University Of Toronto's Lawyer In Access Copyright Deal Also Advised Access Copyright On Related Legislation

from the the-bad-deal-looks-worse dept

In a recent post about the bad deal that Canadian universities are being asked to sign with the copyright collection society Access Copyright, I asked whether it was wise for the University of Toronto and the AUCC (which represents universities across the country) to work with lawyers who have a long history of arguing to limit fair dealing, when what the schools need most is a strong fair dealing argument. I noted at the time that even though both lawyers—Glen Bloom, who represented the AUCC in the negotiations, and Casey Chisick, who advised U of T—were presumably giving the schools the best advice they could, it seems virtually impossible for someone to effectively argue both sides of a contentious copyright issue like fair dealing. Besides, even assuming good faith and full disclosure, it simply doesn't look good: both Bloom and Chisick have established relationships with clients that have a direct financial interest in limiting the scope of fair dealing, meanwhile critics of the deals they helped the schools strike with Access Copyright say the schools didn't assert their fair dealing rights nearly as much as they could have.

It's already hard to understand why U of T and the AUCC would go along with this—but it gets even more concerning with the addition of a previously unnoticed detail. According to an email I've been provided with, and a disclosure made at a conference, U of T's advisor Casey Chisick was retained at the end of 2010 to advise Access Copyright on copyright reform legislation. It's unclear if and when this ended, and when I contacted Chisick to find out, he replied declining to comment or even to confirm or deny whether the relationship existed. But what's obvious is that Access Copyright's interest in the legislation (bill C-32 in 2010, bill C-11 now), and their submissions to Parliament, revolves around eliminating the new explicit fair dealing provisions for education that are being considered, since that would cripple their entire business model.

One big question here is, will the students accept all of this? Ultimately, they are the ones paying—directly in schools that pass the cost on to them, and indirectly in those that absorb it and have to find the money somewhere else in the budget. On one side they've got law professors inside their own schools loudly and publicly criticizing the deal, saying the universities agreed to ridiculously high rates (which should in fact have gone down from the previous deal) and unfair limitations based on rights that don't even exist; on the other they've got the U of T and the AUCC insisting it's a good deal, while working with lawyers who have histories of representing, advising and lobbying for organizations with a direct interest in stronger copyright and higher licensing fees. Now they learn that U of T's advisor also apparently advised Access Copyright themselves on a related legislative issue that bears heavily on the negotiations (he's also actively registered as a lobbyist for a music collection society, the CMRRA). How exactly are students supposed to react?

Quebec (which has its own copyright clearance system for universities and is not a part of this otherwise country-wide deal) is in its third month of widespread and intense student protests over tuition hikes, which have grown into a serious movement. It's a time of unrest for Canadian education, and not a time to ask students to swallow a bad deal negotiated under so many questionable circumstances. Appearances matter, and nothing about this looks good.



Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, May 10th, 2012 @ 5:50am

    Copyright proponents are destroying themselves long term with all the bad headlines from bad legislation they're pushing (like SOPA & ACTA) and then totally outrageous deals they make and prices they demand.

    If this deal had ONLY included a price hike and not even more outrageous restrictions like restrictions on emailing their content to other students & professors at their own university there wouldn't have been half as much controversy over it.

    It's the draconian restrictions that everyday users of their content will notice that really turn people against them and fuel piracy.

     

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  •  
    identicon
    Anonymous Coward, May 10th, 2012 @ 6:08am

    Just a thought for you to consider. An attorney who in the past has advocated on behalf of a client for a limited construction of a law is quite able to advocate with equal alacrity an entirely different construction of a law precisely because to effectively advocate one construction necessarily means that one must fully understand all counter positions.

    Think about the practice of criminal law. A prosecutor one day, and a defense attorney the next.

     

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    •  
      icon
      Dementia (profile), May 10th, 2012 @ 6:27am

      Re:

      I believe Mike already addressed that concept in the previous article. In this instance it's all about the perception by those other than the college administration and the lawyer. Keeping in mind that how they perceive things is their reality when something looks like a turd, smells like a turd, and squishes into the tread of shoes like a turd, the students are going to believe it's a turd. What do you think happens after that?

       

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    •  
      identicon
      Another AC, May 10th, 2012 @ 6:29am

      Re:

      Yes, and that *looks* bad. It's not conflict of interest that is a problem, it's *the appearance* of conflict of interest that is a problem.

       

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    •  
      identicon
      Anonymous Coward, May 10th, 2012 @ 6:32am

      Re:

      Think about the practice of criminal law. A prosecutor one day, and a defense attorney the next.

      But not on the same day.

       

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    •  
      icon
      Leigh Beadon (profile), May 10th, 2012 @ 6:41am

      Re:

      Just a thought for you to consider. An attorney who in the past has advocated on behalf of a client for a limited construction of a law is quite able to advocate with equal alacrity an entirely different construction of a law precisely because to effectively advocate one construction necessarily means that one must fully understand all counter positions.

      Unfortunately that doesn't seem have happened here - a lot of people are highly critical of the deal that was struck. Moreover, that gets pretty tough when you'r dealing with somewhat open legal questions (like fair use) where a single ruling can have far-reaching impact. A victory on one side can completely change the contours of the other side's argument - or entire business.

      Believe me, I'm not trying to accuse anyone of conflict of interest. And these lawyers I talk about are, without a doubt, some of the country's top copyright lawyers. If the universities had come out of this with a good deal or even an average deal, I wouldn't have batted an eyelid. But as it stands, things just do not look good, and I can't imagine students are going to be very receptive to being told "no no seriously it's a great deal" while the lawyers go back to fighting against fair dealing.

       

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    •  
      icon
      Leigh Beadon (profile), May 10th, 2012 @ 6:55am

      Re:

      For comparison, consider employment law: very few law firms (if any) work for both employers and employees in labour disputes. The legal philosophies are too opposed. They generally specialize in one side or the other, since even if they are the fairest, wisest, most responsible lawyers in the world, it's just not manageable to fight both sides of that area of law.

      A situation like this suggests copyright law may need to be treated the same way.

       

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      •  
        identicon
        Anonymous Coward, May 10th, 2012 @ 7:19am

        Re: Re:

        I well know labor law firms, and they are most of the time, as you note, divided into employee and employer camps.

        I also have detailed knowledge of the renumeration received by each, as well as how that renumeration is determined.

        It is the latter that in large measure drives labor lawyers into two camps.

        BTW, the employer camp seems to fare the best since the firms are generally larger, and, thus, are able to throw more people and resources at the employee camp in contested matters. Doubt me? You would not if you ever sat in on a deposition. The employee camp typically has one/two persons with the firm in attendance. The employer camp, depending upon the client (i.e., does it have a big legal budget) has enough people in attendance to start a credible Thanksgiving Day parade.

         

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        TtfnJohn (profile), May 10th, 2012 @ 8:49am

        Re: Re:

        While I agree with you that dealing with lawyers who are on both sides of the fence on this and other issues I want to add another complicating factor here.

        The UofT administration is tied tightly into the political and economic power structure of Canada even if their tenured professors and other teachers and researchers aren't.

        So it doesn't surprise me that the UofT would sign a deal that commits other universities in English Canada to a horrible, expensive set of payments and rules beyond what copyright actually covers. They're joined at the hip at the administration level to the likes of Access Copyright and others in the IP field by virtue of their being publishers themselves. As well as other levels of "The Establishment" as it's also considered "The Establishment's School" in Ontario and beyond and the administrators of the University want to keep it that way.

        So it's not just the lawyer who handled that who is in a real or perceived conflict of interest it's the University administration and Board of Regents.

         

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          Ken (profile), May 11th, 2012 @ 6:29am

          Re: Re: Re:

          Similarly, the AUCC is very much an agent of "The Establishment" and has, and does, take a very conservative view of fair dealing and so it is not a great surprise that it has negotiated a license that enhances the position of Access and all it represents.

           

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    •  
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      Trails (profile), May 10th, 2012 @ 7:26am

      Re:

      Right, but what about someone who is still actively involved in lobbying for the more restrictive construction? He's a registered lobbyist for a music collection society.

       

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      •  
        identicon
        Anonymous Coward, May 10th, 2012 @ 8:17am

        Re: Re:

        Jedi hand wave...

        "These are not the LAWYERS you are looking for"....

        "He's right, these are not the LAWYERS we are looking for"

        See how easy it is...

         

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    •  
      icon
      Mike Masnick (profile), May 10th, 2012 @ 8:41am

      Re:

      Just a thought for you to consider. An attorney who in the past has advocated on behalf of a client for a limited construction of a law is quite able to advocate with equal alacrity an entirely different construction of a law precisely because to effectively advocate one construction necessarily means that one must fully understand all counter positions.

      Think about the practice of criminal law. A prosecutor one day, and a defense attorney the next.


      The criminal law analogy makes no sense. It would only make sense if you had a criminal lawyer who publicly advocated for, say, putting more people in jail, and was a lobbyist for prison companies... who then had to defend a client who ended up in jail.

      This isn't a case where someone is just an advocate for a client. This is someone who has publicly advocated for a specific position and is working as a lobbyist related to that position.

       

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      •  
        identicon
        Anonymous Coward, May 13th, 2012 @ 4:33am

        Re: Re:

        Were you dropped on your head as a child?

        Read it again, you silly fool. The author spelled out a very specific scenario. You ignored it because you either felt it inconvenient to address, OR, your parents wasted money on a Cornell education thinking you were bright enough to deserve one. Pick.

         

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  •  
    identicon
    Anonymous Coward, May 10th, 2012 @ 7:18am

    how can a lawyer be allowed to work for both sides at the same time? surely it must be not only unethical but also be a conflict of interests? then, i suppose, if the universities pay less than the industries do, the universities will get the worse deal. i would have thought now, though, that there should be an investigation into who has done what and whose interests are best reflected in the outcome, which should be changed if necessary. i mean, let's face it, only a bloody chump pays more for less unless there is an added incentive coming from somewhere

     

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  •  
    identicon
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