INTELLECTUAL PROPERTY JOURNAL Revue de propriété intellectuel le CARSWELLCopyright Collectivity in the Canadian Academic Community: An Alternative to the Status Quo? Howard P. Knopp: 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, iris suggested that academies in English Canada should take steps toward establishing a second reprography collective to compete with CanCopy. Dans cet article, Fauteur formule un certain nombre de critiques ciblées aM encontre des activités et des opérations de CanCopy, qui est la seule sociéré de gestion collective du dvoitd' auteur a représenter les auteurs er les éditew's anglophones au Canada, L'quteur souligne que les professeurs, les étudiants dipldmés et d'autres intervenants, qui créent un nombre important de publica- ions wilisées dans les colleges et les universités, recolvent peu de redevances de la part de CanCopy. Pour corriger cette situation, Fanteur suggere que la communauté universitaire du Canada anglais prenne des mesures en vue A'Erablir une deustime société de gestion collective en matiere de repro ‘graphic pour concurrencer CanCopy. T © 1999 Howard P. Knopf. Mr. Knopf Is Counset to Shapiro, Cohen of Oxia, Canada, The views expressed herein do not necessarily relect those of eny of his clients or his firm. This paper was originally presented in English a the Canadian ‘Association of Law Teachers conference in Sherbrooke, Quebec on June 3, 1989 ‘as parcof the uoinual Congress of the Soci Sciences and Humanities and wis Fist, Published in September, 1999 in the journal Cahiers de propritré incellectuelle.10 INTELLECTUAL PROPERTY JOURNAL [14 LP.., December 1999] CONTENTS 1, INTRODUCTION pee HO 2, BACKGROUND eee 3, ‘THE 1988 COPYRIGHT AMENDMENTS .. us 4. THE 1997 BILL C-32 AMENDMENTS, .-..0.0-00+ us 5. THE SUCCESSFUL POLITICS OF COLLECTIVE MOVEMENT. M7 6. THE ESSENCE OF THE BARGAIN WITH CANCOPY «..--eeescscseee 19 7. LEGAL QUESTIONS CONCERNING THE CANCOPY SCHEME 120 8. LEGAL CHALLENGES TO CANCOPY...+.++ soe 1D 9, ESTABLISHING A COMPETING COLLECTIVE. (2) The Option vse. seersosee eet rr Co) Analysis : fee 1S (©) ANow Collective? eceeeceeese m7 (@)_ Can Two Collectives Co-Exis? +... i see 19 (© Form of New Collective vitesse . 10 10, CANADIAN NON-COPYRIGHT PRECEDENTS oe 130 1, FINANCING OF ANEW COLLECTIVE 10 12, ADMINISTRATION, FACULTY CENTRED OR INDEPENDENT COLLECTIVE? .-..-s.+ eee nt IB.CASH FLOWS. 0.0.00 Rereete z a 14.CONCLUSION 132 1S.APPENDIX I : oe 12 a) The “Outsider” Problem .--..2+. 32 ()_ Bill C-32 and the Outsider Problem, BI 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COLLECTIVITY INTHE CANADIAN ACADEMIC COMMUNITY. 111 in Toronto named CanCopy? 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 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, for 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 a8 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 Cot- lective 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. 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 effec- tively 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 organiza tion. They have been brilliantly successful as lobbyists, partly because 2 Based upon CanCopy’s published 1998 Annual Report. The breakdown as boweon universities und colleges is assumed to be approximately equal but this cannot be verified. Only CanCopy has the aggregated actus figures, The AUCC (Associa- tion of Universities and Colleges of Carda) will mot release figures for particular stitutions, It was understood in 1996-1997 thatthe univesitie paid CanCopy Pant“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 x similar Quebec, based regime called COPIBEC which was formerly known us UNEQ. However, references inthis puper are to CanCopy unless otherwise indicated, 3. Based upon 550,000 FTEs plus 1,000,000 “continuing” education students Gn- cluding Quebeo),112 INTELLECTUAL PROPERTY JOURNAL 114 LP., December 1999], of their own abilities and partly because of the failure of their adversar- ies to match these abilities, CanCopy has a single-minded purpose to its exisience. 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. 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. Itseems 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 bea 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 sec- ‘ondary 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. 4 According to reported figures, CanCopy has income tht is about 25 percent that ‘ofits older American counterpan, Copyright Clearance Center, Ine, (CCC) which collected about US $55 million in 1998. See huy/www ifrorg. This is far in excess of the usa 10e1 ratios that apply in comparative U-S/Cunadian economic indicators in the intellectual propery area. This does not even account for the, ‘exint 25 per eent of 80 income from the Quebec counterpart to CenCopy, saely COPIBEC. Whether this reflects more Favourable (4@ Canopy) laws oF more ‘conipetence on the part @f CanCopy — which in any event i in large measure responsible forthe current Canadian laws — is us yet unknown