More on Access Copyright’s suit against York U

See the article in yesterday’s Ottawa Citizen which details some of the claims made against York such as authorizing the copying of protected works. As a reference librarian myself, I cannot even imagine under what circumstances I would “authorize” someone to make copies of protected works. And what authority does anyone in a library actually have? This just doesn’t wash.

Michael Geist, professor here in the Faculty of Law, was quoted in the article, “At the end of the day, if Access Copyright is successful — although I have to say that based on where the law is at, that seems unlikely — we’re talking about millions and millions of dollars being paid by taxpayers to this group.” Professor Geist is a notable expert on intellectual property.

Read more: http://www.ottawacitizen.com/news/Universities+copyright+collective+brace+battle+over/8240967/story.html#ixzz2QY6qPTWb

Advertisements

Access Copyright Accuses York University of Copyright Violations

Access Copyright alleges that York University’s fair dealing guidelines encourage copying that is not supported by the law AND that there is no justification for York University to “operate outside of the tariff.”

York University is a very large university (3rd in terms of enrolment in Canada, I believe) and as such, is probably also one of the top on Access Copyright’s list of public enemies – those Canadian institutions who don’t sign its licenses. York chose to operate outside of AC’s expensive and unnecessary license and is now being punished for doing so.

This was all foreshadowed by a letter issued by Access Copyright last fall whereby institutions who considered not signing the license were threatened with potential lawsuits.

Here is part of the release from the UT Librarians site:

The legal fronts are as follows:

 A lawsuit has been launched against YorkUniversity. It alleges that York’s purported fair dealing guidelines authorize and encourage copying thatis notsupported by the law, and that there is no justification for the University to operate outside the interim tariff.

 An interim elementary and secondary school education tariff application has been filed with the Copyright Board of Canada. This application seeks an effective enforcement mechanism against the ministries of education and Ontario school boards for stated intentions to stop paying the royalties set by the Copyright Board.

 A proposed post‐secondary tariff has been filed with the Copyright Board of Canada for the period of 2014‐2017. With this application, Access Copyright ensuresthe continuation of an existing process atthe Copyright Board to establish the royaltiesto be paid forthe use of copyright‐protected contentin post‐secondary educational institutions.

Details obtained from the UT Librarians site.

For more background on the Access Copyright issue, see “Eviscerated or Not” on Ariel Katz’s blog. See also Michael Geist’s post about his meeting with APUO on the subject.

Death of Aaron Swartz, Reddit co-founder

By Myron Groover, from the Arcan-l list.
“I write with tragic news many of you are undoubtedly already aware of – Aaron Swartz, Reddit co-founder and one of the most courageous and clear voices for an open and accessible information landscape, has been found dead of an apparent suicide weeks before he was to face a hugely punitive trial for sharing JSTOR articles freely online.
If you haven’t done so, please take the time to read some coverage of not only this event but of Aaron’s remarkable life and career – his loss will be keenly felt by all of us who work to make information more accessible.

Included below are a eulogy for Swartz by Cory Doctorow, a meditation on the incredibly misguided nature of his prosecution by esteemed Harvard law professor Lawrence Lessig, and a generic NY Times article about Swartz’ death.”

https://www.nytimes.com/2013/01/13/technology/aaron-swartz-internet-activist-dies-at-26.html?pagewanted=all&_r=0
http://boingboing.net/2013/01/12/rip-aaron-swartz.html
http://lessig.tumblr.com/post/40347463044/prosecutor-as-bully

Sections of The Copyright Modernization Act (Bill C-11) are now in force

Thanks to Nancy Marrelli of Concordia University for the following:

Bill C-11, the Copyright Modernization Act (previously known as Bill C-32), passed through all stages of Parliament on June 29, 2012 and it received Royal Assent the same day. However, its provisions do not come into effect until they are brought into force.  Everything about the Copyright Modernization Act has been complicated, and the coming into force seems to be no exception!

As a result of the publication on November 7, 2012 of the official regulations SI/2012-85 (http://www.gazette.gc.ca/rp-pr/p2/2012/2012-11-07/html/si-tr85-eng.html, many sections of The Copyright Modernization Act (Bill C-11) are now in force.  However some of the provisions will come into force only at a later date.

Bill C-11 can be found at:  http://www.parl.gc.ca/content/hoc/Bills/411/Government/C-11/C-11_4/C-11_4.PDF

The sections of Bill C-11 that are now in force include:

6, 7:  Special treatment of photographs is eliminated – this has the effect of changing the copyright holder to the creator (rather than the commissioner whose bill has been paid) for commissioned photographs and altering the term of protection for certain photos so the term of protection for all photos becomes the standard life+50 years. PLEASE NOTE: More detailed information on these provisions will follow in the near future.

8, 9, 10, 17: modifications for performers’ performances

18-20:  expansion of infringement definitions

21: expansion of fair dealing to include parody, satire and education

22:  new exceptions to infringement: user-generated content, private purposes reproduction, time-shifting, back-up copies

23-27:  major modification of educational institution provisions

28: provisions for libraries, archives and museums to copy obsolete formats

29:  Digital inter-institution loans are permitted for libraries, archives and museums under certain conditions.  PLEASE NOTE: More detailed information on these provisions will follow in the near future.

30:provisions for archives to provide copies of unpublished works under more viable conditions  PLEASE NOTE: More detailed information on these provisions will follow in the near future.

32:  exception to infringement for temporary reproductions for technological purposes

35:  exception to infringement for “network services”

36-37: modification of perceptual disabilities provision

38: new exception to infringement for personal use of commissioned photos and portraits

42-46, 48, 49:  modifications to civil remedies provisions, including modification of statutory damages provisions, limiting liability for infringements for non-commercial purposes

47:  some sections on Technological Protection Measures and Rights Management measures are changed, but others will await publication of further regulations.  Digital locks rules are now in effect but a new regulatory process opens the door to additional exceptions. PLEASE NOTE: More detailed information on these provisions will follow in the near future.

58: introduces a five-year review mechanism for the Copyright Act

Other sections of Bill C-11 are not yet in force.  Certain provisions dealing with the WIPO Digital Copyright Treaties will go into force only when those treaties are formally ratified, and there will be consultations and separate regulations for internet service provider provisions relating to notice-and-notice rules before these go into force.

Costa Rican Students Take to the Streets for the Right to Copy

From the TechDirt blog, and written by Glyn Moody.

One of the most important pieces of research to emerge last year was “Media Piracy in Emerging Economies“. A central theme was that much unauthorized copying around the world is driven by attempts to impose Western-level prices everywhere, resulting in media goods that are simply beyond the reach of most people in countries whose economies are still developing.

Here’s an interesting story from Costa Rica, where the same effects are playing out in education:

Thousands of students participated in a march in San José on Tuesday, October 9, 2012, protesting for their right to photocopy textbooks for educational purposes. The unrest was caused by President Chinchilla vetoing Bill 17342 (known as the ‘Photocopying Law’) which seeks to amend Law No 8039 on Procedures for Enforcement of Intellectual Property Rights, on the grounds that it removes protection of the work and intellectual property in the artistic, literary and technological areas.

As the article on infojustice.org notes, that veto was prompted at least in part by lobbying from publishers who charge unrealistically high prices for their textbooks, which then drives students to use photocopies instead.

It’s interesting that large numbers of Costa Rican students felt strongly enough about this issue to take to the streets — rather as thousands of their contemporaries did in Europe over ACTA earlier this year. That’s evidence that this isn’t simply a case of people wanting to get “something for nothing”, as copyright apologists might try to frame it. Rather, this is about a group who depend on unauthorized copies in order to gain access to knowledge that is vital for their studies, but which is otherwise unaffordable thanks to monopoly pricing.

Follow Glyn @glynmoody on Twitter or identi.ca, and on Google+

*****

To put it into perspective, I wrote a little review column in Access magazine last year about global information rights, including the right to copy in the global South. The first agency I reviewed was CopySouth. Here is the text.

Copy/South Research Group http://copysouth.org/

In North America debates about copyright are important, but in the global South[1] they are vital. Copyright can cripple an educational institution. Not being able to copy means that students might not have access to books at all. Expensive academic journals, priced to fatten publisher’s coffers, are unaffordable for libraries that don’t even have electricity. Copy/South is a group dedicated to making the injustice of Western models of copyright widely known.

Copy/South is fueled by an international group of academics and activists exposing the inequities of copyright law for readers and consumers in the global South (representing 75% of the world’s population). These nations generally inherited copyright laws from their European colonizers which were imposed without consent. The site is critical of the Berne convention (the leading international copyright law of 1886), the 1994 TRIPS agreement (Trade-Related Aspects of International Property Rights) and WIPO (World Intellectual Property Organization) among others, for excessive privileging of rights-holders over consumers of intellectual property.  In addition to excellent primers on international copyright, the site includes a glossary of 50 terms, phrases and organizations called the CopySouth Dossier. Copy/South critiques copyright in relation to issues of poverty, history, international development, North/South relations and social justice. The site contains articles on topics such as the importance of the public domain to developing nations, access to information, the privatization of information, etc… Think about the impact of western copyright laws on the rest of the world.


[1] Some use the term “developing countries” to refer to the countries of the global South, meaning the countries of Latin America, Africa and Asia.

ABC Copyright Conference Report

I attended the ABC Copyright Conference on behalf of the APUO in June 2012. Here is my report.

  •  The big takeaway message of this conference is that professors and librarians have more rights than they are probably aware of, especially with respect to digital content for courses.
  • In the session featuring David Robinson of CAUT, Sam Trosow and Howard Knapf  encouraged professors to take advantage of their collective agreements, especially with respect to academic freedom.
  • For example our CA gives members the right “to select, acquire, disseminate and use documents in the exercise of her professional responsibilities without interference from the employer, its agents or any outside bodies.” For Trosow, a Law and Information Studies professor at Western, this encompasses digital collections in courseware.

Since the conference, two major events have taken place:

1) The passing of the Copyright Act which received Royal Assent in June 2012, and

2) Five Supreme Court of Canada copyright decisions in July 2012.

The implications of these two major events are positive for  postsecondary education in Canada including:

  • More flexibility in using and working with copyrighted materials with reduced legal liability
  • Distinction btw commercial and non-commercial infringement, with greatly reduced potential infringement for faculty engaged in non-commercial activity
  • Exceptions for publicly available materials on the internet. Any website online can  now be communicated and reproduced by educational institutions without the need for permission or compensation
  • Limited digital inter-library loans
  • Reduced licensing costs for public performance rights
  • The use of reasonable excerpts of copyrighted works in the creation of original course materials is likely to be covered by the new expanded interpretations of “fair dealing.” This is actually more forgiving than the Access Copyright license, which is restricted to 20% of a work in most cases with the new license. Reasonable takes into account the proportion of copying in relation to the rest of the work.
  • Under “fair dealing,” private research and study is broadly interpreted. Within that broad interpretation, if teachers copy works for students to study, this is likely permissible because of the student’s purpose.
  • Technological neutrality: implication is that digitization of works is permissible since the SCC judges ruled that method of delivery is unimportant with respect to copyright holder rights.

In a nutshell: professors have expanded rights with the new Copyright Act.

Jennifer Dekker, July 2012

Objections to the Proposed Access Copyright Post-Secondary Tariff and its Progeny Licenses: A Working Paper

By Samuel Trosow, Scott Armstrong and Brent Harasym. August 14, 2012.

On March 31, 2010, Access Copyright applied to the Copyright Board to certify a tariff that would govern the relationship between the organization and the members of the Association of Universities and Colleges of Canada (AUCC) and the Association of Community Colleges of Canada (ACCC).1 Previously, the relationship had been governed by a series of license agreements between the organizations which had been periodically renewed. But Access Copyright chose not to seek renewal of the licenses, and applied to the Board to certify a general tariff that would cover all post-secondary institutions for the period of 2011 through 2013.

Access Copyright was not merely trying to carry forward the terms of previous licensing agreements in the form of a Board certified tariff. Rather, they were seeking a tariff with a much higher rate, wider scope and broader application; one which would place new burdens on the institutions, their staff and students, and which would also jeopardize many of the rights of academic staff and students. This working paper reviews the terms of the Proposed Tariff and its progeny licenses2 and discusses several of the arguments that have been raised against them. The first general grouping is that many of the provisions are ambiguous, counterintuitive and are based on problematic definitions which attempt to extend the reach of the compensable activities beyond what is authorized by Canadian law. The second broad issue is the lack of value in the Proposed Tariff itself. The third general grouping deals with the audit, reporting, monitoring and survey (ARMS) provisions in the Proposed Tariff and the progeny licenses. With respect to the Proposed Tariff, we argue that several of its terms are also ultra vires the Copyright Act3 and would not have survived scrutiny had they been fully litigated.

For the full working paper, click here.