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University sector opts for ‘long-term certainty’ with copyright pact

But agreement between AUCC and copyright collective is criticized by some in the academic community.

by Rosanna Tamburri

The Association of Universities and Colleges of Canada and the licensing body that collects copyright fees on behalf of writers and publishers have reached an agreement on new royalty fees, ending a protracted dispute between the university sector and the copyright collective.

Under the agreement, announced April 16, universities that accept it will pay an annual royalty fee of $26 per full-time-equivalent student for the right to copy and distribute copyright-protected works. The previous agreement required universities to pay a flat fee of $3.38 per student plus 10 cents per page for photocopied materials included in course packs; the two fees combined generated revenues for the copyright collective of $18 to $19 per full-time student. The new agreement covers material in both print and digital formats while the previous arrangement covered only printed material.

The new rate is less than the $45 per-student fee that Access Copyright, as the collective is known, had initially sought. It is also less than the $27.50 fee agreed to earlier this year by the University of Toronto and Western University through a separate pact. (A clause in that agreement allows the two institutions to pay the lower fee negotiated by AUCC.)

The deal struck by AUCC and Access Copyright is a model licence which means it is up to AUCC’s individual member institutions to decide whether to sign it. It isn’t clear yet how many will do so.

The deal doesn’t apply to universities in Quebec. They are covered under a separate pact with a Quebec copyright collective that sees universities in the province paying $25.50 per student for photocopying rights.

Paul Davidson, AUCC president, said the new agreement provides universities with “long-term certainty on price and access to a new range of digital materials.”

But the deal has been widely criticized by student groups, faculty associations, librarian groups and others who have argued that the deal is too costly given the decline in use of photocopied course packs, the rise in open-access journals, wide availability of public domain works and numerous alternative licensing arrangements that universities have struck directly with publishers of electronic journals and textbooks, bypassing Access Copyright. Universities currently spend about $160 million a year on these digital site licences.

The critics also questioned the timing of the agreement, given that the federal government is expected later this year to approve new copyright legislation, Bill C-11, which would expand “fair dealing” exemptions. The exemptions currently allow individuals to make copies free of charge for private or research purposes. The proposed bill would expand that to include educational purposes. The bill also includes a new exception for publicly available materials on the Internet.

“It’s the wrong deal at the wrong time,” said Michael Geist, Canada Research Chair in Internet and e-Commerce Law at the University of Ottawa. Bill C-11, he said, contains a number of provisions that should reduce copyright fees rather than increase them, as this agreement does. “This feels more like a surrender than a settlement,” he added.

AUCC said its legal counsel advised the association that Bill C-11, once legislated, isn’t likely to affect the main issue addressed by the blanket licence, which is the need to secure a licence for copying required readings for students in course packs or on course websites.

“Universities are not only users of copyrighted materials but also creators,” said Christine Tausig Ford, AUCC vice-president and chief operating officer. “This agreement strikes a fair balance and gives universities long-term security.”

Gregory Juliano, director and general counsel for the University of Manitoba, said the agreement provides universities with a risk-management tool. Some may choose to opt out and manage the risk through their own site-licensing agreements. But, he noted, obtaining licensing requirements from a collective rather than having to negotiate separate agreements gives universities certain benefits. “There’s an indemnity in this agreement,” he said. Those who sign it, as the University of Manitoba is expected to do, will be safe from an infringement claim from publishers that operate through Access Copyright.

“The agreement gives us security for a certain period of time,” he said. “From our perspective it’s a calculated expense.” The agreement also gives universities rights to some materials that are otherwise difficult to obtain, such as a single chapter from a textbook, he added.

“I think there’s been a lot of fear-mongering that isn’t valid.”

As for who will ultimately pay the cost of the new agreement, Mr. Juliano said some schools may pass the fees along to students. But, schools in certain provinces, including British Columbia and Alberta, are prohibited from doing so because of provincial restrictions on student fees. For its part, the University of Manitoba, plans to cover the cost rather than pass it along to students, he said.

The agreement is retroactive to Jan 1, 2011 and will remain in effect until Dec. 31, 2015. Licences will be renewed automatically for one year-terms during which time either party can cancel the deal or request to renegotiate it. Mr. Juliano said getting a long-term agreement avoids the prospect of another long, difficult and expensive tariff dispute.

An interim agreement set by the Copyright Board last year after the previous deal expired extended the former pricing structure until a new rate was set. At the time, some institutions agreed to abide by the terms of the interim agreement while several others, including the University of Manitoba, opted out, preferring to obtain permission directly from publishers and copyright holders.

Institutions that operated under the interim agreement and sign the new model licence by June 30, 2012 will pay no retroactive payments. Those that opted out of the interim agreement and those that delay signing the new one will be charged a fee based on a sliding scale.

A provision in the agreement calls for both parties to jointly design and conduct a survey over the next six months to gather bibliographic and volume-use information. The data will be used by Access Copyright to distribute royalty payments to its members and to establish future licence rates. The details have yet to be worked out but it is expected the information would be collected through a rolling survey, involving a few institutions at a time. The model agreement doesn’t permit Access Copyright to monitor e-mails.

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Comments on this Article

I think universities and university students are facing enough financial difficulties of their own without having to inherit the obligation to support some writers and academic publishers.

The engagement with commercial academic publishers is a net loss for universities and their students. By simply sharing academic content digitally, rather than relying on publishers as intermediaries to print it on paper, universities could save millions of dollars for themselves and their students.

For the AUCC to sign an Access Copyright agreement in light of these facts, an agreement that would bill each student for paper copies whether or not they are actually ever used, flies in the face of this reasoning. One wonders what arguments were used to convince AUCC to sign such an obviously unfavourable agreement.

Universities should ignore this agreement and pursue instead a course of exchanging academic content through open access licenses. Already hundreds of open access journals exist, and tens of thousands of articles are stored in open access repositories, in addition to free and open digital texts being created by various cooperatives.

There's no need for the Access Copyright agreement, and it should not have been signed.

Posted by Stephen Downes, Apr 28, 2012 12:33 PM

Even considering it a bad deal I don't think Access Copyright needs to be abandoned, I do however think they need some competition to moderate their positions. Including some of the non-fiscal ones. After reading the Knopf-Alternative-to-CanCopy-Collective-1999 clearly this is not the first time there has been a problem.Perhaps it's time to fix it. If May 1st is the deadline, then perhaps universities who are not comfortable with this deal should commit to new collective designed to be more responsive, more open and less intrusive among other things.

Posted by Eric von Stackelberg, Apr 27, 2012 11:55 PM

I might say, in reponse to the rather caustic feedback, that we need to differentiate between (a) a reasonable deal on the Access model, and (b) the virtue of other models, other means of dissemination. I'm not sure that any deal would have satisfied some people, and perhaps their institutions won't sign on, leaving them to explore (b). But for everyone to abandon the Access model entirely is to privilege certain kinds of material and certain modes of course delivery, perhaps only at certain kinds of institutions, as reflected in these comments. As an instructor, I resent being able to teach only material that publishers have deemed economically viable. If you can't ship 10,000 units to frosh classes from coast to coast, they aren't interested. Our current alternatives here are not tooled up to allow me to teach, say, Solita Solano's Uncertain Feast (1924), Robert Coates' The Eater of Darkness (1926), or Bravig Imbs' Confessions of Another Young Man (1936). I'm interested in practical alternatives to spare me another term of The Great Gatsby. And if you'd like to know how this is economically viable for me and my students, reflect that I frequently have coursepacks that are more than 260 pages in length.

Posted by Craig Monk, Apr 26, 2012 4:44 PM

I echo Rory McGreal’s comments. This deal is bad for students and will ultimately see the cost of education rise.

As universities continue to make greater use of digital and open resources, imposing a flat rate per student rather than a per-page copying rate can be seen as little more than a money-grab on the part of Access Copyright. As fewer pages will be photocopied, the cost for universities (and, by extension, students) should be decreasing. Access Copyright saw a decline in revenue coming and thus drafted this new, supposedly “more certain” agreement.

As a graduate student, I must also echo Dr. McGreal’s concerns about the detrimental effects that this agreement will have on research. Without the ability to share articles with colleagues at other institutions, and without the ability to legally store research articles, conducting meaningful research will become more difficult. Academic research requires the free flow of ideas. The new Access Copyright agreement will significantly hinder that flow.

I also agree that the timing of this agreement is highly suspect. Access Copyright and AUCC know that new copyright legislation will soon be passed. They know that Bill C-11 includes changes that will increase educational fair dealing and decrease the cost of access for educational institutions. That this agreement was signed prior to these changes to copyright legislation suggests that Access Copyright is attempting to get universities to lock into a deal that will look preposterous as soon as Bill C-11 is passed.

As a supporter of Open Access journals and Open Education Resources (OER), I also fear that this new agreement will hurt the Open Access movement. Universities who sign onto the new agreement have little incentive to make use of Open Access journals or OER, which will limit the expansion of OER, thus limiting the available resources for those universities who choose not to sign the agreement and/or make extensive use of Open Access resources.

Amanda Nielsen
Athabasca University Graduate Students’ Association

Posted by Amanda Nielsen, Apr 26, 2012 2:26 PM

The only positive Outcome of this "model agreement" is that I now realize that AUCC represents the interests of a very few University administrators, copyright lawyers and managers and just perhaps creators who don't understand the impact of the Net.
But AUCC certainly does NOT represent the interests of academics or students. I'd resign but I guess I will have to wait till I am a university president :-). In the meantIme please cancel my subscription to University Affairs.

Terry Anderson
Professor, ATHABASCA University

Posted by Terry Anderson, Apr 26, 2012 10:02 AM

Not sure how going from $3.38 base + $0.10 page / variable FTE Student to $26.00 base FTE Student can be considered a good deal especially as we move away from copies to pure digital. I suppose with enough spin anything can be made to look good.

Perhaps it is past time to look alternatives to Access Copyright that are more responsive and can ensure authors are compensated and universities and students are not gouged.

Posted by Eric von Stackelberg, Apr 26, 2012 3:06 AM

I am grateful for this discussion of the issues: especially with regards to compensation for creators and costs for students. As someone who was involved with our institution's decision to opt out, originally, and the process by which this happened across the country, it is my opinion that this is the best deal that might have been achieved through this process. Please note: I here make no comment about the efficacy of the model, but if we weren't always going to abandon it altogether, this is what we all might have anticipated.

Now, I respect people who anticipate something revolutionary. Thy kingdom come. In the meantime, I have found no viable alternative, and a number of my most successful courses are in limbo. I rely on out-of-print primary sources, works with copyright protection. Open access is irrelevant; third-party providers specialise in social science secondary sources. Humanists who want to challenge the canon made great use of coursepacks, texts that would be cheaper (and easy to produce) under this model.

I don't know whether we'll opt back in, and I expect and deserve nothing but a robust discussion that represents all reasonable scenarios.

Posted by Craig Monk, Apr 25, 2012 11:08 PM

The AC shortchanges creators while it extorts from institutions. Taking 30% of income for 'administrative expenses' and refusing to disclose its practices isn't earning my trust! I'm an author and an academic - I'd much rather have an open, transparent and ethical body representing me and my works when it comes to licensing their use. Instead, I have Access Copyright and its extortionate demands that seem designed to enrich their head office, not Canada's creators!

Posted by Janice Liedl, Apr 25, 2012 3:54 PM

In reply to Robin Metcalfe's reply, I want to clarify that at I am not suggesting creators should not be compensated for their work. My mention of the inordinate and uncompensated labour posed by this model license refers to section 11, which requires detailed, even intrusive monitoring, surveillance, and reporting requirements of subscribing institutions.

Posted by Mark A. McCutcheon, Apr 25, 2012 3:13 PM

In response to Rory McGreal's comments: If you support the right of creators to fair compensation, then how do you propose they are to get it, if their works are reproduced without payment? Replying to Mark A McCutcheon's reference to "burdensome and uncompensated work on staff and faculty," the point of a collective licence is to minimise administrative burden (if you know of a more efficient model, I would love to hear it); and it is not "uncompensated" if it is being done by faculty and staff, who are presumably paid for their work. Independent writers are NOT paid for their work except through copyright licences.

Posted by Robn Metcalfe, Apr 25, 2012 2:50 PM

This agreement could have been made with no effort on the part of AUCC, Access Copyright (AC) has been given more than it could possibly have dreamed of. I understood that the universities through AUCC were going to fight this AC proposal, and significant funding was provided for this purpose. This has not happened this can be partly explained by the hiring of legal council that worked for the publishers. This was at a minimum a perceived conflict of interest and quite possibly a real conflict of interest. Protests were made about this that were ignored. So, a complete cave-in on negotiations by AUCC was not unexpected.

The fact that this agreement purportedly covers digital rights is new. Does AC even have those digital rights? Oh, we don’t know because they will not reveal their repertoire. And, where do they get the right to allow us to link to sites. There is no internet without site links. The internet is site links. Do they own the internet? How presumptious, especially when the courts have already ruled on this allowing site linking.

The model license is a disaster for universities. The license prohibits faculty from sharing articles with our colleagues outside our institutions. Nor can we legally store any research articles or parts. How are we supposed to do research if we cannot continue these practices that are essential. What is that all about? We have always had access to digital materials; the long-term certainty in prices has not given us access to a new range of digital materials, on the contrary, it has now placed serious and possibly catastrophic restrictions on our access.

The timing is highly suspect and works out perfectly for AC as the new copyright law will extend fair dealing to include educational uses that would allow copying a single chapter of a text. It also proposes positive changes in statutory damages that limit universities’ liability. Why could AUCC not wait until after this becomes law?

The most cynical part of this agreement is the pressure that they are putting on other universities to sign now. They were not happy with giving in for themselves, but they also agreed to a limited time formula for others and have now given a clear passage to a tariff that will force us all to accept the agreement. This isn’t “fear mongering” – this is a fact.

This could set back the growing movement for Open Access journals and Open Educational Resources, as universities that use them extensively will still have to pay the same tariff as universities who continue to use mostly proprietary content. As universities and colleges around the world are becoming more open, AUCC agrees to penalize institutions in Canada that support openness.

I support the right of creators to fair compensation. Good luck to them getting it from Access Copyright. I'm sure the AC gang will be giving themselves big raises after winning this agreement. I hope there is some money left for authors.

Rory McGreal
UNESCO/Commonwealth of Learning Chair in OER
Athabasca University

Posted by Rory McGreal, Apr 25, 2012 1:50 PM

This is an important issue that deserves coverage; however, this article's subtitle might make a more accurate headline. As per the article's fourth paragraph, there is hardly a consensus among Canadian universities on this dispute, which is far from over. This model license hurts students, compromises academic freedom, imposes burdensome and uncompensated work on staff and faculty, and charges exorbitantly for practices the law allows for free. Dr Geist is correct: this "agreement" is a bad deal.

Posted by Mark A. McCutcheon, Apr 25, 2012 1:05 PM

What critics of this agreement fail to address is the need of creators to make a living. While academics are paid to think and write, the activity of many writers depends completely on payment for use of their copyright material; failure to recompense them reduces the number of active creators. Collective licences such as this are by far the best solution: they are the least costly administratively and allow the greatest freedom of use.

Posted by Robin Metcalfe, Apr 25, 2012 1:02 PM

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