Something for Nothing: The Non-Existent Benefit of Linking in the Access Copyright Deal

As debate over the AUCC – Access Copyright settlement spreads to campuses across the country, one of the talking points that has emerged is that the coverage of linking to content in the settlement provides some value to the education community. The model licence defines copy as:

any reproduction, in any material form whatever, including a Digital Copy, that is made by or as a consequence of any of the following activities

(k) posting a link or hyperlink to a Digital Copy. 

Critics argue that this provision gives the AUCC no value as there is simply no need to license such activities. The inclusion of the provision means students will be paying something – there must some notional part of the $26 annual fee that covers this section – for nothing. Supporters of the deal, including AUCC, claim otherwise. Indeed, the AUCC FAQ has two questions and answers on point:

5Q. Does the definition of “Copy” in the AUCC model licence mean that AUCC accepts that posting a hyperlink to a digital copy is the same as authorizing the making of a copy and requires a licence?

A. Despite the ruling of the Supreme Court of Canada in a recent defamation case, Crookes v. Newton, it is still an open issue in Canadian law whether posting a hyperlink could make a person liable for authorizing the copying of the digital work. The definition of “Copy” in the model licence makes the licence and the indemnity very broad in scope. Another provision in the model licence clarifies that AUCC has accepted this definition on a “without prejudice” basis and reserves the right to take a different position on the meaning of the term in any other proceeding.

7.Q Would it have been better to wait until after Bill C-11, the Copyright Modernization Act, becomes law and the Supreme Court of Canada rules on fair dealing in K-12 schools before AUCC settled with Access Copyright?

A Bill C-11 and the upcoming Supreme Court decision on fair dealing are unlikely to affect the need to secure a licence for copying required readings for students for inclusion either in course packs or on course websites. Required readings is the principal category of copying covered by the model blanket licence agreement.

The AUCC position raises two issues: first, that the issue of linking still poses a risk under Canadian law, and second, that Bill C-11 will not alter the legal implications. The AUCC is wrong on both counts.

On the Supreme Court of Canada’s approach to liability for linking, the court has unquestionably provided a strong foundation for arguing that there is no liability for linking to content. In Crookes v. Newton, a case focused on defamation and linking, Justice Abella states:

Hyperlinks thus share the same relationship with the content to which they refer as do references.  Both communicate that something exists, but do not, by themselves, communicate its content.  And they both require some act on the part of a third party before he or she gains access to the content.  The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral – it expresses no opinion, nor does it have any control over, the content to which it refers.

Control over the content rests with the site that has made the content available online. Merely linking to such content does not implicate copying that would or should require permission or a licence.

The even bigger error comes from its analysis of Bill C-11, which it examines solely from the perspective of the expanded fair dealing provision. The bill includes at least two other provisions that are directly relevant to parts of the model licence, including the issue of linking to online materials. The most obvious provision is one that AUCC has spent years lobbying for (thus making its omission from the FAQ shocking) – section 30.04 on publicly available materials on the Internet. The provision states:

30.04 (1) Subject to subsections (2) to (5), it is not an infringement of copyright for an educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in respect of a work or other subject-matter that is available through the Internet:

(a) reproduce it;
(b) communicate it to the public by telecommunication, if that public primarily consists of students of the educational institution or other persons acting under its authority;
(c) perform it in public, if that public primarily consists of students of the educational institution or other persons acting under its authority; or
(d) do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) to (c).

The subsections that follow create several conditions, including attribution, the absence of a digital lock, and no clear opt-out notification (that is more than just a copyright notice). The whole point of the provision is to provide education with legal certainty in the use of online materials without the need for further permissions or payment. If the provision permits reproduction, communication, or performance of a work that available online, it surely means there is no legal risk in merely linking to such a work that can be freely reproduced.

In addition to the publicly available materials exception, the non-commercial user generated content provision may also prove relevant for some electronic casebooks that incorporate some materials to create a new work for non-commercial purposes. The UGC provision (Section 29.21) includes four conditions including an analysis of “substantial adverse effect”, but the provision may allow for the development of new materials where the evidence suggests that the new works actually increase (or at least do not substantially adversely affect) the original works.

In sum, Bill C-11 offers education far more than just an expanded fair dealing provision. While there are still problems with the bill – particularly with respect to digital locks and restrictions on lessons – there are provisions that have implications for issues such as linking to content that confirm the Access Copyright deal provides no real benefits in this regard. For AUCC to ignore these provisions in its FAQ is highly misleading and presents an inaccurate picture of one of the touchstone issues in the model licence. It also raises questions about whether AUCC has fully analyzed the impact of the forthcoming changes to Canadian copyright law, which places it in a far stronger position that it seems to realize.


  1. Devil's Advocate says:

    Talk about denial!
    “Despite the ruling of the Supreme Court of Canada in a recent defamation case, Crookes v. Newton, it is still an open issue in Canadian law whether posting a hyperlink could make a person liable for authorizing the copying of the digital work.”

    There seems to be an ongoing trend these days with those that would see us lose all of our existing rights – keep denying the very basic truths that even the courts have ruled on, and openly lying to all about these truths, and, just maybe, what they say will become the law.

    And, who’s responsible for getting these schools to sign such ludicrous (and blatantly illegal!) agreements anyway. Now, there’s someone who needs a good kick in the ass! It’s assholes like that, holding these positions, that are doing us all a disservice in the process.

    As long as stuff like this “agreement” gets pushed through without enough of the obvious challenges they should be generating, our rights are in serious jeopardy.

  2. My reading of this is a bit different. For a start, Crookes v Newton was based on whether you could impute knowledge of defamatory content such that the person providing the link could be liable for publishing the libel. Here we’re dealing with whether there might be liability for providing a link in order that the content can be copied. Even when you strip away all of the “publicly available material” issues, it doesn’t follow that the downstream activity will be infringing, especially if the link is widely distributed. There is room for debate, but it does not follow that there is zero activity requiring a licence. However, I’m not sure this is what this provision in the licence is about, in that it’s less concerned with authorization than with establishing a proxy for volume and distribution.

  3. Marchetto says:

    Is AUCC a ‘Paper Tiger’?
    AUCC says it ‘has accepted this definition [of ‘Copy’] on a “without prejudice” basis and reserves the right to take a different position on the meaning of the term in any other proceeding.’

    In its earlier agreements with Access, AUCC emphasized that it disagreed with Access’s opinion concerning the meaning of ‘fair dealing.’ However, AUCC never acted on this difference of opinion. For two decades, AUCC capitulated to Access and continues to do so now.

  4. Integrity
    When an institutions’s desire for administrative expediency facilitates the surrender of intellectual rigor , diligence and integrity to powerful interests i look back at a UK university response to such interests . I have forgotten when this incident (below) occurred and while a different set circumstances and issues , it reminds me that integrity matters. The first response to an attack on integrity and principle ought to be intellectual defense not administrative capitulation.


    The UK Bank Card Association demand that Cambridge University take down a student research paper that the association said overstepped responsible disclosure. The University responds [PDF]:

    “you seem to think that we might censor a student’s thesis, which is lawful and already in the public domain, simply because a powerful interest finds it inconvenient. This shows a deep misconception of what universities are and how we work. Cambridge is the University of Erasmus, of Newton, and of Darwin; censoring writings that offend the powerful is offensive to our deepest values. Thus even though the decision to put the thesis online was Omar’s, we have no choice but to back him. That would hold even if we did not agree with the material! Accordingly I have authorised the thesis to be issued as a Computer Laboratory Technical Report. This will make it easier for people to find and to cite, and will ensure that its presence on our web site is permanent.”

  5. pat donovan says:

    Apparently before you eat your own young you strangle them first.

    how cloyingly merciful.

    Linking is a chargeable offense? Truth is an threat to the elite?

    Would this restraint of trade under CETA…
    Not allowing the public domain thing follow thru?

    Or the cites reclaim services like water?

    Sell them some more rope, please.


  6. Devil's Advocate says:

    Crookes v Newton may have been about libel, but the court made it quite clear in its judgement that we simply cannot apply the “publishing” stigma to any hyperlinks, and that to do so would be to completely cripple a very important feature of the internet at large.

    Both libel and copyright infringement charges must fail, when directed at hyperlinks, due to the same principle.

  7. @Devil’s Advocate
    That isn’t what the SCC actually said, though. There is a huge difference between saying that the provider of the link is not automatically liable for any defamatory content and saying that there is no liability for copyright infringement. Let me put this differently: If I send a link to 500 people, I cannot be blind to the possibility that 500 people copying the article might infringe copyright.

  8. Chris Brand says:

    What I’ve always felt that what the courts generally fail to grasp about a link to somebody else’s server is that I have absolutely no idea what content that other server is going to provide when somebody follows the link. A link may be titled “The latest Justin Bieber song” but when you follow it, it could be to anything at all. Indeed, it’s perfectly possible to serve up something different every time the link is followed, or to serve content based on what browser the user is running, or what site they came from.

    It’s actually less like a bibliographic reference and more like saying “go look at the third page of the fourth book from the left on the top shelf of the bookcase closest to the door at XYZ public library” – no doubt that went to something specific at the time the link was written, but only the library controls what’s there when somebody actually goes to look it up.

  9. @Chris Brand
    However, if a professor sends a link to an article to her/his students and says or implies “go read this”, I think it’s a fair assumption that (a) the material is – or may be – copyright, and that they should copy it.

    Let’s come at this another way and ask those objecting to the new agreement – is there anything that might be copied that does have to be paid for?

  10. Linking-2
    Yes, if a professor sends a link, it implies that the student should read/follow the link.

    At my institution, where a link is going to an online journal subscription (and that subscription has been PURCHASED by our library system), the recipient of the link MUST use his/her username + password to gain access to that journal article. If not, they can “pay by credit card” for individual access.

    Slapping the students with an additional Access Copyright fee – for links to materials (for which licenses have already been paid) – demonstrates a complete lack of understanding and an absence of consultation with all of the stakeholders.

  11. @Bob
    But what if the linked work is not copyrighted? Or at least not covered under this agreement (and possibly another that they are already paying for)? Why does AC get the ability to charge people for something that they may not have the right to charge for?

  12. @Lisa
    But that’s not answering the question. What if it isn’t an online subscription with redistribution rights paid for by the university? The issue isn’t whether some of what is copied is already available, but whether anyone is actually maintaining that nothing ever needs to be paid for. If you accept that something might need to be paid for, then it’s a matter of price. The K-12 schools rolled the dice on that and lost, because the survey that followed showed that they were paying too little. My guess is that AUCC did a mini-survey and realized that even when you stripped out fair dealing and material already paid for by subscriptions, there was enough left to justify the $26 fee. And the new agreements will be less burdensome because they don’t have the reporting previously needed for coursepacks. So let’s go back to the original question – is anyone claiming that there is never any requirement to pay for what is copied in a university?

  13. @Ki
    But again, that’s not the question. We can agree that some stuff doesn’t have to be paid for. My question is – is anyone claiming that there is NEVER any requirement to pay for what is copied in a university?

  14. Dr Geist’s argument is about documents openly available on the Internet; section 30.04(1) explicitly exempts these. However, in the case of what Lisa brought up it is, in my mind, not so clear.

    In that situation, the institution had to pay for access to the paper in the first place; in most situations I’ve seen the licensing fee is based on the number of accounts that can access. Let’s say that at an institution a librarian downloads a paper and makes it available on the institutional network for all. If the institution has a site license this isn’t a big deal since they paid a larger fee. However if the only person who has the account is the librarian… In this situation, the publisher did not make the paper freely available and the link would not fall under section 30.04(1).

  15. @CBQ
    I remember when that occurred, and was not to happy with the response of the university. While they have some point to make, they seem to be not looking at the larger picture.

    To put this into a Canadian context, consider if Social Insurance Numbers were assigned based on a formula related to the date and location of birth. Now, if some student reverse engineered that and published it… on its own the research is not illegal, but the consequences of publishing the algorithm to the general public means that, with only the birth information it becomes easier to do things like identity theft, or create a bogus bank account in someone else’s name.

    To me the right thing to have done was to have split the thesis in two. The main body contains the description, the findings, etc, and is available on the internet. Two appendices are created, one covering the hardware that they created for the thesis, and the other the software listing for the thesis. This is not made available on the internet but rather is made available to the people viewing the thesis only.

  16. @CBQ
    Let me follow up with the fact that what I have described is a fairly common practice. I often deal with controlled information that is of restricted dissemination. In those situations we generally create a main body document but relegate the controlled information to appendices; all parties get the main body but only those who are allowed to see can gain access to the appendices.

  17. Hyperlink CANNOT infringe copyright. PERIOD
    @bob et al.

    If a link exists, by its very definition, it means that someone somewhere is offering up content to be disseminated by machine over the internet, and has given their permission to do so. Whether the material is legally free to copy over the internet or not is an issue for the person offering it to resolve. It is neither the concern of the person giving the link, nor the person following it. To have it any other way would impose unlimited liability upon every website and every web browsing individual in the country.

    This quote from the SCC makes it pretty darn clear that they see it this way as well and there is no liability with hyperlinks:

    “Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content.”

    Notice there is no qualifier on this saying that hyperlinks may only be references in the context of libel. It says hyperlinks are references. Full stop. Therefore this should be a strong precedent in interpreting copyright as well.

  18. Chris Brand says:

    Sorry, but I don’t see the relevance. If a professor says “go read this” and provides a URL, then certainly they’re telling their students to go and read whatever happens to be provided by the person operating the server at that URL. Whoever that is has decided to send out whatever the material is to whoever asks for it. The recipient has absolutely no control over what will be provided other than in that they specify the URL. The material provided may or may not be copyrighted, and the operator of the website may or may not have permission from the rightsholder to distribute it. These are absolutely impossible for the user to know, likely even after they’ve received the material (although they may have a good idea at that point), and certainly beforehand.
    Similarly, the professor in question has absolutely no way of knowing the copyright status of the material.

    As for payment, here are my thoughts. If the person operating the website wants to be paid for the material they’re offering, they need to ensure that they collect that payment before they provide that material (likely by insisting on a username/password, or by asking for a credit card). If the website operator had to pay for a license to distribute the material, ok, so what ? If they’re distributing it without a license, then the rightsholder needs to decide whether to go after them or not.

    It really is quite simple if your actually understand how the technology works – what a URL means, what a link actually is, how a web client talks to the server, and who decides what material is available to who from a website.

  19. Chris Brand says:

    To follow on from my earlier example, say you actually decide to go and read the page I referenced, should you have to pay to do so ? Or is it reasonable for me to assume that, since the public library in question has allowed me to read the book, that they’ve paid any necessary fees in order to do so ? Similarly, if they haven’t done so, who’s liable ? You, me, or the library ?

  20. @omnes
    But you are all dodging the question. A libel case turns on whether distributing the link is a republication of the libel. This is not the same as whether it could involve an infringement, which turns on completely separate considerations. And it isn’t the question I posed which is do those opposing the AUCC/AC agreement accept that some copying needs to be paid for, and if so what. It’s not a difficult question.

  21. @bob

    ” And it isn’t the question I posed which is do those opposing the AUCC/AC agreement accept that some copying needs to be paid for”

    I think the commentators here at least have been pretty clear that copies which result from hyperlinks DO NOT need to be paid for. At least not through any mechanism which the sender or receiver of the link have any control over.

    The person who is actually providing the material needs to put something in place for payment if they want. Like a paywall.

    A good analogy is a busker. The busker is in a public place, and cannot force anyone to pay for the performance. If you want people to pay, then you have to set up the performance in a private space and charge admission. The world wide web is by default a public place. (until you put up that pay wall) That is in fact what a lot of people are doing now on the Internet, and is why the use of course packs is diminishing so much. This is why the cost of AC licences should reasonably be going down instead of up. The schools simply are not using them as much any more.

    What AC is doing, is standing on the road beside the busker shaking down school buses as they go by simply because they can. The busker may even see some of the money if he is one of AC’s friends, but most likely AC will just keep it or perhaps share a little with some of the few friends it does have.

  22. @Darryl
    Darryl – two things. First, this is exactly why the need for AC, so that there is a payment mechanism in these situations. Secondly, while the use of course packs may be going down, that doesn’t mean there shouldn’t be payment for the alternatives, and AC is an effective way of collecting payment because no-one really wants thousands of paywalls.

    But still no answer to the question…

  23. hyperlink
    Darryl, I would agree that the hyperlink itself is not an infringement. However, that does not mean that there is no infringement involved with the document pointed at by the hyperlink.

    For me the issues surrounding the hyperlink and the SCOC case regarding libel are a bit muddy. For instance, would the person be committing libel if they wrote “and I very much agree with this person on the subject of” and provided the link in that context, as opposed to pointing at something else that was in the document? The person directly said nothing, but pointed the reader to the offending passage.

    As such, while I agree that, taken in isolation, a hyperlink is not offending. However the context in which it is used could be. In the same way that driving a car on its own is not against the law, but driving one without a valid license or plates is illegal.

  24. @Bob, so would it be OK for me to stand on the street beside a busker and shake down school buses full of children? because unless my analogy is flawed that is exactly what you are proposing.

    Just because a paywall may not be wanted by some, does not mean it is right to extort money from others.

    If the people who disseminate material on the internet want to get paid, they need to find a way to make that happen (and there are lots) AC imposing themselves and claiming to be helping the little guy is not legitimate.


    In fact it does mean that there is no infringement happening. The existence of the link is by definition permission to copy the file. How can you infringe copyright when you have been given permission to do so?

  25. @Bob
    The answer is that all copying needs be authorized or subject to an exception. Authorization can come from an open license like creative commons. It can also come from the existing licenses universities have for content in databases or from transactional licenses. So yes, some copying needs to paid for since not everything will be fair dealing or openly licensed, but it does not follow that the payments need to go to Access Copyright. As for the linking issue, Geist makes a strong case that the copyright bill removes any need for payment.

  26. @Darryl – AC doesn’t exist in isolation. It is the preferred mechanism (for now) of publishers who want to get paid. That is why the AUCC has been negotiating with AC. And the existence of a link is not “by definition” permission to copy. I don’t think they teach that even at UofO law school.

    @Teacher – see above for why payments go to AC. On the second point, not really. He says (correctly) that C-11 will create an exception but it’s a default exception and will apply only if there is no express prohibition on copying. As there will very quickly be restrictions, the AC licence provides the solution. Many websites already say that content can be copied by educational institutions only under the terms of an AC licence.

  27. @ Anon-k
    @ Anon-k

    Agree completely with your points – dividing the thesis or other approaches would have diffused the situation;more proof common sense is not always common.

    I used the example more to demonstrate a refreshing willingness of a university to defend principles and institutional integrity rather than retreat to administrative efficiency.

    I confess i enjoyed the summoning of the names Newton and Erasmus in the service of the university’s position and arguments.

  28. Linking to the future
    If I win my case against Google then forget links, simply coding towards any API (html included) will be only for those with pockets large enough to defend the code they produce. Makes sense to me. =)!!!!!

  29. @bob
    “And the existence of a link is not “by definition” permission to copy. I don’t think they teach that even at UofO law school.”

    Bob, the whole purpose of web browsers and HTTP/HTML is to provide information and link to other sites/information. Of course if you put something up on the public world wide web, you are giving implicit permission to at least copy the data to your browser. To not give permission would be like the busker I mentioned previously not giving permission to listen, or a radio station doing the same.

    Your statement is not logical.

  30. @Darryl
    You don’t prove a point by relying on an example that deals with something completely irrelevant. Most content sites have conditions of use that spell out what you can and cannot do with the content. If you are saying that as a matter of law there are no restrictions on what can be done, I doubt you’ll get very far.

  31. @Bob
    No Bob, I am not saying there are no restrictions. I am saying there is a limit to what restrictions they can have.

    There are many ways they can prevent deep linking to content on their site if they wish. If they do not make any effort to prevent such links then those restrictions CANNOT include verbatim copies in your web browser. Yet these are the copies which AC’s snake oil is purporting to license.

    Getting back to my busker analogy. The busker may be able to restrict you recording his performance (dunno actually), but he can’t restrict you witnessing it on public property. you don’t need a licence to watch a busker, and you don’t need a license to surf the web.

  32. Devil's Advocate says:

    “…content sites have conditions of use that spell out what you can and cannot do with the content.”

    Yes. The keyword here, and which you’re using yourself, is “content”. Hyperlinks (the subject of this argument) are NOT content. End of story.

    Either you don’t actually know what a hyperlink is (which I sincerely doubt), or you’re a just another IP maximalist that profits from every one of these insane expansions of income source claims.

  33. Crockett says:

    A complex tapestry …
    The simple take away from all this is the internet is inherently a different medium than existed when our current rules of copyright were developed. Now, the internet is not going to go away, regardless of the attempts by government and media backed lobbyists. SOPA, C-30, C-11, ACTA are all attempts to limit the use and free flow of information in the name of protecting a broken model of copyright in the digital age.

    Problem with the above is the internet and its unregulated and open architecture has been sowed into our culture, attempts to rip it out have proven painful to the politicians who have tried. Does this mean solutions are impossible? I think not, rather painful for some & liberating for others. Innovation is both a creative and destructive process, best to be on the first wave than the latter.

  34. @Devil’s Advocate
    Terms of use can and often do prohibit linking, and to generate the link in the first place you need to access the content. But this isn’t actually the point, which is that the licences don’t say that a link is an infringing activity.

  35. I’m really getting tired of people who don;t understand technology trying to get money from in by redefining items so that they can get money form them. A hyperlink is not infringing on copyright in the least. The content on the other end does not matter, and if the person hosting that content wants to be paid it’s up to them to make sure that they have mechanisms (ads, paywalls, etc) to do so.

  36. @Ki
    That isn’t the issue. However, as a matter of law, the owner of content doesn’t lose the right to get paid because they haven’t implemented ways to stop people just helping themselves.

  37. @Bob
    Then the user should make sure that they get paid by protecting their stuff. There are mechanism out there, they should use them. Just because they don’t want to doe snot mean that AC should be able to charge for hyperlinks, that’s overreaching and shows a complete lack of understanding of the technology being used.

  38. @Ki
    But what if many of them actually want AC to be how they manage “their stuff”? And the issue isn’t “the technology being used” but the legal liabilities. That doesn’t change just because you’d prefer a different answer.

  39. Crockett says:

    Don’t let lack of technical savvy get in the way of an profit making opportunity …
    Legitimate uses of copyrighted materials, outside of fair dealing, should be compensated. Blatant cash grabs like a music levy on SD cards used almost exclusively for digital cameras, and requiring a license for linking, should be opposed.

  40. Devil's Advocate says:

    Bob says, “Terms of use can and often do prohibit linking.”
    Really, Bob?!
    I’m sure everyone else here would agree that, if you’re going to make such a statement on this page, you should, at the very least, be including the proper citation. (Something I’m absolutely sure doesn’t exist.)

    Sorry, Bud, but that one totally stinks of the bullshit pile you pulled it out of.

    What’re ya doin’ now, Bob? Trying to pretend you really don’t know what a hyperlink is to avoid the alternative impression (IP industry shill / apologist/ rights holder)?

  41. @Bob
    Then they should do so, and the appropriate means of getting their work done through AC should be done. Hyperlinks, in this case, still don’t need to be covered the way they are in the AC license because they are not copying. That doesn’t change just because you don’t like the answer.

    If this is the only way to cover it under AC, then AC has more issues with how they deal with licensing and that should be fix rather than slapping on something that doesn’t fit.

    I agree.

  42. Devil's Advocate says:

    “…to generate the link in the first place you need to access the content.”

    While you’re looking for that citation (don’t worry, I won’t be holding my breath on that!), you might want to get one for this statement as well, as I’m sure it would be just as easy.

  43. I don’t really want this to be a pile on @Bob session, ’cause I’m sure his intent is sincere, but I really do have to comment on this statement.

    “However, as a matter of law, the owner of content doesn’t lose the right to get paid because they haven’t implemented ways to stop people just helping themselves.”

    But do they lose the right to get paid after they have given it away? Can a record company give out CDs to people on the street, then approach them at some other time and demand compensation? It really isn’t a matter of people “just helping themselves” when you put something on the world wide web, you are making an active decision to give that material away. (Unless of course you take some additional measures, like a paywall).

    So yes Bob, WRT the web, they lost that right, at least as far as displaying that information on your browser is concerned. But I really would like to hear more from you on this because I think there is a very basic difference of perspective here which will need to be bridged before any resolution is possible.

  44. “any reproduction, in any material form whatever, including a Digital Copy, that is made by or as a consequence of any of the following activities

    (k) posting a link or hyperlink to a Digital Copy.”

    My reading of this is that what is covered is the copy of a copyrighted digital work that is downloaded as a result of the hyperlink, just like if the institution gave the student a paper printout of the document.

    Now, if Bill C-11 ever becomes law (and remember, it currently is a Bill and therefore it is not enforceable, nor can you derive benefit from the provisions of it), then the terms of the AC deal will need to be addressed in light of the new legislation. Big whoop. However, in this situation, the institution may in fact have to pay a higher price for its original copy of the document in order to offset the loss of revenues to the copyright holder and the publisher.

    Back to hyperlinks, the hyperlink itself is not infringing (it is simply a tool). However, if the work at the other end is infringing, and you know it, would you be be guilty of copyright infringement for actually doing the download or sending the link to someone else? In the former case, probably. In the latter, if one takes the act of sending the link to mean that you are saying the receiver should perform the download, then you would be counseling the person to infringe.

  45. @Darryl
    We might want to defer to the moderator here, but because content is accessible on the internet does not mean that anyone can do what they want with it; and so yes, copying from the internet can be infringing. You do not lose copyright protection because you don’t block people from making copies.

  46. @Bob, we seem to be talking past each other, and I am really trying not to. Let me try to be as clear as I can here.

    First. I did not, am not, and will not ever say that putting material on the web “means that anyone can do what they want with it”. Please stop me here and ask questions if you think I’ve said otherwise.

    What I did say is that putting their material on the web means they are at a MINIMUM giving permission to view the material in a web browser. When you view material in a web browser you are not “helping yourselves” because the material has been explicitly given to you for that purpose by virtue of it being web accessible.

    As such, while there may be many infringing activities possible with the material you see in your browser, such as printing, reposting, etc., the act of viewing it in your browser cannot be infringing, and therefore no license is needed by anybody to do so.

    Honestly I think my busker analogy with AC shaking down passing school buses is very apt, but I notice you do not address that despite several attempt to get you to do so. Do you see the parallels I am making with it?

  47. @Darryl
    I do see the parallel but think it’s the wrong analogy. Viewing content on a site, assuming there are no barriers to access, is impliedly authorized. We agree on that. But distributing links can contravene terms of use, as can creating a link and distributing it to (for example) an entire class. It may not, but it can, especially with educational or professional content to which access might well have been limited. All that the AC licence does is say that if the use of a link results in downstream activity that might require authorization, the licence gives that authorization. If it’s fair dealing, or otherwise freely available, the licence doesn’t apply and can’t prevent an activity that is permitted. So to return to the busker analogy, you can watch and listen, but not necessarily video him and put it on YouTube.

    I think we’ve exhausted this discussion…

  48. to whoever asked for an example of terms of use
    All Content available on a Site, including the manner in which such Content is presented, and the Services are: Copyright 2010 Postmedia Network Inc., its affiliates, related companies, unaffiliated partners and/or licensors. All rights reserved. Such Content is protected by Canadian and worldwide copyright laws and treaty provisions. grants you a limited non-exclusive, non-transferable license to use and display on your computer or other electronic access device, the Content and Services for your own personal and non-commercial use only, provided that you do not modify the Content and that you maintain all copyright and other proprietary notices. Except as provided herein, you agree not to reproduce, make derivative works of, retransmit, distribute, sell, publish, communicate, broadcast or otherwise make available any of the Content obtained through a Site or any of the Services, including without limitation, by caching, framing, deep-linking or similar means, without the prior written consent of the respective copyright owner of such Content.

  49. and this
    For educational institutions in Canada, a licensing agreement with ACCESS COPYRIGHT or COPIBEC is deemed to authorize all non-commercial uses of the contents of this web site, including downloads, redistribution and the making of multiple copies for research or instructional uses, subject to the requisite reporting and payment provisions of those agreements. See your license administrator for further information.

    All other rights are reserved, and commercial uses including publication, retransmission, broadcast, posting to newsgroups, mail lists or electronic bulletin boards, circulation, selling, reproduction or redistribution in any medium are prohibited, except with the prior written approval of the copyright owner.

  50. Crockett says:

    And yes, I did inhale.
    Seems to me saying that AC giving a licence to links is akin to one to breath air, you may not need it … but you are covered just in case.

  51. “But distributing links can contravene terms of use, as can creating a link and distributing it to (for example) an entire class”

    There’s where the issue lies. I don’t see how distributing factual, and otherwise public information can contravene any terms of use. Or at least any terms of use that a court should reasonably be expected to enforce.

    For any such terms to be able to limit freedom of speech in this manner. (in this case the freedom to communicate information which is already public knowledge, especially if the link already exists on search engines) then I think a far more deliberate form of agreement is necessary than a simple TOS notice on a small link in the about page of a website.

    Also, as I said, it is rudimentary to totally disable deep links if that is truly what the website wants.

    Lastly even if a court were to enforce such a horrendous TOS, that does not change the fact that the mechanism at issue is a link which itself is not subject to copyright. Therefore what you have is an issue within contract law totally outside of copyright, and therefore totally outside of AC’s domain.

  52. Rule Creep
    This is how Rule Creep starts. These idiotic things just start popping up somewhere, are carried over from year to year to year. Then later, this is being pointed to as an ‘established framework’ in practical use – with all sides involved inherently admitting that this is indeed something that needs to be covered by licensing agreements.

    And we can’t rely on any of the Big 3 (Parties, not Record Labels) to do anything about it. I don’t know “doconnor” but what he wrote here in 2010 is still very relevant today:

  53. Truck mount says:

    Truck mount
    Nice tips. It is actually incomprehensible opinion now, but also from general, that usefulness in addition to significance is usually overwhelming. Thanks once again and all the best.

    Truck mount

  54. hob
    There’s where the issue lies. I don’t see how distributing factual, and otherwise public information can contravene any terms of use. Or at least any terms of use that a court should reasonably be expected to enforce.