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An Unofficial FAQ on Canadian Universities Opting-Out of Access Copyright

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Wednesday July 27, 2011
With many Canadian universities opting-out of the Access Copyright interim tariff, I have been receiving a growing number of questions and emails from faculty members at schools across the country inquiring about the implications of the opt-out. All universities should be updating their faculty and students on the copyright changes including why the changes are occurring and what they will mean for research and teaching. In the meantime, however, posted below is a very unofficial FAQ that provides my answers to some of the questions I've received:

My university has operated under an Access Copyright licence for years. What has changed?

The shift away from Access Copyright marks the culmination of years of technological change within Canadian education that has resulted in new ways for professors to disseminate research and educational materials as well as greater reliance by students on the Internet, electronic materials, and portable computers. Ten years ago, photocopy licences made sense since physical copies were the primary mechanism to distribute materials. The availability of a wide array of materials from alternative sources, many discussed below, allows educational institutions to reconsider the Access Copyright approach.  

Moreover, just as technology was facilitating alternative ways to access course materials, Access Copyright upped its licensing demands. In 2010, it filed a proposal for a new $45 fee per full-time university student. For universities accustomed to far lower costs, the demands threatened to add millions to already tight budgets. This year it forced universities to engage in costly reviews of all licensing arrangements, which took weeks for many institutions to complete. The overall effect of these demands has led universities to reconsider whether spending millions on the Access Copyright licence is necessary and whether the same money might be better spent increasing the size of their collections or adding new site licences to more electronic materials.

Will this have an effect on my research?

It should not have a significant impact on research activities. Copying for research purposes is likely covered by a combination of fair dealing or licensing from site licences and open access.

I require students to purchase a textbook (or two) from an academic publisher for my course. Will this have an effect on me?

No. The Access Copyright interim tariff has no effect on purchased texts. It should be noted, however, that some publishers are resisting offering pay-per-use licenses to universities. This is particularly surprising given that universities are seeking to pay for the use of materials and the publishers are rejecting the requests from their biggest customers.  Faculty members and universities should consider whether they wish to continue to support publishers that adopt this position.

I teach law, sciences, engineering, or medicine. Will this affect my course materials?

It might, but the impact in these disciplines should be fairly limited. The majority of materials in these disciplines is either in the public domain, open access (very strong in the sciences) or licensed by universities. All materials available through these sources do not require a further licence.

I teach in the social sciences and humanities and I often make use of customized coursepack? Will this affect me?

Yes. Custom coursepacks will require review to ensure that the materials are covered by alternate licenses, part of the public domain, or otherwise outside the Access Copyright interim tariff. In the event they are not, they require pay-per-use licences or suitable replacements should be found.

What materials fall outside the Access Copyright tariff?

The Access Copyright tariff only applies to situations where a licence is required. Any uses covered by alternative licences or permitted by fair dealing under the Copyright Act do not require a separate licence and effectively fall outside the tariff. This includes:
  1. Site Licences. University libraries have gradually shifted much of their spending to electronic materials. For example, more than 70 universities participate in the Canadian Research Knowledge Network, which provides access to thousands of journals for over 900,000 researchers and students. The network spends tens of millions of dollars annually on site licences, which in turn enables universities to provide full access to the database content without the need for further compensation.
  2. Open Access. A growing body of research is also now freely available under open access licensing, as researchers make their work openly available on the Internet. More than 20 percent of all medical research is available under open access licences, while the Directory of Open Access Journals lists over 6,500 open access journals worldwide.
  3. Open Educational Resources. Interest in open educational materials has been mounting steadily in recent years as educators and funders seek to leverage the millions of articles that are freely available under open access licences and to develop flexible materials that can be used on any platform and updated or amended without running into publisher or copyright barriers. Some Canadian universities have already jumped on the bandwagon: Athabasca University in Alberta is aiming to replace many of its course materials with open educational resources, while the BCcampus initiative brings together 25 post-secondary institutions to contribute and share open educational resources. In the U.S., the Departments of Labor and Education have committed US$2 billion toward a new program to create free online teaching and course materials for post-secondary programs of two years or less.
  4. Fair Dealing. Canadian copyright law currently includes a fair dealing exception as well as specific exceptions for certain classes of works and certain users.  These include exceptions for research, private study, news reporting, criticism, and review. Until fairly recently, the Canadian fair dealing provisions were generally viewed as quite restrictive, both with regard to the limited number of categories that statutorily qualify for fair dealing as well as in the way that the Canadian courts interpreted the provision. That changed in 2004, when a unanimous Supreme Court strongly affirmed its support for a balanced approach to copyright law and in the process breathed new life into the Copyright Act’s fair dealing provision in a case called Law Society of Upper Canada v. CCH Canadian.  In reviewing copying practices in the law library of the Law Society of Upper Canada, the court stated "the fair dealing exception, like other exceptions in the Copyright Act, is a user’s right.  In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively."
  5. Linking to materials.  Course materials increasingly make use of content posted online, often by the authors themselves. Linking to such content in electronic course materials typically does not raise licensing concerns.
How do I determine if a particular use qualifies as fair dealing?

In determining whether a particular use (or dealing) meets the fair dealing standard, the Supreme Court established a two-part test. First, the use must qualify for one of the fair dealing categories such as research, private study, news reporting, criticism or review. Second, assuming it does qualify under one of the categories, the court identified six factors to consider to gauge the fairness of the dealing:
  1. The Purpose of the Dealing - the Court explained that “allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights.”
  2. The Character of the Dealing - one should ask whether there was a single copy or were multiple copies made. It may be relevant to look at industry standards.
  3. The Amount of the Dealing - “Both the amount of the dealing and importance of the work allegedly infringed should be considered in assessing fairness.”  The extent of the copying may be different according to the use.
  4. Alternatives to the Dealing - Was a "non-copyrighted equivalent of the work" available?
  5. The Nature of the Work - “If a work has not been published, the dealing may be more fair, in that its reproduction with acknowledgement could lead to a wider public dissemination of the work - one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair."
  6. Effect of the Dealing on the Work - Will copying the work affect the market of original work?  "Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair.
There are several guidelines that have been developed to assist on this issue. Both the AUCC and CAUT have published fair dealing guidelines and many universities have either endorsed one of them or published their own variation. Many universities also employee copyright officers who assist with fair dealing and copyright license issues.

What if I want to use an article or materials not currently under license by my university?


Should professors want to include additional materials not otherwise covered in alternate sources, the universities can seek pay-per-use licences directly from the copyright owner or from a copyright collective. Ironically, Access Copyright is resisting pay-per-use licences for education, leaving some schools to license the same materials from the U.S. Copyright Clearance Center or approach the copyright owner directly.

Are all universities opting-out of the Access Copyright interim tariff?

Not yet, but it is moving in that direction. Earlier this year a handful of universities, including Acadia, New Brunswick, Windsor, Mount Saint Vincent, and the University of PEI, announced they would no longer operate under the Access Copyright licence. Most have found the transition relatively painless, as they have established new campus copying guidelines and worked with faculty to obtain individual licences where needed. In recent weeks, many other universities have announced plans to follow the same path with Waterloo, Queen’s, Calgary, Saskatchewan, York and Athabasca University all notifying professors and students that are opting-out of the Access Copyright licence. At this stage, it appears the majority of universities will opt-out either this year or by September 2012.

What are the benefits of opting-out of the Access Copyright interim tariff?

Opting-out of the Access Copyright interim tariff will likely generate some growing pains, but represents a major step toward better leveraging technology within the education system. It moves universities toward more flexible arrangements that will increase reliance on electronic course content and freely available materials that can be used without restriction. Moreover, long-term cost savings should allow universities to increase access by expanding site licences and investing in open access and open educational resources.

Are creators still paid for the use of their works if my university opts-out of the tariff?

Opting-out of the Access Copyright tariff should not result in a significant reduction in overall payments by universities related to copyright and copyrighted works. While copying covered by fair dealing does not yield additional payments, the use of site licences involves multi-million dollar investments by Canadian universities. For example, the University of Calgary alone spends approximately eight million dollars on electronic materials. With hundreds of millions spent each year on electronic resources, the revenues from these licences ultimately flows to publishers and authors. Opting-out of the Access Copyright tariff may free up some funds for use for additional electronic materials or new book acquisitions, effectively changing where the money is paid, not whether it is paid. Where the works are available under open access licences, the authors have chosen to make their works available at no cost.

Moreover, there are doubts about the payments Access Copyright makes to authors. For example, the Writers' Union of Canada recently passed a motion recognizing the lack of control over how licensing revenue is managed and the inability of Access Copyright to represent creator interests. As a result, the TWUC plans to investigate operational separation of creators’ and publishers’ interests in collective licensing. That motion has been endorsed by the League of Canadian Poets.

What else can be done by universities and faculty members to ease the transition?

The easiest way to address licensing concerns is to adopt open access licences that remove any doubt about use and re-use of materials as research is posted online with an open licence. In recent years, many countries have implemented legislative mandates that require researchers who accept public grants to make their published research results freely available online within a reasonable time period. While Canada has lagged, a growing number of funding agencies, including the Canadian Institutes of Health Research, the Canadian Cancer Society, and Genome Canada have adopted open access policies. 

For faculty members, publishing under open access (either by publishing in an open access journal or by posting a pre or post print online) ensures their work is widely available, consistent with funder mandates, and open to use for course materials.

Universities can do their part by removing their works from the Access Copyright repertoire and making them available under open access. For example, placing their works under a Creative Commons licence sends the message that works under university copyright can be freely used for other purposes.

How does the Canadian situation compare to that found in the U.S.?

Canadian universities pay far more to Access Copyright than U.S. universities pay to the U.S. Copyright Clearance Center, the U.S. equivalent. While Access Copyright is seeking $45 per full-time student, U.S. blanket license rates are less than 1/10th that amount.

The 2007 Friedland Report, which identified serious governance problems within Access Copyright, noted the dramatic difference between Canada and the U.S.:

the various post-secondary educational licenses amount to about $18-20 million per year out of over $160 million collected – about 12% of the total received [for the U.S. Copyright Clearance Center]. This can be contrasted with the situation for Access Copyright where, according to the publishers’ recent submission to me ‘close to 75% of Access revenue comes from educational licenses.’

I'll be happy to add to this FAQ as new developments arise.
Comments (84)add comment

Stephen Downes said:

...
It would be useful to add to this FAQ a list of the universities who have already announced plans to opt out
July 27, 2011

Glenn said:

Carleton University opted out earlier this year
Carleton opted out of Access Copyright as of January 1, 2011.

http://www.library.carleton.ca/copyright
July 27, 2011

Bob said:

...
As I recall, the only governance problem that Professor Friedland noted was the size of the Board. I also recall that it was the Writers Union that refused to sanction a reduction in the size of the Board.

There are 9 representatives of writers on the AC board, and 9 representatives of publishers. That may be too many, but it's hardly a structure that would lead to governance problems.
July 27, 2011

Degen said:

...
I didn't notice any mention of Dr. Geist's own relentless advocacy in favour of university opt-outs in his latest column on the subject - I mean, he's clearly writing an instruction manual on opting out. Isn't that an essential part of the story?

Don't journalistic ethics apply in the academy?
July 27, 2011

Rory McGreal said:

advocacy
Thanks for this manual for universities that are opting out of Access Copyright. You are a great advocate and there is nothing unethical about that. We need this information. On the other hand, what could be seen as unethical is AC's contacting publishers and pressuring them into not accepting licensing requests from educational institutions. Then, refusing to consider such requests for universities when they do consider them from companies.
July 27, 2011

Degen said:

...
Access Copyright doesn't have to contact publishers. Publishers, and writers ARE Access Copyright. Does no-one understand the meaning of the word "collective," or the idea that owners have the right to decide for themselves how they'll deal with their property?

What an age we're living in -- academic professionals loudly proclaiming they want less educational material for their students. It's a head-shaker.
July 27, 2011

Devil's Advocate said:

Strawman much?
"...academic professionals loudly proclaiming they want less educational material for their students."

@Degen:
You really are the supreme shill on this one, aren't you?!

I honestly won't miss people like you, when the inevitable happens, and the bottom completely falls out of copyright. (The only question will be will that happen before capitalism itself falls, as it seems to be doing.)
July 27, 2011

Crockett said:

...
It seems to me that owners do have the right to decide how they will deal with their property. If they wish to offer their material exclusively through the AC tariff then there is nothing preventing them from doing so.

If this results in customers refusing to use their materials and instead using alternative sources then this is not impinging on their rights. Rather, it may limit their exposure and returns.

As to the the increase or decrease of educational resources being made available to students this is more of an distribution problem than a supply one. The material is out there, and increasing, but technological and licensing changes are transforming the environment they have traditionally occupied.

Having said that, efforts should be focused on obtaining the best resources [Open or copyright] for our educational system. This will increase the quality and capability of our workforce which will enrich our economy. A healthy economy is the best way for everyone, creators included, to prosper. I can only hope that in this battle between AC and AUCC that this will be at the forefront of their minds.
July 27, 2011

Degen said:

...
Devil's Advocate,

Where do you suppose I will go when the inevitable happens? If all my rights are removed, do you suppose I'll stop asking for them back? Interesting.

For those playing the copyright debate drinking game... someone called me a shill. Time to down a shot.
July 27, 2011

Darryl said:

...
"Where do you suppose I will go when the inevitable happens?"

Maybe back to your mountain cabin in South Dakota if we're luck.

Which right of yours is being removed here exactly? Your right to tell universities how to acquire their teaching material?
July 27, 2011

Degen said:

...
Um... my right as a creator to license my own intellectual property as I choose.

My right as a paying student to an unrestricted repertoire of educational materials, and to professors who are not blinkered by ideology.

My right to expect Canada Research Chairs to present factually correct information backed by unbiased research.

My right to expect copyright blog commenters to understand the fundamentals of copyright law before they start writing.

Do you need more? And were you asking as Darryl, or as Devil's Advocate?

July 27, 2011

Darryl said:

...
"my right as a creator to license my own intellectual property as I choose."

You still have this right. And others have the right not to buy your license if they don't like the terms. But I guess that would be a user right so you don't recognize it.



"My right as a paying student to an unrestricted repertoire of educational materials, and to professors who are not blinkered by ideology"

Wow! Really? You mean, students have always had a right to access each and every published work in existence? What University did you go to, and what planet is it on? A-C doesn't license everything, and they are not the only avenue to licensing most things. Even with an A-C license there are significant restrictions on what students have access to.



"My right to expect Canada Research Chairs to present factually correct information backed by unbiased research."

Usually that is what you get around here, with occasional exceptions of course. Geist is only human after all. Are Shills human?



BTW. I'm not Devil's Advocate. Go figure. There is actually a number of sensible people around here. Do you HAVE any more to offer?
July 27, 2011

Un-Trusted Computing said:

@Degen
"My right as a paying student to an unrestricted repertoire of educational materials, and to professors who are not blinkered by ideology."

I'm really not sure where any of this makes any sense. You don't like the prof; you can change classes. Fortunately most of the classes I take are science related and there's nary a political opinion, value judgement, or emotional tirade in sight.

As far as access to material is concerned I can't really say I understand where you're coming from either. I register for a class, I have to buy a book or two for it, and course materials are given out. The course materials themselves will be related to what my professor is teaching, and it should be completely transparent to me whether these materials are coming from AC source, an individual publisher, or open access materials. Some things are the same (eg: Electrical diagrams) no matter where you get them from, so it makes sense for a university to shop around as to where they're going to get this from, and choose the lowest cost option.

The "Monorail" here seems to be Access Copyright, not the idea that universities should look at other tariff options.


July 27, 2011

Devil's Advocate said:

@Degen:
[FYI: I only post as Devil's Advocate, never as anyone else. Darryl is definitely his own person.]

Personally, I don't care where you would go. I only know that when the whole copyright farce (which is what it has now graduated to) is ultimately defeated, there will be no further point in entertaining your arguments, nor will there be any chance in hell there'll be such a need afterward.

Ya see, once it's gone, it will be not be returning any time soon, and the blame for that could only be pinned on those who refused to adapt to the changing environment.

The fact that you think any of your rights are even in question here is a testament to what most of us are saying.
July 27, 2011

Degen said:

...
Darryl,

Great! So you agree I have the right to go the AC tariff route instead of being forced into transactional licensing. Thanks for your support. I will be sure to quote your agreement in future consultations with the Copyright Board. Then again, you don't have the best reputation with them, so maybe not.

Have students always enjoyed the right to access as much material as possible? Well... in a democracy... that respects freedom of expression... um, yes.

I went to the University of Ottawa. Thanks for asking.

"Occasional exceptions." Is that like "growing pains." I love the free culture figures of speech. So amusingly dishonest. I'm sure you'll get a cookie for defending Geist. Good boy.

Un-trusted -- yes, it would be nice if there was that complete transparency, except with the opt-out your materials will never be coming from the AC source (except when they can be squeezed through with fair dealing -- fingers-crossed). Does that help you understand why this is an access issue? The opt-out restricts and contracts your access, whereas the tariff would never stop you or anyone else from also licensing other work elsewhere.



July 27, 2011

end user said:

...
@Degen said: Um... my right as a creator to license my own intellectual property as I choose.

You have every right to control your own copyrighted materials and the universities as a customer/consumer/business have every right to go and shop for their meterials where ever they want. So now you and the universities are excercising the rights.

So what's the problem?
Do you have a problem with the universities getting their meterial from a place where your works are not distributed?
Are you pissed off because you are loosing money? If so thats a problem with your own business plan/model and nothing to do with universities.
July 27, 2011

Un-Trusted Computing said:

@Degen
"with the opt-out your materials will never be coming from the AC source (except when they can be squeezed through with fair dealing -- fingers-crossed). Does that help you understand why this is an access issue?"

John I understand the "Catalog of materials licensed under AC" concept, and I don't agree with using fair dealing as a wedge to get these materials from AC without paying.

What I don't understand where you see these materials as unavailable to students unless the university signs on with AC.

Let's assume as a teacher I need a couple pages from "The Blind Watchmaker" by Richard Dawkins (I have no idea whether or not this is available from AC I'm using it as an example because it has both scientific and literary merits and could be used in both science classes or literary ones) how is it any different for my teacher or my academic institution to license it through AC to through the publisher?

The next logical step for them as a fiscally responsible institution is to say: It's going to cost us X to license this through AC and Y to license this through the publishers so which way do we go?

It may very well be that AC is a better deal on the sheer volume of accessible materials, but they may not need that volume, or even close to it. Therefore the logical step would be to explore licensing options rather than accept on blind faith that AC is the best choice for said institution.

July 27, 2011

Crockett said:

Why did the ...?
As an advocate for creator rights I would think such a person would not be concerned through what vehicle creators are being paid rather than the fact that they are. Does it really matter if that payment comes through AC, a database subscription or direct licensing? If open access materials are going to be used that is through the generosity of those who have put up the materials for the enrichment of society rather that personal profit, no copyright or access issues there.

From an access perspective AC refusing to offer transcriptional licences to the universities are actually the ones who are impeding these works from being used. The universities are offering to pay and AC is refusing to deal, instead offering an all or nothing ultimatum. How this is serving the interests of their contributing clients is questionable.

I suppose the hope is that this is a temporary 'insanity' in the education sector that will fold like a stack of cards and the universities, coming to their senses, will happily return to pay the increased fees and demands of AC. That may well be the case, or possibly we will see a different paradigm emerge, it's hard to say who will win this game of chicken and how much roadkill there will be in the meantime.
July 27, 2011

Darryl said:

...
"So you agree I have the right to go the AC tariff route instead of being forced into transactional licensing."

Yes, of course you do. I also think that if this is the ONLY route you choose to go down and the universities don't go there too, then you will have the additional right to not get paid or have your stuff used, but don't blame the universities for YOUR choices.


"Have students always enjoyed the right to access as much material as possible? Well... in a democracy... that respects freedom of expression... um, yes."

The devil of course is in the details. What is the definition of "possible"? Do you simply forget about financial costs? I know. It is only 0.5% of their budget isn't it? So they shouldn't have to spend it wisely, and they should be able to come up with another 0.5% so they can pay for all those other publications which aren't covered by A-C.

You know there is a reason that University revenue to A-C has been going down lately. It is a paradigm shift away from the way A-C has always worked. With the exception of orphan works, I suspect there will soon be no need for A-C at all. I think A-C sees that too, hence the new licensing model in a desperate attempt to make themselves relevant.
July 27, 2011

Chris Brand said:

When it comes right down to it
AC seems to be yet another "middle man", and the costs involved seem to have gotten to the point where the universities have decided to go directly to the various sources rather than through the middle man.

The savings come from two places - cutting out any middle man overhead and buying just what you need and nothing that you don't. Presumably the universities figure that these saving outweigh the additional costs in dealing with multiple sources.

As for the suppliers (writers, publishers, etc), they only lose out if they insist on only dealing through the middle man, which is their right, or if they happen to benefit from the "collective" nature of the middle man in this case, where the way the money is shared out may not match the way it is earned (e.g. your work may be included in the blanket license, so you get money, but it may not actually be used by any of the universities).

I don't see how anybody's rights are affected at all. This is just a free market at work.
July 27, 2011

oldguy said:

@Chris
..."I don't see how anybody's rights are affected at all. This is just a free market at work."

That's how I see it as well. Modern technology has changed the playing field, just at the time when AC is trying to squeeze more out of their largest customer base. That customer base has done the numbers, and decided that an AC blanket tariff simply doesn't have the same value anymore.

I simply disregard John when he goes off on his "anti-Geist" rants. Although he probably has some valid points in there somewhere, they are lost in the noise of his personal vendetta.

July 28, 2011

Bob said:

...
Here's another FAQ:

I need to use coursepacks for my classes. The materials are not covered by any of our site licenses. We sell the coursepacks, and on average each of them consists of excerpts from books, with each excerpt at least 20% of the book. We also include two or three articles from the most recent issues of journals. I am advised that this is not fair dealing. But the costs of getting transactional licences are very high on a per-page basis. The Copyright Clearance Center in the US can clear some of the permissions but they charge nearly three times what we used to pay under the AC licence, will only clear a few of the permissions, and say it will take several days. We did also contact the publishers, but those that are willing to assist tell us that it takes about 2 weeks to process and they require payment in advance. What do we do now?
July 28, 2011

Bob said:

...
And another:

My course has 300 students. I want to distribute three chapters from a book. It has fifteen chapters in all, so this will be about 20%. I contacted the publisher and they refuse to give permission and say the students have to buy the book. Can I just mark it up to fair dealing and go ahead anyway?
July 28, 2011

Librarian said:

Thank you MG
This is an important and informative summary. Much obliged.
July 28, 2011

asfgdfg said:

@Bob
Rebuild the course pack. Find other sources for your information. Not complicated. Wake up.
July 28, 2011

James Plotkin said:

Same point different day
Darryl put it rather well. It's your choice to use AC as a venue to license your work. A lot of musicians choose to license their work through SOCAN. They often also choose to simultaneously license their work independently. It comes down to entrepreneurship. I gave a lecture to my old (college) music business class on exactly this topic.

There's nothing wrong with adding your work to a collective hoping to earn revenue from licensing it that way. By the same token, as an entrepreneur, rather than whining and complaining that your licensing avenue is under attack, find new and better ways to license your work.

If we put this in a commercial context it becomes abundantly clear. A company selling their product though retailer A isn't going to sit around and feel sorry for themselves (and maybe even stir up a ruckus on a blog or two...Degen) when retailer A becomes less profitable or closes their doors. They are going to try to get their product into the stores of retailer's B and C.

In fact, most product manufactures- with a certain obvious exceptions- are constantly trying to get their products into as many sales outlets as possible.

As I told the bright eyed third year Jazz students: SOCAN is fine. Don't put all your eggs in one basket (especially a basket that has so much overhead).

So again Degen, just because the AC gravy train seems to be coming to a gradual halt, I don't suggest you go crawl under a rock like some other people have implicitly suggested you do. Not that I'll stop you if you want to. I suggest that artists stop whining and "rage blogging" and start finding new and creative ways to promote their brand and get their work out there. If you want to make money...do business. I don't buy your excuses because I've seen it done right many times before.
July 28, 2011

Degen said:

...
Okay folks, I need to confine my copyright discussions with people who are immersed in fact, not confused speculation.

Y'all prove my point about this blog every time you comment. Does anybody here even know what a tariff is? Do you know what a collective licensing society is? I can hear the clacking Wikipedia searches already. Why do you presume to give your opinion about this stuff when you clearly don't know what you're talking about?

Who said universities can't access materials wherever they want? Who said it is isn't a good thing for creators to license their work individually if they so choose? You guys are fighting against positions that have not been advanced, and your dear leader is happy to let you wallow in that confusion.

If universities wish to subscribe to other databases and services, I'm happy for them because it means by paying the subscription they are respecting the copyright of those companies and creators. If they wish to use the Access Copyright repertoire, which is a significantly different entity from a closed database subscription, they will be subject to an eventual tariff. If they stubbornly refuse to let teachers and students use AC materials, that's just weird and scary -- but the weirdness and scariness is on y'all, not on AC.

The rest is just noise. Uninformed noise. Of course, to Geist, it's a beautiful noise so keep it up I guess.
July 28, 2011

James Plotkin said:

Alright...I'm done.
Yeah. I guess we're all stupid sheep who no nothing about copyright. Never mind that I advanced an anecdotal point about entrepreneurship and how collectives (essentially an exception to anti-trust law - or do I no nothing about that either) are not the one and only way to go...FOR ARTISTS (not institutions)

For the very last time...No one here is attacking your right to license your work however you want to license it. But when you choose a way that is no longer baring fruit for whatever reason- in this case, universities ceasing to subscribe to a particular rights collective- you can either whine about it or find a better way.

Businesses who try to correct their customers behavior fail...If AC wants to stay competitive, they must do so by offering what people ask for (pay-per-use) and not try to provision themselves with addendums to interim tariffs in the hopes of setting up future revenue streams to replace the ones that are obviously failing. I'm sure someone at AC thought it was very crafty to put the addendum on electronic sources in the interim tariff without putting a rate on it so that the rate in the final tariff can be applied retroactively.

Of course I don't know how tariffs work or what rights collectives are so I suppose this is all noise to you. I don't know...I tried to be respectful to you and your opinion but at this point I'm ready to resign myself tot he fact that your just a sad sour little man. Good luck with that...
July 28, 2011

James Plotkin said:

...
*Know nothing...pardon the typo
July 28, 2011

Bob said:

@Plotkin
AC is primarily pay-for-use. Coursepacks, which according to Howard Knopf account for nearly 80% of the revenue AC gets from universities, are priced on a per-page basis. And the current rate is much less than a publisher charges for permission requests. If you doubt this, call around. But the reason the AC pricing is low is that it's done on a pre-licensed basis: you do the copying, you complete the report and pay the fee. Transactional licensing, on the other hand, means that eachj transaction is managed separately. This will cost more, even if it's done online. When the dust settles, AC will be a bargain compared to the alternatives.

Now, one of those alternatives is that profs actually write their own materials, and teach. That seems to be increasingly rare. As are the days when students bought texts and read them.
July 28, 2011

Degen said:

truly, sadly, sourly
Oh, I've hit a nerve. It hurts when folks don't take you seriously or treat you respectfully, doesn't it? I suspect you'll get used to it.

By the way, that business about trying to be respectful to me, when did that start? Was it before or after you called my collective's licensing revenues "protection money?" Was it somehow wrapped around the idea that most in the creative industries suck harder than SOCAN, or that we're all whiners who don't understand entrepreneurialism?

If you understand tariffs as you claim to, then what's your worry? No institution NOT using the AC repertoire will be subject to the tariff, no matter the price imposed. For you and all who believe in the great promised land of "suitable replacements" the tariff has no impact. You can just, respectfully, leave the deluded majority to our slow, sad, sour "gravy train" and prove us all wrong with your rockingly successful music/law business.

July 28, 2011

Devil's Advocate said:

Well, at least sadly, if nothing else...
I would think, in order to "hit a nerve", someone would have to first take you seriously. Your only claim to fame here is to keep making the pathos meter go off the scale!
July 28, 2011

older guy said:

A Simple Disagreement
If we ignore some of the smearing and silliness (Geist is not the lawyer for the universities, that would be Glen Bloom, lawyer for publishers in CCH, currently arguing against CCH fair dealing for CRIA, and not much of a free culture dude), the Degen – Geist divide is not all that great. Both say there are site licenses that show universities respect copyright and cover a certain amount of work. Both say there is overlap with the Access Copyright repertoire. Both say the overlap is not complete so that there are works in the Access Copyright repertoire that require permission or a license. There is some disagreement over how much open access, fair dealing or linking would cover, but both say regardless there is a need for additional licenses.

The disagreement is a narrow one. Geist says the remaining works can be covered by transactional licenses (through publishers, copyright holders or other collectives) or alternative materials found. Degen says the best way to license these works is through AC. Many universities seem ready to give the alternative a try. Their gambit for a transactional license through the Copyright Board would make life easier for them, but their decisions to opt-out do not depend on that outcome.

It is not clear how this comes down to respect for creators, free culture, or the other rhetoric bandied about. It is a simple dispute about two different ways to pay for copyrighted works. The rest is noise.
July 28, 2011

Crockett said:

Completely off topic ...
OK this nowhere on topic (apologies to John) but I just had to say something about it.

http://arstechnica.com/tech-policy/news/2011/07/british-telecom-ordered-to-blacklist-usenet-search-engine.ars?comments=1&p=21900610#comment-21900610

There is a service (that does not operate in the UK) that acts as a search aggregator for usenet. Many of the links it produces are of course connected to infringing content and the service is making a tidy profit through advertising on the site.

Now this is exactly the type of activity I think content owners should be going after, no one should be able to make unauthorized profit off other people's work.

Here is the part that concerns me. The recommended method being put forward is to use the CleanFeed system that is used to block access to child pornography on the net. Now, this suggestion was put forward by the judge in the case and the ISP in question is free to use other methods but to even consider using this system I think is extremely unwise.

The reason I say this is there are people out there who have recently shown themselves to be, shall we say, idiots. I refer to the Lulz crowd and worse. Now anyone who would move to compromise a system that protects children from probably among the worst of all crimes for the sake of grabbing a few free movies should be reserved a special place down under (not Australia). But obviously less so, there should be some wisdom by others to not paint a big red target to protect the same.

I would think that all involved in this enterprise, including the content industry, while still going after this service should put this option off the table.

Again, sorry for going off topic ... [steps down off soapbox]
July 28, 2011

Degen said:

...
Devil's Advocate - you mistake me for someone who needs to claim fame. I'm here fighting for my rights, and I'm doing so under my own name. Why are you here?

Older guy - nice, succinct analysis. I'm forever amazed at those who think I want to stop universities from paying for content. Geist knows that's not true, but he likes to suggest AC is refusing payment (the transactional red herring), or that they want to stifle competition. AC is representing the property under its charge, and it bears repeating that they were pushed to propose a tariff when universities refused to negotiate new licences for work they continued to use.

I do disagree with you on your last point. The very idea of expanding fair dealing to cover education, and applying "logic" from the CCH decision to help in the definition is in itself a very disrespectful attack on the rights of creators, IMO, and it is an ideologically based attack from the proponents of free culture. The faux outrage Geist generated over the issue of linking to publicly available material reveals either that he himself doesn't understand that something can be both available AND protected, or that he does understand but wants to change that fact. I give him credit for legal knowledge (too much?) and conclude that he is invested in change for ideological purposes.

Geist may not be representing universities in this dispute, but his fingerprints are all over their opinions papers. To suggest otherwise is naive.

Crockett - what?
July 28, 2011

Sal86 said:

...
What is Degen even arguing about? I still can't make it out.

Do Universities have the right to opt out or not? I don't care if you think it's "weird and scary".

As a student and someone who works at a University, I hope all institutions do.

I think your arguments might have more to them if you didn't feel the need to slag Geist at every opportunity.
July 28, 2011

Kai said:

...
I'd just like to say, as a creator, whose livelihood relies on copyright, that some of these responses are, well, sickening. The aggression on display, is not only misplaced, but is what makes it so difficult for us creators trying to move forward with the times to have an adult conversation with proponents of free culture.

I agree with some things Geist advocates, I disagree with others. It would seem I'm not paranoid/delusional enough to believe he is (or other free culture proponents are) actively trying to put me or all creators out onto the street to rummage in garbage cans. And it's not as if he's the sole source of these ideas, which have been gaining momentum for the last decade (and have existed since before copyright existed). These views are also, not mutually exclusive to creators such as myself, being able to make a living.

I find it far easier to believe Access Copyright is unethical in it's pursuits, simply because of their lack of transparency and responsiveness to those they are meant to represent. I know some creators who can't get a bloody drop of information about their works from AC (not that we can get decent information on their practices overall even). Currently we can't even be sure they are paying creators correctly (and their administrative costs are ridiculous). We see the same issues with music collective agencies as well.

So, yes, maybe if some of Geist's ideas are taken to the extreme creators will have more difficulty in being fairly paid (though I don't he'd advocate for the extreme, considering he'd also be effected negatively). But, it seems incredibly likely that AC is making it more difficult to be fairly paid, now (not least by their actions obviously causing our customers, the universities, to seek alternatives which don't include our works - which is their right in a free democracy).

I'd say, we creators can live without their sort of "protection". I'm happy to work with my customers/fans/consumers to find a fair and balanced new system, where I get to eat and they get to share in my work. I wish other creators and the collectives took the same approach, instead of pushing a hard line for old systems, which leads to this backlash.
July 28, 2011

Degen said:

...
Kai,

I don't even know where to begin with that upside down victim-blaming. Access Copyright is making it hard for creators to get paid by fighting too hard for our rights to be paid?

You have every right to licence your work wherever and however you want, and no-one should stand in your way. Access Copyright will certainly not stand in your way. On the other hand, if you want to licence through Access Copyright, as I do, then this blog is currently dedicated to making sure you don't get paid by Canadian universities. That fact is right in front of your eyes, but I guess you'll only see it if you want to.

I attend Access Copyright AGMs every year, and I regularly consult their website. They are 100% transparent and responsive and regularly submit to examinations of their ethics as a matter of course. What absurd accusations.
July 28, 2011

James Plotkin said:

...
and look...He managed to articulate all that without slamming, Geist, me or anyone else (in name). Fascinating.
July 28, 2011

Crockett said:

...
@Kai "I wish other creators and the collectives took the same approach, instead of pushing a hard line for old systems, which leads to this backlash."

Well said Kai, this has been the core of my message for years. It all boils down to you can catch more flies (the scurvy pirate kind) with honey than vinegar, but it seems to more often than not to fall on deaf ears. The **AAs of the world are their own worst enemy.
July 28, 2011

Kai said:

...
@Degen

So, someone declining to be your customer, is a matter of them victimizing you? That seems quite simply, insane, and oblivious to the function and interactions of business relationships. Are you truly trying to imply that people or universities should have no choice and be forced into these agreements? That they -must- be your customer? (Which, is effectively racketeering by the way, a criminal act.)

This entry and the discussions related to it, are not about making sure creators don't get paid. It has never once stated, "use this material and don't pay the creator." It has been a discussion about Access Copyright being abusive to the point where people/groups no longer want to have a business relationship with them. It has been, that Access Copyright is currently chasing it's customers (and creators) away by not providing a service that they find reasonable or beneficial enough to agree to. Access Copyright is who has been ensuring you don't get paid. While other organisations and creators, like me, are happily providing more value and reaping the reward of that incompetence. This is normal in democratic markets, that's the nature of competition. The implications of opposing that, is that a monopoly would be preferable, which I find absurd.

You have the right to continue to license yourself with Access Copyright. You do not have the right to force people to be your customer. It's as simple as that.

I can certainly understand that you're upset, you want to do something your way (and get paid for it) and people don't want to do it your way (anymore?). Geist is giving them information that allows them an easier time of not doing it your way and explanations regarding that. But, there is nothing unethical in his action. That's because people are free to choose. Proclaiming him your enemy, attributing nefarious motives and alienating everyone here isn't going to improve your situation. Your kind of statements, the same sort Access Copyright makes, are exactly the sort of abuse your customers are fleeing. (An executive I know in Post Secondary, is just tired of dealing with them and is finding better quality for their students elsewhere... Which it's their job to do) To be blunt, you are not a victim (that is an insult to real victims), take some damned personal responsibility for yourself and your work. If people don't want to buy what you're selling, that's not some critical flaw in their character, it's a flaw in your product.

If you still want to dig your nails into the planks of a sinking ship, that is certainly your choice, but no other creator or customer is required to go with you into the briny depths. If you ignore the changing times, there's no one to blame, it's just the evolution of society. Evolve with it and prosper, or don't.



@Crockett

I sometimes wonder if it's just a matter of optimism versus pessimism. I think if I treat people well, give them something good, they will support me. Others seems to believe everyone is out to get them, just because. Maybe my view is naive, but the industry numbers in new services seem to be supporting me so far. I just hope it continues... But, if it doesn't... I'll just adapt again. =)
July 28, 2011

Crockett said:

Circus de aycee ..
@Degen "I don't even know where to begin with that upside down victim-blaming. Access Copyright is making it hard for creators to get paid by fighting too hard for our rights to be paid?"

John, you have been talking a long time about your 'rights' but I'm starting to see that some of those rights you proclaim to have are perhaps less rights than privileges.

You have lost no 'right' to be paid through AC, but you do have a right to participate in a free market economy.
If a person or organization chooses to not purchase an item through the entity you have commissioned your works with then no rights have been denied, rather the right of free choice has been exercised, both yours and theirs. You have chosen how to market your works and others have chosen to (or not) purchase it.

Now if that person uses your works anyway without paying you in the manner you have requested then a right has been violated, otherwise no.

To answer your rhetorical question above, I would posit the answer is yes. As Kai has related about his acquaintances in post secondary administration, they are getting tired of dealing with AC's prices and demands and thus looking elsewhere, which is their prerogative.

By AC's refusal to not deal with the universities in a transactional manner are they not locking those who have commissioned their works with them from those very customers?

Kai seems to be entrepreneurial enough to adjust to changing market demands and do well for himself in spite of AC's fight for rights.

Possibly John it's you who needs to do a handstand?
July 28, 2011

Paul Jones - CAUT said:

Professional Officer
Thank you Michael, and all commentators, for your contribution to the copyright discussion.

If a history of Access’s current difficulties is written it may show that Access and AUCC had a very congenial relationship. AUCC, like Access, never incorporated the CCH decision into its worldview. And AUCC, again like Access, preferred the certainty of collective licensing over the freedom of securing material from a diverse range of sources.

Two things ended this equilibrium. First, academic staff and students drew away from AUCC’s conservative copyright leadership. Second, university copyright administrators fell out with Access over its perceived arrogance. The word uprising is a little strong, but the combination of professors, librarians, researchers, students AND front-line copyright officers turning their backs on the AUCC/Access alliance ended its viability.

We are now witnessing a semi-spontaneous, decentralized move away from Access – prompted not just by technological change but by grass roots pressure from the workers and students who make up the actual academic community. Regimes end when they lose legitimacy and other options become available. These are interesting times.
July 29, 2011

Degen said:

...
Kai and Crockett,

Please deal with me and my real opinions rather than with the ridiculous caricature you like to draw.

There is no objection about someone declining to be my customer. The objection is the exact opposite -- someone continuing to be my customer but doing everything they can to not to pay for my product, which they continue to use. Expanded fair dealing, obtaining AC repertoire materials from the United States, refusing to negotiate new licenses -- these are not the tactics of someone walking away from a product. They are the tactics of someone intent on taking a product without paying. Layered on top of that is a frighteningly unprincipled apology for restricting the freedom of individual teachers to choose which materials they will use.

It has ABSOLUTELY been stated that universities should use materials without paying the creators. Geist has been writing since at least 2005 that licenses for the AC repertoire are unnecessary and that fair dealing should be expanded to cover most classroom use. You guys need to pay better attention to what is actually being advocated here, instead of just buying into the cheap sterotypical rhetoric of sinking ships, obsolete business models and abusive rightsholders.

Understand the REAL history please, not the revised version that circulates at the free culture parties. The AC tariff proposal is in place because universities refused to negotiate new licenses when the old ones were set to expire. They were not opting out of the repertoire; they were simply refusing to come to the bargaining table while continuing to use AC's stuff. What do you call that? Something cute, like a growing pain?

Understand the REAL players, not the over-dramatized supervillains described in comment section ramblings, the MAFIAAs and great AC overlords bullying poor universities and users. Access Copyright is a collective of Canadian writers, publishers and visual artists all of whom are users as well as rightsholders, and who have chosen to pool their resources for the greater good. The staff are extremely intelligent, fair-minded, generous and dedicated to building and maintaining a healthy Canadian culture. Suggestions otherwise come from a place of malice and ignorance, and I'm tired of hearing them.

July 29, 2011

Degen said:

...
Mr. Jones,

It's amazing how this history you describe all just happened "semi-spontaneously" without anyone mounting a centralized campaign of exaggerated and inaccurate accusations against Access Copyright. It all just sort of evolved naturally because of AC's "perceived arrogance."

http://www.newswire.ca/en/releases/archive/August2010/12/c2163.html

I think we both get which side we're on. Why do you and Dr. Geist represent your side of the story as though you aren't playing an active role in what's happening?
July 29, 2011

older guy said:

How we got here
Degen,

Your dislike for Geist is clear to all, but you let it cloud your judgment on what is happening. Here’s a news flash – AUCC dislikes Geist about as much as you. He’s a pain in the ass for them. Their preference would be for this issue to go away. Look who they hire, lawyers like Glen Bloom (of publisher and CRIA fame) or Wanda Noel (of Canadian Heritage fame). They are happiest when copyright isn’t an issue. What turned this into an issue for them isn’t Geist or CAUT or any spontaneous uprising or perceived arrogance as Jones says.

It was the Access Copyright $45 tariff demand. It succeeded in making an issue that was previously below the radar screen for most university presidents. At $45 per student, the additional cost runs into the millions for most schools and that is real money for those institutions. Those demands were enough to push the universities to reevaluate Access Copyright and look for alternatives. Access Copyright overplayed its hand and realized it too late (the switch from Sookman to Hofley as their lawyer was the clue). Once again, everything else is noise.
July 29, 2011

Degen said:

...
older guy,

I think the story of hands overplayed (and who overplayed 'em) is nowhere near finished. The tariff proposal was the result of AUCC digging in and refusing to come to the negotiation table. That's a pretty aggressive play if you ask me.

My dislike is for methods, not people, but I will admit it is occasionally difficult to distinguish between the two. That said, you won't ever surprise me with the news that someone else finds the dear leader's methods to be abrasive. There's precious little evidence here, but the world is full of perceptive types.
July 29, 2011

Kai said:

...
@Degen

You know, I was all set to respond to you fully, but then I saw your response to older guy and I realised... You are simply not worth my time. Your statements are almost schizophrenic from comment to comment, both in tone and message, as if you don't even recall the things you've stated.

Don't want to be seen as a caricature? You should try not to act as one then, in flailing ignorance and absurd statements like "victim-blaming". Take some personal responsibility, garner some self awareness for your words and actions. Your statements are false, especially in regards to what Geist or others here believe regarding fair dealing. Your perception of AC (who has acted in bad faith this entire time and is experiencing the backlash now) is false.

Those like you, are a danger to creators, especially those like me. You create "sides" and conflict in an arena which could do far better without it. You muddy the waters in jumping between attempts to seem reasonable, while throwing out irrational and panicked accusations. And you are so loud in these actions, you harm the perception of creators, who will pay in the backlash, as we already are.

You are the caricature of Access Copyright in a microcosm, right here.
July 29, 2011

Degen said:

...
Kai,

That's an awful lot of words to use attacking someone who's not worth your time.

I've been writing about the arts and culture for over twenty years, and about the copyright debate for a decade. I've researched and studied the topic for longer. My record of opinion is public and consistent, and if it's a matter of flailing ignorance then it's a funny kind of flailing ignorance that's quite in demand for consultation and presentation by and to those at the very centre of the question in this country.

As well, I've actively consulted with hundreds - no, thousands - of professional Canadian creators on this subject and am very confident I have a handle on the spectrum of opinion in that group, and which way the vast majority leans. I'm willing to bet you've never even spoken with anyone at Access Copyright or investigated them firsthand, happy instead to just borrow opinions about them you've learned on other blogs.

To not recognize "sides" in this issue is naive - beyond naive; it's irresponsible and cowardly. You may be content to let creator rights slip through your fingers on the promise of jam tomorrow and more salt please (Billy Bragg reference), and I leave you to that, but I'll keep ahold of my rights all the same. And when you're looking to pick yours up again after real life kicks in, maybe you can thank an older creator for keeping them around.

Save your sophomoric lectures about creators for someone who doesn't live the life full-time. You may think of me as a caricature in microcosm - whatever the hell that is - but I don't hide my opinion behind pseudonyms and unprincipled reportage.
July 29, 2011

end user said:

...
@Degen said: You may be content to let creator rights slip through your fingers.

Who is letting creator rights slip through? No one is stealing your rights or your content. You still have a right to license your work through anyone you wish and the schools have the right to go and shop anywher they like.

Seems from your ranting you think that the schools that go and license peoples work outside of the normal channles are some how stealing your rights, which is insane on your part. Its your own fault that your business plan/model is failing and you refuse to change as technology advances and social attitude changes.

Hold on while I shed a trear for you, video rental plances, horse carrige builders, lumber jacks and fishermen.
July 29, 2011

Darryl said:

...
"To not recognize "sides" in this issue is naive - beyond naive; it's irresponsible and cowardly."

Yes indeed it is John, and I do acknowledge your firm handle on the full spectrum of opinion. All the way from turquoise to indigo.

Now perhaps if you removed those tinted glasses.....
July 29, 2011

Devil's Advocate said:

@end user:
Just a point of interest...
Aren't lumberjacks and fishermen still needed? The rest of that list is realistic, though. :)
July 29, 2011

Bob said:

...
I think that having some universities opting out of the AC licences may be the best way for them to realize its value. They will have to implement a range of complicated, cumbersome, time-consuming and expensive alternatives. Professors will have to retool much of their instructional material. Site licenses for digital materials will become pricier as publishers take notice of the greater redistribution that may now occur as universities paint themselves into a corner. Transactional licensing in advance of copying will be unworkable and far more expensive than the AC per-page pricing. And AC has extensive records on what all institutions have copied in the past, and will easily be able to assess whether there is in fact an end to copying that they previously licensed. Against this backdrop, it will also be easier for AC to lobby against the proposed change in fair dealing to include education - they can justifiably point to the exhortations to interpret fair dealing very widely, and the absence of viable collective licensing schemes.

So, bring it on. Within a year the opt-outs will be limping back.
July 29, 2011

Degen said:

...
Bob,

Obviously, I agree with your interpretation.

On the other hand, this opt-out debacle is an obscene waste of time and money on the part of institutions claiming to have the students' best interests in mind.

I've called it a mess before, and that's what it is. The waste of educational capital will be inexcusable. Students are investing in their futures, and at least a year of their education will be spent in a legal no man's land because their schools have chosen to gamble.
July 29, 2011

Warren said:

Sharing the results
Bob raises an interesting point concerning the Conservatives’ plan to change fair dealing to include education. It would seem that some universities’ anticipation of that change, coupled with MG’s vigorous cheerleading against collective licensing, has had a significant impact.

I look forward to learning whether those same universities that have been encouraged to “shift away from Access Copyright” will commit now to share transparently the results of their experiment at the end of the upcoming academic year.
July 29, 2011

end user said:

...
Ahh lots of FUD going on here. As for time and capital consuming, well yes its always expensive to retool a system for the better. We are at least 5 years into what should have been full digital distribution there's no excuse to having to depend on some outdated right management.

There will always be failures and greedy obsticles but thats how inovation happens and by passes those road blocks.
July 29, 2011

A.C said:

Note from the management
I know it's hard to resist ... but please don;t feed the trolls ...
July 30, 2011

Degen said:

...
Warren,

Yes, I'd particularly like to know how many requests for clearances to the copyright offices at this handful of post-secs were denied because the proposed uses were not covered by fair dealing and would be too much trouble to clear individually. That should be an interesting chapter in the history of academic freedom in Canada.

By the way, there are roughly 2000 post-secondary institutions in Canada, of which Geist has now listed 26 marching in his opt-out coalition of the willing. I know you're a generous person, Warren, but to call such a tiny percentage "significant" is positively saintly.
July 30, 2011

Far North said:

@Degen
I think you'll find that the approach to fair dealing is either whatever you want it to be (in which case you don't ask) or (b) anything that gets bounced by the Copyright Office but which yoo go ahead with anyway.
July 30, 2011

Paul Jones - CAUT said:

Paul Jones - CAUT
John Degen, it is possible that you are correct on every issue. The problem is that your quick wit and intellectual passion comes across as condescending arrogance. That same attitude from AC kept universities in line for many years, but then the frontline folks eventually thought "Hey, we spend billions of dollars on content and get treated like crap in return, what gives?"

What gave was interest in doing business with mean people. So you can rant and rail and win every argument on points, but the more you do it the deeper a hole you dig for AC. If I was clever maybe I would say "keep up the good work" but I am not so I will just suggest that you find a better way to influence copyright policy than being holier than thou.

As to the notion that events are determined by the dark hand of Michael Geist and CAUT - thanks for ego boost but history moves forward in spits and spats and unexpected ways, not through conspiracies.

Thanks also for your support of Toronto's libraries, something that would be nice to see from the CLA.

August 02, 2011

Degen said:

...
Mr. Jones,

I have no interest in winning arguments on points. As I've stated many times, I'm here defending my rights from folks who are trying to take them away from me. If you find that mean and arrogant, that likely says more about you than it does about me.

So universities are opting out of the tariff because they got their feelings hurt? What a ridiculous revision of history, and just more of the standard victim-blaming that goes on around here. 'If you weren't so mean in defending your rights, we wouldn't try so hard to take them away from you.'

What you call "keeping universities in line," the rest of the world calls responsible collective licensing. There are lots of other laws and regulations schools are expected to comply with. Are they also mean and arrogant?

Thankfully, people are starting to make the connection between these opt-outs and the inevitable restrictions on academic freedom they will bring:

http://t.co/uwIkaUJ

That an association of university teachers would happily be party to such restriction is unconscionable.
August 03, 2011

end user said:

...
Degen said: I'm here defending my rights from folks who are trying to take them away from me.

I'm sorry I missed the class where it says content creators have the right to tell others where they can legally purchase rights to anyones works. One more time but what rights of yours are the universities taking away?

Degen said: So universities are opting out of the tariff because they got their feelings hurt?

Actually this is exactly how the business world works. You piss off your customers or don't offer the service they require and they go to someone who does. Seems to me you don't like the free market.

Maybe you current career has come to an end and you need to look into a different one if the old one is not paying out anynore.

Degen said: What a ridiculous revision of history

What a ridiculous business plan and view of rights you have there. Again what right has been taken away from you?

Degen said: the rest of the world calls responsible collective licensing.

Actually I think thats called we had no other choice before but look technology gave us a few more options, which the schools are using and developing into. Yes new technologies have rough starts but thats alway teh case and eventually the system corrects itself. Just like its correcting itself from the collective licensing clutches.

Poor Degen all he can do is cry "Those bastards are taking away rights" while refusing to get with the times.
August 03, 2011

Darryl said:

...
"Actually I think thats called we had no other choice before but look technology gave us a few more options, which the schools are using and developing into."

Well end user, that should tell you what 'rights' it is Degen is talking about right there. The right to practice extortion of course.


FYI here is a good paper on the whole education/fair dealing issue.

http://ossguy.com/ccda/CCDA_18_Trosow.pdf


FTA:

"So while a Canadian institution needn’t be risk-averse because of the availability of a licence, its adoption of risk-averse practices — instead of relying on fair dealing — could nevertheless lead to serious rights accretion that only becomes more difficult to reverse over time. The resulting failure to incorporate fair dealing into routine practices not only increases the direct financial costs to students, it also discourages the full and proper utilization of existing knowledge resources.
Concerned that the lack of accurate copyright information was contributing to the paralysis of fair dealing in the post-secondary sector, the Canadian Association of University Teachers (CAUT) issued a Fair Dealing Advisory in December 2008 which presents the doctrine in a positive and unequivocal manner"


I think perhaps in the shadow of the SCC ruling, with the prospect of education being specifically mentioned in the Copyright act, and with the possibility of a massive cost increase for staying with the safe A-C approach, Universities are starting to see that it may be well worth their while financially and academically to start claiming the fair use rights they have always had.
August 03, 2011

The Dirk said:

...
Here’s an analogy from the perspective of someone who was actually involved in many of the conversations at an institution that opted out. I can’t speak to who dealt in bad faith first between AUCC and AC, or to what degree fear-mongering or the dark hand of Geist influenced decisions at other institutions.
We used to go to the Ford dealership in town and lease a Taurus for the year. We needed transportation and it was a fair price, so each year we leased the Taurus for the year. As time went by we found we were driving the Taurus less and less. However, Ford was the only dealership in town offering the convenient lease so despite diminishing value, we kept leasing but began to consider if leasing that Taurus each year really was the best way to go. Then one day, Ford informed us that the cost of leasing the Taurus was going up tenfold and the car had been redesigned with several new features that would make driving it more difficult. Regardless of what motivated Ford we simply could not afford the new lease price. We would have preferred the convenience of still leasing the Taurus at a reasonable price, but have found ways to make do without it. Yes there are a few trips we can’t make any more, and that’s unfortunate, but those few trips are simply not worth the price of the lease.
August 03, 2011

end user said:

...
Degen said: As I've stated many times, I'm here defending my rights from folks who are trying to take them away from me.


I'm still waiting to hear what rights of your have been taken away by those shcools? Also seems you are saying they have no right to do what the are doing?
August 04, 2011

end user said:

...
I guess from the sound of crickets we can assume none of Degans rights are being violated.
August 09, 2011

Degen said:

...
No, you can conclude that I can't be bothered explaining the very basics of copyright to you. Learn the law, and then maybe we can talk.
August 09, 2011

Darryl said:

...
"No, you can conclude that I can't be bothered explaining the very basics of copyright to you. Learn the law, and then maybe we can talk."


LOL, and that has the exact same meaning as 'the sound of crickets'

end_user, that is Degen's standard MO. He only engages in arguments where he thinks he has a chance of winning (or at least a point to make). When it becomes obvious that he actually does not have a leg to stand on, his tone changes to "oh, it's not worth my bother talking to you, you're not smart enough".

Don't take it to hard though. I'm sure if you say something that he thinks he can muster an argument against, you will hear from him. His silence is indeed the sound of John conceding the argument.

cheers.
August 09, 2011

end user said:

...
Hey Degan UBC just violated your copyrights http://copyright.ubc.ca/broadc...ust-8-2011

Are you gonna sue them for violating your rights?
August 09, 2011

Degen said:

...
Darryl,

Once again (how many times is this now?), you need to stop speaking for others especially when you don't know what you're talking about. My legs are as solid as ever. In order for my tone to have changed the circumstance would have to have changed, and since neither you nor end user show any signs of understanding copyright, I think I've been consistently dismissive.

I'm not here to help end user with his homework. If he hasn't followed the argument from the beginning or bothered to do the required reading, these are his problems not mine. I'm not a copyright Cliff Notes service.

Opting out off the tariff is not a violation of anything (for those wishing to know what this means, read the decision of the Copyright Board). Continuing to use the AC repertoire after opting out WILL be a willful infringement. Restricting teachers and students from using the repertoire will be a dark day for academic freedom in Canada. Stay tuned.
August 09, 2011

Darryl said:

...
Crockett: "If this results in customers refusing to use their materials and instead using alternative sources then this is not impinging on their rights. Rather, it may limit their exposure and returns."

Devil's Advocate: "The fact that you think any of your rights are even in question here is a testament to what most of us are saying."

Chris Brand: "I don't see how anybody's rights are affected at all. This is just a free market at work."

oldguy: "That's how I see it as well." (referring to Brand)

Crockett: "You have lost no 'right' to be paid through AC, but you do have a right to participate in a free market economy."

end_user: "Who is letting creator rights slip through? No one is stealing your rights or your content. You still have a right to license your work through anyone you wish and the schools have the right to go and shop anywher they like."



From the above snippets it would hardly appear that end_user and I are the only ones here trying to figure out exactly what rights of yours you purport to be defending. Leaving aside your fallacious slippery slope argument about what you think will happen next, you have no argument. None.

Your legs sir, are as sturdy as a pot of overcooked pasta. Don't slip on them.
August 09, 2011

Degen said:

...
Thanks Darryl, what you have indeed proven is that most commenters here, including and especially yourself, haven't a clue about the legal mess being created by this opt-out, nor do they bother to try and understand why professional creators are actually offended by the attack on Access Copyright. Your quotes are all terrific examples of willful misunderstanding (from folks practiced in the art).

I have made no slippery slope argument. The attack on creator rights in the name of free culture is explicit, as is now the attack on academic freedom. These things are not GOING to happen; they've happened and they continue. The fact that the tariff exists at all is the result of this ongoing attack on my rights.
August 09, 2011

The Dirk said:

...
Degen said: "Restricting teachers and students from using the repertoire will be a dark day for academic freedom in Canada. Stay tuned."

Libraries at colleges and universities have always had limited budgets and have had to choose which resources they can make available and which they cannot. I fail to see how opting out of the AC tariff changes that. Further, libraries can still purchase the books and journals in the AC repertoire and add them to their collection, making them available to students; opting out does not change that. Faculty can still assign these works as course texts if they want students to read them and the campus bookstore will sell them to students; no change their either. Yes, in many cases these works will not be available via course packs (or classroom handouts, etc.), but that does not mean they are suddenly unavailable.

They are not restricted from using the repertoire, they are restricted from copying the repertoire outside of fair-dealing.

In the case of our college that's around 2% of all assigned readings across the curriculum that faculty have had to find substitutes for or change the way students access them. Given that required readings are a very small portion of a student's education related to class time, written assignments, etc. I just don't see the dark day you envision.
August 09, 2011

end user said:

...
Degen said: haven't a clue about the legal mess being created by this opt-out, nor do they bother to try and understand why professional creators are actually offended by the attack on Access Copyright. Your quotes are all terrific examples of willful misunderstanding (from folks practiced in the art).

I think most of use relize that there is a transition period where some people will not be comfortable with up and coming changes but thats just a small part in making the system better.

The technology for accessing, distributing and compensating copyrighted works digitally has been there for several years but the push from AC has finally turned the spark into a fire. People like you who are too afriad of change will be left behind. Those who embrace will eventually make more profit but will have to accpt some hurdles along the way. But thats ok just like the reconrd companies keep holding onto you dinosaur business model.


Degen said: The attack on creator rights in the name of free culture is explicit,

What do you think you have some god given right to forbid people from licensing their own works any way they want? And where did you dig out this idea that schools want your works all for free? Seems to me the schools want to deal directly with the creators and rights holders with out dealing with some 800lb middle man gorilla.

Degen said: The fact that the tariff exists at all is the result of this ongoing attack on my rights.

Tarrifs are an extortion racket ran by corporations and organizations that have gained rights to works from the original creators who where too stupid to singed thir rights over. Seems to me this coming wave of change will give the real creators direct compensation for their works as it should be.

I'm actually surprised the universities have taken so long to create a central network to license, distribute and companstate creators for their works. With today network technology, cost of storage and bandwith it can't be that big of a task to create an internet/local network for accepting/licensing creative works and keeping track of the works usage for compensations to rights holders.
August 09, 2011

Degen said:

...
I think the saddest part of this whole chapter is the somewhat desperate rationalizations that come from within the education sector. We have Paul Jones telling us that right or wrong, everything that flows from the opt-out is justifiable because of the perceived arrogance of Access Copyright (imagine the arrogance of demanding payment where its required). And now The Dirk rationalizes an explicit announcement of academic restriction by saying, what?, it'll just be a small restriction?

Copying the repertoire outside fair dealing is precisely the standard educational use that is licensed. It exists as a use precisely because it is more economical for students and schools than the alternatives, and it will continue to happen. That has not changed. The ONLY thing that's changed is the willingness of schools to pay for that use.

I can see why The Dirk would make his argument from behind a pseudonym. That's just an embarrassing apologia.
August 09, 2011

Degen said:

...
end user,

I couldn't have made a stronger case for your willful misunderstanding myself. "Extortion racket." Nice.
August 09, 2011

end user said:

...
Degan

We understand, you're affraid of change but change is coming. I guess its gonna be time to do some actuall work to sell yourself. The first ones offering thir works to the school for licensing will have their name established and probably make more money,

Oh well time moves on, its your right to get left out.
August 09, 2011

Degen said:

...
end user,

What I'm afraid of... really afraid of... is your spelling.
August 09, 2011

The Dirk said:

...
Degen seems to be basing his argument on two assumptions:

1) Copying practices at opt-out schools will remain unchanged, thus violating copyright law
2) Opt-out schools intend to save money by using copyright materials without compensating copyright holders

If you grant those two assumptions he has a point about creator rights being infringed.

At our college:

1) Our copying practices have changed.
2) We have not saved a dime. Every penny previously sent to AC now gets spent purchasing or licensing content through other channels. Just as much of our money should be getting to creators as before.

There's a third piece to his argument, that of value to students. I would agree that at a $3.75 per FTE license we could deliver as much or more value to our students through AC as any other channel (though given the precipitous drop in use of course packs and copying in general that value was much less in 2010 than 2005). However, at $45 per FTE we can deliver more content to our students through other channels.

It really comes down to cost/benefit ratio. It used to be in favour of AC. They changed the price and now it doesn't favour them any more.
August 09, 2011

end user said:

...
Degen said: end user, What I'm afraid of... really afraid of... is your spelling.

Ohh poor Degey resorting to spilling mistake attacks.
August 09, 2011

Degen said:

...
That's an interesting cost/benefit analysis you've done there. $3.75 is more economical than $45. It's so... simple.

Except that's not an apples to apples comparison. I'd love to say The Dirk and everyone else here knows they are making a mistake with this analysis, but its clear the opposite is true. The standard MO over here is to reformulate reality into arguments that are stunningly easy to refute, and then carry on blindly. $3.75 is a smaller number that $45. Game, set, match. Anybody who says different is a trollish shill.

If The Dirk's unnamed college made their opt-out decision based on that facile analysis, then they've done their teacher and student populations a terrible disservice and will likely cost themselves a great deal more money in the end.

Monorail, monorail, monorail.
August 10, 2011

older guy said:

@Degen
John,

You are convinced that the opting-out universities will continue to use the Access repertoire or that students and faculty will suffer academically with less access. Have you reviewed the hundreds of licenses these schools have with publishers and other entities in order to reach this conclusion?

UBC says it has over 600 of them. It is reasonable to assume that UBC reviewed them before making its decision. You may disagree with what they're doing, but it is surely based on their analysis of what they already pay for and what they need. Where is your evidence beyond Simpsons references that they are wrong?
August 10, 2011

end user said:

...
Degen said: FUD, FUD and some more FUD... Yes sir, you are wise with your doom and gloom and the schools and their lawyers don't know what they are doing. Interesting how acccording to you they are commiting suicide yet they rather do that than pay AC anymore. Tells ussomething is wrong with the AC system if they are willing to do that.
August 10, 2011

Degen said:

...
older guy,

The universities and colleges themselves have made explicit statements about the restrictions they intend to make on materials used in their classrooms. They have also made explicit statements about the new liability placed on students and teachers. These proofs have been presented to you by your generous host on this blog. The schools have also finalized these decisions without presenting a full-spectrum alternative for the materials they intend to restrict. I'm pretty sure it's not my job to do that work for them.

As I have said many times, I am NOT advocating for restricting the freedom of institutions, teachers or students to choose where they source materials. I believe they should source widely with the interest of their faculty and students foremost. By deciding top-down against a robust and ever-expanding repertoire of Canadian material, it is the institutions themselves who are being restrictive and narrowing their own choices.

I also think they're being short-sighted and unrealistic and they will end up wasting far more than any licence fee on fixing their mistake.

Where's your messiah now, Flanders?
August 10, 2011

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