of Community College of Canada). They will not readily want to *129 pay an additional license fee over and
above the current CanCopy fee. They will have to be convinced that moneys paid to the new collective will ultimately be in
lieu of moneys owing to CanCopy, if not immediately, then in the very near future. The willingness of institutions to pay two
sets of fees will depend on convincing them that, in the long run, this will be less expensive and that in the short and medium
term, they will benefit from a source of service and advice on copyright matters, a fully “resourced” and dedicated lobbying
entity, and a competitive force to CanCopy
◆ Users would need to have the will to play hard-ball with CanCopy to reduce their license fees to CanCopy by an amount
corresponding to the value of the license fees to the new collective. There is ample precedent for this exercise in the musical
rights field.
◆ The new collective could provide an educational role and service. This could be web based, with limited access to
accredited members.
◆ For example, the new collective could educate scholarly writers as to the pros and cons (mostly cons) of assigning
copyright to corporate journals. This is now a raging issue in the USA. 29
(d) Can Two Collectives Co-Exist?
The answer is yes, at least probably yes. This has been proven in Canada and the USA as noted above. It has happened in the
music field. It has even proliferated in the musical field, with the existence of at least five niche musical collectives at the
present time in Canada alone. However, the reprographic rights movement has shown some disinclination to tolerate any
competition. That too may be changing. For example authors for non-scholarly periodicals and literary agents appear to
taking matters into their own hands in the USA.30
Some post-secondary institutions have shown their interest in forming a new collective, or at least considering an alternative
to the CanCopy scheme. They might be the nucleus of a new alliance.
*130 Some overlap is not inconceivable or even unwelcome. Many institutions may tolerate licenses from two or more
collectives. This has been the norm in the broadcasting field for decades. The rates and structures of the licenses would need
to evolve to contemplate this possibility. This has been the history in the USA and in Canada until recently where there have
been multiple collectives. As noted above, multiple collectives are now re-emerging in Canada in the music industry.
(e) Form of New Collective
The new collective must have a form that is broadly acceptable to the academic profession. Although good arguments can be
made for a privatised “for profit” operation, this option may create controversy based upon misunderstanding.
Alternatively, there are options for “not for profit” organization and “cooperative” organization.
These are, in the end, legal governance issues and are capable of solution.
10. CANADIAN NON-COPYRIGHT PRECEDENTS
A very interesting organization that bears some scrutiny as a precedent, and may be helpful in terms of expertise and
networking, is the Canadian Universities Reciprocal Insurance Exchange (“C.U.R.I.E.”).31 This is a highly specialized
organization of some 4.5 FTEs that serves as the main insurer for most property and liability risks (except for ordinary risks
such as automobile insurance) for almost all Canadian universities outside of Quebec. It was created by and for the
universities themselves in the 1980’s when premiums and coverage for the major commercial insurers became unreasonable,
unstable, and unresponsive to the special needs of Canadian universities — which have “unusual” risks ranging from athletic
injuries, to sexual harassment, to nuclear contamination. This tiny organization insures many billions of dollars worth of risk
and functions with a tiny full time staff. It was started with expertise from the private sector.
11. FINANCING OF A NEW COLLECTIVE
Even the most efficient new collective will require a small staff of at least 3 people for minimal operations. Computer
hardware and software — some of which will need to be customized — will be required. *131 There will be accounting and
legal start up costs that will need to be paid for or contributed in some way. There will need to be a careful feasibility study
and the development of a good business plan.
It is possible — but only with appropriate institutional partnership — that some of this could be funded to a greater or lesser
extent through the Canadian Foundation for Innovation or one or more of the three major federal granting councils. Or, one
entrepreneurial university could take the lead, by contributing some cash flow and some minimal resources such as space.
12. ADMINISTRATION, FACULTY CENTRED OR INDEPENDENT COLLECTIVE?
The question needs to be asked whether any new collective should be initiated by administration or faculty. None of the usual
suspect organizations has shown much inclination to date to take the lead on this issue. Neither is in a position to do so. In
principle, the initiative might better come from the faculty organization, but this is the organization with less resources and
currently less in-house experience in these matters.
Probably, the collective should be independent of both of the currently established groups. After all, one of the chief
advantage of having a new independent collective is that it should be independent, or at least as independent as any
organization can be in Canada in such a politically and bureaucratically charged area. The existing organizations have not
been able to succeed to date in achieving a clear goal in terms of lobbying and advocacy, perhaps because of the many
agendas they need to balance. Since lobbying should be a major focus of any new collective, sufficient independence would
be desirable.
13. CASH FLOWS
According to CanCopy’s figures, about 76 per cent of its distribution is on account of Canadian creators and copyright
owners. Even if a new collective could achieve a 25 per cent penetration into CanCopy’s markets, it could be looking at a
cash flow of about $4 to $6 million in the first few years. Naturally, Government and corporate users would be appropriate
customers for licensing and should welcome the competition, if it is well presented.
Initial collective overhead costs are typically about 20 per cent of revenues. This declines over time, ideally to 15 per cent or
less.
*132 If members are prepared to initially forego or postpone a distribution or agree to use some of the initial cash flow for
other start up purposes, this would greatly help in financing and business planning. This is what CanCopy itself appears to
have relied upon, along with lucrative deals with governments.
Another tool that would greatly help would be a small membership contribution by professors — perhaps $10 to $20 per
year, preferably more and preferably through a CAUT levy. The tangible quid pro quo for this could be web based advice on
copyright matters including publishing agreements and standard clauses that protect authors rather than publishers.
14. CONCLUSION
There are alternatives to the present regime of dealing with CanCopy. They involve some risks but great possibilities.
Tenured professors with responsibility for taxpayer funds and their institution’s prestige should give these possibilities
serious consideration.
15. APPENDIX I
(a) The “Outsider” Problem32
● CanCopy does not have any right or title with respect to much of the repertoire in which it deals. The repertoire, apart from
the licensed repertoire and the expressly excluded repertoire in Schedule “B”33 of the model agreement is referred to in
academic discussions in this context as that of “outsiders” or “outside repertoire”.
● The CanCopy method of using an indemnity with respect to outside repertoire appears to be similar to the scheme now
practised in the UK by the Copyright Licensing Agency (CLA) for reprography. However, there are at least two key
differences between the CanCopy case and that of CLA.
● In the UK, since the major revision of that country’s copyright law in 1988, there is a statutorily implied right of indemnity
by a collective in favour of a user with respect to activities by the user *133 within the “apparent” mandate of the collective.
This is under s. 136 of the UK statute.34
● Even in the UK system, the licensee may not know whether such an assumption is correct or safe. The leading British text
suggests, as an example, that the indemnity would apply “where the license might cover all books published by a certain
group of publishers, but the copyright in some works may belong to the authors”.35 This strongly suggests that the statutory
indemnity is not intended to cover all works of any nature. A less restrictive view of the indemnity scheme suggested by
another British scholar, namely that “... licenses are subject to a statutory implied indemnity by the licensor covering
infringement of any work which the license purports to cover in its “blanket” but which in fact is not within the licensor’s
authority to grant.”36
● Under the UK statute, a person is:

within the apparent scope of the license if it is not apparent from inspection of the license and the work
that it does not fall within the description of works to which the license applies and the license does nor
expressly provide that it does not extend to copyright of the description infringed. 37
● In practice, the question of indemnity in the UK would seem to be of lesser importance than in Canada since CLA is said to
have agreements with 8,000 authors and 900 publishers representing 94 per cent of the repertoire being copied. 38
● In essence, the British scheme provides a statutory requirement for an indemnity in respect of “outsider” repertoire. This
would appear to legitimize a practice that otherwise appears to amount to the authorization of copyright infringement
● It is important to note that the UK system also includes broad, but specific, powers to the effect that the Secretary of state
can extend the coverage of a scheme or license, following a recommendation by an inquiry. 39 “This is to meet the case where
an individual copyright owner or group of owners do not join existing license *134 schemes or institute a scheme of their
own.40 These provisions are very detailed. They clearly contemplate the protection of both copyright owners and users, while
encouraging the activity of collectives. They feature safeguards and due process. Still, they appear to stop short of the
“extended collective” mechanism used in the Nordic countries which is described below.
● Thus, the CanCopy scheme is not without some precedent. However the apparent model for the basis on which CanCopy
does its work it that of the Copyright Licensing Agency (CLA) in the UK. 41 It must be noted, however, that the CLA depends
to a very large extent on a significantly different statutory basis for legitimacy.
● The problems inherent in the CanCopy model have also been dealt with to a certain extent in the Nordic countries, by
implementation of a system known as “extended collective licensing” (ECL). This entails a system whereby a collective
representing “a large number of national authors of a certain category of work” are given the right to represent all authors in
this category, including international authors, whether or not they are members, unless they specifically exclude themselves. 42
Thus, there is a kind of compulsory licensing aspect of this system for non-members.43 The system also allows for arbitration
and for the exclusion of certain reproduction rights that might be best dealt with individually.
● This system is widely regarded as useful and perhaps as a model for Europe and other fora. It is, essentially, what CanCopy
is now practising in Canada. However, the extraordinarily important point is that the model is inconsistent with current and
even proposed Canadian law, and even its most fervent exponents are quick to point out that an explicit, unusual and
potentially controversial legislative mandate is required for it.
● For example, Prof. Karnell, an advocate of the ECL system in the Nordic countries, points out that the ECL system is
insufficient to protect users against threats based upon the criminal law:
*135 The possible defence on the part of users that they be users in good faith, unintentional infringers,
etc., by sheer fact that they have agreements with an organization of rights owners with an accepted
standing nationally is of questionable value, to say the least, as long as there is no formal legislative
backing of its representativeness. As answers to the problem of outsiders’ rights such talk may have some
persuasive power against an unwilling outsider, but they do not provoke the appropriate and presently
ever more desired water-tight guarantees. Sometimes, they only serve to sweep the problem under the
carpet.44
● The Nordic system and its incomprehensibility to those not familiar with it are also well described in an important
comment by Prof. H. Lund Christiansen.45
● The following analysis of the “problem of outsiders” is quoted from the Kopinor Website. Kopinor is the important and
prestigious Norwegian collective and one of the authors is Jukka Liedes, a leading Norwegian government expert and chair
of many important WIPO expert meetings:
The problem of outsiders has been approached in different ways in different countries.
One alternative is to incorporate into an agreement an indemnity clause by which the organization assumes the liability for
the payment of remuneration to non-represented right owners. This alternative, however, does not make the use of
non-represented works permissible but only eliminates financial liability under civil law. Agreements cannot transfer liability
under criminal law; the user is always responsible for any infringements he has committed. This alternative does not
therefore safeguard the position of the user.
Another alternative is to incorporate into the law provisions by which a copyright organization is given a general
authorization to represent right owners or by which it is presumed that the organization has such right. The practical effects
of this alternative hardly differ from those of extended licence, which, however, does not give the organization a general right
of representation but only extends an agreement concluded by the organization also to cover non-represented right owners.
A third alternative is to incorporate into the law provisions of non-voluntary licence (e.g. statutory or legal licence) whenever
permitted by international conventions. In this case the consent of right owners for the use of protected materials is not
needed at all. They have only a right to remuneration. Non-voluntary licence is a considerably farther-reaching limitation on
rights *136 than is extended licence, and it significantly weakens the negotiating position of right owners. 46
(emphasis added)
● Another analysis published by the European Community confirms that even the basic concept of an extended collective and
an indemnity does not solve all problems for users and does require specific legislation:
As in the case of direct licensing, the user can never be sure that he has got all necessary licences to create a multimedia
product. No collective organisation represents all national and international right owners. There are yet different legal
techniques which allow grant covering licences. The organisation may assume to the user that the remuneration will be paid
to the non-represented right owners (contracts with indemnity clauses). In Nordic countries, collecting societies may grant an
extended collective licence where the agreement is by law made binding on non-represented right owners. Finally, the law
may contain provisions to the extent that the organisation is presumed to represent all right owners. Only in the latter case of
the legal presumption, the organisation is entitled to represent outsiders. In the other two cases, non-represented right owners
can prohibit the use of their works and can still claim individual remuneration. 47
(Emphasis added)
● Thus there is clear international authority that the system practised by CanCopy requires an explicit legislative mandate
that is unusual and controversial. It certainly does not exist in Canada. Even Bill C32 will not go this far, for it does not
properly address the question of the authority of the collective to represent outsiders. It does, on its face, limit the recovery an
outsider can obtain, in certain cases, to the rate charged by a collective; this, however, is subject to a potential price. Not only
does this scheme stop far short of the Nordic ECL model, it may, in fact be inherently anticompetitive, as will be discussed
below.
● Indeed, the lack of authority for CanCopy’s operation under the current Copyright Act is demonstrated in s. 70.2 which
explicitly refers to the Copyright Board’s role in dealing with disputes “in respect of the works included in the licensing
body’s repertoire”.
(emphasis added).
*137 (b) Bill C-32 and the Outsider Problem
● Bill C-32 has certain provisions which may partially alleviate the difficult legal position of a reprography collective
seeking to operate in Canada with respect to the outsider problem. However it does not solve the corresponding public policy
issues.
● Bill C-32 contains statutory minimum damages provisions which can give rise to substantial liability for very little in the
way of infringement. These are discussed in greater detail below. However, for present purposes, suffice it to say out that an
institution can be liable for a minimum civil liability of $500.00 per infringing work, with no need for proof of damages.
Thus, an inadvertent failure to clear copyright could give rise to thousands or even hundreds of thousands of dollars of
minimum liability for one day’s activity on a college campus.
● Algonquin notes that Bill C-32 does attempt to shield the college community from the potential excesses of statutory
damages. It does so in the following ways.
● Proposed s. 38.2 (1) would supposedly prevent the application of statutory damages to educational institutions in
circumstances wherein the institution is sued by a copyright owner who has not assigned or licensed a work to it collective,
and where the institution is party to an agreement with a collective covering the applicable category of work.
● In this case, the copyright owner can only recover the amount that would have been payable to the collective with the
highest rates for the applicable category of work [s. 38.2 (3)]
● Algonquin notes that the provisions in s. 38.2 (3) at first appear to be of benefit to the academic community. However,
upon closer analysis, these provisions are a potentially anti-competitive inclusion that substantially tilts the balance of-power
in favour of collectives.
● In the first place, these provisions essentially force creators to join a collective, even if they do not wish to do so. They
virtually amount to a compulsory license for creators, most likely authors, who wish to either withhold reproduction of their
work, or may wish to demand special terms, conditions, or a higher than normal royalty. All of these potential demands are,
of course, within their rights in a free and democratic society. These provisions may well raise significant issues under the
Charter of Rights and Freedoms.
*138 ● It should be open to a creator to refrain from participation in collective activity and for a user to deal directly with the
author. To require or to, effectively, force participation otherwise smacks of socialist intervention. Creators, as such, are not
members of labour pools and do not need to be forced to associate or behave collectively. That they have the freedom do so is
more than sufficient. The new Status of the Artist Act, R.S.C. 1995, c. 19.6 provides more than enough collective tools for a
creator to use, if deemed necessary.
● Secondly, these provisions encourage collectives to hold out ostensible authority for the right to copy with respect to works
outside of their repertoire. Such authorization would otherwise be flagrantly illegal by virtue of s. 3(1) of the current and
proposed Copyright Act and at common law.
● It is a trite and basic principle of law and common sense that one cannot give what one does not own. Nemo dat quod non
habet. Not just anyone can sell the Brooklyn Bridge.
● There is a superficial advantage to this cap of damages in favour of educational institutions. However in the long run, the
result will be the legitimization of a practice already begun by CanCopy of trading in repertoire for which the collective holds
no rights. The collective will simply collect money for all except those who go to some length to exclude themselves. Some
of this money will eventually be passed on to authors and owners who are not members of the collectives, after the collective
has earned interest on this money for some considerable time. Even if the author or owner has specifically excluded his or
herself from the collective, the maximum amount recoverable will be that which the collective would have charged. This
would likely, in any given instance, be literally a few cents or a few dollars. Hence, no law suit and no recovery. Hence, the
effective grandfathering of existing reprography collectives in Canada and the problematic scheme that results in collection
for many works outside of its repertoire.
● Thirdly, the provisions virtually force educational institutions into signing an agreement with a collective, notwithstanding
the “outsider problem”. Some institutions may be capable of clearing rights directly with publishers. Others may need only
limited repertoire. For a number of reasons, it may not be desirable to force institutions to sign blanket licenses if they do not
need or wish to do so.
*139 ● It should also be noted that in spite of the apparent protection offered to academic institutions from statutory damages
where a collective agreement is in place, there is no offer of immunity from criminal protection. No collective, including
CanCopy, can indemnify against criminal activity. If a university copies works that are outside a collective’s repertoire there
could be criminal charges laid.
Footnotes
1
Mr. Knopf is Counsel to Shapiro, Cohen of Ottawa, Canada. The views expressed herein do not necessarily reflect those of any of
his clients or his firm. This paper was originally presented in English at the Canadian Association of Law Teachers conference in
Sherbrooke, Quebec on June 3, 1999 as part of the annual Congress of the Social Sciences and Humanities and was first Published
in September, 1999 in the journal Cahiers de propriété intellectuelle.
2
Based upon CanCopy’s published 1998 Annual Report. The breakdown as between universities and colleges is assumed to be
approximately equal but this cannot be verified. Only CanCopy has the aggregated actual figures. The AUCC (Association of
Universities and Colleges of Canada) will not release figures for particular institutions. It was understood in 1996-1997 that the
universities paid CanCopy Part “A” payments of $1.2 million based upon 450,00 FTEs and Part “B” payments of about $1.8
million, according to the AUCC. There is also a similar Quebec based regime called COPIBEC which was formerly known as
UNEQ. However, references in this paper are to CanCopy unless otherwise indicated.
3
Based upon 550,000 FTEs plus 1,000,000 “continuing” education students (including Quebec).
4
According to reported figures, CanCopy has income that is about 25 per cent that of its older American counterpart, Copyright
Clearance Center, Inc. (CCC) which collected about US $55 million in 1998. See http:// www.ifrro.org. This is far in excess of the
usual 10:1 ratios that apply in comparative U.S./Canadian economic indicators in the intellectual property area. This does not even
account for the extra 25 per cent or so income from the Quebec counterpart to CanCopy, namely COPIBEC. Whether this reflects
more favourable (to CanCopy) laws or more competence on the part of CanCopy — which in any event is in large measure
responsible for the current Canadian laws — is as yet unknown.
5
Of course, the concerted trend of corporate investment in acquisition or at least control of all rights associated with STM
(scientific, technical and medical) publishing suggests otherwise.
6
Roy C. Sharp, Q. C., Licensing the Photocopier, (1970) 62 C.P.R. 196.
7
Moorehouse v. University of New South Wales, [1976] R.P.C. 151 (Australia H.C.).
8
Canadian Association of University Teachers.
9
Kenneth Crews, Copyright, Fair Use, and the Challenge for Universities: Promoting the Progress of Higher Education:
University of Chicago Press, 1993.
10
Boudreau v. Lin (1997), 150 D.L.R. (4th) 324, 75 C.P.R. (3d) 1, 38 O.T.C. 39 (Ont. Gen. Div.).
11
R. v. Laurier Office Mart Inc. (1994), 58 C.P.R. (3d) 403 (Ont. Prov. Div.), affirmed (1995), 63 C.P.R. (3d) 229 (Ont. Gen. Div.).
12
Any author or any publisher can, it would seem in principle, put their name on this exclusion list. At the moment, there are only a
handful of entries that range from the Harvard Business School to Playboy Magazine. It would be very interesting if numerous
Canadian scholarly authors were to put their name on this list, which is supposed to be updated periodically by CanCopy and
furnished to all of its licensees.
13
C.B.S. Songs Ltd. v. Amstrad Consumer Electronics PLC, [1988] 1 A.C. 1013, [1988] 2 All E.R. 484 (U.K. H.L.).
14
McGuiness, The Law of Guarantee, Carswell, 1995, p. 670.
15
CanCopy was quick to support the Crown’s case in R. v. Laurier Office Mart Inc. (1994), 58 C.P.R. (3d) 403 (Ont. Prov. Div.),
affirmed 63 C.P.R. (3d) 229 (Ont. Gen. Div.) which entailed the argument that unauthorized reproduction of material in course
packs was a criminal offence.
16
Cheshire, Fifoot, et al, Law of Contract, (London: Butterworths, 1986), p. 346.
17
Cheshire, ibid. p. 359.
18
Insurance Act, R.S.O., 1990, c. 1.8.
19
As Harry Arthurs (at various times a professor, author, dean and university president) has pointed out, a professor typically is paid
a salary and receives a SSHRC or NSERC or MRC grant for major research, both of which are publicly funded.
20
CanCopy Distribution Fact Sheet May 1999.
21
Of Osler, Hoskin and Harcourt. Mr. Bloom has advised both CanCopy and the AUCC on copyright matters.
22
Glenn Bloom, A Framework for the Application of Fair Dealing in Canada in Copyright In Transition Conference, Canadian
Intellectual Property Institute (CIPI), 1994, tab 13 (out of print).
23
Bloom, ibid. p. 17.
24
Bloom, op. cit. p. 52.
25
Allen v. Toronto Star Newspapers Ltd. (1997), 36 O.R. (3d) 201, 78 C.P.R. (3d) 115 (Ont. Div. Ct.), reversing (1995), 26 O.R. (3d)
308, 63 C.P.R. (3d) 517 (Ont. Gen. Div.).
26
Such as community college faculty, freelance authors and classical music composers.
27
Some users and members are now quietly beginning to question the wisdom of this merger.
28
1.7 million copyright owners according to their own figures.
29
Thomas G. Field, Jr. “Publishers’ Rights and Wrongs in the Cyberage”, Forthcoming 39 Idea 429 (1999). See also: Steven
Bachrach et al., “Who Should Own Scientific Papers?” 281 Science 1459 (1998); Floyd E. Bloom, “The Rightness of Copyright,”
281 Science 1451 (1998); see also the September 1998 article in Atlantic Monthly by Charles C. Mann “Who will own Your next
Idea?” Still available on line at: http:// theatlantic.com/issues/98sep/copy.htm
30
See the Authors Registry Website: http://www.authorsregistry.org/.
31
See http://www.curie.org.
32
From a 1996 brief field on behalf of Algonquin College to the House of Commons Heritage Committee re Bill C-32.
33
This depends upon receipt of a notice form the concerned copyright owner and is made available presumably annually. Quaere
how many individual copyright owners and publishers are aware of this list.
34
Copyright, Designs and Patent Act 1988 (CDPA) s. 136.
35
Laddie, Prescott and Victoria, The Modern Law of Copyright and Designs, London, Butterworths, 1995, p. 662.
36
W.R. Cornish, United Kingdom Copyright Law, in P. Geller, International Copyright Law and Practice, M. Bender, 1994, UK63,
sec. 8 [2][b].
37
CDPA s. 136(3).
38
Laddie, supra note 35 at p. 668.
39
CDPA ss. 137-141.
40
Laddie, et al. supra note 35 at p. 663.
41
Testimony of Ms. Lucy White of CanCopy in the course of the proceedings in R. v. Laurier Office Mart Inc., Oct. 17, 1994 at p.
106 of transcript.
42
M. Ficsor, Collective Administration of Copyright and Neighbouring Rights, WIPO, Geneva, 19910, p. 35 ff.
43
Ficsor, op. cit. p. 36.
44
Prof. G. Karnell, Outsiders” Rights: A dilemma for Collective Administration ..., [1992] 11 EIPR 430 at 433.
45
H.L. Christiansen, The Nordic Licensing Systems — Extended collective Agreement Licensing, [1991] 9 EIPR 345.
46
See: http://www.kopinor.no/English/ext-eng.html.
47
http://ww2.echo.lu/legal/en/hoerlic2.html.
14 IPJ-CAN 109
End of Document Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved.

Knopf Copyright Collectivity in The Canadian Academic Community An Alternative To The Status Quo PDF

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Knopf Copyright Collectivity in The Canadian Academic Community An Alternative To The Status Quo PDF

Încărcat de

Drepturi de autor:

Formate disponibile

Copyright Collectivity in the Canadian Academic Community: An..., 14 I.P.J.

Intellectual Property Journal

Copyright (c) 1999 by Howard P. Knopf

3. THE 1988 COPYRIGHT AMENDMENTS

4. THE 1997 BILL C-32 AMENDMENTS

● severe curtailment of parallel importation of used textbooks

5. THE SUCCESSFUL POLITICS OF COLLECTIVE MOVEMENT

6. THE ESSENCE OF THE BARGAIN WITH CANCOPY

7. LEGAL QUESTIONS CONCERNING THE CANCOPY SCHEME

8. LEGAL CHALLENGES TO CANCOPY

Under s. 70.2(1) of the Copyright Act:

Application to fix amount of royalty, etc.

9. ESTABLISHING A COMPETING COLLECTIVE

(a) The Option

*125 (b) Analysis

(c) A new collective?

◆ operate more efficiently with lower overhead than the incumbent

◆ be less burdensome on users in terms of reporting

◆ charge less to users than the incumbent

◆ provide better service to creators and users

◆ CanCopy paid insufficient attention initially to efficient technology to “manage” a collective.

(d) Can Two Collectives Co-Exist?

(e) Form of New Collective

10. CANADIAN NON-COPYRIGHT PRECEDENTS

11. FINANCING OF A NEW COLLECTIVE

12. ADMINISTRATION, FACULTY CENTRED OR INDEPENDENT COLLECTIVE?

13. CASH FLOWS

(a) The “Outsider” Problem32

● Under the UK statute, a person is:

to a very large extent on a significantly different statutory basis for legitimacy.

*137 (b) Bill C-32 and the Outsider Problem

S-ar putea să vă placă și