Shoes and Dominoes

They are, respectively, dropping and falling, these metaphors being used to describe the AUCC/ Access Copyright (AC) deal struck in in mid April. It being a month since that model deal was announced, it seems that mid May was given as a deadline for the schools that previously opted out to express their intent to sign the model deal. The long and strange journey of the AC copyright tariff for universities has been documented here at Slaw and at other locations fairly extensively; if you are interested in this issue you are no doubt aware of the developments. If you are not interested in these developments then you likely do not have someone close to you in university in Canada nor are you interested in copyright, fair dealing or open access, that last one should be a hook for many that haven’t paid attention up until now because, as my Slaw colleague Michael Lines pointed out back in April, this model deal is a swipe against the the free flow of information and an attempt to cut open access off at the pass, so to speak.

The shoes, or dominoes, are: UBC which in announcing it will not sign the model deal, described the move as “”taking the bolder, more principled and sustainable option.” The University of Calgary, in a nuanced statement has announced it will respond in the affirmative in intent and use the the interval before signing the deal to more closely examine the implications and options that are available. Athabasca University has also stated it will not sign the deal. MacMaster has announced it is signing on.

I’m not going to go into great detail here but a quick summary of the most objectionable points in the model deal include:

  • Defining of a link as a “copy” of a work, despite what the Supreme Court of Canada stated in Crookes v Newton, 2011 SCC 47. The definition of a link in that case and previously in Canadian precedents seemed fairly clear to me where a hyperlink was described in para 2 “….as being a portal to additional, related information. Clicking on the hyperlink connects the reader to that information.”
  • Timing. A loooooooooooooooooooooooooong awaited Bill to amend the Copyright Act in on the precipice of being passed with revised definitions of the educational exemption and fair dealing. Perhaps this might have something to do with the timelines in the model deal?
  • Licensing. Most universities already pay substantial amounts to various databases for the use of the material that is covered in the model deal so those that sign on, are signing on to pay for that material twice.
  • Research. As in how to do it, the model deal attempts to dictate to scholars how they conduct their research and how they collaborate with their colleagues.

The above list is not exhaustive, I could go on but will refrain; but given that, why would an institution sign on? In short, cost certainty. There is little, that administrators like more than cost certainly and risk aversion, the model deal provides them with that, as in $26 per student, that will no doubt be added on to tuition fees this coming September. There really is not more nuance to add to it. This is simply a case of cost certainty winning over principle…. yet again.

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Comments

  1. Nice summary Mark. The points you note are apt: though fair dealing is still somewhat up in the air, we do have some comfort already, we pay for user rights via some separate licences, and a long list of publishers’ material is excluded from Access Copyright’s coverage. Calgary also notes Bill C-11 might become law by June 22, before the June 30 deadline for signing the licence itself.

    Might I also add that, though litigation risk avoidance is obviously the goal, justification for its cost is less evident. The cost of the model licence – which runs to the end of 2015 – will vary with the size of the campus, but will it be worth the cost of any potential litigation for copyright violation? And what is the value of an updated precedent on fair dealing in education?

    UBC’s statement is an interesting read. On the flipside, the student comment posted May 15 is also an interesting read…

    It is worth noting, also, that not all universities will be passing on the costs to the students – directly, anyway. Manitoba makes this clear in its statement.

    As those interested in this issue might know, Prof. Ariel Katz has been inducting the various dominoes into his Halls of Fame and Shame.

    Prof. Katz’s post shows a few dominoes falling in the other direction: U of Winnipeg recently joined UBC and Athabasca U, with strong words from President Axworthy, who called it a “cash grab.”

    The University of Windsor confirmed yesterday it also will continue to operate without Access Copyright. Windsor published copyright and fair dealing guidelines and operates its own limited Copyright Clearance Service to assist with rights assurances and clearance.

    Once the first two dominoes fell, it seemed the other universities would shy away from standing alone to face possible litigation. Clearly, that foreseen eventuality is not reality. There seems to be some security in numbers now among those who chose to turn away now from Access Copyright or, like Calgary and Memorial, signed the letter of intent but are evaluating their options before deciding whether to sign the actual licence, by June 30.