Canada's universities are on the verge of accepting a copyright licensing
deal that flies in the face of all reason, agreeing to pay higher fees for the
clearance of all sorts of new digital rights—including some that don't actually
exist—despite a major Supreme Court ruling and a fast-approaching copyright
reform bill which both suggest they shouldn't need to make a deal at all. The
organization that represents the schools is now attempting to rush through a
scheme that harms educators, students and taxpayers by forcing its members to
sign on immediately or face retroactive penalties, and unless there's a
much-needed last-minute push from the public, this disastrous agreement is a
done deal. The outcome has baffled some Canadian lawyers and professors who have
followed the story for years.
In 2004, Canada's Supreme
Court issued a unanimous judgement in a dispute between legal publishers and a
law library that changed the shape of copyright in Canada. The decision in CCH
Canada Ltd. vs Law Society Of Upper Canada (pdf link) explored
the limits of fair dealing (the Canadian analog of fair use) as it pertains to
research, establishing several key principles that are strongly in favor of
open access to information. The court stated that the term
"research", which is explicitly included as fair dealing under
Canadian copyright law, should be broadly interpreted and is not limited to
private or non-commercial endeavours—and that if a facility's general purpose
qualifies as research, it is protected under fair dealing even if some people
might use the facility to infringe. It was a landmark ruling that, of course,
provoked the ire of every collection society and copyright industry player in
the country.
But for Canadian universities and public schools, it should have been a
windfall. For years they had been paying a per-student fee to the collection
society Access Copyright (previously CanCopy) for rights clearance on all the
routine xeroxing and other copying that is a part of education. After the CCH
ruling, most or all of that qualified as fair dealing, and the schools were in
a position to negotiate much lower fees or just stop paying them altogether.
Instead, the opposite happened—the schools ended up paying more.
To understand how this is possible, you have to know how the process works.
The Copyright Board of Canada has the legal authority to impose copyright
tariffs. When Access Copyright wants more money, they go to the board and
request a ridiculously high tariff—then negotiate a voluntary rate with the
schools, somewhere in between the current fee and the requested tariff. If the
schools can get a rate that is lower than the requested tariff, they declare
victory—even though they could have presented a much better and more effective
fair dealing argument to the board, doubly so following the CCH ruling.
The K-12 public schools were the first to fall and be forced to
retroactively accept a higher rate, the burden of which ultimately falls on
taxpayers and students. Then, in 2010, Access Copyright moved against the
universities, filing for a $45
per-student tariff after the old deal ($3.38/student plus ten cents per
page for course packs) expired. Not only that, but by the end of the year they
had managed to get the Copyright Board to approve an interim tariff to impose
on the universities before reaching a final agreement or determination. A bunch
of schools opted
out, and started trying to clear their own rights without going through
Access Copyright. At this point, the Association of Universities and Colleges
of Canada was in the perfect position to go to the board and assert their fair
dealing rights. Not only would they have the backing of the CCH ruling and its
generous "research" provisions, they could point to Canada's
soon-to-be-passed copyright reform bill, which as currently written will
specifically add "education" to the definition of fair dealing.
For some reason, apart from a few minor objections as the board continued to
make procedural rulings against them, they haven't fought back very hard, or at
least not very effectively—and the process has been dragging on and on. They
entered into preliminary negotiations with Access Copyright at the beginning of
this year, but then suddenly something completely unexpected happened: at the
end of January, the University of Toronto and Western University announced
that they had cut their own deal with the collection society at $27.50 per
student. Again, they declared victory because it was lower than the proposed
$45—a laughable figure that the Copyright Board never would have granted. The
capitulation of two major universities took the already-meager wind out of the
AUCC's sails, and now they've negotiated an ever-so-slightly better (but still,
in the big picture, very bad) rate for universities and colleges across Canada.
In addition to the rates that went up when they should have gone down, there
are plenty of other problems with both deals. Howard Knopf, a
Canadian copyright lawyer, points out that Access Copyright is charging for ridiculous rights that don't even exist, such
as hyperlinking and displaying documents on a screen. University of Toronto
law professor Ariel Katz, another outspoken critic of the deal, highlights several
onerous provisions that will seriously interfere with the ability of
professors to do their job:
Or consider s. 4(c): “Copies of Repertoire Works shall
not be stored or indexed with the intention of creating a library of Published
Works, except as permitted by this agreement as part of a Course Collection.” I
don’t know when was the last time the people who negotiated these license
agreements conducted academic research, but I’m happy to break the news that
since the photocopier appeared on campus (and perhaps earlier than that)
copying works (such as journal articles), and storing them “with the intention
of creating a library” has been integral to the researcher’s life. Some of us
annotate these copies, occasionally at least, and those who are better
organized employ various methods for cataloging and indexing their collections.
Believe it or not, some academics keep not only collections of photocopies but
also collections of materials in electronic format called “pdf”. Yes, we
sometimes do weird things up there in the ivory tower. Moreover–and I hope
you’re ready for the shocking news–it has even been brought to my attention
that some Canadian researchers use programs like Zotero, RefWorks, EndNotes,
among others, in order to index those files for easy search, retrieval, and other
seditious purposes. The agreements seem to prohibit that. Is this the best
possible outcome? Really?
Or what would you say about the following gems, such as s. 5(a): “Digital
Copies of Repertoire Works shall not be transmitted to, posted or uploaded to,
or stored on any computer network other than a Secure Network”, and 5(b:)
“Digital Copies of Repertoire Works stored on Secure Networks shall be made
available and accessible only to Authorized Persons segregated by individual
Course of Study”?
These prohibition seem benign enough until your read the definitions. A
Secure Network is defined as: “a network that is operated by the Licensee
[i.e., the licensed university, not the Authorized Person, AK], or for and
subject to the control of the Licensee (such as a network hosted by a third
party and/or accessible through a web interface) and which is only accessible
by an Authorized Person who is approved by the Licensee by means of a process
of authentication which, at the time of login, identifies the user as an
Authorized Person, whether by user name and password or by some other equally
secure method.”
Knopf believes many schools are going to be completely blindsided by the details of the agreement—but
they may not have the time or resources to do anything about it. The AUCC is
letting Access Copyright pressure the universities and colleges to agree now
with what it brazenly dubs a "limited time offer".
Believe it or not, there’s a "Limited Time Offer of Discounted Pricing on Retroactive
Payments" (which Prof. Ariel Katz suggests is “an offer than can’t be
refused”), that demands virtually immediate agreement in order to mitigate
losses. According to AUCC President Davidson:
Access Copyright has agreed that the best retroactivity
discounts available to universities will be available those that indicate in
writing to Access before May 1, 2012 that they expects to sign the licence, and
then actually sign before June 30, 2102 [sic]. While you need to indicate your
intent to sign the licence by May 1, you may still reconsider your options
after that date, and you could choose to delay signing (in which case the
discount will be lower), or not sign at all. (highlight
added)
However, among other things, it’s not at all clear: how
this “”Limited Time Offer” will work; and, why it is so limited in time and so
urgent?
Nor is it clear what AC means when it says that those who “advise Access
Copyright in writing of their intention to sign the Model License by no later
than May 1, 2012, and sign by no later than June 30, 2012, pay no retroactive
payments.” What does “intention to sign” mean? What happens if the university
changes its mind?
May 1st is seriously really soon. It is only a week away. What exactly is
the emergency?
The emergency, of course, is that if Canadian universities wake up to what's
happening and have time to actually look at this deal, they might realize how
bad it is for everyone other than Access Copyright. Nobody is entirely sure
just how and why the AUCC, University
of Toronto and Western
have failed to put up a meaningful fight. Though time is short, critics like
Knopf believe there may still be a chance for a hail-mary pass to stop this
deal in its tracks. Some may think this is quibbling over a meaningless
figure—a few bucks per student—but that misses the big picture. A deal like
this represents a massive and completely unjustified transfer of wealth from
one class (students, who we we want to support for the good of the entire
nation and economy) to another (publishers, who are asserting rights they don't
even have). It also adds fuel to the copyright industry's ongoing campaign to
minimize and ultimately reverse the effects of the CCH ruling, and to scale
back all the good parts of the copyright reform bill—two things that must not
be allowed to happen. Canada's
copyright laws are far from perfect, but they have been moving in very
progressive directions lately, with a strong emphasis on user rights—and
Canadian universities should be harnessing that momentum, not working against
it.
