The Latest on Access Copyright: Time to Decline the Coverage

Howard Knopf posts an exceptionally important update on the latest developments in the Access Copyright tariff proposal, including the attempt by the copyright collective to exclude 99 of the 101 objectors to its proposal and subsequent demand for an interim tariff to be set by the Copyright Board that would keep the cash flowing even without a formal agreement in place.  Knopf points to many legal shortcomings in the Access Copyright position, most notably the serious questions about its repertoire and its ability to actually sue successfully for copyright infringement.

The latest developments further point to growing sentiment on Canadian campuses that it is time for post-secondary education to decline the coverage by walking away from Access Copyright.  Since this statement is bound to be mischaracterized as advocating not paying for the rights to use works, let me repeat what I consistently stated this summer.  The decision to walk away is not an effort to avoid paying appropriate rights fees.  Rather, it is based on the recognition that a collective licence is not the only way for a university to appropriately compensate for use. 

Many faculties and their professors can obtain the necessary rights by relying on site database licences that are already in place, open access licences to scholarly research, and fair dealing.  In those instances where there is still a work not covered by these approaches, it can be individually licenced (or licenced for national use) directly with the copyright holder, thereby ensuring that the rights holder receive the full benefits associated with its use.  In fact, this is already starting to happen – for example, Lethbridge College’s Early Childhood Education Department has established a three year plan to replace all of its print-based materials to online delivery in light of the Access Copyright situation.

Lest this be further mischaracterized as an effort to avoid payment, there is a further step that I think universities should take.  I would argue that each should commit to the same funding levels for materials as currently exists today.  Assuming that walking away from Access Copyright frees up some money, those funds should be committed to additional library acquisitions or database site licences.  Either way, the spending on copyright materials would not change from the current levels, faculty and students would have access to more materials, and copyright holders would receive direct payment not subject to all the lost revenues from Access Copyright administration, lobbying, and legal costs.


  1. How Can a Tariff Be Declined?
    If Access Copyright succeeds in getting either an interim tariff or the full tariff, doesn’t that mean that universities are forced to pay? Doesn’t the fact that it’s a tariff mean that Access Copyright can compel payment?

  2. cash grab.

    ah, the mercantile approach to making a living. Are these guys union?

    filter, montentize or taboo the traffic. walk away and let the little irriants BBS the traffic, as I know of no cash ever getting back to the creators.


  3. Fine in theory but in practice it’s almost impossible to get permissions from publishers for most of what goes into coursepacks, and if you do succeed it’s taken a lot of time and always costs more because the publishers usually have a higher page rate and they insist on a minimum fee to cover the time they spent on processing the request. Sure there are alternative sources of information, but fact is that most profs still use excerpts from textbooks and articles not in any campus open source database.

  4. If universities can make it away from Access Copyright, then they should. Now some programs (like Computer Science) lend themselves to this better than others, but it obviously is not impossible in all programs.

  5. Why would one assume that walking away from the collective license will free up money? Is there a comprehensive cost-benefit analysis available. You know, one that uses real numbers?

    Whatever licencing option is in place, my concern is that creators are paid (and yes, that includes the academic payment of credit rather than cash if so desired), and that students receive comprehensive access.

    I think it’s extremely unlikely that a) money would be saved by universities who walk away from AC; b) the net benefit to creators would increase in individual rather than collective licencing schemes; and c) materials availability would increase for students.

    There are reasons collectives exist.

  6. Bob,
    I agree that there is a time commitment to clearing the rights for textbooks; but I have been doing this type of work for more than three years now and publishers have made this process much easier, both in paper and digital. I know that there are some institutions that have huge course pack numbers and this would be a challenge in volume, but I can’t help but think publishers would be quite willing to work with them considering that A/C administration fees would be out of the picture. I am not in the publisher promotion business but take a look at this for example:

    Considering the cost that K-12 have accrued, and the fact they are now locked into an ever increasing tariff scheme, I agree with Mr. Knopf and Mr. Geist.

  7. Xanedu, Coursesmart ,and McGraws “Create” program are three examples of a growing number of commercially available alternatives to Access.

    and apeaking of ease… The access process can not be described as easy. it simply moves the compliance burden around the college campus from instuctor to admin.

  8. As Degen said, I don’t think there would be a great deal of direct saving to the Universities, since much of the costs would likely be handed down to the student anyway….seems fair right? What’s an average university degree cost a student these days? $40,000-$50,000? With more and more electronic content, students these days can’t even recoup some of their cost be reselling their books. It would take an average person 10-15 years at between $400-$500 a month to pay this back. Students really need another increase in fees eh!?!?!? And we wonder why so many kids opt for trades rather than university these days.

    What about all the time and effort incurreed by all the extra cr4p administrative tasks AC wants universities to go through. While this is an indirect cost, it’s a cost to the institution none-the-less. Granted, as JD said, there is a time commitment associated with acquiring individual licenses, so one might argue it’s apples to apples. However some institutions already have dedecated “copyright” staff and the cost of dropping AC might not be terribly high, if anything, while others do not have dedecated staff and FTE positions might have to be considered. The cost of the latter may ultimately be preventatively high. What it all comes down to…”What’s actually cheaper when BOTH direct AND indirect costs are considered?” In a time when many PSIs are seeing reduced enrollment rates, increasing fees is a sure-fire way to reduce enrollment.

  9. @JD
    What is the cost of permissions from McGraw’s “Create” service?

    And for K-12, if you look at what the Copyright Board found in the survey, it’s hardly realistic to imagine that teachers are going to undertake the effort of clearing those permissions.

    Also, most publishers are fine with the AC admin fees. They are half of the AC Board, they approve the fees at the AC annual meeting, and it’s way less than the cost of managing permissions in a publisher office.

  10. “And we wonder why so many kids opt for trades rather than university these days.”

    Which is kind of a good thing since there was a huge concern about 5 or 6 years ago about lack of tradesmen in the future.

  11. @Chris Hurst
    “If Access Copyright succeeds in getting either an interim tariff or the full tariff, doesn’t that mean that universities are forced to pay? Doesn’t the fact that it’s a tariff mean that Access Copyright can compel payment?”
    This is one of the problems facing the copyright board as well. 9 times out of 10 tariffs end up in the federal court of appeal, because the Board itself has problems with interpretations of copyright law. If our policies and tariffs keep going to federal court, and the courts are making decisions on tariffs, why have a copyright board to begin with?

    This will probably end up in federal court again either way, costing all parties involved legal fees, and padding the pockets of Mr. Sookman.

  12. I’m looking forward to seeing what happens when a student tries to resell their digital text book… I know there are forces out there trying to get paid on tangible items like text books even after first-sale doctrine. What’s going to happen in this digital world? Everyone wants a fee of some sort, while fair use and first-sale rights go out the window…

  13. sock puppet says:

    I just read something really interesting related to this on John Degen’s interesting blog:

    “The freeness of Open Access is possible because the authors of the works being freely accessed are compensated in ways other than traditional pay-per-use or royalty structures. Often their research grants are expected to also cover the traditional compensation a writer might expect for writing.

    The Wikipedia link on Open Access above also tells us that many of the traditional costs of publishing work (the selection, editing, proofing, etc.) are covered with fees paid by the authors themselves toward the publication of the work. Presumably, the fee the author pays to be published in OA is somehow made up for through the up front compensation she has already received prior to writing.

    As complicated as all that sounds, one thing should be clear… Open Access does not involve the sudden cessation of money changing hands. Providing research and published writing for free is an expensive venture.”

    Here’s the link:


    A concerned citizen unconnected to John Degen’s very interesting blog

  14. john walker says:

    @ sock puppet
    the correct term for what Mr Degan represents is: hypothecated taxation.
    The money collected is hand out to who ever they like.

    From a community perspective these schemes have a significant drawback; Compulsory licenses are redistributive , thus they are counter to the purpose of copyright. Compulsory licenses are an anti-innovation measure.
    Redistribution inevitably rewards the typical and well established. Successful innovation is very untypical and a threat to the established order of the day .

  15. From John Degen’s blog
    “Critics with reasonable arguments are welcome to follow due process to protest the AC tariff. I have no objection to that whatsoever. I honour the process.”

    Good for you John but …

    It seems a group of two is all you are going to get if AC get’s their way … the copyright collective [AC] position is to exclude 99 of the 101 objectors to its proposal and subsequent demand for an interim tariff to be set by the Copyright Board.

  16. Open Access
    True, open access doesn’t mean no money changes hands. But it’s payment by the authors (or their institutions and/or grants, as dissemination costs) and the users pay through giving credit to the authors, and through this credit making the journal one of high respect and impact. Access Copyright doesn’t defray my costs for publishing OA, nor are they about to, so, like most of the rest of their proposed tariff, they have no right to charge for it or anything like it.

    It’s simple, really, you can’t expect to be paid for something you don’t own. Or, as AC argues, to ensure that your organization maintains its cashflow.

    If AC collects money for material in which they have no rights, can the rightsholders/creators sue them?

  17. Snave
    The correct term for these guys is rent seekers.

    “you can’t expect to be paid for something you don’t own. Or, as AC argues, to ensure that your organization maintains its cashflow. ”

    Payment for things they do not own is what they have gotten fat on, it is exactly what they expect. And they view payments to carry on with their lives of endless conferences as a public duty not a individual choice.
    Their idea of ‘royalty right’ is quite literally ‘The rights of Royalty’.
    It about time they got the Charles the first treatment.

  18. @snave or any teckie types out there.
    I am a painter of pictures and am no teckie ,so I ask you:
    Algorithms like Googles, automatically and ceaselessly compile lists of ‘searches for access to Titles’ and the results are ranked according to frequency of use, online financial transaction systems are these days commonplace , do either the universities OR authors really need these collectives at all?

  19. Laurel L. Russwurm says:

    “entities responsible for payment”
    Sorry Mr. Sookman, as a parent of a future university student, I AM an entity responsible for payment.

    Educational institutions receive funding from government and students and their parents. Funny thing is, students and their parents pay taxes which, surprise surprise, go to pay for the existence of government which can then go on to pay for the existence of universities.

    Since it is unlikely that Mr. Sookman is arguing the Access Copyright case on a pro bono basis, Mr. Sookman is in fact one who hopes to benefit from this Tariff.

    Quite frankly, it is unreasonable for those who seek to benefit financially to have the right to exclude the voices of those who will ultimately be footing the bill.

    Another of Mr. Sookman’s more creative arguments is against “duplication of representation” since “it is inefficient to deal with different parties who represent not only the same interests, but in fact, the same paries,” which is ironic considering Access Copyright’s attempts to pass off a handful of their members as independently interested parties in opposing the expansion of fair dealing under education in Bill C-32.

    As a parent, I concur with Professor Geist’s concern about our hard earned money should be spent on material for educating our children rather than “lost revenues from Access Copyright administration, lobbying, and legal costs.”

    I guess it is easier to get your way if you can find a way to discredit and/or eliminate ant opposition.

  20. Bill C-32 is not (yet) law
    Ridiculous use of C-32 in their argument. The courts can only make decisions based on facts, not on what bills Parliament may or may not pass in the future.

  21. @alb
    What the FCA said was that it wouldn’t have made any difference if C-32 was the law, so it didn’t affect their decision.

  22. Crockett,

    Would you prefer if I did NOT honour due process? Critics may criticize and AC may make requests to the board they feel are warranted. Mr. Sookman’s arguments look to me to be speaking to relevance and authority — two other things I honour.

  23. If a tree falls in a forest …
    @Degen “Would you prefer if I did NOT honour due process?”

    On the contrary John, I was applauding your standpoint on welcoming critics with reasonable arguments to being able to present their case to the copyright board. I was critical though of AC’s attempt to limit those voices to only themselves and one other.

    There is nothing reasonable about that.

  24. john walker says:

    The collectives are Narcissus and Echo personified , frozen in time and hard to see , signifying stuff all.
    Mr Degen is the only creative in the whole wide world.