US Copyright Lobbyists Equate Fair Dealing To Piracy And Copyright Infringement

from the also:-our-jacked-up-rates-no-longer-as-lucrative-as-they-used-to-be dept

Access Copyright, the Canadian collection society that licenses publications for use in Canadian educational institutions, increased its per student rates 1,300% back in 2010. Anyone with a passing familiarity with the term "pricing yourself out of the market" could have predicted the inevitable outcome. Faced with suddenly exorbitant fees (that even covered stuff nominally outside of AC's purview -- like hyperlinks), Canadian universities dropped Access Copyright and began working to license educational materials without AC's assistance.

Access Copyright thought being the "only game in town" would prevent a mass exodus, but it soon became clear universities would be more than happy to deal with the complexities of direct licensing rather than take the easy route and be gouged by AC. (Fun fact: rates jumped 1,300% but less than 10% of these fees make their way back to the actual authors.) 14 of Canada's top 25 universities had dropped Access Copyright by the middle of 2011.

US publishers aren't happy with the outcome of Access Copyright's rate hike, which has resulted in a considerable revenue drop. Of course, they don't blame Access Copyright. In its submission for the 2014 Special 301 report (the report that serves as the copyright industries' naughty/nice list), IIPA (the uber trade group representing all of the other copyright maximalist trade groups) blames everyone and everything but Access Copyright.

As the Canadian education community continues to shift away from the Access Copyright licence, relying instead on a combination of site licenses for materials, open access, fair dealing, and individual transactional licences, U.S. publishers are now urging the U.S. government to pressure the Canadian government to take action.

Yep, the problem here is fair dealing (the Canadian version of fair use), open access and the universities' willingness to swim in the convoluted waters of individual licensing rather than be extorted by Access Copyright. A few long paragraphs from the submission detail US publishers' unhappiness with the current situation and their expectation that the US government will "do something" to restore its access to exorbitant licensing fees.

U.S. publishers serving the educational market with textbooks, journals and other materials are currently facing a comprehensive collapse of an important element of their Canadian market: licensing revenue for permission to copy works for educational uses. Well-established collective licensing mechanisms for administering such permissions are reeling under the combined impact of adverse judicial decisions and drastic legislative changes.

Interrupted here to note that US publishers do not consider a steep rate hike to be the problem. Instead they call out "judicial decisions" and "drastic legislative changes," ignoring the economic reality that if you suddenly jack up prices, customers tend to flee.

The Copyright Modernization Act added “education” to the list of purposes (such as research and private study) that qualify for the fair dealing exception. Because “education” is not defined, the amendment creates an obvious risk of unpredictable impacts extending far beyond teaching in bona fide educational institutions (and far beyond materials created specifically for use by such institutions).

Entities heavily vested in copyright protection hate exceptions…

Even before the fair dealing amendment came into force, some of the decisions in the “pentalogy” of copyright decisions issued by Canada’s Supreme Court in July 2012 posed a direct threat to the educational licensing market. These decisions underscored, among other things, that Canadian courts are to treat fair dealing, not as an exception, but as a “user’s right,” subject to a “large and liberal interpretation”; that the purposes of the putative user, not those of a commercial or non-commercial intermediary that actually makes the copy and supplies it to the user, are of primary relevance in determining whether a dealing is fair; and, that factors such as the availability of a license to make the use, and even the overall impact of widespread unlicensed use on the actual or potential markets for the work, carry much less weight in Canadian law than they do in U.S. fair use jurisprudence.

Canada has gone considerably farther than the US, viewing fair dealing both as a right and something subject to "liberal interpretation." The complaint here boils down to that last sentence: Canada's law isn't as restrictive as the US's and, therefore, must be forced into compliance by the US government.

Although the Alberta Education v. Access Copyright case in the Supreme Court’s pentalogy directly affected only a marginal aspect of the educational copying collective licenses — reprographic copying of a few pages per student per year of short excerpts of already purchased supplemental texts by K-12 teachers for use in class instruction — its ultimate impact has been much more destructive.

Only in the fevered mind of a maximalist is expanding fair use exceptions considered "destructive." Keep in mind that this is an industry that is actively begging its respective governments to help it make it more expensive to educate students.

Lawyers for primary and secondary school systems across Canada, giving both the precedents and the new fair dealing amendment the “large and liberal” reading that the pentalogy decisions encouraged, concluded that fair dealing now eliminates the need for them to obtain any license from a collecting society such as Access Copyright, including for uses such as copying of primary textbooks or of newspaper articles, course packs, digital copying (including digital storage and distribution through learning management systems), and copying for uses outside the classroom. Consequently, as soon as the new Act came into force, virtually all K-12 school boards across Canada cancelled their licenses with Access Copyright.

The publishers once again fail to consider the possibility that lower rates might have helped it retain more licensees. This isn't just because of legislation and court decisions. This is also the bleeding that normally results from an enormous, self-inflicted wound.

Anticipated 2013 annual licensing revenue of at least C$12 million to right holders and authors — much of it destined for U.S. publishers, which enjoy a large market share in the educational sector – evaporated. Similar legal advice was provided to post-secondary institutions, and many of them have declined to renew their Access Copyright licenses as they expire. Access Copyright negotiations with two of Canada’s largest universities — the University of Toronto and Western University – collapsed in recent weeks over this issue. The licensing revenue stream from higher education – historically larger than the K-12 revenue – is thus in immediate jeopardy...

Just in case anyone reading the submission might be unsure of whose interests are being protected, the publishers spell it out in black and white.

After stating its case against fair dealing, the publishers move on to their demands for government intervention.

Publishers are already re-assessing their planned investments in new materials for this core market. We urge the U.S. government to engage with Canadian authorities to ameliorate this threat to the entire educational publishing market in Canada, which is already having deleterious impacts on publishing revenue, investments and jobs on both sides of the border.

In other words, punish the Canadian government for Access Copyright's sins.

But all of this above isn't even the best/worst aspect of this submission. This long complaint about the whirlwind Access Copyright reaped after its 1,300% fee increase makes up the bulk of a subsection in the IIPA's submission. Guess what subheading the US publishers chose to place their attack on fair dealing under.

The Piracy and Infringement Situation in Canada – Offline

That's right. US publishers feel fair dealing exceptions are inseparable from piracy and infringement. Legal exceptions also known as the rights of users, backed by Canadian legislation and judicial decisions, are discussed (well, complained about) in a subsection supposedly dealing with infringing activity. By the time the US publishers have finished griping about fair dealing, there's hardly any room left to discuss actual infringement or piracy. But if you have any doubts about the mindset of US publishers when it comes to fair use exceptions, check this out. This is the last sentence of the last paragraph dealing with Access Copyright and fair dealing.

Even if some expanded uses are permitted, the appropriate balance must still be struck so that educational publishers are duly compensated for their works, thus ensuring a viable domestic \ marketplace for commercially-published educational materials.

This is the first sentence of the immediately following paragraph.

Serious piracy problems persist in Canada’s offline marketplace as well.

The annual Special 301 reports have always been a joke -- albeit an in-joke created by lobbyists and subservient government officials. If there was ever any doubt US copyright industries are lobbying hard for the US government to remake the world's IP laws in its own image, this long complaint about the "unfairness" of another country's fair dealing laws completely erases it.

Filed Under: canada, education, fair dealing, fair use, licensing, publishers, special 301 report, ustr
Companies: access copyright, iipa

Canadian Copyright Collection Group Access Copyright Declares War On Fair Dealing

from the that'll-go-over-well dept

We spent a fair amount of time last year writing about Access Copyright, the Canadian copyright collection group that collects fees from universities for photocopying, and then is supposed to distribute the money to various authors (it's not always good at actually doing that). There were significant complaints because the group tried to massively increase its rates (we're talking an increase of 1,300%), creating a big burden on students, often for no added benefit. There were some sketchy negotiations, and for reasons that still don't make sense, a bunch of universities agreed to pay the crazy rates. Others, smartly, opted-out. On top of all that, around the same time, the Canadian Supreme Court ruled in a series of copyright cases where it protected fair dealing, especially when it came to education and research.

Apparently, rather than accept reality, Access Copyright has decided to declare war on fair dealing. As Michael Geist has detailed, Access Copyright is basically just trying to do an end-run around the law and the Supreme Court rulings.

Access Copyright has decided to fight the law - along with governments, educational institutions, teachers, librarians, and taxpayers - on several fronts. It has filed for an interim tariff with the Copyright Board in an effort to stop K-12 schools from opting out of its licence and it has filed a proposed post-secondary tariff that would run well after most Canadian schools will have opted out of its licence. Most notably, it has filed a lawsuit against York University over its fair dealing guidelines, which are similar to those adopted by educational institutions across the country. While the lawsuit has yet to be posted online, the Access Copyright release suggests that the suit is not alleging specific instances of infringement, but rather takes issue with guidelines it says are "arbitrary and unsupported" and that "authorize and encourage copying that is not supported by the law."

Basically, Access Copyright lost entirely, but it's still pretending that it won. Given the pretty decisive Supreme Court situation, you have to wonder what Access Copyright is thinking, other than "well, we know how to sue, so..." Meanwhile, of course, students suffer massively from this kind of crap. Overcharging students for education doesn't do anyone any favors.

Filed Under: canada, copyright, fair dealing
Companies: access copyright

Great Day For Canadian Copyright: Supreme Court Issues Five (Count 'Em) Rulings Supporting Fair Dealing And Fewer Tariffs

from the proud-day dept

Canadian copyright is undergoing huge changes. The copyright reform bill is very close to becoming law, bringing with it some fantastic new fair dealing provisions (though unfortunately along with a significant downside in the form of digital locks rules), and now the Supreme Court has stepped in with a series of major rulings that reinforce users' rights and begin the process of cleaning up the mess that is Canada's copyright tariff system. This morning, the court published five separate judgements in cases related to tariffs and royalties, and each one contains significant victories for smarter copyright law.

There is a lot to dig into in this series of rulings, and some complex legal questions involved in some portions, but each one also makes clear statements. In the first case, between Alberta schools and the copyright collective Access Copyright, the court found that photocopies for classroom use can be covered by the "research" provisions of fair dealing. In the second case, between videogame publishers and a music collection society, the court found that selling videogames does not constitute a new public performance of the music they contain, and thus does not require a public performance royalty (yes—the Copyright Board and Federal Court of Appeals had both previously ruled that transmitting videogames with music in them counts as "communication to the public"). Similarly, in the third case, the court found that films which contain music are also not public performances requiring an additional royalty (on that one, the lower courts had gotten it right and also refused to certify the tariff). In the fourth case, the court affirmed that while streaming music to users is a public performance, offering music for download is not—so services like iTunes also don't have to pay additional performance royalties. Finally, in the ruling that may get the most attention, the court found that 30 second previews of songs provided by online music services qualify as fair dealing for the purposes of research—a battle that has been going on for a long time in Canada and is now, finally, put to rest.

The rulings also contain a lot of very important language that will have a lasting impact beyond these specific scenarios. The Supreme Court reaffirms the fact that fair dealing must have a "large and liberal" interpretation, and set down some clear restrictions on the power of the Copyright Board. Howard Knopf does an excellent job of summing up some of the important points and broader themes of these five landmark rulings:

• Collectives cannot assume that they will be entitled to an additional "layer" of remunerated rights every time there is a new method of delivery. Technological neutrality matters.
• The Court said what it meant and meant what is said in CCH v. LSUC in 2004 and will move forward from there - not be pushed backwards.
• Users have rights that must be given a "large and liberal interpretation". Copyright doesn't exist solely for collectives.
• Educators are in a "symbiotic" relationship with students and the Copyright Act serves the goal of education, which includes access to essential material
• Copyright law is both about "protection" and "access"
• Copyright law is about "dissemination"
• "Research" is not restricted to "creative purposes". Consumer research counts too. Research can even be for "personal interest". There is no absolute requirement for "transformative" use in Canada
• The user's purpose is the one that counts in fair dealing
• Practices that increase the sale of work cannot be said to have a negative impact on the work
• The concept "public" must be considered in light of new technology, technological neutrality and the purpose of the legislation. The fact that communication may be interactive on an individual basis does not mean that it cannot be considered to be to the "public"
• When the statute uses a word such as "excludes", it means it. The word is not superfluous.
• Parliament did not intend to "recognize a superior expertise of the [Copyright] Board relative to the courts with respect to legal questions arising under the Copyright Act". On copyright questions of "first instance", the Board will get no more deference that any court would get. In other words, the Board must be "correct". It will not be sufficient that it merely be "reasonable"

One of the groups that is likely to be hit the hardest by these rulings is Access Copyright. We've covered the fact that Canada's university association struck a terrible deal with Access Copyright for the clearance of educational materials, and several major Canadian unversities are refusing to sign on. This Supreme Court case was not directly dealing with that situation (it covers only primary and secondary schools), but the ruling contains a complete tear-down of Access Copyright's entire business model which applies every bit as much to universities and colleges. Michael Geist walks through the point-by-point dismantling of all Access Copyright's standard arguments against fair dealing, leaving them very few legs to stand on moving forward. For those universities that plan to clear their own copyrights, this is a very big win—for those that didn't have the resources to keep fighting after the AUCC abandoned them, it just highlights how bad of a deal they got.

Copyright law in Canada has its problems—first and foremost the extremely bad digital locks rules that will come into effect with Bill C-11. But, increasingly, and most notably at the Supreme Court level, we've also been making significant strides in the right direction, using legal language that displays a clear understanding of both modern realities and the need for balance in copyright law. There are still important battles to be fought, but today the Supreme Court gave us a huge arsenal of new weapons.

Filed Under: c-11, canada, education, fair dealing, research, scc
Companies: access copyright

Canadian Court Issues Triple-Whammy Ruling In Favor Of Free Speech And Commentary Online

from the fair-dealing dept

Close on the heels of Canada's recent copyright reform bill (which despite significant problems also contains some fantastic language that carves out important new exceptions to copyright) the Federal Court of Canada has issued a significant ruling that answers some key questions about copyright online. The decision is in a lawsuit filed by Richard Warman and the National Post against the operator of a forum, and looks at two main points: the right to quote news articles, and the right to link to a photo. On the first question, the court made it clear that even a several-paragraph quote is protected, on not just one but two levels:

While the first claim (Warman's article) was dismissed on the basis that it took too long to file the lawsuit, the legal analysis on the National Post claim involving an article by Jonathan Kay assesses the copyright implications of posting several paragraphs from an article online. In this case, the article was 11 paragraphs long. The reproduction on the Free Dominion site included the headline, three complete paragraphs and part of a fourth. The court ruled that this amount of copying did not constitute a "substantial part" of the work and therefore there was no infringement. The court added that in the alternative, the reproduction of the work was covered by fair dealing, concluding that a large and liberal interpretation of news reporting would include posts to the discussion forum. The decision then includes an analysis of the six factor test and concludes that the use was fair.

Both aspects of that part of the ruling are clear and could have a huge impact on copyright licensing in Canada. Perhaps most notably, as Michael Geist also points out, it raises even more serious questions about the disastrous situation surrounding Access Copyright negotiations at Canadian colleges and universities, and makes the already terrible deal (which many schools are signing on to) look even worse. Unfortunately, since the AUCC all but abandoned its members in those negotiations, many schools will have a hard time benefitting from this ruling—but for those universities that have decided to reject the deal and fight the good fight, the ruling represents a substantial boon to their position.

On the subject of linking to a photo, the decision lays down a third important standard, and is again unequivocal about doing so:

The third claim involved a link to a photograph posted on the photographer's site. The court had no trouble concluding that the link was not copyright infringement, rightly noting that the photographer authorized the communication of the work by posting it on his website. This finding should put an end to claims that linking to copyright materials somehow raises potential legal risks. The Supreme Court of Canada has already ruled against attributing defamation to such links and now the Federal Court has concluded that links cannot be said to constitute unauthorized communication and therefore infringement.

To many of us, that's just common sense: putting something on the internet constitutes a public invitation to link to it. But for years, time and time again we've seen courts and companies around the world attempt to claim that linking is infringement, or otherwise not allowed. And, indeed, this also has serious implications for the Access Copyright agreement, which has schools paying licensing fees and obeying rules for linking to material, despite it becoming clearer and clearer that copyright does not cover these activities.

All told, this is an excellent decision, and offers further proof that Canada has the very real potential to move copyright law in a positive direction. There are still lots of battles to be fought, but there's also a genuine emphasis on the rights of users (especially in the courts) that can hopefully be harnessed and nurtured more and more over time.

Filed Under: canada, fair dealing, jonathan kay, linking, richard warman
Companies: access copyright, national post

Fair Use/Fair Dealing Doesn't Require Payment Or Permission

from the how-things-work dept

It continues to amaze me just how much people can't get their heads around the rather basic concept of fair use (or, as some countries prefer, fair dealing). Howard Knopf has a blog post, talking about a Canadian university that, for reasons that make no sense, has included in its "copyright guidelines" the claim that it pays an annual fee to Canadian copyright collection society Access Copyright (currently involved in a bit of a controversy concerning its fees) to cover "fair dealing" copying.

However, as Knopf writes, this makes no sense:

This, of course, reflects a serious misunderstanding. If the copying is “fair dealing”, it is unnecessary to pay Access Copyright or anyone else for copying it.

The whole point of fair use/fair dealing is that it allows you to make use of works without permission or payment.

And yet it's very, very difficult for some people to comprehend this. For example, we were recently sent an email from someone who didn't like that we quoted a story that he had written, first saying that it did not meet his definition of fair use. I wrote back (nicely, I thought) explaining why our use was fair (we only used a small portion of the text, we added significant commentary on top of it, etc.). This person wrote back saying that he was very upset that we failed to "negotiate" with him, and until we came to a mutually agreed upon definition of fair use, we were no longer "permitted" to quote anything he has written.

I'm really not quite sure how to respond to such people, because explaining to them what fair use is seems to only make them more upset. The whole point of fair use is that we don't need permission. We certainly don't need to come to a mutually agreed upon definition of what that person considers fair use (since he outright rejected my definition, despite my offer to send citations showing that my definition is the legal one). Once you're talking about permission or negotiating, you're no longer talking about fair use.

Of course, in this case, there is a fairly simple solution: even though we legally can, I've instructed everyone here to simply never use this site as a source again, since the site's owner apparently would prefer not to have our traffic. That's got nothing to do with "fair use" however...

Filed Under: canada, fair dealing, fair use, permission
Companies: access copyright

Several Major Canadian Universities Reject Access Copyright Deal, But Who Will Stick Up For Smaller Colleges?

from the not-the-aucc,-apparently dept

When the Association of Universities and Colleges of Canada (AUCC) drafted a terrible deal with the collection society Access Copyright, and then withdrew from their fight before the Copyright Board, the onus fell on the schools themselves to stand up for their rights and reject the ridiculous fees and terms of the agreement. Though they were rushed into expressing their "intent to sign", a number of schools have since walked away and announced plans to manage their own copyright clearance, much as major American universities do, while others have capitulated to the deal. Professor Ariel Katz at the University of Toronto (one of the schools that infamously signed a bad deal with Access Copyright before the AUCC agreement, partially on the advice of a lawyer with close ties to pro-stronger-copyright groups and even Access Copyright itself) has been maintaining the Fair Dealing Hall Of F/Sh/ame to keep track of which schools are fighting and which ones are bowing down.

Several major schools have made the Hall of Fame so far: the universities of B.C., Athabasca, Windsor, Winnipeg, York and New Brunswick all turned down the deal in May. Meanwhile, the universities of Manitoba and Victoria have joined U of T and Western, who signed all the way back in January. McMaster University is also listed as signing, but apparently that remains unconfirmed.

Unfortunately, the real losers here are the smaller colleges across Canada, which don't have the resources to set up copyright clearance offices or to assert their fair dealing rights in the tariff fight at the Copyright Board. In theory, that's why we have both the AUCC and Access Copyright: to streamline the process by negotiating a good model agreement that schools can sign, with a set rate that eliminates the hard work of copyright clearance. But that only works if the AUCC does its job and stands up for the schools, making sure that the deal is fair. That didn't happen. For whatever reason, the AUCC failed to strongly assert the fair dealing rights of schools—rights that were strengthened in a series of recent Supreme Court rulings, and which are about to be even further expanded by the soon-to-pass copyright reform bill, all of which should have resulted in lower fees and looser restrictions for schools. Instead, they agreed to significant rate increases, and bizarre restrictions and fees based on rights that don't even exist under copyright law, such as linking and maintaining a personal research archive.

Hopefully, the schools that have chosen (and are able) to cut their own path continue to do so—and maybe, as they demonstrate that it's possible and work out the kinks of their copyright clearance systems, we will begin to see a shift in attitudes surrounding copyright and education that eventually benefits all of Canada's schools. But for the time being, many are going to have to face the consequences of the AUCC's lackluster performance at the negotiating table and before the Copyright Board.

Filed Under: ariel katz, aucc, canada, education, fair dealing, university of toronto
Companies: access copyright

Canadian University Association Surrenders Completely By Withdrawing From Copyright Hearings

from the laying-down-your-arms dept

On Monday, I wrote about a troubling situation for Canadian universities that is coming to head. Their association, the AUCC, has negotiated a very bad copyright clearance deal with the collection society Access Copyright, which has been pursuing a hefty tariff from the Copyright Board. There was already tremendous pressure on AUCC members to sign on quickly, with a bizarre two-part deadline to avoid retroactive fees, but now things have gotten even worse. The AUCC has announced that it has withdrawn its opposition to the proposed tariff before the Copyright Board—meaning anyone who doesn't sign on to the model agreement will automatically face even higher fees and worse terms under the ridiculous and unrealistic requested tariff that kicked off the negotiations. As professor Ariel Katz points out, this is the opposite of what you'd expect:

If the AUCC thought that it would be in the universities’ best interest to settle with Access Copyright, it should have insistent that Access Copyright would withdraw the Proposed Tariff as part of such settlement, and then let universities decide whether they wish to sign an agreement or operate without a license from Access Copyright. Instead, AUCC negotiated a model license that forces universities to choose between a bad agreement and a combination of an even worse Tariff and continued litigation before the Board.

The only hope is for universities to back out of the AUCC agreement and continue fighting the tariff on their own—but that might be easier said than done, and the Copyright Board could easily rubber stamp the tariff as unopposed. Katz continues:

What’s even worse is that–setting aside the issue of cost–it is not even clear how a university that wishes to continue objecting to the Proposed Tariff could do that, because procedurally, individual universities were not “objectors”, only the AUCC was, and at this point its members have no independent standing in the proceedings. And substantively, it might as well be the case that the Board would regard the AUCC’s withdrawal of its objection as binding on its members. Unfortunately, the AUCC’s submission does not mention any agreement with Access Copyright that would allow AUCC members to continue to challenge the Proposed Tariff, nor asks the Board to make any order that would guarantee that. It would be an error for the Board not to allow remaining objecting universities to continue challenging the Proposed Tariff, or to view the AUCC’s withdrawal of objection as binding on them. However, this is a position that Access Copyright might indeed argue, and that if accepted could leave those universities in a very difficult situation.

The AUCC has really thrown its members under the bus here. From the very beginning of this whole mess, they have been in the position to make an argument for much lower tariffs on the basis of their fair dealing rights—and that position has only gotten stronger as Canada moves closer to its copyright reform bill. And yet, somehow, not only did they strike a terrible deal, they're now giving Access Copyright free reign to set tariffs at the board. Howard Knopf raises several important questions about the situation, and the last and most optimistic item on his list is perhaps the most important:

If this development is a sour “lemon” to some institutions (e.g. the three dozen or so “opt-outs” and others that may not be satisfied with result), what options are open to them to turn can it into lemonade – maybe even “spiked lemonade”? This may well be as possibility if the AUCC’s abrupt departure clears the deck for a fresh and very vigorous approach by institutions that don’t want to sign the model license and may therefore decide to fight to the finish.

In the U.S., large universities have their own copyright clearance offices that bypass the collection societies. With Canadian universities stuck choosing between a bad deal and a worse deal, now is the time for them to bring a vigorous argument to the Copyright Board and establish a new way of doing things—one that leverages their substantial fair dealing rights under the law to reduce the cost to schools which, ultimately, is a cost to students, taxpayers and all of Canada. It's disappointing (and astonishing) that AUCC not only won't be backing them if they do, but has apparently made things even harder for them. Nevertheless, the AUCC's withdrawal has cleared the playing field for a counterattack from the universities that could be highly effective with the right strategy. It won't be easy, but it's a fight that needs to be fought.

Filed Under: ariel katz, aucc, canada, howard knopf, university of toronto, western university
Companies: access copyright

Canadian Universities Have One Week To Stop A Disastrous Copyright Licensing Deal

from the ridiculous-demands dept

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.

Filed Under: ariel katz, aucc, canada, howard knopf, university of toronto, western university
Companies: access copyright

Canadian Universities Agree To Ridiculous Copyright Agreement That Says Emailing Hyperlinks Is Equal To Photocopying

from the poor-decision-making dept

In the past, we've written a few times about how Access Copyright, the Canadian collection society that gets revenue from universities for professors photocopying copyrighted works, and how it's been trying to increase rates by 1,300% by claiming that simply "posting a link" counted the same as making a copy. As we noted back in 2010, that's a crazy claim. Lots of universities decided to drop out of Access Copyright's system to avoid such crazy fees. However, not everyone decided to support this move. As a ton of you sent over, the universities of Western Ontario and Toronto have both signed agreements along those lines:

The agreement reached last month with the licensing agency includes provisions defining e-mailing hyperlinks as equivalent to photocopying a document, an annual $27.50 fee for every full-time equivalent student and surveillance of academic staff email.

As the article notes, it seems incredibly premature for anyone to sign such an agreement, since the Supreme Court is expected to weigh in shortly about Access Copyright's mandate and limits, so there's simply no reason to rush into such a ridiculous deal. But, even worse is the message this kind of agreement sends to students. Accepting the idea that emailing hyperlinks is like making a photocopy is a ridiculous message that only serves to make more young people mock copyright as being a law that makes no sense at all.

Filed Under: copying, copyright, links, universities, university of toronto, university of western ontario
Companies: access copyright

Access Copyright Admits That It's Holding Education Hostage Unless Universities Pay Up

from the they-should-be-ashamed-of-themselves dept

We've written a few times about Access Copyright, the Canadian collection society that licenses universities and has them pay a per student fee in order to "pay" authors for all the photocopies and handouts professors make for students. Of course, it doesn't look like very much of that money ever actually makes it to the authors. In the meantime, being in a monopoly position, Access Copyright decided to jack up its fees. And they didn't just double or triple or even quadruple them. No, Access Copyright decided to go big and attempted to increase the per student fees by a whopping 1300%... and then tried to stifle objections to the plan.

In response to this, a bunch of universities decided opt-out of using Access Copyright, meaning that they all need to deal with making sure copies and coursepacks are properly licensed. Not surprisingly -- especially since this was all recently decided, just prior to the semester starting -- some universities are struggling mightily to deal with this and to make sure certain uses are cleared.

But what's really sickening is how Access Copyright appears to be watching this last minute scramble and laughing about it.

Erin Finlay, legal counsel for Access Copyright, said many of the issues that caused the breakdown in the relationship with the universities could have been resolved at the negotiating table. She said the institutions are putting students at a disadvantage.

"When an institution suggests that if you cannot clear this, if you can't get permission before you post it (online) you're not entitled to use it, or you have to find a substitute, or you have to find an open access substitute, I think that harms the educational experience, and I think it harms what we teach our children," Finlay said.

"There's a much easier way that allows access to all of the works and has allowed access to all of the works for the past 17 years, and that's through the Access Copyright licence."

This seems to be a flat out admission that Access Copyright is a monopoly that knows it's a monopoly and that it can charge outrageous monopoly rents, because there's no other game in town. And, really, it's ridiculously cynical to claim that its the universities' actions that are harming the educational experience. The universities wouldn't be doing this if Access Copyright hadn't jacked up the rates 1,300% in the first place... So, if Access Copyright claims that not providing works through it is "harming the educational experience," it has only itself to blame for offering such a bad deal.

Filed Under: canada, copyright, education, learning
Companies: access copyright