licences

Access Copyright renewals update 2019

Updated: May 21, 2019

This is a 2019 update to the last post from February 2016. It’s been nearly two years since the Federal Court handed down its decision in Access Copyright v. York University (July 12, 2017), ruling that York must pay royalties for its use of copyrighted materials, and that the school’s fair dealing guidelines were neither reliable nor representative of the fair dealing exception. York have appealed the decision to the Federal Court of Appeals, which heard arguments on March 5 and 6, 2019.

While the decision only applies to York, other Canadian universities have been paying close attention. One might expect that schools would flock (back) to Access Copyright to save themselves from a similar lawsuit, but it looks like that hasn’t been the case. No university has entered into an Access Copyright license that was not already subscribing to the service. A few – Dalhousie, Lakehead, Regina, and Trent – did not renew their licenses that in 2016.

Overall, the proportion of universities that do not have a blanket license with Access Copyright increased from 37.5% in 2015, to (at least) 57.8% in 2016, to 76.2% in 2019. Conversely, the proportion of universities that have entered into a license decreased from 59.4% in 2015 to 19% in 2019.

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Geist: Misleading on Fair Dealing

Michael Geist has been writing a series of articles on misleading claims about fair dealing made by various copyright stakeholders over the past few months. I highly recommend reading all of them, as they give a comprehensive overview of the attempts of copyright maximalists to erode the rights of users as recognized by the Supreme Court.

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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.

 

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Access Copyright renewals update

Updated: February 8, 2016

The time has passed for universities to decide whether they will renew their collective licences with Access Copyright. Below is a table (after the jump) I will use to keep track of the decisions once they become public. The table includes all of the universities that are members of Universities Canada (formerly AUCC). This table only shows whether they’ve renewed the current licence, but does not indicate if they are in negotiations for a new one. Continue reading →

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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?

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Educational uses of copyrighted work: exceptions and public licences

This afternoon I had a very productive meeting with a nurse/educator at a teaching hospital. She was interested in learning more about the copyright issues associated with the use of medical images taken from the Internet in PowerPoint presentations. We discussed the educational exceptions in the Copyright Act, particularly section 30.01 that allows for the communication of lessons to students enrolled in a course, where the lesson contains copyrighted content; and section 30.04, permitting the reproduction and communication/performance of copyrighted works available through the Internet. (Both of these sections were added in the 2012 round of amendments.) Continue reading →

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Do Licence Agreements Trump Users’ Rights?

I’ve just posted a new working paper on SSRN: “Conflict between Contract Law and Copyright Law in Canada: Do Licence Agreements Trump Users’ Rights?” It’s available for download at http://ssrn.com/abstract=2396028. The paper was written under the supervision of Prof. Samuel Trosow, and portions of it were presented at the Ontario Library Association Super Conference on January 31, 2014.

Abstract:

I argue in this paper that it is not a settled issue in Canadian law that copyright exceptions provided in the Canadian Copyright Act can be trumped by contractual agreement, and that a strong argument can be made that they cannot. I first frame the issue by discussing the increasing use of digital rather than print materials in academic libraries, and the potential conflict between subscription agreements and the Copyright Act. I then address three approaches (jurisdictional, purposive, and statutory right) that can be taken to determine whether contractual terms are preempted by statutory provisions, and conclude that, in Canada, copyright exceptions are statutory rights that cannot be removed by contract. Finally, I briefly discuss technological protection measures and argue that their recent inclusion in the Copyright Act does not necessarily indicate legislative support for private ordering.

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Rocky start for post-Access Copyright era? Not quite.

Ariel Katz discusses the transition from Access Copyright blanket licence to in-house compliance management at the University of Toronto. He argues that the so-called upheaval claimed by AC is not much more than the usual hiccups experienced when moving from one system to another. He addresses the ambiguity surrounding the scope of AC’s repertoire (the copyright owners they claim to represent, and the specific works covered by the blanket licence or potential tariff), the use of licences directly negotiated with publishers, and the ostensible conflict between the interpretations of fair dealing held by AC and the university.

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