While some were surprised that the educational institutions did not seek judicial review of the Copyright Board decision, I suspect that many institutions came around to the view that the interim tariff was helpful in the short-term. Many institutions were facing faculty not ready to shift away from the Access Copyright licence in January 2011. The interim tariff bought them time to complete the transition. That transition now appears to begin as soon as September 2011 as universities prepare for an alternate approach based on five key sources of materials:
- textbooks purchased by faculty and students remains a common practice and will continue to be used (whether electronic or paper) for the foreseeable future.
- university and college site licences to databases of books and articles provides broad, compensated access to materials that can be incorporated into electronic coursepacks. For example, the Canadian Research Knowledge Network covers 75 universities with 75 national licences that provide research content across all disciplines. The value of these licences is over $100 million per year.
- the growth of open access and public domain materials means that many journals and other materials in professional disciplines such as law, engineering, and medicine are often freely accessible.
- fair dealing (with or without statutory reforms) must be interpreted in a broad and liberal manner and allows for many uses in appropriate circumstances. The CAUT guidelines provide a helpful look at the rights for teachers to use materials.
- pay-per-use transactional licences can be purchased for materials not otherwise available through site licenses, open access, or fair dealing. The pay-per-use approach offers more direct compensation to the author than a collective license approach.
The availability of these alternatives played a key role in the Copyright Board’s interim tariff decision. The Board’s reasons for issuing the interim tariff included:
to confirm that institutions that do not require a licence from Access Copyright are not required to deal with it, whether pursuant to the interim tariff or otherwise.
At paragraph 30, the Board expanded:
An interim decision will allow Institutions to continue to avail themselves of the existing licensing scheme if they so wish. It will provide certainty until the Board certifies a final tariff. It will not impose a single licensing solution; instead, it will add a tool Institutions can use to comply with their copyright obligations. Since Access secures rights on a non-exclusive basis,
Institutions remain free to seek licences from others, even for their uses of the Access repertoire. As always, Institutions that do not make protected uses of that repertoire are not targeted by the decision in any event.
Further, at paragraph 50, it noted:
the interim tariff we adopt in this matter is not mandatory. An Institution can avoid its application by purchasing the work, negotiating a licence to copy the work with Access or its affiliates, not using any work in the repertoire of Access or engaging only in conduct exempt from liability.
While the Board was proceeding under the assumption that institutions could obtain licences from others, it appears that Access Copyright and the publishers are actively working to shut down some alternative licensing avenues. Recent reports indicate that attempts to obtain pay-per-use digital licences have been denied by Access Copyright, which is insisting on an all-or-nothing approach that forces to universities to adopt the full licence or not use some digital materials. Several universities advise that requests for digital licences from publishers have been referred to Access Copyright, who respond with the following:
We are very pleased to advise you that the Copyright Board of Canada has issued an interim tariff that applies to post-secondary educational institutions across Canada (excluding Quebec) titled the Access Copyright Interim Post-Secondary Educational Institution Tariff, 2011-2013. As a result of this interim tariff, post-secondary educational institutions may make copies from portions of published works in the repertoire of Access Copyright on the same terms as the institutions’ previous licence agreements with Access Copyright.
Additionally, the interim tariff provides institutions such as yours with an option to elect to use the tariff to make digital copies of portions of published works in Access Copyright’s repertoire. This comprehensive digital option provides post-secondary institutions with a convenient and legal way to use content in digital format for such uses as posting material to course websites, e-reserves or emailing material to students.
Once an institution elects the digital option, it provides immediate, advanced, legal authorization for faculty to scan material and post to course websites. This provides significant time and cost savings compared to contacting rightsholders of Access Copyright directly to get permission to copy specific works case-by-case.
As a result of the Board’s decision, Access Copyright is no longer offering transactional licences to make digital copies of published works when the amount copied falls under the terms of the interim tariff. Your institution can elect to licence digital copies pursuant to Schedule G of the interim tariff by contacting us in writing. If you wish to elect to licence digital copies under the interim tariff, please have your school’s administrator contact our Licensing Services staff at email@example.com.
In case you didn’t see it, the interim tariff has been amended as of April 7, 2011 and, if your school does opt in to Schedule G, there are currently no reporting requirements for digital copies which fall under the terms of the tariff.
Access Copyright, the publishers, and authors are obviously entitled to license their works in the manner they see fit, though it is curious that Access Copyright did not disclose its intent to stop pay-per-use digital licensing to the Copyright Board. The policy does raise the question of whether authors are truly supportive a policy that leaves money on the table in the hope of pressuring universities into signing a larger deal. As for why Access Copyright is doing this, their recently released annual report provides a clue – last year the collective spent more on itself than it did in distributions to Canadian authors. More on the economics of Access Copyright in tomorrow’s post.