Millions at Stake in Education Copyright Battle

Thousands of Canadian students headed back to school this month with many facing rising loans to pay for tuition, books, and accommodation.  My technology law column (Toronto Star version, homepage version) notes that 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.  Indeed, the University of Western Ontario has increased its student copying fee this year by over 500% in anticipation of the new fees.  The column – posted below – notes the many ways that universities access materials in ways that do not rely on the Access Copyright tariff yet still yield compensation for creators (or reflect their choice in making works freely available). That point seems to have been missed in this response from Alan Cumyn of the Writers’ Union of Canada.

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.


  1. Ooops
    “Indeed, the University of Western Ontario has increased its student copying fee this year by over 500%”

    Wasn’t this ‘minuscule’ charge supposed to be absorbed by the spare largess of the university budgets?

  2. Anyone who thought it would be hasn’t been to a university in a while.

  3. Education Copy Right
    Similar to the recent Stanford announcement regarding the move of 80K books out of their library, the University of Texas at San Antonio library now offers students a rapidly growing collection of electronic resources including 425,000 e-books and 18,000 e-journal subscriptions.

    Hard to understand why costs for copying on a campus should increase as the practice decreases.

    Not only will students pay more , with the explosion of legitimate alternatives combined with instant access there is a growing likelihood they will pay more than once for access to the same materials.

    Negotiating with individual authors or publishers for the rights to a single work may be cumbersome for the next 12 months but the requirement for the approach and the utility of some of the aging content involved is declining quickly . If it is the goal of the author or publisher to make portions of their work commercially available on a campus they will become part of a journal subscription service where the conventions are proven , security tests met and the administrative overhead much reduced for everyone on the distribution chain.

    I suspect more, not less, will be consumed legitimately if Access Copyright’s modest proposal is declined.

  4. Dwight Williams says:

    Considering that I’ve been giving thought to going back for further post-secondary schooling for a few years. This may persuade me to put it off via anything other than self-teaching methods for at least another five years.

    Or more.

  5. I’m not sure what purpose this serves. We had this discussion a few weeks and clearly there’s no meeting of the minds. What I do find interesting is that while the increase is not from $3 to $45, this myth persists, and postings like this seem designed to keep it going. The Copyright Board will not rubber stamp the proposed tariff. As with the K-12 application, they required an extensive survey of copying. This will help identify what legitimately falls under the licence. If that supports an increase, there will be an increase, the size of which will be based on the survey results. Currently the average per student is probably in the $15-$20 range if you include coursepacks, so it’s difficult to see why UWO is raising the charge by 500%. As the tariff will be based on what is actually happening, no-one is getting ripped off here.

  6. @ Bob and Michael Geist: I have tried to find out what revenue Access Copyright gets from post-secondary coursepacks, by province (I’m interested in BC) but was blandly told “that information is not available”. And of course one can’t derive it from their financial statements. Any idea of what the real extent of this cost might be?

  7. “…the proposal purports to licence linking to materials on the Internet…”

    I had thought that this was covered by some sort of fair usage thingy? Last time I checked I was not charged for linking info on publicly available web sites…

  8. 45 dollar myth
    Agree with Bob that 45 dollars per FTE is not carved in stone but it was the number Access and their council started with.
    The difficulty is not the new number but its direction. It suggests more copying not less in the months and years ahead. It suggests that there is an increasing body of work for which there will be significant demand for on a campus and that it will be available exclusively through the Access mechanisms.

    An increase in costs weather its 45 or 4 seems counter intuitive given the growth of legitimate alternatives growing and being consumed at a much faster rate than the Access repertoire..

    A mythological number of .45 cents per FTE could have been used if they believe that a survey will expose a reasonable tariff.

    I wonder if Access created the myth of the $45 for the purposes of their own negotiation strategies. Public will feel more comfort with a drop from 45 dollars to reality than they would an increase or 45 cents to reality.

  9. In the most recent annual report where such information is available for Access, 34% of their distributions were for textbooks. Textbook reproduction has also been Access’s main target when it has attempted to bust local copy shops. My university is among an increasing number in Canada that are renting textbooks to students. This substantially reduces the cost per textbook per student. Combined with the wide-open online marketplace for new and used textbooks, Access’s revenues from textbooks have to be declining (and students’ textbook costs have to be declining too).

    Another 21% of Access’s distributions were for journal articles, which, as Michael has said, are largely accessible to students for free through the licenses universities purchase from journal aggregating companies like ProQuest. There is no need for Access in this market.

    35% of Access’s distributions were for trade books. Some of these might have been for novels, poetry, plays, children’s stories, and art and photography books created by living Canadians whose organizations are represented at Access’s annual general meetings. But I imagine most of this 35% consists of chapters in academic books written by professors. It is beyond me why professors need to receive royalties for publishing research that is part of their job.

    Instead of the federal government propping up an inept organization like Access, it should be aggressively prodding its own organizations (e.g., SSHRC) to insist that outcomes of federally funded research be made openly accessible (i.e., free of charge) immediately after the research is completed.

    Online scholarly periodicals and eBooks are as professionally respectable as their hardcopy counterparts. For many fields, online distribution is much better than print because it can include graphic, video, sound, database etc. material in quality and amounts that are not available in an archaic paper format. Moreover, the editorial and production work that goes into such born-digital scholarly publications is increasingly done by professors as part of their job.

  10. @CBQ + @DJP
    CBQ: Access Copyright clearly does believe that there is an increase in copying, whether photocopying or digital copying. The Copyright Board will not set a tariff higher than that requested, so it’s not so much a negotiating tactic as the only logical way to start the proceedings. The outcome will be evidence-based and if the Board rules that a figure lower than $45 is appropriate, then it will be that figure and not $45. Howard Knopf has already posited his hunch that it will be someowhere in the mid-twenties. But do remember – this will be decided empirically, so getting all steamed up is a complete waste of time.

    Which leads to DJP: the current licence specifically says that no payments are required when copying permission either isn’t required, or has been obtained from other sources. So for journals, it depends. If there isn’t a licence that allows campus-wide copying, they have to be paid for; if there is, they don’t. The definition of trade books excludes academic works, so the chances are they are mostly trade books. Your point about professors not needing royalties is surely directed at them, not Access?

  11. Qualitative and Quantitative

    Good points, thanks. I did not realize that the board’s approach motivated the high 45 entry number… but it makes more sense to me now.
    My hope is that the methodologies deployed to make the determination wont trample on privacy or academic freedoms to the point where as a practical matter a survey can not be completed . Remains to be seen if an agreement can be reached as to what constitutes a copy.

    Concerns surround both an increased tariff and the scope of license.

  12. @ Bob
    Again, it’s not the $$$ figure that is the main concern (although it is too high), but rather the other attempts to monetize fair uses such as linking etc.

    And if no one ‘made a stink’ there would not likely be as much scrutiny by the powers that be on reviewing AC’s proposal.

    So stink away everyone…

  13. @Bob
    According to my dictionary, the definition of trade books excludes textbooks but does not exclude other academic works. If it did, approximately 66% of the works that Access has licensed at universities would be non-academic. A brief perusal of the course syllabuses at universities would show that this is not the case. Instead, monographs and compilations of individual scholarly studies comprise a very large segment of academic publications. Indeed, textbooks generally rank very low in scholarly prestige.

    Although Bob is certain that the Access tariff will be evidence-based, one has to acknowledge that evidence can range from convincing evidence to unconvincing evidence. E.g., unlike PLR or my own publishers, Access has never indicated to me what particular works have generated a particular royalty cheque. This is amazing insofar as Access has required universities to compile detailed records of every copyrighted title included in every course pack.

    Access has the evidence that universities have provided concerning course packs, but has not conveyed that evidence to its own creator affiliates. One can only conclude that the evidence Access is willing to reveal concerning creators of works copied in course packs isn’t very convincing.

    Apart from course packs, the only items Access has claimed as being in its purview have been a result of individual copying (rather than bulk copying for an entire class). However, these individual copies are arguably for a fair- dealing purpose. Although the universities have been charged approximately $3.50 per student for such individual copies, they have explicitly noted in their contracts with Access that they disagree with Access’s understanding of what constitutes fair dealing. If individual copying at universities isn’t fair dealing, Access should show us the evidence that it isn’t. Since Access regularly sues copy shops for infringement but has not sued the universities it licenses, one can only conclude that individual copying at universities has been fair dealing, for which there should be no tariff at all.

    Finally, I read Knopf’s ‘hunch’ not as an estimate of what an equitable tariff would be, but as a prediction of what the Board will come up with after several years of hearings and several million dollars in legal fees, surveys etc.: namely, $23-$26 per year per student, which would otherwise pay the salaries of about 400 full-time faculty members. Frankly, I’d like better evidence than Access has provided during the past 20 years before I’d remove hundreds of colleagues from Canada’s universities and colleges. For these colleagues, getting all steamed up is not a waste of time.

  14. Baord review question
    Will The Copyright Review Board review the capability and integrity of Access systems and processes as part of the the tariff review?

  15. Copying has gone way down
    Just to throw some numbers into the debate here. I am a librarian at a middling Canadian University. In the past 3-5 years our photocopying has decreased by over 1,000,000 pages / year. I know this is only anecdotal evidence but we are just not seeing any increased demand for photocopying and I am having difficulty imagining other Universities would be experiencing anything different.

    @Michael Geist – your second point is sort of correct – we are licensing a huge number of journals but the cost is still astronomical. (Google: Serials Crisis for more information). No library that I know of has cut their acquisitions budget because of our new reliance on licensed materials.

  16. @Bob
    Good points about this being an AC proposal… at this point the whole thing is written in wet Jello. For instance, the Copyright Board could easily decide that AC’s definition of “Copy” shouldn’t include a link and toss that.

    How about each facility at the institution sets up its own agreement with AC? This would therefore take into account the nature of the works used by the institution; for instance, where a faculty uses mostly open source works, the licensing fee would be lower. The general tariff that eventually gets agreed to between the Copyright Board and AC then becomes a default “agreement”, used between a faculty and AC in the absence of any other agreement. This would be a bit more work to manage, but could end up saving the institution and its students money.