On the CAUT list serv this week, there was an interesting discussion about the deal that U of T and Western University have made with Access Copyright. With Paul Jones’ (from CAUT) permission, his comments are copied below.
In terms of the specific defenses of the Western and Toronto agreements, here are objections:
One – Alleviation of Risk – Supporters indicate that the agreements reduce the financial liability of the two universities. This is incorrect. What they actually do is transfer a hypothetical liability arising from possible litigation into to an actual liability on students – who will collectively transfer millions of dollars to Access Copyright. This is particularly unhelpful given that Western and Toronto are not uniquely vulnerable to law suits, but as two of the larger and better financed institutions are well-placed to contest copyright actions and play a leadership role in the education community.
Two – Indemnification – The indemnity does not cover situations where the institutions are sued by a party not covered by the license. It only applies to accusations of infringement arising from the copying of material in the Access repertoire. This significantly weakens its protection as repertoire owners are likely to seek amicable settlement of any issues rather than litigate.
Three – Certainty – The upper echelons of hierarchical entities crave certainty and if you pay enough money and sacrifice enough rights you can achieve it. However, the uncertainty, such as it is, of proceeding with fair dealing, open access, site licensing and the Copyright Board hearing is preferable to the surrender option.
Four – Cost – $27.50 is an arbitrary figure that appears to have little real world justification. One can speculate that it is a generous amalgam of the current $3.75 per student fee plus the course pack per page rate (which averaged approximately $22 per student per year). The difficulty with this understanding is that with the collapse of paper copying and the growth of fair dealing, open access and site licenses, the amount should be drastically reduce from existing levels. This is particularly so in light of the fact that many students, especially at the graduate level, do not utilize course packs.
Five – Preamble – Introductory language in the agreements is cited as protecting certain institutional rights. This is incorrect. The preambles are ambiguous and appear to have been appended as afterthoughts. Moreover, a basic tenet of contract interpretation is that the actual content of an agreement will trump preamble language. This typically renders preambles unenforceable.
Six – Protection of Existing Rights – Defenders of the agreements note that Western and Toronto continued to insist on recognition by Access Copyright of the universities’ rights to the benefits of the Copyright Act provisions for users including fair dealing.
Securing acknowledgement of basic statutory rights enjoyed by all Canadians is not a negotiating victory, especially when the license specifically requires payment for copying that is identical to fair dealing.
Seven – Hyperlinking – Defenders of the agreements note that the preamble states:
“Nothing in this license agreement restricts the ability of the Licensee to use any [work] in any way that would be permitted by the Copyright Act, including by way of linking or hyperlinking.”
Aside from the futility of celebrating the preservation of obvious rights, what the defenders do not discuss is that the agreement itself (1) states:
“Copy means . transmission by electronic mail . and . posting a link or hyperlink to a Digital Copy”.
What this means is that linking and hyper-linking are permissible – because they are being paid for. This is outrageous. It also has relevance to the issue of campus surveillance.
Eight – Surveillance – Defenders of the agreements indicate that, notwithstanding the requirement to monitor material copied on campus, the agreements protect academic staff and student rights because of the clause stating:
“Any survey shall respect all applicable privacy laws, including the Licensee’s privacy policies in effect from time-to time and principles of academic freedom.”
What they do not discuss is that the agreement (11a) requires the universities to develop a survey instrument that will gather from the academic community, and provide to Access Copyright, data on the books, articles and linked material copied. This is consistent with the demands Access made in its tariff application to the Copyright Board. It is impossible to envisage, particularly with the definition of copy including emailing and linking, that this can be done without electronic surveillance of campus communications and accessing records in the unique custody and control of academic staff.
These specific points aside, the report also illustrates the continuing disconnect some display in the face of the pressing copyright issues academic librarians face. These problems were set out in the earlier CAUT backgrounder, but as the report does not meaningfully address them, it would be helpful to review them again.
The first disconnect on display is a failure to understand the inappropriateness of concluding the agreements without the direct participation of faculty, librarians and students. These arrangements, which will have a profound impact on our communities, were negotiated in secret and announced as done deals. This is offensive in and of itself. What is worse is that a vast store of practical front-line knowledge was never mobilized for the negotiations, knowledge that would have prevented the blunders that occurred.
The second disconnect illustrated is an ignorance of historical context. Prompted by advances in fair dealing, open access and site licensing, as well as alienation from Access Copyright’s behaviour, educational institutions across Canada have elected to either withdraw from the collective licensing regime or challenge its demands at the Copyright Board. These unprecedented steps heralded a new era in which our communities were discovering new ways, or adapting existing models, of sharing, using and creating knowledge. By breaking ranks with the rest of Canada the administrations at Western and Toronto have undermined this effort.
The third disconnect is a failure to situate the negotiations within the current legislative and judicial timetable. Bill C-11, now in its final parliamentary stages, is likely to significantly expand the educational uses of copyrighted works. The Supreme Court of Canada will soon render decisions in a series of copyright cases heard in December 2011. Again, these decisions are likely to enhance or at least clarify copyright in the educational sector. There is no good explanation for why Western and Toronto proceeded with such haste to conclude agreements in the face of a pending improved bargaining position.
The fourth disconnect is a failure to appreciate Access Copyright’s role in broader copyright public policy debates. The perspective they advance is characterized by attacks on fair dealing and the promotion of digital locks and restrictive international trade agreements. In advancing this user-unfriendly copyright agenda Access is a disciplined and effective advocate – and its advocacy is financed by the education community through licensing fees. The move away from Access Copyright was significantly weakening the organization’s ability to advance its cause. Western and Toronto have reinvigorated it.
For last thoughts in a long post, the struggle to create a balanced copyright regime in which use and creativity flourish will be continuous. The agreements at Western and Toronto are a set back in this regard, but because of the efforts of many, especially academic librarians, the long term trend is towards the development of better systems.
Paul Jones, Professional Officer, CAUT