Cutting into the Special Interests:: Copyrights v. Citizen Rights

A post by Professor Michael Geist last week, CMEC on Fair Dealing, has to be one of the best "summative" statements I have seen to date, that fits well into what I have as a general thesis of what is wrong the process of copyright reform done with special interests coming forth the way they do.

This EFF pioneer award winner made "mincemeat" of the argument CMEC put forward, putting it into the greater context.

The isolated picking at pieces of the Copyright Act this episode does represent, on educational rights in this case, is but another example of other interests that have come forward over time, some successfully, as the question put to the legislator is always "what we want for our group" is x, y, and z.

But who is looking out for the "whole alphabet soup" or the public interest?

It won't be these groups.

Professor Ariel Katz who teaches "Competition Law and Intellectual Property" at the University of Toronto Law School, in this light, has openly blogged about some of his new work underway that shows promise along the route of answering serious questions, that other work has raised recently. The Friedland Report on Access Copyright's distribution policy was one (here at the Northworthy blog extensively).

Professor Katz's wishes to examine the "macro" economic and legal implications that the outcomes of the current Copyright Act present to Canadians, as it impacts citizens, in hidden indirect payments.

Collectivizing Rights; Privatizing Taxation: The Unarticulated Function of Copyright Collectives

In my boil down, are these indirect payments within a labyrinth unaccessible to the general public, comparable to taxation without valid representation, as ultimately citizens pay these royalties?

In some sense this seems to be an attack on the Copyright Board of Canada in representing citizen interests, but if you read carefully their mandate, it has no such citizen interest:

The Board is an economic regulatory body empowered to establish, either mandatorily or at the request of an interested party, the royalties to be paid for the use of copyrighted works, when the administration of such copyright is entrusted to a collective-administration society. The Board also has the right to supervise agreements between users and licensing bodies and issues licences when the copyright owner cannot be located.

http://www.cb-cda.gc.ca/aboutus/mandate-e.html

So we have a process where a third party seller of a service to the public competes with the rights holders organization, to settle what they should pay (and markup) and the collective receive. Fine.

Where is the public interest in the mandate above?

Its not there.

Professor Katz's intends to consider in context of copyright collectives, this thesis:

1) whether this proliferation of collective administration indicates an unnoticed but radical and systemic shift in the traditional role of copyright as a tool of innovation and cultural policy;

2) whether the increased number and types of copyrights administered collectively reflects a growing number of market failures (real or perceived); whether it signals that systematically the model of private property rights in creative works fails to achieve its goals.

With a pardon by the professor, as he re-conceives collective administration as a taxation system in an academic exercise, he poses a series of questions, I parsed from his blog as follows:

1. Should collectives be regarded as private organizations accountable only to their members, or
2. should they be understood in essence as organizations performing a very public function: the collection of levies and the distribution of subsidies.
3. In such case, who are they accountable to?
4. To whom should they be accountable?
5. And how, precisely, should they be?
6. Does the public have a stake in determining who the tax is levied on and how the proceeds are distributed?
7. Should authors retain the full scope of rights currently available under copyright law?
8. What is the meaning of infringement under such a system?
9. Should authors whose works have been used more frequently be paid a larger share of the collected fees because “their” works in which they have property rights have been used, or
10. should these fees be rather used to subsidize more creative or more diverse endeavours that may have great cultural value, albeit smaller commercial prospects?
11. Who should make these kinds of decisions?
12. If the moneys collectives collect are conceived as taxes and their distribution as subsidies, is the process of determining those in an adversarial manner before a tribunal such as the Copyright Board optimal?
13. how to prevent the system from becoming a rent-seeking orgy?

This ought to be interesting work to follow.

Prof. Katz has done three prior papers recently on collectives, "The Potential Demise of Another Natural Monopoly: Rethinking the Collective Administration of Performing Rights" 1(3) Journal of Competition Law & Economics 541 (2005); "The Potential Demise of another Natural Monopoly: New Technologies and the Administration of Performing Rights" 2(2) Journal of Competition Law & Economics 245 (2006); and "Monopoly and Competition in the Collective Administration of Public Performance Rights" 2 Haifa Law Review 551 (2006) (in Hebrew).

I note it would be much more interesting , if he were using a modern "wiki", public or private, to obtain what he has asked for here:

Any insights and comments are welcome.

He has some of mine right here.

My view however, that this academic exercise, should be a public exercise right now, before something that might be a farce takes place with the current copyright reform bill under executive government development privately.

That may be the conclusion too of Industry Minister Jim Prentice who is not without his own insight as a lawyer, the private lobbying he has been privy to, or the very vocal demand for fairness on Canadian copyright law by the public on the entire matter (40,000 + members of the Fair Copyright for Canada Facebook group).