Access Copyright v. York University

Author’s note: The Access Copyright v. York University lawsuit was the subject of the very first post I ever made. In fact, it was the impetus for creating this blog. After four years, part one of the lawsuit has been decided. Here is my analysis.

On July 12, 2017, the Federal Court of Canada handed down its long-awaited decision in Access Copyright’s lawsuit against York University (York), originally filed on April 13, 2013. The suit related to York’s copyright policy and whether their fair dealing guidelines accurately reflected the test set out by the Supreme Court. A summary of Access Copyright’s claims can be found here.

The result was a complete loss for York on all points, and an order to pay retroactive royalties as set by the Copyright Board in its Interim Tariff. However, as the decision is likely to be appealed, I’d like to discuss here what will we be (or should be) the main points of legal contention before the higher court. I will focus here on the fair dealing analysis (starting at para. 249) rather than the mandatory tariff, which is an issue discussed in detail by Howard Knopf and Ariel Katz.

[Michael Geist’s analysis of the York decision can be found here.] Continue reading

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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.

 

Access Copyright renewals update (pinned post)

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

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.]

Continue reading

Awareness and Perception of Copyright Among Teaching Faculty at Canadian Universities

Earlier this month I had the privilege of presenting my research at the 2015 ABC Copyright Conference in Winnipeg, hosted by the University of Winnipeg, the University of Manitoba, and Brandon University.

In the short talk I discussed the results of a survey of Canadian university faculty members undertaken from October to December 2014. The survey sought to determine teaching faculty awareness of copyright law and institutional policy and training, and how they would respond in various scenarios.

Analysis of the results suggests that while faculty members are aware of the existence of their institution’s copyright policy, much fewer know whether their institution offers training. Of those who do know about training, only one-third have attended. However, faculty who have attended copyright training find that their knowledge is enhanced by the experience.

It also appears that respondents are more comfortable reproducing and displaying materials in class that are freely available on the Internet, like YouTube videos and images, but more likely to ask for permission or guidance when it comes to print materials or electronic versions of print materials like PDFs.

The research was supported by an Ontario Graduate Scholarship.

Slides

Speaking notes

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.

Canadian university fair dealing policies, part two point five

Further to my previous post, I have expanded the sample to include the smaller universities that are members of the Association of Universities and Colleges of Canada. Again, the table records whether the school has signed a licence with Access Copyright, whether an updated fair dealing policy is available on the web site, whether such policy is based on AUCC’s policy, and whether the school’s web site includes the AUCC’s guidelines for applying the fair dealing policy.

Continue reading

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.