Access Copyright’s new offerings and the collective’s future with universities

Access Copyright is now offering two licensing options for universities to consider: the Access Premium, which takes the same form as the pre-2015 blanket licences including course packs and digital copying, and transactional licences for over-limit copying; and the Access Choice, which starts at a lower flat rate and adds on transactional licences for course packs and digital copyright. (Still no stand-alone pay-per-use option, however.)

The flat fee for each of the options is reduced if the licence term is longer. For Premium, a one-year commitment requires a fee of $18 per full-time-equivalent (FTE) student, which then drops to $15/year for a three-year agreement, and $12/year for a five-year agreement. The Choice option starts at $6/FTE for a one-year agreement, then drops to $5/year for a three-year agreement. (The previous agreement was $26/year.)

The addition of transactional licences to the scheme might be attractive to some university administrators who perceive it to offer some security. However, it doesn’t seem to be attractive enough. December 31, 2015, marked the end of the latest round of Access Copyright licences. I have been keeping track of whether the signatory universities were planning to continue with a further Access Copyright agreement. The results so far show that universities are continuing to move away from the blanket licence model, even with the lower price and option of transactional licences; more and more universities are opting to rely on fair dealing and other user rights, publisher and database licences, open access alternatives, and public domain material.

As of today, according to publicly-accessible sources, 37 out of 65 universities (57%) are not a party to a licensing agreement with the collective (compared to 24/65 [37%] last year, and 100% in 2010). For 27 universities, their status is unclear, but evidence suggests that two of them have decided not to renew. The University of Regina decided to opt into an Access Premium agreement.

 

Copyright advice or information?

Copyright expert Lesley Ellen Harris recently posted at IP Osgoode about an important but seldom-addressed issue involving post-secondary institutions and copyright: When a librarian answers a question about using copyrighted works, is she giving legal advice? Given that more universities are opting to handle copyright compliance in-house rather than outsourcing it to a copyright collective, the answer becomes more and more significant. The answer will not be found in my post; instead, I’ll relate some of the thoughts I had after reading Harris’s post.

[Note: The thoughts below are based on the IP Osgoode post; some of them might already be addressed in Harris’s full article upcoming in the Intellectual Property Journal.]

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A staring contest between libraries and electronic resource providers

Today, on the last day of Fair Use Week, Prof. Samuel Trosow and I got to speak with members of the University of Western Ontario law and library communities about potential conflicts between the law of copyright and the law of contract, where the terms of a subscription licence seemingly abrogate the user’s right of fair dealing. Some of the audience wondered whether, in a situation where a user “contravenes” the contract by using the materials in a way consistent with a copyright exception, a database provider or publisher would take the subscribing library or institution to court. This has not yet been an issue in Canadian courts, and at this point it would be difficult to predict.

Teresa Scassa has written a blog post about copyright and municipal transit data (bus route maps and real-time GPS data) in which she makes a very important observation: “Being in a position to make a claim to IP rights was in many ways more important than actually having a good claim.” The same can be said about contractual entitlements (or at least the appearance of entitlements). As long as the risk of a breach of contract suit exists, this could be enough to ensure compliance with the licence, despite that there might be no such obligation in law, and despite that there may be a loss to the library community and its patrons in the short and long term. On the other hand, if a licensor did bring such a suit and lost, the precedent set could be more damaging to the industry than simply ignoring it. I wonder who is going to blink first?

Happy Fair Use/Dealing Week

February 23-27 is Fair Use Week, a “community celebration of fair use coordinated by the Association of Research Libraries.”

Here in Canada, we’re celebrating the equivalent (but not exactly the same, of course) Fair Dealing Week.  The Scholarly Communications and Copyright Office at the University of Toronto are initiating a nation-wide discussion on fair dealing in Canada, via the Twitter handle @UofTSCCO and the hashtag #FairUseWeek2015.

Here at the University of Western Ontario, on Friday, February 27, Prof. Samuel Trosow and I will be discussing fair dealing and how it relates to contract law. Details are below:

Copyright and contracts: The fight over information

Fair dealing is a exception to copyright infringement that is granted by the Copyright Act. In 2004, the Supreme Court characterized fair dealing as not only an exception, but as a user’s right that should be interpreted broadly. In 2012, it reiterated that position. That same year, Parliament extended the scope of this user’s right by adding “education, parody and satire” to the list of fair dealing purposes in the Copyright Act. However, copyright owners and database publishers can attempt to limit the reach of fair dealing in contracts granting subscriptions to electronic information. Are these contract terms valid? Professor Samuel Trosow and Lisa Di Valentino will discuss the intersection between copyright law and contract law that has become a significant issue in a world of digital access to knowledge.

Friday, February 27, 2015
12:00pm – 1:20 pm
North Campus Building, Room 293

Increase in cost of course packs, but what are the reasons?

The Varsity, the University of Toronto’s student newspaper, reports that students are being made to pay increased (sometimes doubled) prices for printed course packs since the expiry of the UofT’s licence agreement with Access Copyright (AC).

Some might jump straight to the argument that because UofT no longer licences with Access Copyright, the works (or at least up to 20% of them) aren’t covered by a blanket agreement, and thus by necessity students are paying more on a per-page basis.

More likely, this is an issue with communication, specifically between the library and the instructors.

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Access Copyright v. York suit split into two

Howard Knopf has reported that the Access Copyright v. York University suit has been bifurcated by the Federal Court — that is, split into two phases that will be heard separately. He has posted Aalto CMJ’s bifurcation order here. The order was requested by York.

In the first phase, documentary and oral discovery (the gathering of evidence) will take place with respect to York’s use (or authorization of use) of the copyrighted works enumerated in Schedule “B” of Access Copyright’s Statement of Claim, as well as York’s counterclaim seeking a declaration that the proposed tariff is voluntary and that uses of copyrighted works that fall within the scope of their Fair Dealing Guidelines are fair dealing.

In the second phase, if necessary, the Court will consider Access Copyright’s claims related to other acts of reproduction that York may have engaged in or authorized, and which are not set out in Schedule “B” but may be discovered during the course of the proceedings.

Access Copyright argued against the bifurcation, on the grounds that it will cause prejudice to their attempts to show that York’s Fair Dealing Guidelines do not reflect the legal scope of fair dealing, and that York has engaged in or authorized copying that falls outside of the ambit of the guidelines. They contend that the initial focusing on the 87 enumerated works will interfere with their ability to discover copying that has taken place beyond what has already been alleged.

Aalto CMJ’s bifurcation order attempts a compromise between York’s view that there are far too many instances of fair copying to be considered in one proceeding, and AC’s view that its ability to discover further copying is compromised. To that end, York will be required to produce the volume and types of copying that it tracks, and provide samples of the copying.

A “Fair and Better Way Forward”… but how?

Recently the Canadian Copyright Institute (CCI) have made publicly available an opinion paper from Fall 2013 that sets out their position on the 2012 Copyright Act amendments and the Supreme Court’s decision in Alberta (Education) et al. v. Access Copyright.

Important analyses of the paper have been written by Michael Geist and Meera Nair.

Michael Geist, Canadian Authors & Publishers: We Demand Education Talk To Us As Long As It Leads to New Payments (March 14, 2014): http://www.michaelgeist.ca/content/view/7091/125/

Prof. Geist points at what CCI’s paper does not address — that the majority of copying done in Alberta (Education) was already permitted for various reasons before fair dealing or blanket licences even needed to be considered. Nor does the paper acknowledge the Supreme Court’s stance toward technological neutrality, per Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada — “… absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user.” (para. 9)

Meera Nair, Rewriting History (March 23, 2014): http://fairduty.wordpress.com/2014/03/23/rewriting-history/

Dr. Nair adds to the discussion by noting that CCI’s claim of pending devastation to the publishing industry is at most unsupported, and at least irrelevant. As she puts it, “It is not incumbent upon the education sector to prop up the publishing sector by making unnecessary payment for materials.”

Both commentators advise that if the CCI and other organizations of copyright owners want a meaningful discussion with the educational community, the theme must be one of adaption and not intimidation.

Copying “a few pages” does not reach threshold of substantiality

Michael Geist has written a blog post on the series of questions posed by the Copyright Board to Access Copyright in the post-secondary education tariff proceedings.

Prof. Geist specifically notes the Board’s view that the copying of a couple of pages from a book is not “substantial”, and does not implicate any of the copyright owner’s exclusive rights; therefore, there would be no need for a fair dealing analysis.

“The Board’s preliminary view is that the copying of a few pages or a small percentage from a book that is not a collection of short works, such as poems, is not substantial.” — Copyright Board (pdf)

The Board invites Access Copyright to comment on its view.