Access Copyright v. York University, and the Friends of Intellectual Property

Last summer, York University declared that it will appeal the July 12, 2017 ruling of the Federal Court of Canada that was made in favor of Access Copyright, whose tariff on course materials, approved by Copyright Board of Canada, the university refused to pay. Instead of paying a set fee per student, York had relied on its interpretation of fair dealing to guide its faculty’s use of course readings. The court’s decision, delivered by Justice Michael L. Phelan, has been much commented upon, and I seek to add but a late footnote’s worth of further context as an educator and student of the law, given that the case is not yet settled.

Among the opinions offered on the case by this country’s jurisprudes, Michael Geist has pointed out how Justice Phelan’s ruling runs contrary to a recent series of Supreme Court decisions that have taken “a broad, liberal approach to fair dealing,” and he imagines that the appeal could makes its way to the Supreme Court. On the other hand, Richard C. Owens sees the ruling as a proper legal rebuke to the decisions cited by Geist, in light of the “rampant copying at schools,” and as an encouraging signal that the times will “prove friendlier to IP.”

I, in turn, take a different approach to befriending IP. I want to suggest the grounds on which York — as well as the other 24 institutions that have refused to pay the tariff — might challenge the assumptions behind the tariff, while taking steps to do more to educate the young about intellectual property rights. This may seem like an elaborate excuse to dust off a study that Brent Evans and I conducted at Queen’s and Stanford University on this question of course-pack readers in the digital era, which we published in 2013.

We examined 110 course-packs, consisting of 1,984 items, and found that fully 28 percent of the items were to be found in an electronic form in the institution’s library. That is, for more than a quarter of the articles and chapters in the course-pack, the university had already paid for access at an institutional price and in a form that could be readily utilized by the largest of classes. As well, 26 percent of the items in the course-packs were to be found freely available online in an open access form (excluding pirated publisher’s PDFs). The open access share of the literature continues to grow, and is now approaching the halfway point for relatively recent works. Publishers receive payments for a portion of this open access work through article processing charges and subsidies to open access journals, while permitting open access to final drafts in many cases.

With some overlap between the library and the open access copies, students were found to be paying unnecessarily for 45 percent of the items in the course-packs across the two universities. The overpayment differed by discipline, with the five course-packs in law having 73 percent of its items available to students without cost, while only 33 percent of the items in the 58 humanities course-packs were otherwise freely available to the students. The study suggests one basis for challenging the tariff rates, but I also think that the universities could do more at the same time to show themselves friendlier to intellectual property.

As I have pointed out in this blog, if more than once, that if faculty had students go through the library to find some of their readings, and turn to the web for readings that are publicly available, they would be doing far more to educate them about the prospects of a lifelong engagement with research and scholarship. This awareness and use seem like a good (and IP-friendly) thing for securing public support of universities and publishers into the future. At the same time, students can learn how these works “live” within the critical context of journals, books, societies, and other organizations. The intellectual aspects of these properties are only enhanced by seeing them set amid related content, citations, and social media take-up. The students will also have a chance to learn about how their information rights to publicly supported research and scholarship are slowly increasing, while at the same time gaining much needed skills in at least one approach to finding credible information sources in a post-truth internet.

One way forward for universities after Access Copyright v. York University is to do more to demonstrate that they are indeed “friendlier to IP,” in Owen’s phrase. They can do so by taking educational advantage of the changing status of academic work, as well as by being a public source of intellectual property (without denying the publishers reasonable compensation for their services, if only at one point in the publishing process, whether through article processing charges or libraries subscribing to open access or by some other means). The result would be nothing less than a fair deal for all that arguably adds to the educational quality of this democracy. Something to consider as York University goes forward with its appeal.