Copyright Watch 2013/2014

Copyright Watch -- March 2014 Update

As part of its due diligence efforts to maintain a balanced and informed approach to copyright on-campus, the UPEI Library continues to monitor Canada’s turbulent copyright landscape closely.  The past year has seen several developments of note:

1) Access Copyright v. York University

Access Copyright (AC) filed suit against York University in April 2013, alleging: “that York's purported fair dealing guidelines authorize and encourage copying that is not supported by the law, and that there is no justification for the University to operate outside the interim tariff.”  York denies the claims, and a complex and protracted legal battle seems likely (a trial date has still not been set). Access Copyright’s move was widely criticized in academic and legal circles -- the Canadian Association of University Teachers (CAUT) predicted, “[i]t will waste amounts of student and taxpayer money in a hopeless attempt to turn back the clock on well-established law” – and the Association of Universities and Colleges of Canada (AUCC) committed financial and moral support to York’s legal defence.

As discussed in this October 2013 University Affairs article, the matter is widely viewed as  a test case for the new fair dealing landscape in Canada. In January, the Council of Ministers of Education, Canada (CMEC), effectively representing the entire Canadian K-12 education sector, applied for intervener status in Access Copy v. York University, noting that it’s fair dealing guidelines are “virtually identical” to those adopted by York (see this recent Quill & Quire article reporting the CMEC application). 

2) Access Copyright – Copyright Board

Access Copyright’s attempts to have the Copyright Board endorse a mandatory tariff for Canadian post-secondary institutions continue. As the legal and procedural maneuvering dragged on through 2013, virtually all of the major institutional objectors to the tariff withdrew from the proceedings:

-       The Association of Canadian Community Colleges (ACCC) withdrew in October, noting that a majority of its membership was not party to any Access Copyright interim tariff or model license, and that even those members currently in a relationship with Access planned to “review these arrangements at the earliest opportunity.” ACCC President and CEO Denise Amyot stated: “ACCC will now concentrate on helping colleges and institutes transition to a copyright regime based on fair dealing, licences and subscriptions negotiated directly with publishers and users’ rights in the Copyright Act.”

-       CAUT and the Canadian Federation of Students (CFS) followed suit in December, offering similar reasons to those cited by ACCC, and also expressing disappointment at the refusal of the Copyright Board to consider some of the broader legal issues at stake:

“Throughout the hearing, the Copyright Board has shown little interest in CAUT’s and CFS’s request to first address fundamental legal questions relating the scope and authority of the tariff. In this context, the likelihood of CAUT influencing the outcome of the hearing, and the relevance of the hearing itself, have become increasingly remote.”

Interestingly, since these withdrawals, the Copyright Board has explicitly adopted a more active role in challenging Access Copyright’s submissions to the Board, and is now closely questioning much of their reasoning and evidence (see, for example, this recent Board notice). Noting that this approach would place greater demands on both Access Copyright and on the Board itself, the Board announced in January that it would postpone further hearings on the tariff sine die (indefinitely) while it awaited Access’ replies, and reserve decision on whether or not to dispense with hearings entirely and proceed on paper.

3) Access Copyright – Opt-out Institutions

In December, the University of Toronto and Western, both of which had made high-profile, and controversial, licensing deals with Access Copyright in 2012, announced that they would not be renewing these licenses, citing, “our inability to secure a license at a reasonable price,” in negotiations with Access Copyright.  

In announcing their decision, both institutions pledged to follow the approach of other Canadian universities operating without a license, neatly summarized by UofT as: “[A] combination of: good copyright guidance and education, so that instructors have a clear sense of what is permitted; reasonable use of exceptions permitted under the Copyright Act, such as fair dealing, and greater use of transactional licenses, open source material, and similar resources.”

The inability of Access Copyright to re-negotiate licenses with two large institutions that had gone to great lengths to work with Access less than two years before is a significant set-back for the licensing collective.

4) Public Lobbying

Faced with setbacks in the courts and the continuing dysfunction of Access Copyright’s collective licensing regime, some copyright creators’ and owners’ groups have taken to challenging Canadian academia directly. The Writers Union of Canada publicly rebuked the President of UBC, one of the most high-profile opt-out institutions, in a September, 2013 open letter. In February of this year, the Association of Canadian Publishers (ACP) sent a “Statement of Principles on Fair Dealing in Education,” to educators and administrators at a number of Canadian universities, including UPEI.  In an e-mail to faculty regarding the ACP message, UPEI University Mark Leggott noted:

“Most, if not all, of the statements in this message are inaccurate or wrong, and may add substantial confusion to our ongoing efforts with respect to copyright, and especially as a non-signatory to the Access Copyright model licence. The letter may also discourage faculty from delivering a completely effective learning experience to students, when our goal is to ensure the richest learning environment possible. 

As always I encourage you to contact the Library (me or Simon Lloyd are good first stops) if you have any questions about what is appropriate to copy (or not copy) in your specific context. You can also refer to our copyright guidelines at:    http://library.upei.ca/copyright/faircopying