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Other People's Money: Why AUCC Signed the Most Expensive Copyright Insurance Policy in Cdn History

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Tuesday April 24, 2012
Car rental companies are infamous for encouraging customers to sign up for expensive liability insurance policies. Since many renters already have coverage from their own automotive insurance policies or can rely upon insurance coverage provided by their credit card issuer, the decision whether to sign up for a costly additional policy frequently depends upon who is paying the bill. If the individual is on the hook, they will often decline coverage and rely on their existing policies. If someone else is paying, it becomes easier to justify signing up for the additional coverage.

Last week, the Association of Universities and Colleges Canada, which represents dozens of Canada's leading universities, signed up for one of the most expensive copyright insurance policies in Canadian history. My weekly technology law column (Toronto Star version, homepage version) notes the policy comes in the form of a controversial model copyright licensing agreement with Access Copyright, a copyright collective that licenses copying and distribution of copyrighted works such as books, journals, and other texts. Should AUCC members sign the agreement - it falls to each individual university to decide whether to do so - they will pay $26 per full time student per year for the right to copy works from the Access Copyright repertoire.

The deal marks a significant increase from the previous agreement, which had cost students less than four dollars annually plus ten cents per page for materials included within printed coursepacks. The new fees are likely to be passed along to students, who will ultimately bear the burden of the copyright arrangement with higher tuitions.

Those students may be puzzled by the AUCC decision to settle on an expensive new licensing model. Over the past year, many universities, including York, Queen's, UBC, and Waterloo have operated without Access Copyright altogether.

Those schools have identified licensing alternatives such as campus wide electronic database licenses that offer access to thousands of journals and electronic books that can be incorporated directly into electronic coursepacks. Universities already pay millions of dollars for these licenses with the money flowing to database companies, publishers, and authors.

Moreover, open access licensing, where research publications are freely available online, constitutes a growing percentage of published research, with thousands of open access journals and hundreds of thousands of articles posted directly by the researchers themselves. Add public domain works, fair dealing, hundreds of millions spent on textbooks, and pay-per-use licenses for the remaining works and the decision to forego an Access Copyright licence becomes easy to understand.

Even more curious is the timing of the AUCC agreement. Bill C-11, the government's copyright bill, features several provisions designed to assist education. These include an expansion of fair dealing for education and a new exception for publicly available materials on the Internet. The bill is expected to become law by the summer.

If that wasn't enough, the model licence purports to grants rights for copying that does not require permission. For example, it defines copying as including "posting a link or hyperlink to a digital copy", yet linking to content can hardly be described as copying materials. Moreover, the licence comes packed with onerous restrictions such as blocking the ability to store articles in online services such as Mendeley or Dropbox.

And the millions of dollars collected by Access Copyright?  Last year, the collective spent 30 percent of its licensing revenues on administrative expenses, including over two million dollars for Copyright Board applications and professional fees involving lobbying against copyright reform that might benefit educational institutions.

Given these circumstances, the AUCC decision to sign the model licence represents a stunning abdication of leadership that will cost students millions of dollars and slow innovation in Canada's higher education community. So why sign an agreement when there are other options?  Expensive additional insurance policies are easy to sign when someone else is paying the bill.
Comments (25)add comment

anon said:

...
Strange. I distinctly remember an earlier column saying that AC was scaremongering when it claimed the adding "education" as a fair dealing purpose would gut the licensing. And yet here we have the same author saying that it should indeed have that effect.
April 24, 2012

Ki said:

@anon
It guts their licensing, not licensing in general. There is a difference, unless your someone who think that AC is the only way to get access to such information ever, and nothing else could ever exist. ;)
April 24, 2012

Howard Knopf said:

...
Michael - very good points. And this leads to other interesting questions, such as whether AC is in the insurance business and, if so, what follows?
See: http://excesscopyright.blogspo...rance.html
April 24, 2012

pre emtive guilt and other inovations said:

...
civil, criminal, admin law. (reversal of onus being abused)

NOW preemptive guilt. you MIGHT be xeroxing.. or linking.. or reading

AND it MIGHT be our copy, public domain material or not

pay $26 a year. And don't look at how we spend the money, it's ours now.

like the supervisor boards put on the CRTC, another new conservative legal innovation.

I can't write stuff this bad. It's insane!

packrat

April 24, 2012

anon said:

@Ki
What he specifically said was that it was scaremongering to suggest that education as a fair dealing purpose would undermine the AC licences.
April 24, 2012

Ki said:

@anon
And it doesn't necessarily do so. It's more a comment on the fact that the license goes beyond what's actually needed under the forthcoming law, and wondering why anyone would accept it seeing that it does so. It doesn't undermine it if AC is willing to make more reasonable agreements.
April 24, 2012

Nate Russell said:

Undermining AC licences
@anon
Credibility suffers when posts are made anonymously. It would also be helpful if you could produce links (or at least some specific reference) to an earlier column if it is contradictory to this one.
At the same time, if the mischief behind the new legislation is to apply brakes to the rising costs of higher education—in part by giving universities more assurance so they can cease to fret over whether they are properly provisioned against legal risks—then whether or not AC remains viable is at best a red herring.
The education sector and students want relief. They are being heard. The only other interest to consider is whether authors will continue to produce and publish their works under the new act, and fair dealing being expanded to include educational purposes is only part of the picture. Incentive to publish is still found in the case of growing electronic database subscriptions, which as Michael points out, is thriving… even to the point where publishers are double dipping if AC continues to licence printed sources on top of electronic ones. So licensing on the whole is not gutted in the least. In fact digital locks protection better secures the interests of commercial publishers, and really de-emphasizes the importance of fair dealing protection on the whole since no matter what the Copyright Act will say on fair dealing, the terms of electronic licences is where the rubber will really hit the road.
April 24, 2012

Frank said:

...
Unfortunately, for smaller institutions the cost of the new model agreement and the cost of hiring someone to clear copyright for the whole institution if they decide to opt out, is about the same. Much as they hate the idea of paying more to the leeches at AC, it does reduce the risk.
April 24, 2012

Devil's Advocate said:

@Nate:
"Credibility suffers when posts are made anonymously."

This is, simply, crap.

Credibility suffers when the *content* of a post is not credible. The name used to make such a post would make no difference. It's dismaying to see there's still people who haven't figured that out yet, and even more dismaying to them "educating" others away from exercising the very valid and important option of anonymity.

Case in point: The snippet I quoted above was from a post using a "name", possibly even a real one. :)

That didn't change the fact that the statement has never been, even remotely, substantiated. Nor does the fact that I'm using a pseudonym change the point I've just made in any way.
April 24, 2012

end user said:

April 24, 2012

Bob said:

...
This is such self-righteous cant. Students pay, what, $6,000 a year in fees. Then there are ancillary fees. My guess is that they pay more in HST on annual locker rental than they may pay in copyright fees that now cover virtually unlimited copying. One coffee a MONTH from Tim Hortons will cost more than the AC licence.

And as for the constant sniping that the licence should be authorizing or charging for links...guess what, it doesn't! What it does is use the link as a way of assesing the downstream copying that may then result. This isn't contradicting Newton v Crooks, which dealt with liability, and in a completely different context. The average punter may not know the difference. A lawyer should.
April 24, 2012

Nate Russell said:

Anonymity
@devil's advocate
Crap, eh? Well, at least you know who I am so if you ever see me in person you'll already know what to think of me! That will save you some trouble in judging me twice.
I'm certainly not advocating against anyone's right to remain anonymous. I do, however, think that when someone hides behind an anonymous handle to post criticism of an author, it invites those reading the comments to wonder as to the true identity of the commenter, and possibly to doubt their motives for trying to discredit the author.
Yes, this makes the comment less credible in my view.
April 24, 2012

Ki said:

@Bob
But making a hyperlink isn't copying. It's just a tool to direct someone to another piece of information. I mean, if the work is already covered by AC that they are linking to, then it's relatively pointless since it would still be covered. If it's not covered by AC, it's also equally pointless.

Hyperlinks are just links, using one is no more copying than me referencing a web page from a book. Or referencing a book from a webpage. All it's showing is that the people who are making these decisions need to spend a hell of a lot more time talking to people who actually know the technology they are trying to regulate.
April 24, 2012

Crockett said:

Someone who has posted anonymously in the past ...
johndegen.com

Just don't do it on his site!
April 24, 2012

CT said:

Block copying to Dropbox?
How is a university supposed to do THIS? As far as operating systems are concerned, the Dropbox folder is an ordinary folder. It seems to me that the only way this could be achieved would be a) via spyware on students' and faculty's computers, or b) by blocking Dropbox altogether within their networks (and the second option would obviously only work on their networks...)

What sensible university could even *entertain* such a license?
April 24, 2012

Crockett said:

Slightly Off Topic ...
Here is a publisher I can get behind ... http://arstechnica.com/busines...ts=1#reply

Hooray for SF fans and Techies! Leading the edge of innovation once again :D

DRM will gradually disappear, customers will get the inter-operability they desire and infringement will decrease as people learn to purchase instead of hack. Slowly, the wheel turns ...
April 24, 2012

Bob said:

@Ki
The point I'm making is that while the link isn't (necessarily) copying, the only reason for supplying the link is to direct someone to material that they might copy. The AC licence doesn't say that there has been any copying and it doesn't authorize that copying. What it says is that any copying that might need to be authorized as a result of someone following the link is covered by the licence and the licence fee. I think it's reasonable to assume that the AUCC negotiators did actually understand this.
April 25, 2012

Ki said:

@Bob
So there's no point to including the hyperlink provision then? Since I would assume that the copying for anything under AC license would already be covered by said AC license. Anything else would not matter, or need to be covered another way.

Really, you're not doing a great job of showing why that provision is needed at all other than AC doesn't really understand the points of hyperlinks. Plus the whole "doing it because there may be copying" thing doesn't really win me over either.
April 25, 2012

Devil's Advocate said:

Nate, you say...
"I'm certainly not advocating against anyone's right to remain anonymous."

...Then you immediately contradict yourself...

"I do, however, think that when someone hides behind an anonymous handle to post criticism of an author, it invites those reading the comments to wonder as to the true identity of the commenter, and possibly to doubt their motives for trying to discredit the author."

...That statement is the epidome of what I'm talking about.

1) Who says anyone is "hiding"??
2) Why would knowing the true identity of a poster, or his/her motivations, be of any importance when determining the quality of what you've read??

Food for thought...
When people know the posters' identities, they often automatically choose to either ignore or cheer what a lot of comments say, no matter how stupid or enlightening they might actually be, without reading and absorbing the contents.

That's a form of prejudice adopted by the *reader* that doesn't reflect the value of the posted content, therefore...

3) You are advocating against anonymous posting, whether you realize it or not.

Why am I so adamant about this, you might ask?

We are all approaching a critical point that is centered on a number of key issues threatening to bar us from ever seeing democracy. It has become obvious in this fight that anonymity may be a necessary tool for many of us in the future, regardless of whether you're directly involved in the war, or just a simple end user trying to keep clear of the foray.

More and more very useful or important things you see in the future are likely going to be posted anonymously, so many people are going to really need to correct this prejudice they're holding against anonymity, and start recognizing what it represents in the bigger picture, if we're all going to get through it.
April 25, 2012

CBQ said:

not a wide open buffet
There seems to be some confusion about the limits to copying in the agreement. As i read the new agreement the same limits on course pack copying continues and i will guess the same reporting burdens.
April 25, 2012

Bob said:

@Ki
The university presidents got the point. Copying by following a link may infringe. By having this in the licence, it gets covered. End of story.
April 25, 2012

Darryl said:

@bob,ki
"Copying by following a link may infringe. By having this in the licence, it gets covered. End of story."

Not so fast.

Copying by following a link can NEVER infringe. By definition if the link exists at all, then there must be some implied permission granted to view the contents. Such is the nature of the web. To say otherwise would be like walking down the street and telling people they do not have permission to gaze upon your person.

If it is not possible to infringe copyright merely by following a link, then AC has no business including this in their license.
April 25, 2012

Ki said:

@Bob
So not every AC work is covered by the AC license then? Because that's what I'm getting out of this.
April 25, 2012

Crockett said:

...
@Darryl 'If it is not possible to infringe copyright merely by following a link, then AC has no business including this in their license.'

Exactly, on links AC is selling hot air ... But it only costs you the same as a cup of hot coffee, think of the children!
April 25, 2012

Amanda Nielsen said:

President, Athabasca University Graduate Students' Association
I am inclined to agree with your thoughts on this matter, Michael. As a graduate student, I am puzzled by AUCC’s decision to sign this new deal with Access Copyright. The deal is bad for students and bad for universities. Your analogy that “[e]xpensive additional insurance policies are easy to sign when someone else is paying the bill” would seem to hit the mark.

The costs for this agreement involve far more than the $26 per full-time-equivalent student. In addition to this per-student fee, universities who sign the agreement will be expected to follow in highly onerous monitoring, surveillance, and reporting requirements. These reporting requirements will incur a high administrative cost, at the expense of the universities. These costs will inevitably be passed on to students in the form of higher tuition or mandatory non-instructional fees.

The new agreement with Access Copyright was recently covered in AUCC’s University Affairs magazine. I have posted a longer comment on the matter in response to that article, as have a number of students and academics from Athabasca University, the institution whose graduate students I represent. In particular, I would draw your attention to the comments left by Dr. Rory McGreal, which can also be read on his blog.

Amanda Nielsen
President
Athabasca University Graduate Students’ Association.
April 26, 2012

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