On copyright silliness, U of T and Western beat Vic Toews

The two universities signed an agreement that forces them to pay 800 per cent more for things that may soon be free

Benson Kua/Flickr

Luke Simcoe is a guest blogger. He will be contributing the occasional post on web culture, the various kooks and cranks who inhabit the Internet, as well as copyright matters.

Between them, the University of Toronto and the University of Western Ontario possess a sizeable portion of Canada’s brain trust. Yet somehow, the two institutions recently agreed to a copyright deal so dumb that one observer accused them of a “complete capitulation to an important battle over the costs and parameters of access to knowledge in Canadian post-secondary institutions.”

In an under-reported move back in January, U of T and Western signed a new agreement with Access Copyright, the private body responsible for collecting and distributing royalties in Canada. Previously, Access Copyright collected an annual tariff of $3.38 per full-time student. Under the new agreement–retroactive to 2011 and extending until the end of 2013–that fee has ballooned to $27.50. Granted, the new fee eliminates the levy applied to photocopied coursepacks, but those coursepacks are already being phased out as more material becomes legally available online or through commercial databases.

Despite passing an 800 per cent increase in costs on to students, officials at Western hailed the agreement as a victory, noting that the $27.50 figure was substantially less than what Access Copyright had asked for. But that ignores the fact that Access Copyright’s initial request of $45 was, by their own admission, essentially just a made-up number.

For their part, Access Copyright claims the increase is necessary to compensate creators for new kinds of copying, including the dastardly act of sharing hyperlinks. That’s right, according to the new deal, simply pointing someone to material that was already available on the Internet is an activity that should invoke copyright law, even if that person never clicks on the link.

It gets sillier. Bill C-11, which is under review in the Commons, is expected to expand the scope of fair dealing to include education. If the bill passes, much of what universities pay Access Copyright for would become free and legal. So, at a time when other universities are severing their ties to Access Copyright, two of the country’s top schools bought in at a higher price. It makes as much sense as locking in your variable mortgage when interest rates are expected to plummet.

I suppose it could have been worse. Some have pointed out that Access Copyright’s concern for material being shared over email could lead to the surveillance of faculty correspondence. Fortunately, both U of T and Western have refuted this claim, and the agreement signed with U of T suggests that the only information given to Access Copyright will pertain to the number of full-time students enrolled at the institution.

Still, if the best thing that can be said about your copyright agreement is that it doesn’t necessarily involve spying on teachers, it’s probably time to go back to the drawing board.




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On copyright silliness, U of T and Western beat Vic Toews

  1. Will Rogers ~ There is nothing so stupid as the educated man if you get him off the thing he was educated in

    • That’s because no one person can know everything anymore.  We have specialized to overcome that, and then use a team approach with varying degrees of success.

      We now need more generalists who can see the big picture, and how everything fits together.

      • That’s because no one person can know everything anymore.

        There may have been a time when one person could know everything.  Maybe.  However, I submit to you that that time was well before the founding of the University of Toronto.

        • LOL well I was thinking around the time of Julius Caesar, or Plato before him.

          Monks in the Dark Ages more ‘recently’…..but there was a lot less to know by then than in Plato’s day.

        • “There may have been a time when one person could know everything.”

          I think cutoff is around 1800 or thereabouts – educated people could know a little about everything because we didn’t know much. 19th century there was lots of science and math discoveries and humanity learned much, too much for any one person to know. 

          I always thought Thomas Jefferson would be one those person who knew everything and I am sure there were many others.

          • Much earlier than that….there was far more to know than you realize.

            The western world just….didn’t.

  2. That’s right, according to the new deal, simply pointing someone to material that was already available on the Internet is an activity that should invoke copyright law, even if that person never clicks on the link. 

    That’s wrong, actually.  

    I wish the universities had taken a harder line too, but allow me to play Devil’s Advocate here.  

    For what it’s worth, I’ve heard members of the administration at U of T state clearly, in public meetings, that the above line about linking is not true.  According to University officials I’ve heard, the new Access Copyright agreement specifically states that linking is not copying.  

    What’s more, I’ve actually read the agreement.  Section 5, subsection f, explicitly states that “Nothing in this agreement prevents the Licensee, or any Authorized Person, from using the internet or another public network to gain access to a Repertoire Work for the purpose of using it in accordance with this agreement, or from providing a link, or hyperlink to a Repertoire Work that is posted or stored other than on a secure network (including, but not limited to the internet, or another public network)” (emphasis added).

    Now, it’s true, a professor can’t take a pdf file that they downloaded from, say, JSTOR, save a copy of it, and then load that second independent copy up on to another network server somewhere, and then point to THAT digital copy.  THAT link would be problematic, as the professor is supposed to just point to the version that’s already been put up in JSTOR by the publishers.  Just linking to the article where it already exists is perfectly fine, however, you’re just not supposed to take the publisher’s copy, make a second copy of it, and then re-post that second copy somewhere on your own servers (unless they’re secured servers that is). 

    It’s also worth noting that with regard to the issues that Access Copyright were threatening to potentially sue the universities over, they would have been seeking RETROACTIVE damages.  The potential liability that U of T, in particular, faced was apparently STAGGERING.  As in, potentially, 10-figure damages.  That’s not a risk University lawyers are going to advise taking lightly.

    What’s more, not only did the agreement not include Access Copyright’s request to snoop on faculty emails and the like, it also stopped Access Copyright from going to the Copyright Board to demand a court order COMPELLING the universities to turn over that data, which was apparently going to be their next move.  It wouldn’t have been easy to refuse to turn over email data to Access Copyright (email data found on university servers paid for by the citizens of Ontario, and written by professors who’s salaries are paid by the citizens of Ontario) if they had just shown up one day on campus with a court order, accompanied by officers from the RCMP.  And if that sounds hyperbolic, keep in mind that there were actually already RCMP officers on campus at U of T, helping to investigate copyright violations that ended up resulting in SIGNIFICANT fines, during the time that this agreement was being negotiated.

    • Two points:

      1. The agreement clearly includes “posting a link or hyperlink to a Digital Copy” as part of the definition of “Copy” in section 1. Although the agreement clarifies that it doesn’t prohibit posting links, nor does it authorize linking except in accordance with the license terms.

      This is merely clarification, and not a grant of linking rights; the license agreement itself doesn’t have to prohibit copyright infringement. If linking is making a copy (which would be bizarre), the Copyright Act already prohibits it.

      2. Copyright Board tariffs are always retroactive to the first date for which the tariff was filed (here, Jan. 1, 2011).  The “damages”, as you say, could not have amounted to 10 figures, which would be a billion dollars. The most Access Copyright has asked for at any point is $45 per student, per year, which would be low 7 figures per year at Western and Toronto.

      While the tariff was underway before the Copyright Board, Western and Toronto were covered by an interim tariff certified in 2010 which authorized their normal copying activities:
      http://www.cb-cda.gc.ca/tariffs-tarifs/proposed-proposes/2011/Revised_interim_tariff.pdf. 

      The amount paid under this interim tariff would have been deducted from the amount owing retroactively under any final tariff that will be certified.

      • Thanks for the reply.

        Point one is indeed confusing, but to my mind it’s just saying that you can’t link to an illegal copy. Maybe the universities should have fought that, but I don’t think it’s crazy for the copyright holders to argue that institutions of higher learning need to discourage their employees to linking to what are essentially “pirated” versions of an article, video, book, etc. As an analogy, surely we wouldn’t consider it acceptable for a University Computer Store to simply have placed a link to thepiratebay.com under their store webpage for “Downloadable Software for Students”.

        Thank you for the clarification on the second point as well. Still, $3+ million isn’t chump change, and in this context, I think it’s understandable that $27.50 per year, per student, from the students, for copying activities going forward, is less of a problem for our universities than $45 per student, per year, from the Universities’ operating budgets for copying that happened in the past.

  3. The University of Toronto and ANY other university would represent a sizable portion of this countries brain trust. The U of T and my high school would represent a sizable portion of this country’s brain trust.

  4. Re: “On copyright silliness, UofT
    and Western beat Vic Toews,” by Luke Simcoe, March 1, 2012

     

    Luke
    Simcoe’s guest blog on the Access Copyright agreement with the University of
    Toronto and Western University is riddled with inaccuracies, misleading information
    and errors. It is important to clarify these issues as not to create confusion,
    as several commentators to Mr. Simcoe’s blog have attempted to do.

     

    To begin
    with, saying that this new agreement is an 800% increase is misleading and
    incorrect, because the fee is not increasing from $3.38 to $27.50 per FTE. What
    must be taken into consideration is the $0.10 cents per page fee that was
    charged on protected works that were included in coursepacks. For example, the
    University of Toronto estimates that the average cost of the Access Copyright
    portion of a coursepack is $19.26. This per page fee has now been eliminated
    and replaced with an annual fee of $27.50.

     

    Students are not being charged for sharing hyperlinks.
    Linking is mentioned in the agreement only because it is a means to access a
    work in order to copy it. The act of hyperlinking is relevant to the licence
    only when the hyperlink leads to a digital or paper copy being made of a
    copyright protected work by professors and students. At the end of the day,
    copying is what is being paid for, not hyperlinking.

     

    As it pertains to Bill C-11, many
    in the education sector publicly stated during the C-32 and C-11 Legislative
    Committee hearings that adding education to fair dealing will not change what
    uses they have to pay for. Now interest groups are claiming that the U of
    T/Western agreements will undermine fair dealing for education. These comments
    make us think that educational institutions decided to “sever ties” with Access
    Copyright in anticipation of the fair dealing exception for “education”.
    Actions speak louder than words.

     

    Access Copyright and the universities are not out to spy on student
    and faculty emails. This argument is unfounded and unjustified. The agreement
    in no way requires the monitoring of emails. In fact, the agreement is
    particularly sensitive to the privacy rights of students and faculty.

     

    The universities and Access Copyright take privacy and academic
    freedom very seriously. The manner of how Access Copyright will get data on works used in a
    digital environment is being developed in partnership with Western University
    and the University of Toronto.  The
    intent is to identify, on a sample basis, works being copied so that the agreed
    rate remains appropriate for the future and royalties can be paid to the
    properly identified creators and publishers. This will
    be done as defined in the signed agreement, “in a manner that is automated,
    anonymous, and protective of the privacy of students and the academic freedom
    of faculty.”

     

    Maureen Cavan, Executive Director, Access Copyright, The Canadian
    Copyright Licensing Agency

    • Although I would prefer if Access Copyright spent more of its time and resources compensating creators instead of practicing public relations, I do appreciate that folks like Maureen Cavan, Sandy Crawley and Rowland Lorimer (all of whom currently sit on Access Copyright’s board of directors) have offered their views. Their contributions add depth to the conversation and provide an opportunity to clarify things and ask further questions. 

      Before I respond to Ms. Cavan’s letter, it’s worth pointing out that the views expressed in my blog post are echoed by both Howard Knopf — a prominent IP lawyer and keen observer of the copyfight in Canada — and Dr. Sam Trosow, a professor of Library and Information Science at the University of Western Ontario. I am not nearly as versed in the issues at hand as either of these two men, but I hope the fact that my opinions share company with theirs assuages some of Mr. Crawley’s concerns about my credibility. 

      Now to respond:

      Cavan is right to point out that the new fee does away with the levy formerly applied to coursepacks, and as Dr. Lorimer observes in the comments section, this may well result in lower actual fees for students. However, this is based on the assumption that coursepacks will remain a key component of course materials. As more materials become available legally online, or through either commercial databases (for which universities and thus students already pay a hefty fee) or open access publications, students are increasingly finding their coursepacks replaced by a suite of hyperlinks or e-reserves on library material. The new fee thus incorporates costs that many students have either already paid, or wouldn’t have had to pay in the first place. 

      Furthermore, I would ask why Access Copyright and their partner institutions feel that $27.50 is a fair figure, when students in the United States are paying $3.75 for similar blanket licenses (including the cost of coursepacks) administered by the Copyright Clearance Centre? Can we see the accounting behind this figure, or was it simply the largest amount U of T and Western would agree to?

      On the issue of hyperlinking, I would defer to commenter Eric V., who illustrates that my issue with this aspect of the agreement is not whether students are being charged for linking, but rather why sharing a link is defined as an act of copying. As Eric points out, this conflation does seem rather “bizarre.”

      Regarding Bill C-11, I am unsure what Cavan means by “actions speak louder than words” in this context. After all, isn’t the choice by schools like York and the University of British Columbia to sever ties with Access Copyright a backing of words — they claim AC is outmoded and unnecessary — with the appropriate action? In addition, it’s not clear why Cavan saw fit to place the word education inside quotation marks, as if to imply it might not really exist.

      In response to Cavan’s final point, I would like to restate that I don’t feel this new agreement is a threat to academic freedom or privacy. I say as much in the article, and attribute this specific criticism to others. However, we should always be vigilant when collecting, compiling and archiving digital information, as it’s nearly impossible to fully ensure that such information will remain private and, in the words of Ms. Cavan, “anonymous.” To this end, I would echo Mr. Knopf’s call for transparency. Students, faculty and administrators subject to this agreement should be able to find out exactly how their information is being collected, stored and used.

      Thank you for reading, and I’m glad my post was thought-provoking.

      Luke Simcoe

  5. This column is so misinformed one tends to believe the inaccuracies are intentional. This guest blogger is apparently both a kook and a crank so I suppose your publication has found the right person to “guest blog”. I only hope it doesn’t happen too often. Could put me right off the brand…

  6. I just had to come back here to post Luke Simcoe’s mini-bio I found on line:
    “A 27-year-old graduate student living and learning in Toronto. My
    research interests include the copyfight, hacktivism and open source
    culture.”

    This is who you choose to give some kind of accurate perspective on the cost of providing Canadian texts and learning materials to Canadian educational institutions? What are you guys smoking over there?

  7. I’m presuming that, by publishing this blog,  Maclean’s is trying to give blogging a bad name in comparison to the “authoritative professional journalism” that appears in its print edition. The market dynamics for content are changing, no doubt about that. Toronto and Western have recognized, quite properly, that sound education and research by faculty and students requires legal access to content that is created and copyrighted by authors and publishers. With such access in place, which also recognizes the value of a stable marketplace in guarding against disruption to content production, Toronto and Western are in a great position to join with Access Copyright to conduct of studies to ensure that the interests and rights of both the educational user community and the author/publisher creators are properly recognized. It has been astonishing to me that the university community has been so resistant to recognizing the value that Access Copyright provides in providing legal access to a wide range of content. Even more astonishing is its resistance to accepting and promoting a blanket licence to all the content that Access Copyright represents for almost zero administrative costs and the price of a case of beer for each student per year.

  8. The notion that $27 annually per student is expensive raises the question — compared to what? Compared to paying a librarian like Sam Trosow to obtain copyright clearances one by one? Compared to paying a lawyer like Howard Knopf to defend against infringement lawsuits launched by overseas authors or publishers?  Please! These gentlemen are entitled to their opinions but they are not exactly disinterested parties. Bill C-11 is a lawyer’s dream, guaranteeing only decades of litigation. U of T and Western signed because they know collective licencing provides security for all parties concerned, as well as helping to sustain Canada’s cultural sector.  P Kome

    • Thank you to a fourth member of Access Copyright’s board of directors, Penny Kome, for offering their comments.

    •  ”U of T and Western signed because they know collective licencing provides security for all parties concerned …”

      Is it not the case that Access Copyright only promises is coverage for their repertoire — which they don’t publish — and a promises to assist with any legal action brought against one of their licensees, provided the work in question is not part of AC’s (published) list of non-included repertoire? That’s not necessarily “security for all parties concerned.”

  9. The AC folks are parasites.  Not even creators themselves, the AC bureaucrats’ living is now forcefully extracted from college kids doing nothing more simply wanting to learn!  Look in the mirror, AC, and see the disgust the rest of us see.

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