Access Copyright and the Association of Universities and Colleges of Canada announced an agreement yesterday on a model licence. The deal calls for a royalty payment of $26 per full time student, below the $45 Access Copyright was seeking at the Copyright Board (and below the $27.50 in the Toronto/Western deal), but well above the current rates. While the agreement is just a model that leaves it to the individual universities to decide whether to sign, it is hard to imagine that AUCC did not obtain some support from its member institutions for it before reaching agreement.
It is difficult to provide detailed comments on the agreement since the text is not yet available and the $26 figure is not based on anything more than a negotiated figure reflecting what two parties anxious to settle were willing to pay or accept. The reality is that it is primarily a product of a broken Copyright Board model that incentivizes lofty demands that set the bar higher for either a negotiated settlement or a Board rate setting exercise. It is not based on the actual value of the repertoire nor on the copying on campuses that fall outside of fair dealing, public domain, or the myriad of alternate licenses that already grants compensated access to thousand of journals and books.
Leaving aside the specific dollar amount, this is certainly a good deal for Access Copyright. It doesn’t garner the $45 per student it was seeking, but even Maureen Cavan, the Access Copyright Executive Director, acknowledged that was an upper limit. With declining revenues (revenues dropped by 11.6% last year), getting the universities back into the fold before they fully developed systems without the need for Access Copyright was understandably a priority. Reaching this deal despite a relatively weak bargaining position is a win for the collective.
In the short term, this looks like a terrible deal for AUCC. Many of its members have opted out of Access Copyright altogether and while there were some expected early challenges, the concerns associated with clearing specific content or finding alternatives appears to have subsided. For those universities not ready to opt-out (including my own), an interim tariff was available at a fraction of the cost of the new deal. Moreover, with fair dealing about to be expanded to include education (which Access Copyright board members have suggested would allow for widespread uncompensated copying), a new exception for publicly available materials on the Internet, and the Supreme Court of Canada decision in the Crookes case that removed concerns about liability for linking, the law is increasingly on AUCC’s side.
Given the legal reforms and the increasing comfort with operating outside of Access Copyright, why did AUCC settle? I have no inside information, but my guess would focus on three factors. First, AUCC has never appeared comfortable with the copyright file. For years, its members paid millions to Access Copyright without giving it much thought. It was only after the collective sought a massive increase that it captured the attention of senior officials at Canadian universities, who began to question the value of the licence. AUCC, led on this issue by a former publisher association executive, has always seen copyright as a cost, not a cause. Once Toronto and Western struck deals with Access Copyright, the broad framework was established and an AUCC deal for a model for its remaining members was likely only a matter of time.
Second, a prolonged fight at the Copyright Board (and perhaps later at the Federal Court) is very expensive. Unlike the $26 per student tariff that will be borne by students in their tuition fees, the regulatory and litigation costs are more difficult to pass along directly to students. By striking a deal now, AUCC saves millions in fees, though students will ultimately bear the costs of its settlement.
Third, the short term advantage may have rested with AUCC, but there were some serious longer term risks. While many experts question the Access Copyright repertoire and the value of its licence, the Copyright Board has increasingly fashioned itself as a guardian of the collective. The Board’s decision to issue an interim tariff without any reasoning hours before most people were heading into a holiday week was an embarrassment (the claims of urgency were proven wrong) and left little doubt that the Board was prepared to do almost anything to assist Access Copyright. The subsequent decisions, which included warnings about the difficulty of opting-out of Access Copyright, further entrenched the view that a hearing before the Board would not end well for AUCC, no matter the law nor the limited value of the Access Copyright repertoire.
What is lost with this settlement is the chance for something better. The shift away from Access Copyright in recent months has led to a growing awareness of the large number of licensed materials on university campuses, the benefits of open access, the emergence of open educational resources, and the move to digital course materials. Investing in new open materials – which pay the creator but allow for more flexible use and reuse – would offer innovative teaching materials at the very time that Canadian higher education should be rethinking how course materials are developed and disseminated in a digital world. This is hard work as new models require real investment, commitment from faculty, and patience from students. The payoff would have been significant, but the AUCC is seemingly more interested in “cost certainty” than in education innovation. The big question now is whether its members feel the same. My guess is that most will sign, but perhaps some will carefully assess their experience of operating outside the collective and see some short term pain for long term gain.
For those that sign the model licence, the new AUCC – Access Copyright deal is simply more of the same: AUCC and its institutions pass along copyright costs to students, Access Copyright gets millions in revenues despite ongoing questions about its repertoire (with thousands used to lobby against education copyright reforms and most of the money going to foreign collectives and publishers, not authors), and the potential for digitally-oriented changes within Canadian higher education heading back to the back burner.