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

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.