Sunday, February 24, 2008

Epilogue: Publishers v. Writers, 2-1. Prospects for Tie?


In Part 1 and Part 2 of my blogging on this report, I covered the presentation of the report, and the facts as we could discern them from the Friedland report in context of the Boards comments pre, during, and post that report.

To this analysis in Part 1, we found some rather unusual "properties" engaged in this Report as released by Access Copyright, in context of its websites' TOS. Thankfully we discovered two new things since that writing.

The “Friedland report”, without the Board's "spin", was to be a public document as a condition of the engagement per the Writer's Union, a constituent member of the Canadian "CCC," Creators Copyright Coalition. This has an obvious conclusion reinforcing the recommendation made for independent Directors by Professor Friedland that I focus in on in Part 3 on its own.

The second discovery was the “clean” copy of the report made available by Christopher Moore, a writer of some rather interesting books on Canada's history, published columns drawing extensively from historical facts, and a former Board member of Access Copyright. This DRM and comment free version enabled a quieter read and thought as to what the Fact Finder found and recommended. Comparatively, Access Copyright added new information not available elsewhere but still failed to disclose information that we had to derive in Part 2 from their document and public information.

A Burning Question: The Views on Reprography v. Reproduction

One other item that seems of burning contention from reading both reports, is the differing views on reprography v. reproduction, in the case of the missing terms in a publishing contract over who deserves a share from any reprography expressly. This presents itself in the core arguments of accounting for a “contract override” v. just a ‘clean’ straight split on the royalties collected by the collective for each of its two distinct groups of member categories. This even ‘split’ is what most collectives appear to do in existing for the mutual benefit of members, recognizing the claim on their behalf, to the “micro” use of rights otherwise either unenforceable or uncollectible, at present, that can in argument to date, can be claimed on a “macro” scale to exist.

Professor Friedland in his report concluded as if prescient that a grave misinterpretation of a “reprographic right” could be present, to a claim of rights that were not expressly provided for in contracts between writer and publisher, by the publisher. The Board did obtain a legal opinion on this, but this may not have directly addressed what the writers could claim in light of the Heather Robertson Supreme Court of Canada case (Ed. note: linked here is a rather unusual 'translation' of the case by Christopher Moore, a provocative read IMHO) versus what the publishers had already claimed. That case illustrated an over claim of copyright by a Publisher where the right of use was found to infringe the original authors retained interests as it was not explicitly conveyed in terms of an agreed compilation of a work v. the distinct de-compiled use of a work the publisher was alleged to claim. All told, this is a major difference of opinion not to be glossed over, core to the collective’s reason for being, and likely its future which I could express a longer term doubt over.

As I understand “reprography” to be the making of private physical copies of published works in print form, it certainly engages a different set of rights than merely the reproduction right, the right to make copies of a work in any material form, at subsection 3(1) of the Copyright Act [Ed. note: there is no "interpretation" to "reprography" in the Copyright Act or the Regulations; it is referred to as "reprographic reproduction."]

Who is right? Here Comes Da Judge

I lean to the Professor’s views as he provides caution in context of the current interpretation of the Copyright Act, expressing reasonable doubts.

The other side appears to state the matter in conclusive tones in contrast, such of the type that usually sets in motion a change in venue to a Court of Law for any further progression.

To me, I *sigh* thinking this latter view as very uphill by ignoring the apparent flow of rights involved, absent the necessary rights to establish a narrow case of infringement resting on “reproduction” alone, making that view unpersuasive, and also ultimately divisive.

To be fair, the legal opinion has only been referred to, rather than released by the Board. However it was not an unknown view to the law Professor, who admitted the consultation of his colleagues, not known to be the lightest of thinkers without resources on such matters. It is in fact a necessary view he had to overcome, to support the whole idea of the 50/50 ‘split’ between the members group on this issue that was rejected. This has great traction and history with many in the publishing field but so did the failing position of the publishers of the Globe & Mail against the views of Ms. Robertson.

I believe that the publication right has to be considered and that it is in the combination of rights to make the “reprographic” case in first instance, to collect upon versus merely a “reproduction” right infringement. In my view, if the view of Access Copyright were correct, there would be no need for a publication right expressed, in full context of Canadian copyright law. The US concept of a distinct distribution right has no similarity in Canadian law, and yet this lack of intrusion appears to confuse many in Canada, in my opinion, as they fail to read past a specific right to the entire section applicable to the right, including its contextual rights, and the authorization right. With the divisible nature of rights, a package of rights is ordinarily required to do business, particularly so the publication right, the right to make public a work.

Having the right to make a reproduction is valuable in itself, without the necessary condition to publish or attach such a right casually to publish those copies, or in U.S. terms "copying" is distinct from “distribution.” In the case of reprography, in my view it would be impossible to have reprography occurring without the use of the publication right. Without a publication right coincidently applying, such a reproduction would be not be of a work made public and be rather a private work which has its own reproduction right. This is not something that Access Copyright apparently has a right to collect over.

In other words, to sue for infringement of copyright over non-commercial photocopying of a printed work, in the case of a published work, you would have to demonstrate a) you still own the right to make it public, b) the act of reproduction of such published work occurred, and c) it was unauthorized. Lose on one and you seem to be quite out of luck.

That is the bundle of rights analysis. But does that bundle view, where clearly the publishers should have acquired the separate rights, include what could be specifically expressed in a contract as "reprographic reproduction" in a direct reference to the Copyright Act?

Further, is "reprographic reproduction" that lacks "interpretation" from the Copyright Act itself, a right itself as it appears granted in reference to a use? Or is it an expression implicit in a construction of a bundle of rights elsewhere provided for?

To me, Canadian copyright scholars would have a picnic here, and this is the point: there is reasonable doubt from the "Academics." The practitioners say no. The Canadian courts have yet to consider it.

Closer to Home

For a closer to home example, think of a photograph you take. You own the picture, not the subject of the picture. You may infringe the rights of the subject so cautiously or not, you snap away. You take the undeveloped film or send the digital form to Black's, and Blacks asks from you before developing your film and/or printing your paper prints, i.e. producing or making copies of your work, if you have copyright to order such work and make such copies, and may ask you to agree in the 8,000+ word TOS, to holding it harmless in doing any of the above. It does not ask if you have publication rights. In person there may be something stuck under glass or on the wall or on the receipt of the order, saying the same thing to get itself out of being sued as the “licensed” manufacturer of your claimed work, where you may not own all the rights to produce or reproduce it.

If your photos are good, and someone wants to buy them for publication, they obtain that right, and as part of that deal, they must make copies of your work. Do they expressly tell you that if someone makes a copy of their published copies, that you can sue for copyright infringement? Likely no, but if you suspect this is going to go on, you would expect the publisher to pay you part of whatever it is they get for this use as part of your royalties. Or pay you more for the outright ownership of the copyright if this is to occur expressly.

Let's Get Together

Seeing however that copies can be made and the practicality of enforcing such use in the case of the published photos, with the right of reproduction here is claimed as owned by the publisher, do the publishers ask for a collective rights management scheme to compensate only publishers? No, they ask for a collective rights management scheme to compensate publishers and creators of those works unlawfully used, argued as reproduced, under the publishers management. See performance rights societies, 1800's ...

So why don't authors get an equal benefit on this matter? That is the dispute that still exists thanks to the Board's reticence, and it likely won't go away easily. I cannot see in my final analysis why the publishers benefit solely here from something they enforce jointly with the writers group, sharing equally in the cost of administration and enforcement against other user groups. With the writers upfront with the publishers before the Copyright Board of Canada and the Canadian public, this is not something in my opinion that should require a court to resolve on the distribution of the gains both groups as a single entity come forward in claiming.

If a Court does have to resolve this, it should have special words to state in the matter that are not kind in nature when matters such as these exist that seem on some rather basic grounds to be unfair. Could they as the contracts in question may not expressly cover "reprographic reproduction" award the entire spoils to date to the authors? Winning today, could mean losing tomorrow everything.

Redux: The Uneven Division of Spoils

In Part 2, we also found that the Canadian writer is not too hard done here by this collectives' existence. They get 20% of everything and if they measure success comparatively to the Canadian domestic publisher, they win by at least twice as much. To the foreign publisher, and its authors, goes the cake here, with a good chunk of money eaten by the establishment, collection and distribution royalties (about 1/3 in the Friedland report’s 2005 year).

This more refined result was not something unexpected by the structure of this industry, when including the critical "who owns the publisher" business, and the state of the Canadian owned publishing industry. From what I have read to date (one notable is by Roy MacSkimming "A Perilous Trade: Book Publishing in Canada, 1946-2006"), what has happened here in Part 2, is only difficult to put together. When a person who reads stuff like this from David Vaver "Publishers and Copyright: Rights Without Duties?" (2006), likes exercises like this, and gets annoyed at an apparent injustice we see, we work the "puzzle" to the resolution we see. While the result may actually appear as more 'grief' piled on the Canadian owned publisher's plate, tritely said it is a perilous trade indeed.

But why do the Canadian writers get more than the Canadian owned publishers? Simply they can and do freely sign deals with the foreign owned publishers in Canada. The foreign companies can likely trot out the examples of Canadian development just as the dominant foreign music interests can, hopefully without the same trend we have demonstrated elsewhere.

Canadian Publishers: Hither and 'Yond

The smaller Canadian publishers, at their own risk of capital, editing, printing and distributing, and otherwise making known their authors, also must know that one day the author they were smart enough to sign today, may have to go on to someone else to get proper worldwide distribution tomorrow, just as in the past. Its a business with no doubt a lot of heartache and joy, to have discovered someone, and to have to let them go (or cherry picked depending on your view), cause you can no longer do justice to their work, retaining only the initial publishing interest. The trenches may be filled with these bittersweet stories to read, some whom no doubt profit greatly, quietly, as their former author succeeds and the new orders get filled on older works under their publishing rights. Most as Roy's work would show you, do not share such stories, as the business moves on always to the next book project, if there is a next, with the margin too thin, the risk high, and the headaches otherwise too strong. They continue to strive and must, by that continuance, be successful at what they bring to the authors they serve.

A Final Word

Professor Friedland must reflect back and hope that the Canadian publishers and Canadian authors represented by this collective, can indeed work it out on their own, in their own best interest, ending the divergence made public. I am not optimistic that the Canadian publishers and Canadian authors can amidst the foreign interests I understand to exist, but hope that they may bury passions for a while, reaping the rewards they did get from the airing and sustaining of some of the writer's suspicions. The Board clearly has rolled up its sleeves but it still has to answer to all of its members, continually, as any organization must. I would hope to those interested, that they mind find some answers here or elsewhere to some of the continuing angst I feel they will have and are justified in having. In business and in life, it ordinarily is not a case of all or nothing, or the scales of justice being perfectly in balance. Yes, some 'high stakes poker' is evident here to play, in cue to my own interesting reading of late. But so is the option of sitting out the game, and taking the small losses over a lapse in foresight to established 'industry practices' to your unawares. A person to know here is Heather Robertson, who lead the class action suit, and the whole enchilada around her story, of likely ups and downs of such a long case. In looking elsewhere, and to the future, one could look to "Canada's versatile historian" odd peak forward, in Christopher Moore's article to only partially comprehend where tomorrow might be.

For me, where my blog is ranked about 1,526,876th, this lengthy series if the rank were calculated by word, might make it even more remote: I don't mind a bit! Its been an exercise of trying to write clearly, in rather obtuse matters requiring considered analysis, that I truly enjoy as a private pastime. I seek to refine my written communications and the only way to do this, is to write. I have my compliments sufficient to encourage more of the same in the future here at Northworthy, and who knows, maybe one day a publisher is in my future on a tomb in progress.

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