Slattery, Bradley, Coker and CAL
Russell Coker has written an article some time ago criticising James Bradley’s response to Luke Slattery’s article on CAL paying itself more than authors.
The Bradley response focusses on what a good thing CAL is for authors (which is not the point of Mr Slattery’s article). It is certainly undeniable that CAL takes money from people, and gives it to CAL’s members (after taking a sizeable percentage off for its costs/admin etc). So, the argument goes, CAL gives you something for nothing, so if you’re an author you’re better off having CAL existing than having it not exist. This is true even if CAL returns only $0.01 to you over your lifetime.
This logic has a certain appeal to it, but ignores some things. First and foremost, CAL distributions are a mug’s game. The average return *per author member* from CAL in a year is about $1650. Clearly, no one is going to be making a living off this. For anyone to make a living the distributions need to be skewed – seriously skewed. For each author who makes a living off this, a large number of authors need to get nothing, or next to nothing. Or they need to make a living off honest work such as writing, rather than as a rentier. That is the nub – this is not a question about whether or not authors ought to get paid for their work. It is a question about when and how they should be paid. At the moment, they are (in effect) required to take on a lot of risk when writing a book on the off chance that it will be successful. Most books aren’t.
This leads us back to our author who gets their $0.01 back from CAL and counts their lucky stars that CAL exists. Well, not even they should be grateful to CAL, or to the system. For them to have gotten their $0.01 something of theirs had to have been copied. That, in turn, means that they had to have written something. This is where the true cruelty of the copyright system comes into play. It creates the impression that copyright will reward authorial endeavour. It does in some cases, and in some cases it does so handsomely, but the odds are it won’t. So, in order to get the $0.01 they’ve had to expend more of their time than it’s worth. Rather than writing, they would have been better off digging trenches for the local council or serving at a fast food restaurant. The cruelty is that authors are by and large encouraged into wasting a large amount of their time for little reward.[2,3] If this were happening to labourers in a third world country there would be an outcry. Here we mark it as some sort of achievement.
Mr Bradley suggests that to argue against CAL is to not value the written word. I do not think this is correct. These payments (roughly $100 million in 06-07) are like interest payments. It is not like a mortgage on a house, where, by continually paying, eventually you own the house. No, under the CAL system it doesn’t matter how often our education sector pays, at the end of the day we, the taxpayers, have nothing to show for it. In fact, the CAL system presupposes this. As a way of spending taxpayers’ money it leaves a lot to be desired. Taxpayer money would be better spent on commissioning works which can be reused without the need to pay ongoing licence fees. I am fairly sure that $100 million *per year* spent on developing open content text books would, in the comparatively short term, produce a corpus of works which would satisfy most content needs of most schools most of the time. Thereafter, the money could be substantially reduced (although continued to pay for maintenance of the existing works and commission new ones as the need arises).
But wait! There’s more. As authors have been Stokholm Syndromed into the Licence-Fees-are-a-Pathway-to-Nirvana view of the world a vast amount of copyright material goes unused. Because of the possibility of one day finishing and selling an author’s work, intermediate parts of the work are held back. If a work is not finished, it is simply lost (eg if 4 chapters of an 8 chapter book are completed, they will be lost if the full 8 chapters aren’t finished). These works which never make it to market are lost simply because of the possibility in the future of their being licensed. Those works which do make it to the market are also, in effect, held back to a greater or lesser degree (the first chapter which is completed is withheld until the final chapter is completed). Moreover, many educational institutions already pay for a great wad of educational content to be created, used a couple of times and then be discarded – if it were reused effectively, the $100 million per year would go much, much further.
Mr Bradely states: “Obviously, without some mechanism to guarantee rights-holders are compensated for such use we remove all incentive for investment in developing new content. After all, why go to the expense of creating a textbook (or some form of digital course materials) if you are going to sell only a half-dozen copies to state education departments?“
The alternative which Mr Bradley does not avert to is that educational institutions commission works from authors. Those works are then licensed openly. Creative commons, for example, is not simply for altruistic authors, it is also for authors who don’t want to lose 20% of their income to CAL’s administration. A commission system removes risk for authors. Authors get certainty of payment and a clearer statement of required outcomes. If the payment is not enough, they don’t do the work. No more will they be encouraged to produce the break even products that keep publishing houses ticking over (and thereby subsidising their publisher). In such a world however, the point of CAL’s existence would be moot, so it is somewhat unlikely that CAL would advocate for it. If CAL’s distributions are any indication, they exist primarily for publishers and foreign collecting societies (followed by their own administration, and then their author members).
Mr Bradley states: “And, more significantly, Australia’s success in the digital environment depends on our success in meeting this challenge.“
More likely, our success will be dependent upon repudiating it.
On CAL’s sampling: CAL collects fees from the educational sector and returns it to members based not on actual usage, but on sampling. That is, they choose certain institutions at certain times and ensure that good records are kept of actual copying. These records are then used to extrapolate to usage across the board. So, of course, any bias in the sampling method will be reflected in the distributions which occur.
 CAL contacted me once to pay me about $100 for an article I wrote – and which I never asked them to collect. They left a voice mail on my phone a day or two before Christmas one year, while I was driving to go on holidays. They didn’t try again. So, they’ve taken $120 (ish) off some poor unsuspecting people which I didn’t want them to take, they’ve put about $20 in their pocket and offered me the rest. An anomaly which once existed – and I understand has since been corrected – was where the Government held copyright in the work. In that case government schools would pay to copy the material, CAL would take out $20 in every $100 – and then give the rest back to the government again. Nice work if you can get it!
 I wrote a chapter of a book for a legal publisher once – they never sent me any royalties, nor even accounted to me on sales. What I got was five copies of the book (woohoo) and, from memory, two paperback titles from their list. Monetarily, it would have been more rewarding picking up rubbish. I declined writing an entire loose leaf service for them…
 Publishing works by publishing a comparatively large number of works which break even. These works cover the fixed costs of running the publishing house. They provide a subsistence living to the author who will likely get nothing beyond their advance. These authors may as well be sewing cross trainers in the Philippines. In addition, a publishing house will also count on having a couple of titles which sell very well. It is these titles which give it its profit.