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Should Canadian Universities Walk Away From Access Copyright?

The Access Copyright tariff proposal that calls for a 1300% increase in fees to $45 per full-time student has generated some interesting discussion.  I noted in one of my responses that my courses only use openly accessible materials – court cases, statutes, government reports, and open access licenced articles.  This comes without any loss in the quality of materials and without the need for further payment or permissions.  I don’t think this is particuarly unusual for law, which relies heavily on these kinds of materials in addition to textbooks purchased by students and works in databases that are separately licenced.  The amount of additional copying in that environment that falls outside private study or research such that it requires a licence is tiny to non-existent.  Indeed, the inclusion of education as a fair dealing category would not change a great deal for thousands of Canadian law students.

While fairness dictates that Canadian education must object to the Access Copyright tariff proposal to ensure that students are not asked to pay for uses that the law says do not require compensation, it may be time for the post-secondary education community to ask whether it should walk away from Access Copyright altogether.  Note that I am not saying that creators should go uncompensated and that education should get a free ride.  I repeat that it is fair dealing, not free dealing. 

Rather, with the prospect of such a dramatic increase in costs, education must self-assess to determine whether it actually needs these licences or whether individual licences with the authors (or copyright holder) where needed makes more sense.  This would be true for anyone facing a demand for a 1300% increase in costs.  How many faculties are similar to law in their ability to use open access licenced materials?  How many courses rely on public domain materials? How many courses rely heavily on recently published research that is available under open access?  How many courses limit materials primarily to textbooks that are purchased by students and not copied?  How many rely on works found in databases that are licenced separately?  How much of the Access Copyright repertoire contains works that are copied and fall outside of all this?  What is the cost – beyond the full-time student cost in the tariff proposal – of the onerous reporting requirements?

My guess is that a growing number of faculties and courses make very little use of the Access Copyright licence.  Their students purchase copyright works as courses require, use licenced databases, copy independent materials for research purposes, or make copies for private study purposes. None of this requires an additional licence.  If this is the case, universities need to think seriously about walking away from Access Copyright and moving toward individually licenced works where the need dictates (in addition to the purchases of texts and database licencing).  Negotiating with individual authors or publishers for the rights to a single work may be cumbersome, but so too are the reporting requirements Access Copyright is demanding.  Moreover, individual negotiations hold the advantage of potential costs savings and ensuring that the actual authors receive full compensation for the use of their works.  In other words, win-win for both creators and users.

64 Comments

  1. This suggestion of 1300% increase is false. The proposed tariff will cover both the current flat fee of about $3.40 AND the fees paid for coursepacks, which are much higher – probably an average of $15-$20 per student. Whether $45 is the correct level will be decided by the Copyright Board. But it is rabble-rousing and irresponsible to suggest that universities don’t use content for which compensation is payable. Most coursepack permissions would be extremely difficult to pursue one-on-one, and no university administration is going to take on this workload. Professor Geist may be correct in saying that there might be a decline in the copying covered by the flat fee component, but as universities adamantly resist any attempt to assess this, there’s no way of knowing. However, as the Federal Court of Appeal said in the K-12 schools tariff, multiple copying and copying done at the request of a teacher probably isn’t “fair” dealing.

  2. Proffessor Geist didn’t say Universities don’t use content for which compensation is payable. And suggesting he did is rabble-rousing and irresponsible.

  3. Richard Pitt says:

    Internet to the rescue re individual course packs
    The internet is both the cause and cure for the problem noted in the previous comment. In this case, those who create course packs should be selling them online. Those who have “interesting” copyright works should be vending these too online.
    In other words, the education institutes should be dealing mostly with enlightened (internet aware) vendors. The whole collective concept was built around the problems associated with rights holders not being capable of nor financially able to have their own individual “stores” – but this is certainly no longer the case.
    A piece of software with Paypal backend and full catalog abilities for downloadable content is available FREE (ok – costs you some sweat in setting it up but can be done in an hour by almost anyone and hosted on a shared system for $5/month)

    This means there is no longer any excuse at all for the collective – even for their original purpose in “reprographics” since this too can be done via the web and things like instant print plants.

  4. Industrial revolution Part II
    We are at an interesting period in history, both socially and economically. A couple hundred years or so ago the economics of the world drastically changed, moving from an agrarian model to manufacturing. New technologies like the telegraph and the train changed how information and goods moved around the country. New businesses popped up everywhere and old businesses either adapted or failed.

    Today we are living in an Informational revolution. The internet as we know it has been with us for only about 15 years, but I find it hard to remember how I got my information before that. The access to instant information is like the telegraph and receiving goods (digitally) is like the train. Both have changed the landscape drastically.

    I’m sure there were many winners and losers in the first revolution. I would think there was lobbying and politics intent on resisting the changes that were occurring. But today it would seem ridiculous to try and legislate people use a stage coach to ship goods or use the pony express to conduct business. People would not have stood for that, yet today there are still businesses trying to legislate their old models into law.

    The Internet has not just changed how we access information, it has changed our expectations of our access to that information. This is a major social change and as such will alter how things are seen and done. Now, before I am accused of being anti business or a freeloader, let me say that I believe everyone should be compensated for their work and use of properties. At the same time, the infrastructure for that compensation is likely to change. The stage coach companies and the MPAA (Mare Producers Association of America) likely had a problem with the new distribution system the trains provided, yet consumers were free to choose the faster and more convenient method.

    Obviously in this transition there will be winners and losers. Some people will have to changes jobs, value of properties and investments may decrease or disappear all together. For some this will be a hardship and as such this is unfortunate, but is the reality of the the world we live in. There are also great opportunities for businesses to thrive, both those established ones who are flexible and new ones with fresh ideas. Also just as the industrial revolution brought an increase in our material standard of living, the information revolution will increase our intellectual standards. (Cavet: Not all information on the internet is necessarily accurate or intellectually beneficial, but like any technology, it can be used for good or harm).

    While my posts are often more philosophical than offering specifics, I hope to inform businesses that the world is actually changing under their feet, and I truly wish them success as they adjust to the new paradigm. I encourage them to be bold and creative, take risks instead of bolting down and sticking your heads in the sand. Those that did so in the last revolution I would think are now long forgotten.

  5. Monique Trottier says:

    Photocopying & File Copying
    I haven’t seen a lot of photocopying going on in universities these days.

    I think Michael is right that “a growing number of faculties and courses make very little use of the Access Copyright licence. Their students purchase copyright works as courses require, use licenced databases, copy independent materials for research purposes, or make copies for private study purposes. None of this requires an additional licence.”

    If I was a publisher (or accountant at a publishing house), I’d be running some pricing models to see how library sales might be affected over the next couple of years and what the opportunities were for digital materials, databases, etc.

    Strikes me that the best question is not whether $45 is the right price. Perhaps it’s whether libraries, who are making all sorts of decisions based on usage, will need these types of materials and licenses in the future.

    Whether it’s hard or not, should not deter people from investigating new models here.

    “It’s easy to come up with new ideas; the hard part is letting go of what worked for you two years ago, but will soon be out of date.” — Roger von Oech

  6. @Helen222
    He did, essenbtially, say just that – that universities make “very little use of the Access Copyright licence” , when in fact, as the level of coursepack licensing shows, this is not the case.

  7. Actually, what he said was that his “guess” is that number of faculties and courses that make “very little use of the Access Copyright licence” is growing. This implies the number could be very small but he believe it to be on the rise, and is a completely different thing from saying universities make very little use of the Access Copyright licence.

  8. I have to say it baffles me the enmity with which Canadian publishers and writers, and their collective licensing agency, are received these days.

    Knopf, Trosow and Geist raise a call to arms against a tariff proposal, acting as though Access Copyright is some malicious force aligned against students and the very concepts of education and fair dealing.

    Rabble-rousing is exactly the term.

    On another comment stream at this blog we have the rather disgusting spectacle of Access Copyright, Bill C-32 and, well… me, being compared to fascism.

    The rabble, it would seem, are roused. And I see no attempt by any of the anti-Access leadership to temper it.

  9. Reality Check
    What is disgusting is the graft of lobbying groups trying to legislate their out of date business practices into law at the expense of the average citizen (of which AC is not necessarily the worst –Ahem **AA–), and the governments that participate in it. Hence the charge of bowing to corporate interests at the expense of the people.

    I don’t think anyone here is calling anyone fascist in any real sense except in the case of obvious hyperbole, to take offense at that is a little thin. No rabble here or pitchforks .. sorry.


  10. Degen said:
    “On another comment stream at this blog we have the rather disgusting spectacle of Access Copyright, Bill C-32 and, well… me, being compared to fascism.”

    To which I responded…
    “I called no one a fascist, and specifically so. I only highlighted similarities between the movements in an attempt to draw attention to some of the more extreme aspects of the new Access Copyright tariff (…and C-32).”

    Then I apologized for any mistaken interpretation. I would hardly call call what I wrote inflamatory or call myself “roused”. ;-)

    The full transcript can be seen here…
    http://www.michaelgeist.ca/content/view/5250/125/

  11. Copyright has evolved into a monster.
    As a retired Engineering Professor with a 40-year career at three universities, I agree with Professor Geist; in the courses I taught, I handed out course notes that I wrote myself, ran a web site that I created myself, used a textbook, and didn’t need access to any copyrighted material except the text.

  12. Access relevance ramble with apologies to James MacGillivray
    Access Copyright is a paper tree based construct.

    For an example of the current alternative it may be helpful to look at CourseSmart ,an online course material site owned by the largest publishers in the word commanding most of the commercial market. Here students can purchase/rent by the chapter the digital versions of thousands of contemporary text books. Major US and UK publishers also host their own stand alone versions of this model which distributes the digital version of a paper coursepack.

    Course pack clearance costs represent a significant portion, if not the majority, of the current Access revenue streams in its analog paper based model.

    I suspect that the new tariff application is about a new model designed to harvest a declining market as much as it is about a new fee but either way Access’s domain remains tree and paper based and will be short lived.

    The decline in their model can easily be proven by letting the current course pack per page fees stand and letting the market decide. My understanding is that instructors are abandoning the packs due to the lack of modernity in the model as much as the price.

    Check out Moodle, Check out Connections from Rice University – take a look at Campusebookstore.com which distributes 200 of the classics most commonly found on course in North America colleges- add the growing nummber of new sources/models , both free and for fee based , to the growing number of digital journal and database subscriptions available at any college library and it becomes clear why the amount of paper copying that Access concerns itself with is decreasing rapidly… as is their model and their relevance on Canadian campuses.

    Access no longer represents the sole source or even most the convenient source of permissions -less so for any “born digital” works.

    In creating references and study materials it is simpler for an instructor to link to library subscriptions or point to commercial websites – many owned by the publishers themselves.

    Access is not known for their operational efficiencies even though universities and copy shops do large parts of their admin work on their behalf.

    Moving toward a global digital marketplace for permissions or distribution Access will not represent formidable competition . It is a market place requiring modern technical savvy in execution and a place where the jurisdiction , lobbying and channel battles will quickly eat up their impressive balance sheet.

    Access is from an analog time trying to remain relevant in a digital world that evolved too fast for them. Reminds me of Paul Bunyan

    If they hope to join the current digital culture on any campus they will find themselves competing with their own member’s commercial models and with some minor names like Google. They are more likely to win a wresting match with a blue Ox

    Meanwhile it seems to me Access aims to charge colleges 35-45 dollars per head each year and create unmanageable admin costs borne ny the colleges to ultimately count what can be copied for free, lists of material increasingly less relevant and or available for fees elsewhere….all while sparking a well deserved debate over the privacies which will be compromised in order to complete the count.

    Colleges should walk away from the new license and the work involved in administering on behalf of Access. They should spend their student’s money on quality subscriptions and high quality modern “access” to for fee and free materials.

    Access should decompose with more grace – perhaps become a glimmer in the night sky as a reminder of days gone by.

  13. Textbook publisher monopoly must be destroyed!
    Expensive textbooks in areas such as mathematics or engineering could be replaced by Creative-Commons licensed ones. Infrastructure like Wikipedia should be set up and different student groups could write portions of books for credit.

    Quality will be better than Wikipedia, because writings can be peer-reviewed by those who are expert and those who are interested in the field.

    Why it is not going to happen? Universities and publishers are in bed together.

  14. Tautology
    This is a tempest in a teapot. The per-head price charged by Access Copyright is supposed to reflect actual usage of copyrighted materials, averaged on a per-student basis. If such usage declines, then the per-student average naturally declines as well.

  15. Skip Access Copyright’s Excess
    > I have to say it baffles me the enmity with which Canadian publishers and writers, and their collective licensing agency, are received these days.

    Why are you baffled? The reasons are clearly stated! Essentially, it comes down to Access Copyright claiming new rights, where they have none in law, demanding excessive usage monitoring and reporting, revoking Fair Dealing as they see fit, Access Copyright has a $3.1M retainer, etc. From my point of view, the days where you demand rights for yourselves unchecked are over.

    Anyway, if all educational institutions can negotiate directly with authors, then that can only be good by skipping the middleman. The collective business model need to end!

  16. An abuse of the system
    At the end of the previous century, Access Copyright was successful in sidestepping the users of reproduced materials and in convincing most universities (but not all) to collectively manage copyright fees at the cost of a huge system of administration.

    As the environment changes due to the digital revolution, Access Copyright is now trying to enshrine its business model by sidestepping the universities and mandating a tariff on every Canadian student. This is clearly an abuse of the system and has been rightly called a “money grab” (Rory McGreal).

    A growing proportion of the material used in my courses and in those of my colleagues comes from public domain material and open access journals. This is the new reality. Public policies should not protect old business models (Crockett and CBQ made this point quite eloquently).

  17. Hindgrinder says:

    I want to study Geist!
    Please provide a link to all your classroom material…i’d be delighted to learn all I can from you. If you could put it all in a big torrent and post the tracker that would be ideal. If you need legal peers…PPCA can help you out with that through CaPT.

    HG
    - http://www.pirateparty.ca

  18. Access Copyright is apparently unfamililar with the concept of pricing yourself out of the market.

    Cash grabs like this will spur on the development of the free curriculum — in both senses of the word “free” — especially in those areas like law, math, and the natural sciences, as well as the study of canonical literature, where much of the course material is “stable” and freely accessible already.

  19. Have any of you actually tried to get digital permissions from a publisher? And yet you seriously think that universities should do this, thousands of times a year? Even if they could figure out a process that worked, they’d also find that almost all publishers complain that Access Copyright seriously under-charges. Sure it’s a bore, having to pay for stuff. But no other part of the educational food chain is free. If profs are willing to commit the time (and at their salaries, time is significant money) to developing original learning resources, or tracking down open source content, that’s just fine. Until then, copyright fees will be a tiny component of the cost of education.


  20. It’s not even the cash grab that irritates me. We live in a society where we’ve become complacent to cash grabs, another prime example is when oil producers raise the price of gas 2 days before a long weekend and lower it after and the fact that the price of gas never really came back down to “normal” levels after the price of oil recovered back to “normal” levels. As a nation, when it comes to taxxes and money grabs, we’re just used to bending over and letting the government and big business have their way with us.

    It’s the other parts of the proposal, loss of fair use, trying to lisence activities where no lisence should be required (Linking is a prime example), excessive reporting, etc… I suspect we’ll see a dramatic increase in the use of open sources such as these, or course profesors will write their own material, especially in the more “stable” areas WJM mentioned. Not a lot changes in math, sciences, law, etc. so use of open sources is a natural progression. Important changes in the field are most often published in journals, most often already openly available to educational institutions and their students through separate lisencing.

    Not only are they “pricing themselves out of the market”, they’re making it onerous to the point that many institutions may, and should, seriously consider other options.

  21. …ammendment..
    Don’t get me wrong, the cash grab does irritate me, just not nearly as much as the other facets, which ultimately would end up costing far more than the $45.

  22. Bob, on my blog I calculated that the University of Ottawa would only need to use a tiny 0.2% of their annual budget to pay for copyright clearance for all of their students under the proposed tariff.

    http://johndegen.blogspot.com/2010/08/real-cost-of-education.html

    In fact, if U of O felt like being extremely generous, they could pay the tariff for every post-sec student in Canada with just 7% of their budget. To put that into perspective, the U of O financial statements I used for my calculations include a line called “Other,” that is 11% of the budget. 56.1% goes to salaries and benefits.

    There are twin fallacies at play here:

    1. That students would necessarily have to pay the tariff themselves — clearly universities can well afford to add that cost to their own books.

    2. That it is unreasonably expensive — a full repertoire of works for 0.2% of the budget? A bargain.

  23. really?
    “Not a lot changes in math, sciences, law, etc. so use of open sources is a natural progression.”

    IamME – I understand… if you read this blog a lot, it really does seem like knowledge is a pretty static thing, but I do hope you’re wrong about that.

  24. Still not hearing
    Degen, I think you made your point (although a small percentage of a large amount can still be a substantial sum) about the dollar cost of yor tarrif. It seems you are not hearing peoples main disagreement of including procedures that fall under fair use. It would be informative to hear your rational for those.

  25. Darryl Moore says:

    Missed one
    John,

    You missed the third fallacy.

    3) That Access Copyright is asking to be paid what it is justified to be paid to it.

    While you are focused on the first two fallacies, you totally ignore this one.

    Trosow makes a pretty compelling case that the fees payable to AC should in all likelihood be adjusted significantly downward if not eliminated all together. Not because no one wants to pay for copyrighted works, but because the rights which are administered through AC are utilized less and less by universities.

  26. Governments should be hiring people to create digital texts for courses that will then be available for free. What does a province like Ontario spend on text books in a year? Hire a couple of mathematicians to start creating math text books for example. They could probably bang off K-6 in a year. May be 2 more years for 7-12. Then start in on the university level stuff. For some thing like math which is universal I would even do it up at the federal level and make it available to all the provinces.

    Things like Canadian history would probably need to be done at the provincial level as there is squabbling on the facts. But the vast majority of these text books and other materials could be done in short order at at a reasonable price. If they did it under a license like CC they could even incorporate existing work and save more money. Think of the money school boards and the provinces could save if they weren’t forking out for text books.

    I see this like I view the music business. It used to take a multimillion dollar studio to create a record. Now you can do it at home. It used to take a printing conglomerate to create text books. Not any more. If they can hand a kid in India an E-Reader loaded with 1100 text books why not Canada?

  27. That it is unreasonably expensive — a full repertoire of works for 0.2% of the budget? A bargain.

    Paying for uses that don’t or shouldn’t need to be licensed in the first place? Extortion.

  28. @Degen
    “IamME – I understand… if you read this blog a lot, it really does seem like knowledge is a pretty static thing, but I do hope you’re wrong about that.”

    John, c’mon, you missed the point.

    We’re not saying all knowledge is static!!! The sort of knowledge in math, sciences, law, etc…”theory-based disciplines” changes very little at the foundational, and even at the intermediate levels. While course content may change periodically, trigonometry is trigonometry, calculus is calculus, anatomy is anatomy, law is law… It’s not until you get to the levels of advanced coursework and research does the content become a little more fluid. Core concepts in the first few years of university, one might even argue for one’s entire undergrad career, change very little year to year. I could take my “Physics for Scientists and Engineers” book by Douglas Giancoli from back in 1991 and very little will have changed from then to now. Same applies for my “Single Variable Calculus: Early Transcendentals” by James Stewart. The courses I did back in the early 90′s using these books would not be substantially different than if I were to do those same courses today. Cirriculum in such courses is well established, changes little from year to year, and could easily be delivered using open content or even professor prepared material.

    I’m not saying this is a blanket truth. This is far from the case. For instance, in computer science even at introductory levels, while core concepts and the actual theory courses remain fairly static year to year, computer hardware and computer programming technology courses can change quite substantially year to year. This can have the odius effect of courses being out-of-date before they’ve ever run.

    “Epiphanies” that substantially affect an entire discipline, such as the effect the Nash Equilibrium had on economics in the 1950′s by John Forbes Nash, Jr. (Loosely highlighted in the movie “A beautifu Mind”, but more accurately described elsewhere), or Dijkstra’s Algorithm by Dutch computer scientist Edsger Dijkstra, are very rare. Most “theory” in science and social science courses is quite static…except at the very most advanced levels and in extraorinarilly rare cases, like those mentioned above, where something is discovered that “changes everything”.

  29. Where’s my share?
    Ok Mr. Degen, I have a suggestion. I’ll make a dozen cookies for each Canadian university student and only charge 0.1% of the universities annual budget. Surely they can afford that and students that aren’t hungry learn a lot better, what a deal! Never mind that their mothers would possibly give them cookies for free (borrowed textbook), or that they may not need or want cookies (Open license), it’s such a small percentage in cost that it doesn’t matter.

  30. Fair is Fair says:

    @Degen
    Here’s my proposal: I’d like Access Copyright to pay me $5 for each of its members since I might read their works. $5 per member is a very small amount and I’m sure that cost will not be passed on to you. I could read anything so this is really a bargain.

    I do realize that there is no legal requirement to pay me for reading your works, but since you are happy to be paid for copying that doesn’t legally require payment, I’m sure you won’t object.

  31. So, if I’m summarizing the intellectual calibre of this, we have one suggestion that students should just use Wikipedia and another that the government should hire people to write all of the textbooks…which shouldn’t take long because two people could knock off K-12 math in a year at most. Here’s my prediction: the Copyright Board will sit tight till there’s a decision on Bill C-32. If it goes through with the digital copying provisions more or less intact, it will ask the universities if they want to retain the two components of the AUCC licence and if so the Board will then ask for guidance on how to assess the tariff for coursepacks. On the fixed fee component, it will say that in the absence of agreement between Access and AUCC, there will have to be a survey. Faced with that, they will probably agree. Record keeping is in the cuyrrent licence and it will be in any new licence. As Bill C-32 effectively forces publishers to agree that Access can have digital licensing, they really don’t need to do much to protect their turf. The final total cost will be more than it is now, less than $45 a year, and still a fantastic bargain. End of discussion. Let’s move on.

  32. Leaving aside the fee amount, the reporting requirements, especially together with the overly broad definition of “copy”, would be exceptionally costly and intrusive. If displaying a file becomes considered to be a copy, and they need all this kept track of, then they’ll be requiring universities to keep track not only of what everyone reads, but how often and when they read it, and who they tell about it (through links). Meanwhile, most of it will likely be works that are either freely available or covered under paid academic licenses. As for spying on emailed files — most of those for me would be works I’m writing, sent to&from collaborators; are they going to try to claim those too? Is someone going to be looking at my work in progress in enough detail to determine that this work is mine? Goodbye academic freedom.

    Access Copyright’s claims are ludicrous, and I don’t see how institutions can continue to deal with such an entity.

  33. In a very simple answer to all that is good for everyone in the Canadian Universities…YES, they should walk away.

  34. Canadian Universities Should Run, not Walk, Away from Access
    For several years, the course pack for my 2nd-year distance ed offering has consisted entirely of material I have authored myself. The required readings for a 4th-year course and all the graduate-level courses I have been teaching consist almost exclusively of articles from online periodicals for which my university pays a licensing fee. I seldom use a photocopier at the university and each year there are fewer and fewer students at the photocopiers in the main library. In short, Access is pretty irrelevant to my day-to-day experience as a professor.

    Nonetheless, I receive a cheque from Access for ca. $500 each year as a ‘creator affiliate.’ This amount has not been determined in any way that can be considered ‘fair’: Access has basically taken the total amount of what might be termed ‘protection money’ it can be considered to have extorted from universities and divided this sum by the number of creator affiliates: it’s all there in black and white in their annual statements. To be sure, this year, Access is planning to divvy up only 40% of the money in this way; the rest is to be based on how many titles one has published recently and in the more distant past. In sum Access’s distribution of royalties has been far from scientific. Granted, Access now proposes to undertake a survey of what will actually be copied, but their proposed method is to download the record-keeping to university staff in a manner that any decent faculty association would grieve as an attack on academic freedom and librarians’ confidentiality.

    Lest anyone think that Access cares about universities or university-based creators, it is worth recalling that their CEO specified ‘professors’ as one of their 3 principal ‘targets’ for the coming fiscal year.
    The back story here is that Access’s revenue from universities, which has accounted for ca. 70% of their annual take, has already declined substantially. The $45 tariff is just this year’s effort to shore up Access’s declining finances.

    Lest anyone think that Access really cares about its creator affiliates or the publishers it represents, their projected budget for this year earmarks ca. 35% of the tariff it collects for administrative costs. To be sure, Access is nominally a ‘non-profit’ organization. But would you contribute to a charity that had built up such a disproportionately large reserve fund (which could be called a ‘war chest’) and that spends so much on its in-house staff and outside legal consultants in order to intimidate public-sector universities? The answer is that you already do: through your taxpayer dollars that fund Canada’s universities.

    At my university, the tariff of $45 per student would pay for 150 courses; that is, if Access gets its way, 150 fewer courses will have to be offered here each year in perpetuity. Multiply that by 10 for Ontario and even more for Canada as a whole and ask yourself whether Access’s proposed tariff is a worthwhile way of spending taxpayers’ money.

  35. Nickle&dime
    Generosity and fairness according to Degen is a one way street. Degen expects universities to be generous, while Degen advocates for Access Copyright’s excessive regime of usage monitoring, rapid reporting, survey compliance, etc. etc. Access Copyright’s tariff is similar to banks nickling&diming the public, which is just totally opposite of generosity (for a nonprofit group at that.)

    Why can’t Access Copyright be generous for a change? Why can’t Access Copyright recognize and accept Fair Dealing as part of Copyright Law and as the Supreme Court of Canada already enshrined in 2004?

    I jest. I am not asking Access Copyright to be generous, but asking why they’re not following the law around Fair Dealing. Access Copyright demands universities to follow the law and pay, but ignoring Access Copyright’s end of the social contract in the Copyright Act and the CCH ruling. If Degen actually addresses the Fair Dealing issue, this whole debate would be much simpler. It’s understandable why Degen would rather spend time calculating University of Ottawa’s ability to pay, instead of reading about Fair Dealing.

  36. A full repertoire?
    Degen says “a full repertoire of works for 0.2% of the budget? A bargain.” Really?

    Access Copyright may well boast about its “full repertoire”, but actually they now hide it behind a restricted access database, camouflaged as “privacy policy”, in order to make it more difficult for anyone to check the contents of that repertoire. In fact, they decided to adopt this policy a few months ago, after some people pointed out that many items in that database were already in the public domain (see http://excesscopyright.blogspot.com/2009/07/access-copyright-charging-for-public.html).

    It is sad to see a collective created with the participation of CAUT in the grips of a corporate policy so disrespectful of ethics and so intent on creating a nightmarish climate for the classroom. Under the cloak of a “not-for-profit” company, they are as bullish as any for-profit corporation.

  37. So, I guess I should repeat my comment about enmity, and I’ll add the word anger as well. I worry for the collective blood pressure over here.

    Bob, I think your predictions are well thought out, and I appreciate how they live in what I understand to be the real world. I just don’t understand all the drama around this tariff, or the seething that goes on about Access Copyright.

    Responding to earlier accusations about the tariff Access has plainly stated:

    “Access Copyright’s proposed tariff will not charge for free, previously-licensed content or uses covered by the fair dealing exception. The proposed tariff will cover uses of published materials that are not otherwise licensed by the copyright owner or the Copyright Act.”

    It’s right there on their website for anyone to extract and bring to the Copyright Board in dramatic fashion. They hide no evil intent – though it’s hard to tell by reading the comments here about graft, protection schemes, extortion, spying, and attacks on academic freedom.

    Now, do they have their own interpretations of where the fair dealing lines are? You bet they do, as should everyone since this is still an open question in Canadian law.

    And is their repertoire in enough use in Canadian post-secs to justify the tariff? According to AC, yes it is. According to certain academics, no it isn’t. How do you resolve that disagreement? By tracking and estimating use, which has been part of the picture for as long as I can remember.

    If the trending is toward private licensing with single entity corporate content producers, and a growing use of cooperative or open access works, then Access will be forced to adjust to that trending, and no amount of proposin’ to the Board will make a difference.

    My interest is in making sure individual creators and their publisher partners are compensated for the legitimate educational use of their works, no matter the model.

    If a creator chooses to provide her works for free and rely only on teaching salary to pay her bills, that’s an individual choice I respect. I also respect signed contracts and fair dealing.

    But if AC’s repertoire is being used as reported, it needs to be paid for.

  38. Reminding us all that this has nothing to do with money and everything to do with fair dealing, the CAUT/CFS joint proposal, written for them (for a fee?) by the University of Ottawa’s legal clinic, was launched today.

    The press release contains this headline:

    “Students and teachers object to Access Copyright cash grab”

    The first paragraph suggests the tariff will “burden students with tens of millions of dollars in new fees each year.”

    Clearly, this has nothing to do with the money or education’s ability to pay for it out of their own budget.

    More importantly though… teachers and students working together politically? What is the world coming to? Why, in my day…

  39. Fair is Fair says:

    @Degen
    You say

    “Responding to earlier accusations about the tariff Access has plainly stated:

    “Access Copyright’s proposed tariff will not charge for free, previously-licensed content or uses covered by the fair dealing exception. The proposed tariff will cover uses of published materials that are not otherwise licensed by the copyright owner or the Copyright Act.”

    It says that in the tariff exactly where? Nowhere. Unlike the previous tariff, there is specific exclusion for fair dealing in the tariff. If that is their intent, why is not in the tariff? Why invite the reaction that we are witnessing by proposing a tariff that does not state what you just did? How is that fair?

  40. @Degen
    “Students and teachers object to Access Copyright cash grab”

    What else would you call a 1300% increase? Would you tolerate a 1300% sales tax increase? …or 1300% increase on your mortgage interest rate or rent or property tax? How about your power bill? Telephone bill? Internet bill? No…of course not, because it NOT reasonable. I bet you’d be the first one in line bitching if your power bill was suddenly 10 times higher.

    “What is the world coming to? Why, in my day…”
    Perhaps you’re out of touch with the times…

  41. Reality check .. again.
    Degen, you seem fixated on someone’s ability to pay you, rather than if its actually fair for someone to pay you. This same thought process seems to run through the minds of content distributors everywhere. This rather entitled world view is usually only possible in industries that enjoy a monopoly, of which is no longer the case for you. Open licensing and digital distribution has changed your world to the benefit of the consumer.

    People are tired of bending over to the greed of the corporate world. In this case they no longer have to.

    Recognize that, adapt, or take your ball and go home.

  42. @IamME
    “Perhaps you’re out of touch with the times…”

    I would agree. Glad the CIPPIC and others are involved here. I think the ignorance, and self entitlement displayed with Access Copyright will need to be fully explained now. I would be less worried about the blood pressure of those against this tariff. I’d be more worried about the blood pressure of Access Copyright, and the relevance this organization may have in the future for creators.

    I don’t blame Degen in siding with Access Copyright. Creators often think those working on their behalf are doing good, when in many cases they end up hurting creators entitlement when putting together shotty tariffs that put into question the validity of the organizations acting on their behalf, and the decision making processes of government to approve such a scene of self entitlement outside of market forces.

    Again, I think creators should be looking towards their publishers for greater compensation. A change in the times has occurred, along with very cheap methods of distribution. The costs of publishing has gone down substantially, and think creators are not getting the kick back they should be getting from their publishers, outside of tariffs. The culture of greed seems to be ever present with the middle men. IMO

  43. Middle Men
    Ohhh, MIDDLE MEN!!!! Now there’s a bone of contention with me. There’s something in Canada about not being able to buy directly from manufacturers and I don’t what the scope of it is. This came up 6 or 7 years ago for me when I was purchasing bicycle parts. So I started investigating, specing, etc for my needs and discovered an enormous difference between prices in Canada and those in the US. I discovered that in Canada, at least at that time, with bicycle equipment, manufacturers could not distribute directly to resellers as they can in the US, they HAD to go through middle-man distributors who then sold to resellers. I ended up going through a US-based web-mail order site and even after shipping, duty, and everything else I paid about $225, a saving of over $200 compared to anywhere I could get it in Canada, which often were over $500 for the same part…a part which was made in Canada by a Canadian company (Race Face). We’re getting SCREWED here. I don’t know if books, movies, music, etc have to go through the same middle man BS, but the idea of middle men just makes me angry!!!

  44. Final comment from me – I don’t believe AUCC has the option of walking away. If the Board certifies a tariff – and obviously that tariff will be a reflection of actual use of copyright content for which permission is required – then it becomes binding on each university that currently has a licence.

    And – the middleman rant: have you ever tried to get permissions from a publisher? This is one scenario where collectives are far and away the easier option.

    Next – the blogger who complained in the same post that (a) Access doesn’t have a proper way to distribute to authors and (b) that collection information from universities would be invasive – can’t have it both ways. And if you really read the explanations, you’d know that where Access does have reliable data on what’s been copied, it uses that. Only when people don’t supply details is it necessary to use other methods.

  45. “And – the middleman rant: have you ever tried to get permissions from a publisher? This is one scenario where collectives are far and away the easier option.”

    Actually there is a movement within many creative communities that eliminate the need for the publisher with respect to permissions, and many publishers allow greater control of the works by the creators themselves. Permissions are than obtained by the actual creator rather than publisher, or collectives, thus eliminating a lot of red tape, and legal headaches for all.

    Collectives do serve a purpose, but their purpose is to act within the boundaries of legislation, not to develop ways to collect around the law. I think collectives do not have any place in determining any type of tariff or legislation. Their job is to collect and distribute royalties, not to open their mouths.

    Copyright is a contract between the publisher, creator, and consumer. Collectives should have absolutely no say in my view with how that works out. This is between 3 parties in the distribution chain, and the collectives are there to “help” distribute earnings, not to change the law when it suits their own interests and business model.

    “I don’t believe AUCC has the option of walking away. If the Board certifies a tariff – and obviously that tariff will be a reflection of actual use of copyright content for which permission is required – then it becomes binding on each university that currently has a licence.”

    There is always a choice and option within the free market environment. The chances of this tariff getting through are slim to none imo in the first place. I don’t think Access has a strong enough legal argument to get this tariff through, and it just opened a can of worms while doing it.

  46. First, Jason, read the Copyright Act on how tariffs work. There is not always a choice. The only issues are what is covered by the tariff, and how it’s valued. There is some law in there, but mostly it’s a fact-finding exercise.

    As to the middleman argument, copyright owners are entitled to use an intermediary. They do this usually because it isn’t practical for them to administer permissions on their own and because history shows that voluntary systems don’t work – consumers don’t ask.

    Leaving aside the rates, the old tariffs worked quite well. The problem is that the distinctions between the flat fee and the per-page rates are getting blurred because of how universities distribute materials. $45 may or may not be the right amount. The Board will do the math and it will obviously factor in fair dealing, although that likely won’t make much difference – CHH is grossly misrepresented in how far it goes. The problem with the $45 rate is that it is too high for some universities and too low for other and the variances might be too wide to sustain this approach. We’ll see.

  47. It seems to me, that with the recent court case that went Access Copyright’s way, they saw the gravy trough and decided to jump right in. This could be a case of won the battle but lost the war. Public outcry, outside of those like us who keep an eye out for such things, could cost them much goodwill.

    Honestly, I don’t have anything against people making a reasonable return on their work. I even understand the push back from the established ‘middlemen’, no one likes change especially when it affects them. But here we are with an opportunity (new technology, new paradigm) for consumers to get better value and I believe creators to get a greater share (yes there are pro-creator people on these forums!). Change is going to happen, it always does, it’s just too bad it doesn’t often happen in a smoother and more agreeable fashion.

  48. @Bob
    “As to the middleman argument, copyright owners are entitled to use an intermediary.”

    I’m not debating this at all, just as time goes by, I see a change in the position within many creative communities that seem to butt out the middle man, and that it’s not a necessary part of the creative industries, at least not anymore especially with some publishers handing over more rights to creators.

    Back in the day yes the middle man was needed. Today with communications being simplified and a lot quicker, the middle man is becoming less realistic in a lot of ways, also more expensive. That middle man expense is often shouldered on creators more than it is on publishers financially. Creators seem to be signing over more and more rights to publishers, with less, and less pay. A lot of waste can be eliminated here by cutting out the middleman, and I think that many business models in the creative industries, maybe starting to change around that reality.

    What consumer choices exactly? The creative industries are so far behind on what consumer choice means due to their fights against it! There just now 12 years later actually getting a handle on exactly what consumers demands are.

    “Change is going to happen, it always does, it’s just too bad it doesn’t often happen in a smoother and more agreeable fashion.”

    This I completely agree with.

  49. @Bob
    I said: “The creative industries are so far behind on what consumer choice means due to their fights against it! There just now 12 years later actually getting a handle on exactly what consumers demands are.”

    Just to add insult to injury here, consumers spoke out with respect to their demands in the copyright consultation, and Access Copyright tried to get it’s members to throw in canned responses with a threat that these demands were going to destroy writers careers. In business, it’s extremely smart to listen to the consumer and adapt. If you try and force something on the market without meeting demands, you’ll fail.

    Again: “Change is going to happen, it always does, it’s just too bad it doesn’t often happen in a smoother and more agreeable fashion.”

    I couldn’t agree more, and I wonder who exactly is pushing back this change. It most certainly isn’t the consumer.

  50. Again, Canadian Universities Should Run, not Walk, Away from Access
    According to Bob, “The problem with the $45 rate is that it is too high for some universities and too low for other[s] and the variances might be too wide to sustain this approach.” Unless Bob works for Access, this seems like sheer conjecture: Access’s so-called ‘repertoire’ is not publicly accessible nor are Access’s records of the number of pages each university has copied for course packs. Further, as professors continue to replace printed course packs with licensed publications that are available online, projections based on past records promise to be too high.

    Bob also tells us to “read the Copyright Act on how tariffs work. There is not always a choice. The only issues are what is covered by the tariff, and how it’s valued.” Well, Bob, read Access’s past contracts with AUCC universities, which are readily available online: e.g., http://www.yorku.ca/secretariat/senate/committees/lit/copyright/Access Copyright Agreement – 2003.pdf
    There you will find that the universities have merely agreed to disagree with Access’s understanding of fair dealing: specifically, “the parties do not agree on the scope of the said fair dealing” (page 1 of the agreement). Now that fair dealing has accumulated a lot more case law, what constitutes fair dealing is much clearer than it was when Access first established itself.

  51. Like I said, read the Act and the provisions relating to tariffs certified by the Board. Then you’ll see why Access went this route. Sure there sre some poorly reasoned cases on fair dealing, but none of them say that multiple distribution is fair. I’m sure Access would be OK releasing the total number of licensed coursepack pages. I doubt it can do so by university because of privacy conditions in the licences.

  52. It might in fact help if Access did release the total it gets from universities, as that would put and end to the lie that it’s a 1300% increase

  53. Show me the cards
    You would think in asking for an ‘apparent’ 1300% increase that they would be going out of their way to show the numbers. The fact they have not speaks volumes (pun intended).

  54. Phantom Fair Dealing Repo
    > “Access Copyright’s proposed tariff will not charge for free, previously-licensed content or uses covered by the fair dealing exception. The proposed tariff will cover uses of published materials that are not otherwise licensed by the copyright owner or the Copyright Act.”
    > It’s right there on their website for anyone to extract and bring to the Copyright Board in dramatic fashion. They hide no evil intent – though it’s hard to tell by reading the comments here about graft, protection schemes, extortion, spying, and attacks on academic freedom.

    This is extremely funny!!! I read no such thing in the Tariff. Are you saying this is legally binding in the Tariff, when it’s not even there?? Who’s doing the hiding-the-evil now? Access Copyright’s site may have just these words and nothing else on the site for all that matters, but these words aren’t in the Legally Binding Document. Again, more funny things you keep dodging are the objections regarding Fair Dealing.

    > If the trending is toward private licensing with single entity corporate content producers, and a growing use of cooperative or open access works, then Access will be forced to adjust to that trending, and no amount of proposin’ to the Board will make a difference.
    > But if AC’s repertoire is being used as reported, it needs to be paid for.

    You mean adjust(ifying) to a 1300% or a 13 fold increase in price? If you can adjust to a 13 fold in price now, aren’t you going to adjust to another 100 fold increase in the future to compensate for the lack of interest in Access Copyright’s phantom repertoire? The trend reveals Access Copyright’s price increase astronomically as demand reaches zero. I don’t think anyone is saying Access Copyright’s repertoire has zero value. I am saying Access Copyright’s claim of new rights not allowable by the Copyright Act has zero value. What is Access Copyright’s repertoire and why isn’t it available to the public?

    > Now, do they have their own interpretations of where the fair dealing lines are? You bet they do, as should everyone since this is still an open question in Canadian law.

    That’s a myth propagated for the purposes of private interests. According to CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13:

    “Under s. 29 of the Copyright Act, fair dealing for the purpose of
    research or private study does not infringe copyright. “Research” must
    be given a large and liberal interpretation in order to ensure that
    users’ rights are not unduly constrained, and is not limited to
    non-commercial or private contexts.”

    > By tracking and estimating use, which has been part of the picture for as long as I can remember.

    Tracking and estimating use is not to be confused with nickling and diming. 30 days reporting, survey compliance, email and link tracking by all users, etc. are what you call estimating?

    Degen keeps saying fair dealing, but the term is not Fair Dealing according to the Copyright Act’s section 29 and more to Degen’s notion of pay-per-use dealing section 3. Sections 3 and 29 are basically opposites, and Degen has not addressed section 29.

    Thus, this all means Access Copyright and Degen believe in Phantom Fair Dealing, meanwhile trying to claim more rights, where no law allows – such as “linking” and converting Reprographic Reproduction into “Repographic Repoduction” on digital materials.

    Now then, who’s “We do not build a stronger society through economic sleight of hand around new technology” – you, or Access Copyright, trying to redefine Fair Dealing as nil in the Tariff?

  55. The middleman is working his way into the law
    AC’s arrogance could well be grounded in the actual wording of Bill C-32. According to Section
    30.02

    “(1) Subject to subsections (3) to (5), it is not an infringement of copyright for an educational institution that has a reprographic reproduction licence under which the institution is authorized to make reprographic reproductions of works in a collective society’s repertoire for an educational or training purpose”

    By recognizing explicitly the collective as the middleman, the law would make AC unavoidable.

    Unless CAUT and AUCC form a new collective. A similar thing happenned in the US, when radio executives walked away from ASCAP and created BMI (see http://www.nytimes.com/2010/08/08/magazine/08music-t.html?_r=1)

  56. As has been said before, Canadian universities should have established their own collective a long time ago. Even at this late date, I doubt its overhead would be anywhere as large as Access’s, which, to judge from their annual reports, has gone largely into their warchest and outside legal fees. Even Bill C-32 does not say that Access has a monopoly on licensing repertoire actually copied for educational purposes. In fact, no iteration of the Copyright Act has mentioned Access. As far as I can tell, very few of Access’s ca. 8,000 creators and publishers are Canadian university professors–ergo, a much smaller fraction of the ca. 50,000 professors in Canada.

  57. @DJP
    And what repertoire exactly do you think would be in a collective run by universities?

  58. In response to Bob’s question, it is not clear *exactly* what repertoire Access itself currently claims as its bailwick. Nonetheless, a starting point for determining the repertoire of a Canadian educational copyright collective would be literary, dramatic, artistic or musical works published in Australia, Canada, Denmark, France, Germany, Hong Kong, Iceland, Ireland, Italy, Jamaica, Liechtenstein, Malta, Mexico, Netherlands, New Zealand, Norway, South Africa, Spain, Switzerland, the United Kingdom, and the United States of America, of which copies have been issued to the public with the consent or acquiescence of the copyright owner in a publication such as a book, folio, magazine, journal, newspaper or other periodical.

  59. Access Copyright wrote C-32′s Repo section?
    The “Repographic Repoduction” languange in C-32 is now clear to me on its purpose. Who else is in collecting on Reprographic Reproduction? I only know of Access Copyright. After reading bill C-32′s section 30.02 again, I believe universities must flee from Access Copyright as fast and as far as possible! Section 30.02 may seem fair at first, but then going down to 30.02(3)(a), it’s totally clear combined with Access Copyright’s Tariff:

    (3) An educational institution that makes a digital reproduction of a work under paragraph (1)(a) shall
    (a) pay to the collective society, with respect to all the persons to whom the digital reproduction is communicated by the institution under paragraph (1)(b), the royalties that would be payable if one reprographic reproduction were distributed by the institution to each of those persons, and comply with the licence terms and conditions applicable to a reprographic reproduction to the extent that they are reasonably applicable to a digital reproduction;

    Access Copyright wants to nickle and dime universities; and somehow they’ve managed to infect and plague bill C-32 with licensing language. Bill C-32 and laws in general must not contain licensing language. This licensing language in bill C-32 takes C-32 into a new level of absurdity.

  60. strunk&white says:

    point of clarification
    Tom,

    So, it’s licensing language you object to in law?

    Do you also object to liquor, marriage and traffic laws?

    Here’s what the Supreme Court of Canada says about intellectual property licences:

    “A licence prevents that from being unlawful which, but for the licence, would be unlawful; it is a consent by an owner of a right that another person should commit an act which, but for that licence, would be an infringement of the right of the person who gives the licence. A licence gives no more than the right to do the thing actually licensed to be done.”

  61. There is an important difference between liquor, marriage, and driving licences on one hand and Access’s licences on the other. The money collected for liquor, marriage, and driving licences goes to a particular part of a government and defrays the cost of record keeping and/or monitoring use with a view to the public good and/or maintaining infrastructure for the public good. The money collected by Access (or other organizations or individuals) is payment to a *non-governmental* organization for permission to use something and the money goes to private individuals and organizations (e.g., creators and publishers). To be sure, such non-governmental organizations are subject to government regulation (in Access’s case, by the Copyright Board). However, there could be 2 or more licensing collectives concerning a particular activity (e.g., CAPAC and ProCan not so long ago), but only a single government can issue licences to drive, marry, or sell liquor (or fish etc.) and the money raised is public money: governments don’t issue T5′s to themselves.

  62. Pangea of Trojan Horse
    Copyright is one big license, so I don’t object as long as the fairness is appropriate to all parties, not mentioning the short term limit. However, I meant C-32 contains licensing language pertaining to small private groups of collectives (Access Copyright and Copibec,) who had placed a trojan horse into C-32. (By the way, C-32 is the Pangea of Trojan Horse.) These private collectives do not exist in the current Copyright Act, except section 79, and should not exist in any future amendments. Section 79, blank media taxing levy, shouldn’t have been in there in the first place. These collectives are infecting and plaguing the law for their own ends. What next, an end user license agreement taxing levies for software, games, movies, etc? Yes, strunk&white would love that. You might want to read “50 Years of Stupid Grammar Advice.”

    There are more examples, but this one is sufficient to illustrate my point. The difference in these 2 paragraphs define the Trojan Horse:

    “(2) An educational institution that has not destroyed the copy by the expiration of the thirty days infringes copyright in the work or other subject-matter unless it pays any royalties, and complies with any terms and conditions, fixed under this Act for the making of the copy.”

    and

    “(a) pay to the collective society, with respect to all the persons to whom the digital reproduction is communicated by the institution under paragraph (1)(b),

    the royalties that would be payable if one reprographic reproduction were distributed by the institution to each of those persons,

    and comply with the licence terms and conditions applicable to a reprographic reproduction to the extent that they are reasonably applicable to a digital reproduction;”

    There’s’ nothing wrong with the government licensing equity in marriage and other laws that affect everyone; and I won’t reiterate what professor DJP already mentioned. The only questions remain are why should the government in the business of licensing a business model for small private groups of collectives who operate freely beyond market forces? Why can these small private groups charge more and more, when there’s clearly less and less demand? Why can these small private groups infect and plague the law to justify their business model?

    Here’s a Supreme Court of Canada quote back at you:
    “I agree with these conclusions. The fax
    transmission of a single copy to a single individual is not a
    communication to the public. This said, a series of repeated fax
    transmissions of the same work to numerous different recipients might
    constitute communication to the public in infringement of copyright.”

  63. Private License has no place in public law
    Private licensing agreements between educational institutions must not be made into public licensing agreements in copyright law – such as liquor, driving, or marriage because these are public. Nevertheless, has any educational institutions made any negotiations in bill C-32 regarding section 30.02? Can strunk&white please explain where educational institutions made even an attempt at negotiations in section 30.02? Or rather, they were forced upon educational institutions.

  64. TorontoCityLife says:

    Bob was wrong
    The first commenter’s “rabble rousing” comment turned out to be more copyright regime shilling. It came out today (only through a few US sources!) that the copyright Nazis are indeed shooting for $45 or 1300% — the worst case scenario. So based on Bob’s completely erroneous “average of $15-$20 per student” suggests that he’s a direct shill for the copyright goons. Here we are in 2012, the copyright goons have given a one week deadline, shut down any discussion, and guess what — IT’S THE WORST POSSIBLE SCENARIO.