York Latest To Opt-Out of Access Copyright as Schools Seek Flexibility

Canadian university and college campuses are quiet at this time of year, but in recent weeks many have been making noise by transforming the way professors and students access and license course materials. For years, schools paid an annual per student fee to Access Copyright, a copyright collective that licenses photocopying and the creation of print coursepacks. Starting in September, many of Canada’s top universities will no longer use the Access Copyright licence, opting instead for a more flexible, tech savvy alternative. The latest to announce that it is opting out is York University, which sent a notice to faculty yesterday.

My weekly technology law column (Toronto Star version, homepage version) notes the shift away from Access Copyright marks the culmination of years of technological change within Canadian education that has resulted in new ways for professors to disseminate research and educational materials as well as greater reliance by students on the Internet, electronic materials, and portable computers.

Ten years ago, photocopy licences made sense since physical copies were the primary mechanism to distribute materials. The availability of a wide array of materials from alternative sources and mushrooming demands from Access Copyright have combined to force education to consider new approaches.

The Internet and new technologies are responsible for much of the change, fueling the emergence of alternative sources for millions of articles and other course materials. For example, more than 70 universities participate in the Canadian Research Knowledge Network, which provides access to thousands of journals for over 900,000 researchers and students. The network spends tens of millions of dollars annually on site licences, which in turn enables universities to provide full access to the database content without the need for further compensation.

A growing body of research is also now freely available under open access licensing, as researchers make their work openly available on the Internet. More than 20 percent of all medical research is available under open access licences, while the Directory of Open Access Journals lists over 6,500 open access journals worldwide. When combined with the emergence of open educational resources – course materials also made freely available – educators have much to choose from (the U.S. government alone is investing $2 billion over the next four years in open educational resources for colleges).

Students still spend hundreds of millions of dollars on academic books each year, but for shorter excerpts, fair dealing, the copyright law provision that permits copying a portion of a work for research or private study purposes, may apply.

Should professors want to include additional materials not otherwise covered by these sources, the universities can seek pay-per-use licences directly from the copyright owner or from a copyright collective. Ironically, Access Copyright is resisting pay-per-use licences for education, leaving some schools to license the same materials from the U.S. Copyright Clearance Center.

The shift away from Access Copyright is not solely about alternative forms of access, however. Just as technology was facilitating alternative ways to access course materials, Access Copyright upped its licensing demands. In 2010, it filed a proposal for a new $45 fee per full-time university student. For universities accustomed to far lower costs, the demands threatened to add millions to already tight budgets.

In response, earlier this year a handful of universities, including Acadia, New Brunswick, Windsor, Mount Saint Vincent, and the University of PEI, announced they would no longer operate under the Access Copyright licence. Most have found the transition relatively painless, as they have established new campus copying guidelines and worked with faculty to obtain individual licences where needed.

In recent weeks, many other universities have announced plans to follow the same path with Waterloo, Queen’s, Calgary, Saskatchewan, and Athabasca University all notifying professors and students that are opting-out of the Access Copyright licence.

Starting in September, thousands of Canadian students and faculty members will shift from Access Copyright to open and alternative access, relying on more flexible arrangements that will increase reliance on electronic course content and freely available materials that can be used without restriction. The change will suffer from some growing pains, but represents a major step toward better leveraging technology within the education system.


  1. The proof will be in the pudding …
    So we now start on an experiment away from Access copyright to a more diverse and open licensing arrangement, it will be interesting to see where it will end up. It is possible that universities will find that further use of database subscriptions, direct licencing, open resources & fair dealing will lead to a more flexible and rich environment. This will of course entail some personnel to track and manage the proper permissions but it looks to be at a cost much less than the significant increase that AC has requested.

    On the other hand it is possible that this could fail miserably as AC fights to be the sole gatekeeper of educational copying. As John Degan has said, “[Geist] has led gullible institutions down a garden path of free-culture cost reduction that will backfire on them painfully.”

    One has to wonder on the outcomes of this experiment and who will be the beneficiaries. From the university’s point of view they see AC’s tariff increase as too much of burden in relation to the value that it offers. They operate a business and if a resource is priced too high from one supplier then they will naturally seek a way to obtain it from another party.

    From a creator’s point of view I would think they would want their works to be used in the classrooms and to be compensated fairly (and rightly so). This is an area in flux as an increased awareness of fair dealing and the possibility of the next ‘Bill C-32’ expanding that even more so may have an impact.

    This leaves AC somewhere in the middle facing possible government policy on the expansion of educational ‘fair dealing’ on one side and the increasing use and creation of open resources, such as the USA $2 billion investment on the other. Combine this with competition from journal databases & other resources and the opinion of some is AC’s tariff offers little value to justify the price increase.

    The really important thing here is not really who ends up being the gatekeeper but how the two groups who must deal with the fallout, that being the creators and the students. As we pass through this time of adjustment to technological and legislative change I hope that more consideration will be given to these groups than the middle management.

  2. Note sure of the value of AC’s license anyways…
    When I went to university I simply bought all the books I needed, there was no need for every photocopying or anything. Teachers referred to the book, and did not hand out copies. If you didn’t have the book, tough luck for you.

  3. We lost the battle when Universities became businesses
    Universities at one point in time had something to do with the pursuit of knowledge. Now it seems that they view their role as printing degrees. When you look at it from AC’s perspective, 4 x $45 really isn’t a huge cost to pass on to students for printing a $25K degree, and really, after all the other surcharges students face, what’s one more?

  4. Crockett,

    Please spell my name correctly when trying to represent my opinion.

    Universities have always had and used “alternatives” to the Access Copyright repertoire. And they have always also used the AC repertoire. The only thing that’s changed is some monorail salesman has convinced a few administrations that they can limbo underneath the tariff by using fair dealing and an increased reliance on individual licences and clearances.

    Not only will this almost certainly NOT save money for institutions; it will overwhelm academic and copyright clearance staff, restrict the academic freedom of professors and TAs, and expose students and teachers to liability for infringement. On top of all that, the AC repertoire will continue to be used — someone will knock the limbo stick down and the tariff will be enforced. All this misdirection and hand-waving will be for naught.

    Well, I guess it won’t be for naught. Some free culture theorists will have gotten their name in print a few more times. And that’s really the most important thing, isn’t it?

  5. concatenate says:

    As a York student I support this decision.

  6. There is no “Access Copyright” repertoire
    The whole point is that there is no “Access Copyright repertoire”. I challenge anyone to name one academic publisher that distributes their work exclusively through Access Copyright. Access Copyright does not publish or even promote any individual work, except maybe their copyright submissions, which I must admit are wonderful works of fiction.

    If Access Copyright wants to price themselves out of content delivery, that’s their business decision. It is unacceptable for them to run to the Copyright Board in an attempt to force academic institutions to do business with them when it is now more economically sound to do business directly with the publishers or to use and create material that is not encumbered with arcane and outdated licences.

  7. Mark Federman says:

    Good Riddance to Access Copyright
    As both content creator and user, I’m encouraged by the growing tide of universities that are opting out of Access Copyright in favour of directing students to already licensed resource, open access journals, and fair-dealing materials.

    In my role as an academic, I provide much of my so-called intellectual property for no direct financial compensation anyway through academic publications. In my role in the non-academic world, I choose to disseminate knowledge and ideas through non-directly-paid means. In both cases, I earn a compensated livelihood indirectly through the results of sharing that information. But that’s my choice, and others may choose differently. Nonetheless, nb one can reasonably expect to sustain what is a traditional (personal) business plan (i.e., a la mandatory Access Copyright licensing) that is based on *forcing* people to pay for material when there is equivalent or better material that has already been paid for (through e-journal databases), or made available less expensively (e.g., via open access). The music business, the newspaper business, and the book publishing business have all learned this lesson the hard way.

    John Degen referring to Michael Geist in dismissive, pejorative terms (“monorail salesman”? Really?) only reflects the paucity of his arguments in favour of a now-obsolete status quo. Mr. Degen, here’s a clue: when a professor can point her/his students to articles in the database of hundreds of thousands of online journals (already licensed, not through AC) for the course readings, there is no infringement liability, no overhead for administrators, and certainly no need to squander the millions of dollars currently being wasted on the redundancy that is Access Copyright.

  8. @Degen “Please spell my name correctly when trying to represent my opinion.”

    Sorry John, duly noted.

  9. James Plotkin says:

    Response to Degen
    What proof do you have to back up your claim that licensing and material costs will end up being more expensive. The few salaries it will take to manage this additional legal burden is nothing compared to the amount Access Copyright seeks to demand in their new tariff.

    I’m no accountant, but considering the growing popularity of open access and creative commons licenses (not to mention those works that creep into the public domain ever so slowly), tour claim is a little counter-intuitive.

    It’s all good and well to disapprove of copyright lefties. One need only go on torrentfreak to find a collection of immature fools who think pirating is the only way to “stick it to the man” and that all content should be free. Though those ignoramuses know nothing about a lot and a lot about nothing, Prof. Geist is somewhat of an authority.

    I buy the fact that not paying your “protection money” to AC may comport a little bit more exposure to claims. That being said, universities and professors have been doing this for a long time. I think most copyright clearance departments would tell you this ain’t their first rodeo and that the savings in cost make hiring a coupe more people very worth while.

    If you’re going to tell him he’s wrong and call him a “monorail salesman” (thank you Matt Groening) then you should back it up with substantive arguments rather than groundless predictions.

  10. Mr. Federman,

    As was made clear by the Copyright Board in its response to tariff objectors, no-one is being “forced” by Access Copyright to pay for anything they are not actually using. The interim tariff and the new tariff proposal both exist on the evidence of vast and continued use of the Access Copyright repertoire. I’m quite surprised that a dedicated professor would so happily encourage his institution to contract the amount of materials available to students in the academy by “opting out” and saying “good riddance” to a huge collection of valuable Canadian material.

    I say universities should obtain materials from as many sources as their professors and students need them from. Clearly you feel differently.

    Michael Geist’s recent admission of potential “growing pains” in this process points to the fact that students will be receiving a sub-par education because of the new restrictions placed on using any materials covered by the tariff. Professors – maybe not you but many in the liberal arts who teach broadly from cultural materials – will have their academic freedom trampled in the name of this ridiculous brinkmanship. The ground for that has been laid already in the restrictive new guidelines being developed by opting out institutions. I find it disgusting and I’ll continue to call it as I see it.

    Mr. Plotkin,

    You can’t seriously think that hundreds of thousands of individual clearances will be cheaper than the .2% of the annual budget your very own university would have to spend to respect the AC tariff on behalf of its professors and students. I’ve done the math and have shown my work – in fact, I brought charts when I presented this argument for the CCA on the campus of the University of Ottawa last January. I don’t remember you or any one else from U of O Law in the audience. I guess real numbers don’t interest theorists.

    Of course, what will likely happen is that money WILL be saved by opting out, because those hundreds of thousands of individual clearances will simply not be made. Instead, everything will be sourced through the select corporate databases mandated by the administration. That’s so much more “free.”

    “But Main Street’s still all cracked and broken.”

    “Sorry Mom, the mob has spoken.”

    “Monorail, monorail, monorail!”

  11. Hey, has anyone here heard of Margaret Atwood?

  12. James Plotkin says:

    Mr. Degen
    And what happens when AC comes asking for a tariff that would cover hyperlinks in e-mail correspondence between teachers and students?..Oh wait a minute. They already did that. I wonder if the Copyright board will come to the rescue.

    With respect, you haven’t addressed my point on open-source and creative commons. What’s more, Educational fair dealing is on the horizon. Granted, no one has any idea what it really means yet…but presumably it will come to mean something. That something will be what allows a lot of the uses that currently require a license.

    You also never addressed prof. Geist’s point regarding the move to the American Copyright Clearance house as an alternative. I agree that its a horrible alternative and one that will hurt Canada and it’s artists, but AC isn’t providing much incentive to stay local.

    This whole fiasco could have been avoided (or at least delayed)had AC come off it’s high horse and offered an on-demand style pay-per-use service. I haven’t heard yet why that isn’t possible, just that they don’t want to. Fact is, all excuses are unacceptable. Why should we pay a blanket license? the answer “because” is insulting to our intelligence!

    Look, your pejorative demeanor towards Geist, myself and anyone else who doesn’t see eye to eye with you on this issue is duly noted. The fact remains that you’re ardently defending a copyright collective who charges multiples more than it’s American counterpart, looks to bill for things (hyperlink example above) that are outside it’s scope and refuses to listen to it’s client base when they demand better or different service. AC is bringing this on themselves. In fact, they have the world largest supply of chutzpah to think that they could continue increasing rates without increasing services and that everyone would just bend over and take it. They actually manage to suck harder than SOCAN, and that says a lot to me. Shame on them…

  13. Mr. Plotkin,

    You seem to just be starting out on this whole “hate on Access Copyright” research project started by your professor, so let me explain some ground rules. You are either speaking “with respect”, or you’re saying that we collective Canadian creators suck. The two can’t exist together in the same logical construct.

    Look, if copyright-protected material within the AC repertoire is being used for commercial educational purposes, it should be paid for. Full stop. The idea that a change in delivery system will somehow exclude the use of these materials from payment is absurd and dishonest. The “link” detail that has so outraged you and your fellows is an attempt to have honourable licensing follow usage from a paper-based coursepack model to a digital model in which professors provide the same material with a link to its location either on a closed system or on the open Internet. The exact same requirement is baked into any paid database licensing model; it’s just that those models tend not to rely on the open Internet. AC’s repertoire is unrestricted in the sense that it is not within a closed system (ain’t freedom grand?).

    The point is, the tariff is not asking for payment for the link; it’s asking for payment for the use of the material provided by way of the link. I know that’s a somewhat complicated detail, but is it too much for me to ask the Canada Research Chair in E-Commerce and Internet Law to understand such details (and to explain them to his students)?

    You need to also consult with the free-culture talking points memo. Currently you are not supposed to be suggesting that educational fair dealing will disrupt licensing. That kind of talk is soooo 2005, and does not play well in Ottawa (if you know what I mean).

    Finally, I hope you’re not looking for some sort of contrition about my “pejorative demeanor.” Having one’s rights relentlessly attacked brings on the crankiness, I find.

  14. “The point is, the tariff is not asking for payment for the link; it’s asking for payment for the use of the material provided by way of the link.”

    Indeed it is, but that is no more legitimate either. There is a certain implied license which HAS TO be associated with an open Interweb, or the technology simply will not work. That has to include individuals (any individual) being able to view the content from their computer. A-C has no business charging anybody for this, and if the publishers don’t like it, then they should put their stuff behind a paywall, where again A-C has no business.

  15. James Plotkin says:

    For the record I’m currently in Civil Law and Micheal Geist is not and never has been my professor. Also, I’m a creator too and i reject your thesis (“You are either speaking “with respect”, or you’re saying that we collective Canadian creators suck. The two can’t exist together in the same logical construct.).

    I write record and produce music, some of which I’ve licensed for money, some of which I’ve given away. Point being, I like to think that I have a little perspective on this issue. Frankly, if musicians, writers, artists etc. took it upon themselves to be a little more entrepreneurial with their work, the need for entities like SOCAN and AC would slowly dissipate…but I digress

    I’m not saying that there’s no place for collective licensing.I’m just saying it doesn’t have to be the “be all end all”. When we access databases to which the school has an institutional subscription, the presumption is that the license is paid for and that authors are being remunerated accordingly. We have subscriptions to these databases with or without AC. It isn’t theft to not want to pay twice.

    Schools want online access. AC offers a database of approximately 250,000 works in digital format. These competing services often offer millions. They aren’t staying competitive.

    And another thing… If you honestly think that a school, for profit or otherwise, should have to pay a royalty every time a teacher sends a student a hyperlink to a publicly accessible website, you need to stop being so militant about your rights and lighten the hell up! You sounds like a crotchety old fogy who hates the world(hows that for contrition).

    What if I ask my teacher a question? It should cost the school money for him to answer me by sending me a hyperlink to a publicly accessible web site? I’m afraid that might one day lead to the teacher either cheating the system and not reporting the use or simply not send the link thereby denying his student the answer to his question. Do either of these seem like favorable outcomes to you? And besides, as Darryl pointed out, if the link is to a closed site, the school has most likely already paid for access.

    …and you still haven’t addressed the no pay-per-use argument…

    Maybe we should agree to disagree…though I feel a snide retort coming on. You poor tortured artist…I don’t have a small violin…but I’m playing you a sad theme and variation in d minor on my beautiful guitar.

  16. Darryl and James,

    I simply can’t help you guys if you don’t understand that copyrighted material is copyrighted whether it’s on the open internet or not. This comes right back to the difference between “publicly available” and “free,” which Darryl has already proven he cannot distinguish. The law does distinguish, thankfully, and the law will prevail. Sorry, but that’s just not going to change.

    The AC repertoire (not their database) contains all the publicly available works from all AC affiliates (publishers and creators) still under copyright, and expands on a daily basis as new works by these affiliates are created. Mr. Plotkin, you are as wrong as you can be in implying that the repertoire is confined to a database of 250,000. Please, don’t go down the path (too late, I suspect) of Darryl and Crockett and most others here — please try to actually KNOW the facts before spouting off your opinion about them. There is no honour in being clever and wrong.

    AC and SOCAN exist at the pleasure of their collective members. You may choose to NOT respect the individual decisions of hundreds of thousands of professional Canadian creators and think they could do better for themselves if they weren’t so lazy, stupid and selfish, but your disparagement does not remove their right to choose how they licence their work. You go play with your “little perspective” in your own room, and let the professional creators do as they will. It’s all good.

    “Lighten the hell up” is a unique legal argument against copyright. I hope you get the chance to present that before a judge someday.

    When you ask your teacher a question (whether you realize it or not) it is costing YOU money to receive the answer. That’s what a tuition-based, commercially-run, for-profit education system is all about. The computer your teacher uses to send you the link was not provided free against the express wishes of the vendor, and neither should the copyrighted materials accessed through it.

    No-one on the AC side of this argument has ever said that the AC tariff is the “be all and end all” of how schools should operate. That’s your own straw construction, not mine. The tariff does not stop anyone from accessing other works elsewhere. It applies to a specific repertoire. And the pay per use issue is the very heart of the tariff. Read the Copyright Board writings on the tariff please. There would be no need for a tariff is there was no use. The tariff is pay per use. I’m saying actual use will justify the tariff, all opt-out announcements notwithstanding, and that the “transactional licensing” complaint currently circulated by Geist is just another red herring introduced to confuse the central question. It seems you disagree. I’m happy to let time and practice determine the outcome.

  17. “I simply can’t help you guys if you don’t understand that copyrighted material is copyrighted whether it’s on the open internet or not. This comes right back to the difference between “publicly available” and “free,” which Darryl has already proven he cannot distinguish. The law does distinguish, thankfully, and the law will prevail. Sorry, but that’s just not going to change. ”

    That’s right John. And while this reply I’ve written to your post is publicly available on Mr. Geist’s website, it is not free either. A-C trolls such as yourself must pay to access my comments, including this one. I’m afraid I do not use A-C myself though, so please remit payment of $100 directly to me.

  18. Yeah, I’m not using anything you write for commercial purposes (who could?). You’ve tried this gambit before. It didn’t work the first twenty times. Do you have any other ideas?

  19. I’m sorry John, where in the Copyright Act does it say copyright only applies when it is for commercial purposes? Now pay up!

    I’d actually be much happier if it DID only say “for commercial” purposes, then the majority of Canadians would not be affected by these ridiculously complicated and ambiguous laws.

    If you don’t like me asserting my rights over my work which I’ve made publicly available over the Internet, then you are a hypocrite for suggesting that A-C can.

  20. Darryl,

    Have you read the Copyright Act? I know it has a lot of annoying words and such in it, but give it a try.

    Nothing I do with your comments qualifies as a use requiring licence or permission under the Copyright Act (which has a lot to say about commerce, btw). Should we have to pay a licence fee whenever we cringe squeamishly at someone humiliating themselves? I don’t think so.

    Whereas, by the very terms of its definition as a copyright collective, Access Copyright is entitled to licence educational uses. When those uses involved photocopying, then the focus was on per page charges for coursepacks. As the uses migrate to digital access through the open Internet, licencing should and will follow. Those who choose not to licence but still use, will find themselves subject to a tariff.

    In my experience the majority of Canadians couldn’t possibly care less about copyright restrictions. They respect the law as a general rule and are happy to let it adapt and change in a spirit of fairness that will keep creators compensated and in charge of their intellectual property. I have found there’s really only a small (very small) subset within Canada who obsess about this stuff like it’s some sort of coming apocalypse.

  21. John, Access Copyright licenses COPIES for educational use. Web links ARE NOT copies. A small point I know, but relevant. I assure you! When and if copies are made via someone else surfing via the web, then it is not the school making the copies. It is someone else. Get it? What you are suggesting would be like telling them they have to pay for every book reference made because the student will make a mental copy simply by going to the library and reading it.

    This does not even touch on the fact that requiring this sort of licencing will break the web as we know it.

    There is no need for access copyright to try to get their blood money from the open internet, (which if they succeed will oddly enough become that much less open) and there attempts to do so should be strongly resisted. If the authors have any expectation of getting paid for the mere viewing of their work, then they could… Oh I don’t know…. NOT put it on the open Internet perhaps.

    WRT licencing my comments, sorry, I guess my sarcastic example distracted you and made you miss the point. Fine. Take another example then. How about a someone’s relevant and topical blog post? ( No that wouldn’t describe any of yours. This is a hypothetical example anyway. ) If the blogger put the post up there free for me to read, why should it be any different for my brother simply because he is a student? Of course there are added difficulties associated with foreign sources, or anonymous ones too, but we don’t need to touch on that yet.

    The point is that copies are a natural consequence of how the internet works, and the simple act of making a copy strictly within your browser should not incur additional cost for ANYBODY.

  22. Darryl,

    You went right around the logical block on that one, only to come back to the fact that a copy is being made for educational purposes. Therefore it is a use that must be licensed. No web gets broken — payment for use. Read the damn Copyright Act.

    Your sarcasm is the least distracting thing about you. It’s entirely predictable and adolescent. Trying to follow the contours of your arguments while relating them to anything resembling the real world is a challenge.

    Calling Access Copyright revenues “blood money” must be part of that whoel respectful dialogue thing Crockett and Plotkin claim to be after.

  23. James Plotkin says:

    Question (without and name calling). Why is it that we pay 10 times what the Americans pay? According to Knopf, CCC also offers transactional licensing should the institution prefer it…and there’s no per page fee.

    Other than fear of dropping revenues, is there any real reason why AC decided to shoot for the stars and ask for a $45 per student rate? Why, all of a sudden, does AC require more than 10 times the previous rate? Never mind the fact that it backfired considering all these Universities are opting out…but what was the impetus for this move?

    I try not to be a pessimist and say that it’s all to cover their overhead and costs. Have the number of artists needing to be paid out increased 10 fold? Fact is that one of the pitfalls of AC and all copyright collectives is that they have operating costs (some higher than others). How much of that increase is actually going to artists? It simply doesn’t add up that AC stuck their neck out like that in a crusading move to drastically increase artist royalties.

    I don’t know. One element of this debate that’s been entirely left out is AC’s justification for this increase. I wonder if all AC members are as fervently behind this move as Degen is? especially now that at last count, almost 30 Institutions are opting out or will next year.

    Finnaly, now that the reality of the situation is such that it is, do you (Mr. Degen) still stand behind the rate increase? I know you get to choose how to license your work and universities get to choose how to acquire licensing of works (I’m sooo tired of that tail chasing argument). I just want to know , considering the state of affairs right now, how do you feel about the decision made by your collective? The reason I ask is because the goal was presumably to accumulate more money for authors like yourself, not less.

    I hope your answer isn’t that your happy with it and the universities are wrong. There’s no right or wrong (and if you insist, I believe the old adage goes “the customer is always right”)…it’s a matter of choice. Did your collective make the right choice given the outcome?

  24. Mr. Plotkin,

    You want me to explain the American rationale to you? Why is that my job?

    Access Copyright explained their pricing structure in great detail in their tariff application. Because you haven’t actually read any of the primary materials in this argument does not mean AC hasn’t presented its justification.

    You’re free to call their pricing “shooting for the stars,” but most reasonable people would consider their application what it is — an application. A starting point for discussion and negotiation. I guess I need to repeat, AGAIN, that they wouldn’t have even made a tariff application if the universities had not “opted-out” of negotiatiing new licenses.

    Did AC make the right choice in applying for the tariff and setting prices as they did. Absolutely! That’s what people working good faith do.

  25. Degen said Did AC make the right choice in applying for the tariff and setting prices as they did. Absolutely!

    Yes its was a great choice to let school excercise their right to shop for copyrighted works where ever they want to.