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Millions at Stake in Education Copyright Battle

Appeared in the Toronto Star on September 13, 2010 as Significant New Costs Loom for Students

Thousands of Canadian students headed back to school last week with many facing rising loans to pay for tuition, books, and accommodation.  As students struggle to make ends meet, significant new costs loom on the horizon as a result of a battle brewing over copying in universities and colleges. 

The potential new costs stem from a tariff proposal by Access Copyright, the copyright collective that licences copying and course-packs on most campuses across the country.  Fresh off a legal victory at the Federal Court of Appeal in July that will generate millions of dollars for copying that occurs in kindergarten to Grade 12, Access Copyright has now proposed a new licencing scheme to cover copying and course-packs set at $45 per university student and $35 per college student. The proposed tariff represents a massive increase over current fees, which are $3.38 per full-time equivalent student as well as 10 cents per page for course-pack copying. 

The proposal has fueled enormous concern within the education community, both for its approach on core copyright issues and for the demands to increase fees at a time when many believe they should be going down rather than up.

From a copyright perspective, the proposal purports to licence linking to materials on the Internet, lacks an exclusion for fair dealing, provides additional protection for digital locks, and features extensive, onerous reporting requirements. All of these copyright demands have led to opposition from teacher and student groups.

The demand for significantly higher fees is particularly surprising given the increasing shift away from the copyright collective licence for both ordinary copying and course-packs.  Instead, teachers and students often rely on four alternative sources for their course materials.

First, many students are still required to purchase published texts in both paper and electronic format for their classes.

Second, libraries have cut their acquisitions budgets in recent years as they shift toward access to licenced databases.  For example, the Canadian Research Knowledge Network has purchased licenced access to thousands of journals for 650,000 university researchers and students.  In light of that access, course-packs are being replaced by database-generated course reading lists. 

Third, the emergence of open access publishing, in which scholars make their work freely available online, now means that there are over 5,000 open access journals representing about 20 percent of the world’s peer reviewed journals.  In many scientific areas, openly available e-prints is the standard – provides open access to over 620,000 articles in fields such as physics, mathematics, and computer science, while PubMedCentral provides access to millions of biomedical and life sciences articles. 

Fourth, fair dealing ensures that copying for research, private study, news reporting, criticism, and review may also not require further compensation if the copying qualifies under a six-part fair dealing test.  The government has proposed extending fair dealing to include other educational uses, though the copying would still be subject to the same test.

Given the myriad of ways teachers and students access materials that fall outside the Access Copyright licence, the education community can be forgiven for asking why the collective is demanding millions more in compensation.

Indeed, there seems to be a growing sense that many faculties and courses make very little use of the licence. If this is the case, universities may need to think seriously about walking away from the collective and moving toward individually licenced works where the need dictates. 

Negotiating with individual authors or publishers for the rights to a single work may be cumbersome, but so too are the proposed reporting requirements.  Moreover, individual negotiations hold the advantage of potential costs savings for students and ensuring that the actual authors receive full compensation for the use of their works.  In other words, win-win-win for authors, teachers, and students.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at or online at

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