UBC the Latest to Opt-Out of Access Copyright Interim Tariff

UBC has become the latest Canadian university to announce that it is opting out of the Access Copyright interim tariff.  The third largest university outside of Quebec (behind only the University of Toronto and York University – York has already announced that it is opting out), UBC notes that it has 660 licence agreements with publishers valued at almost $10 million.


  1. Creative accounting
    I have done an analysis of the number of students affected by the opt-out of the institutions in the above list. While this has been said to represent only 25 out of 2000 institutions, it does represent 33% of the student population of public Universities & colleges.

    Now here it the interesting math part:

    Assuming a loss of 33% of students paying the AC tariff, and also the tariff is increased to the requested $45 per student (from $13 average) then there is going to be an increase in profits to Access Copyright in the rage of 200% or $24 MILLION dollars.

    So even if the above universities continue in their opt-out plans and a further 33% of colleges do the same Access copyright is still going to more than double their profits.

    To come out on the loosing side 72% of Canadian students would have to opt-out of AC use, while this is in the realm of possibility all in all I think AC made a smart gamble from a business perspective. How all this will affect our students is another question.

  2. Don’t worry
    Crockett, while some schools have given a date of aug 31 for dropping AC, there is a huge number of schools with plans to drop AC in 2012.

  3. Bottom line says:

    My guesses:

    * those 660 UBC licences will go up in price by at least the amount the publishers calculate they’ll lose in money they now get from AC

    * many of the opt-outs will realize how difficult and expensive it is to clear permissions and will negotiate a price to opt back in

    * a lot of univs are outsourcing coursepacks to Xerox and others, and those companies will strike deals with AC

  4. library worker says:

    copyright vs licensing
    AC is a consortia that collects fees on behalf of rights holders to allow “for copying material from scholarly (print!) journals, textbooks, and other materials.

    Those 660 UBC Licenses are for electronic resources – databases, ejournals, ebooks etc. They are two entirely different kettle of fish – an institution’s decision to opt out of AC has no bearing on its electronic license agreements. Those license agreements, by the way, are generally negotiated directly with the rights holders – not the Access Copyright consortia. The point the statement was trying to make is that UBC is already paying for access to the same material or similar material in electronic format. It makes no sense to pay AC’s exorbitant fees to access the same or similar material in print as well – when most instructors and students prefer (or at least tolerate) to consume content in a digital format.

    My guesses:

    *institutions who don’t have the wherewithal yet to opt out of AC will spend the next year or two strongly encouraging (mandating) instructors to switch readings and other course materials to those found within licensed e-resources while simultaneously phasing out print course packs

    *Over the next couple years Xerox will make huge gains in the copyright clearance business, making it vastly easier for institutions of all sizes to deal with the odd transactional license requirement.

    *in two years the vast majority of institutions will have opted out of AC and it will implode.

  5. @Bottom Line
    Well put. For large educational institutions it make make sense for them to opt out, whereas for the smaller ones the AC tariff may make sense, even after the increase is accounted for.

    Let’s use Queen’s in Kingston, Ont, as an example. A student population of 23883 in 2010. Using Crockett’s $45 per student, this represents a total cost of $1.075M that would be paid to AC. Now, if they wanted to go on their own, assuming that the wages and benefits cost to the university is ~$75K, it would make sense for them to go on their own if the total license fees were less than 1 million dollars. If the license fees were higher, then (since the fees will be passed onto the students) it is cheaper for the students for Queens to license through AC. Remember that the rights holder may charge more for direct licensing (as opposed to a “bulk license” through AC) in order to cover their increased license management costs.

    At the end of the day it should come down to what is best for the individual institution and its students. The way I view it, AC provides a service (licensing of print materials from rights holders) for a fee. If the fee is too high for the service provided or required, then the institution is free to walk away from them.

  6. I have been critized for calling AC’s tarrif application a gamble and while it may make them sound reckless that was not my intended emphasis.

    What I do see is a request from AC for a 200% increase in their fees. I get this figure from a few different sources that pegs costs per student under the old agreement at an average of $13. Now notice I am not claiming 1200% as other did initially, we all know that was a certain amount of spin.

    Yet tell me what supplier can call for a 200% increase in price and not call that a gamble. The only way it is not is if the supplier felt they had a lock on the market.

    Yes, AC does consider there to be added value in that fee but others feel there is less, as well as added compliance burdens. The whole subject of linking from a legal perspective is in question and who knows what the government will cook up in C-32 redux?

    In such an environment I find it hard to call AC’s submission to the copyright board anything but a gamble. Having said that I do hope this can all be worked out with less rancor from all.

  7. @Crockett
    Regarding the 1300%… The problem, based on what I have seen, is that some people grabbed onto that number and ran with it. In some cases they either didn’t realize or forgot that that number was related to a portion of the total tariff; it was not a case of the entire tariff being raised by 1300%. In other cases I’d be willing to wager that some intentionally spoke about that component only to try to make the increase sound worse than what it is to those who aren’t well informed, generating a knee-jerk reaction.

    As I understand it, the application would reduce other components of the tariff, so the overall impact of the proposed changed is substantially less than 1300%. After all changes were done, the overall tariff is still higher than it was, certainly, but no-where near the bit that got everybody’s attention.

    Any way around it there is an impact for the students. AC, if they are thinking that the institutions will eat the increase is not being very realistic. However, the increase is not going from $13 to $169. Assuming it goes to $45, to put it in student terms this represents roughly a “two-four” per year in Ontario.

  8. Anon-K,

    “Some people” grabbed onto the 1300% figure and ran with it? Some people did?

    No, the Canada Research Chair in Internet and E-Commerce Law grabbed onto that number and, apparently without independently sourcing or checking it, made it the basis of a scurrilous attack on Canadian writers and publishers. Absolutely shameful.

    In response to library worker, it’s true there is a difference between the uses covered by AC licences and/or tariffs as currently formulated and the digital-only separate licences schools are acquiring. From a creator perspective, both are good, since the creator is paid. The problem with the opt-out is the assumption and/or assertion that no infringing physical copying will continue to take place in the opting-out schools, that physical course packs as they have traditionally been used will suddenly just stop. That’s pretty much impossible.

    The gap between how copying continues to be done on campuses across this country and a legal, respectful shift to digital subscription services or other forms of licensing (and Access Copyright is certainly not entirely out of that picture either) represents lost revenues for Canadian cultural workers in the millions. And let’s be clear, these are not “lost revenues” because a customer changed suppliers, but real lost revenues because actual uses that should be paid for will not be. AC will be placed in the position of having to take legal recourse to get money that rightfully belongs to their affiliates. Both sides will waste significant time and money.

  9. “The problem with the opt-out is the assumption and/or assertion that no infringing physical copying will continue to take place in the opting-out schools, that physical course packs as they have traditionally been used will suddenly just stop. That’s pretty much impossible.”

    And do you have any means to support your counter assertion Kimosabe?

    It seams this is the linchpin of your whole argument, therefore a little supporting evidence is required. Have you found any University librarians, professors, or other staff with some authority on this matter who can back up this claim?

    If it is merely a question of taking the word of many of Canada’s largest and most prestigious universities over yours, then I think you know who most people will believe.

  10. Well Darryl, it’s a good thing the Copyright Board doesn’t fall for that appeal to authority you seem so susceptible to, or it might have just “taken the word” of those same universities when they objected to the tariff. Maybe it would have taken the word of Michael Geist that the tariff represented a 1300% increase. Wait, did Geist even sign his name to an actual objection, or did he just tell other people they should make fools of themselves?

    What happened with those objections anyway? Oh yeah, the Board in its wisdom examined the historical record and the actual facts of the proposal and rather convincingly dismissed the ridiculous objections.

    You want me to ask university librarians to prove my point? I think they’re a little overwhelmed right now desperately trying to prove Michael Geist’s point. I’m sure they’re examining the hundreds of thousands of individual clearances represented by the AC tariff – materials that are simply not available in other repertoire – and wondering how they could have bought this pointless monorail from the smiling salesman. I don’t think I’ll give them more work to do. Instead I’ll just say… I feel your pain, and I too wish you hadn’t been put in this position.

  11. @Degen “And let’s be clear, these are not “lost revenues” because a customer changed suppliers, but real lost revenues because actual uses that should be paid for will not be.”

    I see two ways there will be ‘lost revenues’, infringing uses on the Universities part or uses that fall (or are expanded) into fair use. These are vastly different issues that must be looked at separately.

    The first is the assumption that uses that are currently covered under AC’s interim tariff will continue to be used without acquiring the rights to do so. I do not think this will be the case but there will probably be instances were a confused prof or office worker will make a mistake, although I do not think there will be intentional disregard for copyright.

    I do expect AC will be there with a portfolio of lawyers ready to pounce but I hope it does not turn into a witch hunt. At the same time I expect the universities to be vigilant in their responsibilities in both providing the alternative resources and overseeing compliance.

    The issue of expanded fair use is a matter of legislation and the courts. Parties from both sides of the debate are pushing in with challenges to Supreme court decisions and lobbying in regards to C-32 redux. The outcome of these decisions will affect creators, consumers and innovators. Expanded fair use while affecting some negatively will also create new opportunities. The USA with more liberal polices in this regard has the most vibrant and innovative media industries, Canada should have the same opportunities.

  12. This discussion has probably run its course. The only way to opt out of a Board-certified tariff is if there is zero use of what the tariff covers. Howard Knopf discusses that in his latest post, although he shies away from saying if he agrees. Opting out will not save money. Most universities are hiring additional staff to handle copyright. Licences from publishers for digital periodicals are becoming more expensive. And there is growing evidence that professors will continue to distribute coursepacks, having them printed off-campus if necessary, though sometimes at copyshops that charge AC copyright fees. As for transactional licences, on a per-page basis, these will always be more expensive than the AC site licences. Sitting on top of all this is the federal government, which is reported to be reconsidering whether to scrap adding “education” as a fair dealing purpose, because they really don’t want to take the heat for damaging collective licensing in Canada.

    The sensible way forward would be for AC to modify some of the obviously problematic aspects of the tariff. While it is 100% reasonable to be able to verify copying volumes and to obtain data to allow money to be distributed, there has to be a better way to achieve those objectives than accessing university servers. I think there has to be adequate trust in public universities to do the right thing on those scores. And the proposed $45 has been distorted by opponents such that it might be better to find an alternative way to price these licences, perhaps by asking the Board to set whatever rate it considers appropriate based on the evidence. Finally, it would be a good faith gesture to continue with the 2010 rates until there is a new tariff, and to waive retroactivity at least for the next two years, which should be adequate time to reach a negotiated or mediated solution.

    For their part, the universities should continue with arrangements that have served them well for 17 years. They may resent the costs (and I know that it might be cheaper in the US, but US schools spend far more on learning resources generally) but they should look at what Australian universities pay in licensing fees.

  13. A lot of assumptions there Bob, but also an appreciated call for reasonableness from both sides.

  14. @Crockett
    Thanks Crockett. Yes, a few assumptions. But more realistic I think that the assumption that of the approx 200 million pages now photocopied in universities, all of them will from September 1 switch to digital, or stop completely, or all convert to fair dealing. And the rhetoric of the last few months benefits no-one. The universities and AC do actually need each other. The trick will be to find a way to re-engage.

  15. Bob,

    I’m not sure re-engagement is all that tricky, and neither is negotiation around any perceived problems in the tariff (nor has it ever been). All that’s really required is for those who have walked away from good faith negotiation to walk back.

    I don’t see Access Copyright taking their ball and going home, and I don’t imagine they actually intended any of the outrageousness they’ve been accused of in these here parts.

  16. John, my point was not to present the universities argument as being infallible, but rather to point out that whatever level of authority you may give to their argument, yours has even less. Hence the need for evidence on your part.

    I mostly agree with Bob here, and think that since it was A-C that unilaterally came up with this tariff and sent the institutions away, it is up to A-C to retract it and offer something more reasonable. As for the Universities, they are the customers here and as such it is perfectly reasonable for them to let their wallets talk, and not return to the table with A-C until A-C offers something which they consider competitive with their other options.

  17. @Darryl
    Civility is the thing. AC may have kickstarted the process but as they have made almost no public pronouncements, they can hardly be accused of fuelling the unfortunately hysterical tone of many of the recent comments. I suggest we all back off and let the universities, AUCC and AC work towards an outcome that works for everyone.

  18. You need to check your history, Darryl. AC unilaterally did what and sent who away?

    AC didn’t walk away from any negotiations. AC is opting out of nothing.

    And AC continues to represent a repertoire that a quickly growing contingent of academics is right now realizing they suddenly have to do without, thanks to the bad faith campaigning from the free culture crowd. That’s a great way to finish up a nice summer vacation for Canada’s professors, I imagine.

    Welcome back to campus everyone! – oh, and we changed all the rules while you were away. You’re responsible if anything bad happens. Enjoy.

  19. Whoa! Big fella …
    John, it gets a little tiring hearing about how AC has operated in good faith … sitting politely at the table with their best Miss Manners. I do not doubt there has been a fair amount of blustering from the chairs across from you but people do not walk away from negotiations for no reason. To continually paint AC as pure and blameless in this impasse only solidifies the optics of the unbelievable hapless victim. No one is buying it, and it only acts to further weaken your position.

    Until AC (and their spokespersons) come off their high horses and the Education sector looks past cost as the only factor, nothing will be accomplished.

    Negotiations is an art.

  20. Yes, come down off your high horse so we can kick you around some more while misrepresenting everything you say and stand for.

    Does that usually work in your Art of Negotiation?

  21. @Crockett
    The thing is, Crockett, that as no-one posting here was actually at any of those meetings, there isn’t any basis for alleging that AC (or the AUCC) behaved in one way or another. As best I can tell, the AUCC walked away because they decided they couldn’t accept what was being proposed. But that doesn’t mean anyone was operating in bad faith. Negotiations do sometimes break down. It even happens in universities, and faculty go on strike or get locked out.

    Here, the AUCC decided not to continue negotiating. That is their right. AC responded by filing a tariff with the Copyright Board which, by law, is the organization responsible for adjudicating on these disputes. Was the tariff ideally constructed? Perhaps not. Is there a middle path? Maybe. But so far most of the noise has been about price, which is the one thing that the Copyright Board can very easily address because it’s really just about doing the math. And regardless, the entrenched positions do no-one any favours.

  22. Bob,

    I would completely agree with your assessment of the AUCC/AC situation. I do however think there has been extreme bad faith displayed by the sideline commentators pushing the opt-out for their own ideological reasons, and I think I’ve made my opinions clear on that.

    This has always been my central complaint over here. Let these businesses do their business and keep all the ideology and populist theorizing out of it. If someone wants to advocate for change, they should do so honestly and openly, working for a cooperative change from within, rather than trying to pry open legal loopholes to act as cover for a larger agenda.

  23. @Degen
    Agreed, but I think we only empower the professional agitators and their agendas if we engage them. The important point is that there has been no bad faith by AC and AUCC, and both organizations continue to work towards a solution.

  24. Speaking of agitators …
    Bob, I really do appreciate the tone of your comments and I as I have often said there needs to be much less rancor than has been displayed. Though not alone by any means, I realize on this blog there has been spin & sensationalizing but much I would think, as you suggest, is in response or at least inflamed by very opinionated input from it’s detractors. The victimism and vehemence at times is palatable, from both side of the coin, and I think that serves no one well.

  25. @Degen “I do however think there has been extreme bad faith displayed by the sideline commentators pushing the opt-out for their own ideological reasons … trying to pry open legal loopholes to act as cover for a larger agenda.”

    John I would be truly & honestly be interested in hearing what you consider this ‘free culture’ larger agenda to be? Are you saying that people who espouse a different ideology that may conflict with your own constitutes an act of bad faith? Is there a nefarious goal behind all this, if so what is it?

    And yes, I realize everyone puts their own spin on things to make their point more evocative, and while that is not always helpful it is hardly confined to this blog, it’s commentators or even the ‘free culture’ crowd. The classic “a copy/download = lost sale” argument, for instance, spins so fast as to almost fly apart.

  26. More rotation for you enjoyment …
    Mr. Henderson, of CRIA (now Music Canada) fame, just a few months ago was all adamant and blustery about how it was the sad state of Canadian copyright law that has kept innovative services such as Pandora out of Canada. But Whoops … Now it seems it was really cost concerns after all.

    Kudos for catching up with the times there Graham, but the head spin thing is rather dizzying.

  27. Crockett,

    That’s a very respectful and consensus-building tone with which you address my friend Graham Henderson. That middle-ground of yours is very shifty, ain’t it?

    You’re going to have to look back in history and figure out the free culture agenda for yourself. I’m too busy right now to write a book report for you:

    BTW, you can tell that a criticism of free culture has really landed with impact by measuring just how forcefully Michael Geist pretends it never happened. Thanks for the studied ignorance. Message received.

  28. Well, editorial standard at The Globe And Mail sure have come down a long way recently.

  29. Twirl Twirl twist and hurl …
    @Degen “That’s a very respectful and consensus-building tone with which you address my friend Graham Henderson”

    John, I know you hate parroting but here it’s appropriate …

    “That’s a very respectful and consensus-building tone with which you address Micheal Geist.”

    You certainly see the spin in Micheal, and tell everyone about it ad nausea, yet the same deserving criticism is somehow not appropriate for your friends? With such elitism on display is it any wonder you have no shortage of detractors?

    Your article, while presenting one facet of the argument, is so unbalanced as to wonder how it can spin at all?

    The whole point I’m making is spin is in itself a form of disrespect, and we all [myself and yours truly included] are guilty, I’m just not sure you’re self aware of it.

  30. Crockett,

    A little less concern for my self-awareness, please. I have a very good therapist already. His name is Darryl.

    I have no intention of attempting consensus with MG, nor have I for many, many years. There is no consensus to be had there, tragically. I say tragically because I think the country deserve a consensus-minded Canada Research Chair in Internet and E-Commerce Law.


    If you think my argument so easy to refute, I invite you to publish your own opinion piece. I’m sure Darryl would be more than happy to help you, and find a forum up to his high standards.

  31. @Degen “If you think my argument so easy to refute, I invite you to publish your own opinion piece.”

    Will do, check the comments section of your op-ed.

  32. LOL, gawd John being your therapist would be a full time job to be sure. I’ll pass.

    Two interesting notes about the comment section of his piece. First, only one person of the lot appears to support John in any way. Second is that the person who’s comment was soundly rejected by readers with the most negative score (and zero apprent support as well), was someone calling for out and out piracy of works which is what John claims all of his detractors secretly want. From this it would seem that John’s views are on the finge just as the pirate comentator’s are.