An Unofficial FAQ on Canadian Universities Opting-Out of Access Copyright
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Wednesday July 27, 2011
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.
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:
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:
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.
Stephen Downes said:
Rory McGreal said:
Un-Trusted Computing said:
Un-Trusted Computing said:
Chris Brand said:
Paul Jones - CAUT said:
Far North said:
Paul Jones - CAUT said:
Wednesday July 27, 2011