Member update: Canada, COVID and more
June 1, 2020
Dear Members,
I write to update you on a recent court decision in Canada; what we have being doing for you around COVID-19; our legal cases; payment for news content by big tech; and the Cultural Fund.
Canadian judgement: writers, publishers and visual artists win, but still get smashed
I think it is worth soberly reflecting on an important legal decision in Canada in a long-running case between Access Canada and York University.
The full Canadian Federal Court rejected the university’s claim that they did not have to pay copyright fees on certain types of use of copyright material, for which they have not paid a fee for many years.
But, in bad news, the court also ruled that Access Canada could not charge the fee set by their Copyright Board (which is like our Copyright Tribunal) on technical legal grounds.
Our hope is that the Canadian Government will see sense and change the law to ensure payment. And of course, we have sent our full support to our Canadian colleagues.
Members may recall that, when the Australian Government was looking at making major changes to copyright law here (introducing ‘fair use’), we highlighted the disastrous consequence of changes in Canada. This new decision confirms just how devastating the Canadian law changes have been.
They have put a wrecking ball through the creative community in Canada.
We said, at the time of the campaign here by big tech companies and others for ‘fair use’, that ‘free is not fair’. The recent Canadian decision shows just how true this is. Free is not fair.
COVID-19: working hard to collect and pay you money for use of your works
COVID-19 has hit the writing, publishing and visual arts sectors very hard, with the cessation of (physical) book and art launches and festivals, and the closure of bookstores and newspapers.
It’s such a tough and distressing time.
We are doing all we can, as a relatively small organisation, to support the creative community and ensure our licensees are able to use copyright material easily and seamlessly.
I updated members recently on the fact that a core aspect of this support is to ensure that we collect money due (for use of your work) in order to pay you or your organisation.
I am happy to report that our major education licensees have all recently paid monies due:
- The schools sector has now paid us its annual $58 million, for access to your works by 3.8 million Australian school students. The schools’ money will be paid in June.
- The university sector has met its obligation to pay $16.25 million (they are invoiced on a half-yearly basis). Under the Copyright Tribunal orders, half of this money is paid into an escrow account. The pool for distribution is $8.13 million. It will be paid in June.
- The TAFE sector has also paid us just over $3 million, for use of members’ work in TAFE colleges. Money from this pool will be distributed to members in June.
We will also make payments to visual artist members, including cartoonists and photographers, for use of their work in Government.
Since I last wrote to you, we have also collected money for news publishers for the use of their stories by media monitoring organisations including Isentia, Meltwater and Streem.
I should also say that for our licensees, including in schools and universities, our licences have proved to be broad and flexible enough to allow Australia’s students to access an enormous amount of education material online to continue their studies and learning remotely.
Copyright Tribunal: protecting copyright, valuing and measuring content use fairly
I also want to update you on the legal cases in which we are involved on your behalf. As you know, we are running a number of actions. At the core of each of these is ensuring that we protect copyright, set a fair price for use of your work, and better measure what is used so we can pay you.
Before Christmas, we settled our seven-year-long dispute with the State of NSW over the fees it pays for uses of members’ material by hundreds of thousands of NSW public servants.
The NSW Government agreed under that settlement to pay at the same rate as all the other State and Territory Governments. We updated members on this settlement and paid entitled members this money in April.
On the universities case, the week before last, we submitted to the Tribunal a great deal of expert evidence to support your case for a better measurement system and fair payment.
This evidence includes expert opinions by economists and also by valuers on the value of your content; survey experts on the best way of conducting a new survey; as well as a digital expert on the highly accurate data universities have on what students can read on the universities’ digital learning systems.
The main hearing is still set for September.
On the dispute in which we are involved with the media monitoring companies on the value of newspaper content, the main hearing is still set for October. The Judge in that case recently rejected Isentia’s application to have the interim rate they pay reduced.
ACCC mandatory code
On fair payment for the use of copyright works, we are contributing to the ACCC process to develop a mandatory code aimed at ensuring big tech pays for their use of news content. There was a story in April’s Creative Licence that provided more detail on this important code.
Cultural Fund
We processed the applications for our Emergency Action Funding as quickly as we possibly could in under a month, acutely aware of the difficulties currently faced by writers, publishers and visual artists and of the burning imperative to create. Last week we announced that our Board had agreed to ‘top up’ the program with an additional $125,000. You can find all the details in the full story.
Finally, we all continue to work from home. I would like thank everyone at the Copyright Agency for all their hard work to enable us to do all of the above, and more, for members.
All the best,
Adam