Scholars are Subjected to the Power of These Dull Wretches

Locke did not wait until the next day. A couple of hours after our previous conversation–I was still in my office–he called back. “Ariel, I’m glad you’re still there. I can’t write a treatise today; too pissed about the whole Access Copyright situation, and I need to make sense of all of this. Can you remind me what was the last thing we were talking about?”

“We were talking about monopolies who refuse to go away, even when they are defeated,” I said.

“Oh, yes. And I asked you to tell me how come these Toronto Stationers are still around. Tell me, please,” he demanded.

“You see, John” I continued, “monopolies aren’t very good in voluntary self-dismantling, but at the same time many of them do not excel in adapting to a changing environment either. Fortunately, we aren’t doomed to endure perpetual obsolete monopolies because often those monopolists who cannot adapt are swept aside by the perennial gale of creative destruction.”

“Schumpeter, eh?”

“Guilty as charged,” I confessed. “But unfortunately, there are some monopolists, especially those who believe that they can rely on the law to perpetuate their dominance, that will refuse to die gracefully. Even when any objective observer understands that their time is up, they will defend their ability to collect rents as if it were the most natural and sacred entitlement. So accustomed to setting the rules that their eyes are blind to the landscape that had changed. So inured they are to possessing unquestioned authority, that their ears are deaf to those who advise them to step down with dignity.”

“Qui habentes oculos non videtis et aures et non auditis,” Locke said.

“Sorry, John. I’m not that strong in Latin. Can’t follow.”

“But you do speak Hebrew. Do you? Check the source, it’s Jeremiah 5:21. Sorry for the interruption. Please continue”.

“OK,” I continued. “Those obsolete monopolies, the more irrelevant they become, the more fervently they fight back: sometimes with enviable sophistication and sometimes with terrorizing vengeance. But as it happens, eventually a moment arrives when all they can do is fight back with pathetic desperation. Inflicting unnecessary pain on themselves and on their surrounding, they endure slow and agonizing demise. Apparently, that’s the stage where Access Copyright is at.”

“Well, this is understandable,” Locke softened. “After all, monopolies are run by humans and suffer from all human frailties”.

“Yes,” I said. “Understandable, but still regrettable.”

* * *

“Let me tell you an interesting story,” I continued.

“Why not, go ahead”.

“Earlier this year I was invited to speak to a group of students at UofT’s Rotman School of Business. These students participated in a ‘consulting workshop’ and their task was to help Access Copyright reimagine its future.”

Locke started laughing. “Are you telling me that Access Copyright invited you to help them reimagine its future? Of all people? I thought they called you ‘an anti-copyright ideologue, with the long-term vision of a mole’ or something like that. So they wanted to listen to the mole, eh? That is interesting, I must admit.”

“Yes, the ‘mole’ title comes from one of Access Copyright’s Board members. But obviously he wasn’t the one who invited me. The person who invited me to speak is Roanie Levy, their former General Counsel who is currently their new CEO.”

“Oh, I see. It sounds like they do have some clever people there after all, if she wanted to listen to you,” Locke said.

“Yes, they do have clever people; Access Copyright’s problem is its nonsensical mission. Anyway,” I continued, “I think that Roanie Levy realized that Access Copyright clearly needed help. The organization had been badly defeated at the Supreme Court and in Parliament last year. Many universities abandoned it, most colleges did, and when the school boards announced that they would opt out too, its future seemed bleak indeed. Within a few months, its revenue had been slashed by more than a half. Tens of millions of dollars that hitherto seemed like the most secure stream of income disappeared overnight. It seemed pretty obvious that its old way of doing things isn’t going to work anymore, and that if it wanted to survive, Access Copyright would have to find a way to offer educators something that is worth paying for.”

“As I once said,” Locke interjected, “nothing like the sight of the gallows to focus one’s mind.”

I suspected that this had not actually been a Locke quote, so I hesitantly asked: “Are you the one who said that? I thought it was Samuel Johnson.”

“Samuel Johnson, you say? Maybe you’re right, I suppose it was that young lad who said that. Never mind. But I’m sure I could have said that even better.”

“Of course you could,” I assured him. “Of course you could”.

“So, Access Copyright asked you to contribute to its effort to envisage its future. What made you think you could help them? Did you think they could actually offer educators something that’s worth paying for?”

“I was asking myself the same question. But then I thought that even if I could not see anything that they might offer, if I could help them find it, it might be worth a try.”

“Good for you,” Locke said. “So what did you actually tell them?”

“My talk focused on the legal, economic, and ethical assumptions that led to the creation of Access Copyright, and on how each of those assumptions had proven to be false. I explained why the educators who initially endorsed it decided to abandon it.

Basically, I noted that the relationships between educators and Access Copyright were rooted in the assumption that most uses of copyrighted materials by universities require permission, and that fair dealing doesn’t really apply in this setting. Some educators also believed that using works without permission or payment, even when permission or payment isn’t legally required, is still ethically flawed somehow.

It was also assumed that serious market failure would prevent educators from obtaining the necessary permissions in a competitive market, that using the works without permission exposes educators to enormous potential liability, and that Access Copyright actually has the power to grant all the necessary permissions, and that the illegal indemnity scheme that it offered was nonetheless valid. And finally, it was naively assumed that giving a monopolist control over the core academic activities would not be a problem because the Copyright Board would make sure that Access Copyright does not misbehave.”

John giggled. “O Canadians, how naïve and polite you are. Could you please remind me for how long you have been eating this undiluted hogwash? Pardon my language.”

Locke’s condescending tone annoyed me, so I fired back: “We have been swallowing this nonsense for too long, that’s true. But luckily most of us don’t take it anymore. On the other hand, you sophisticated Brits still swallow this collective administration myth with gusto. Your Parliament has just granted your new Stationers even greater powers, creating a so-called ‘extended collective licensing’ that empowers them to collect money for the use of works that they clearly don’t own. As I wrote in my recent article, extended collective licensing is as good a solution to the orphan works problem as the sale of indulgences by the Catholic Church was for the problem of sin. But it seems that with the exception of overly-anxious photographers who oppose this reform for the wrong reasons, everyone else on your island is quite happy about it.  So give me a break, John. While Canada is embracing the 21^st century, you Brits have just circled back to the 17^th.”

“You’re absolutely right, Ariel, and I sincerely apologize. I forgot about the embarrassment of this ‘extended collective licensing’. It is a concept that sounds progressive and enlightened, but the notion of entrusting state-sanctioned monopolies as the gatekeepers of knowledge is as regressive in the digital age as it was in the age of print. And the idea that some copyright owners will be able to sell an indulgence and collect money for the use of works that they clearly don’t own it utterly ridiculous. As I wrote in the Memorandum, ‘it is very absurd and ridiculous that any one now living should pretend to have a propriety in, or a power to dispose of the propriety of any copy or writings of authors who lived before printing was known or used in Europe.’ It was true for print, as it is true for digital. England has indeed circled back to the 17^th century.”

“Which makes me wonder, Ariel, what actually happened in Canada? How did your educators change their minds and stopped believing in that rubbish?”

“It has been a long process, John, and we can talk about it another time. But basically, by the end of 2012 the falsity of the assumptions underlying the Access Copyright model had become evident to everyone but a handful of hardcore Access Copyright apologists. Eventually, even Access Copyright’s most loyal customers deserted it, and for good reason.”

“Bloody good reasons indeed,” said Locke. “So what else did you tell those students, was that all?”

“No. I finished my talk with a trivial observation,” I continued. “I noted that normally a producer whose product is becoming obsolete faces two alternatives: it can try improving the product, or, if it can’t to do that, it can, at least, lower its price.”

“I suppose that you emphasized the word ‘normally’, to underscore the fact that Access Copyright isn’t a normal producer,” Locke observed.

“That’s correct,” I said. “Access Copyright isn’t a normal producer and therefore has not reacted like one. Instead, it raised the price, made its product even less attractive, and threatened legal action against those who would not buy it.”

“Obviously,” Locke said, “Access Copyright reacted the way it did because it’s not a normal monopolist but, as I said, a lazy and ignorant one”.

“Actually, it’s not quite that obvious,” I said.

“Not quite that obvious, you say? Do explain then,” Locke insisted.

“Explain I will”, said I. “But you’ll have to wait for another time. I must finish grading some exams today. Will call you tomorrow.”

* * *

Continue to Part 3.