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Techdirt: "Canadian Universities Have One Week To Stop A Disastrous Copyright Licensing Deal"
This Techdirt article gives both a good backgrounder and a timely condemnation of the "model license" agreement between AUCC and Access Copyright. This is a copyright Balrog that must not be allowed to pass (as in pass a huge cost on to students).
"Canada's universities are on the verge of accepting a copyright licensing deal that flies in the face of all reason, agreeing to pay higher fees for the clearance of all sorts of new digital rights—including some that don't actually exist—despite a major Supreme Court ruling and a fast-approaching copyright reform bill which both suggest they shouldn't need to make a deal at all. [...] A deal like this represents a massive and completely unjustified transfer of wealth from one class (students, who we we want to support for the good of the entire nation and economy) to another (publishers, who are asserting rights they don't even have)."
Other clear and explanatory condemnations of this "deal" have been issued by CAUT and the Atlantic Provinces Libraries Association (APLA).
Canada's copyright experts, like Howard Knopf, also condemn this agreement (Knopf wonders if universities can even opt out of the whole mess at all). Michael Geist has criticized the deal's passing of costs to students, who then get to subsidize Access Copyright's lobbying against progressive copyright reform for the reward of less than innovative education. Geist calls this "the most expensive copyright insurance policy in Canadian history." And we can't afford - and shouldn't be compelled to pay - this "premium."
- In a nutshell, this is everything that is wrong with the cloud
October 29, 2022 - 11:22am
Jon Dron
Mark A. McCutcheon
Comments
So would this binding for all Canadian universities? I thought this would be a choice of the individual universities.
As Knopf's and Katz's blogs explain it, universities that do not opt in to the "voluntary license" (and the sooner the better, to "take advantage" of AC's discount retroactive payments "offer") will eventually be obliged to pay the tariff - which the Copyright Board once made clear that universities could voluntarily opt out of (so we did). The Copyright Board later flip-flopped on this and now seems to be suggesting that the tariff will be obligatory for those institutions that don't opt in to the voluntary license. The Copyright Board has acted in bad faith, imho; and I won't comment on how I think AC has acted; but it will be students who may well ultimately pay the bill, if the U of T's and Western's glib passing on of the new per-student license fee is any indication of how universities plan to absorb this cost. AC is charging about $30 or so under this "voluntary license," whereas it had previously charged $3 and change. As Katz says, it amounts to an education tax imposed by AC and the Copyright Board on Canadian taxpayers and students.
My understanding of this situation may well need of some fine-tuning, but that's the big picture in broad strokes. And that's why we need to make some noise about this. The only beneficiary here will be AC itself (not even the publishers it purports to represent, as royalty payments have been questioned...but that's another story).
Seems to be a question whether an institution can successfully switch 100% away from AC including LMS content before taking the hit recognizing they will be targeted by AC with whatever tactics suit AC's purpose, or accept being held up by an effective monopoly and pass that cost onto the students. Not surprising that some are opting for passing it on to the students and calling it a victory.
Personally, sounds to me like the only way to get a fair shake is our very own "BMI" equiv. Perhaps with some competition in the market things would become a bit more reasonable.
You're quite right that Access Copyright has a monopoly here. But the problem is not that other, different royalty-collecting agencies are needed - it's that no such agency is needed, amidst works we already pay royalties for (library subscriptions), OER and OA works, and works that we can legally use freely under fair dealing provisions (soon to be expanded in C-11). Access Copyright wants to make universities - students, that is - pay to do things the law lets us do for free, like linking. Yes, linking. And it wants to surveil universities' activities to monitor for evidence of this egregiously expanded definition of copying (presumably so it can justify charging us - I mean students - even more for this in future). The AC "deal" - whether the voluntary "model license" offered now or the likely obligatory tariff to be enforced later - will curtail academic freedom and stifle teaching innovation, especially digital innovation, across Canada.
The CAUT briefing, "A Bad Deal," gives a clear short backgrounder and a stark list of the AC license's flaw:
CAUT concludes its briefing by saying it's working on new advocacy options. I'm not sure what they are or whether there's enough time to implement them. But, understanding the implications of this model license, we need to categorically reject it and insist on our right to opt out of it - and out of any tariff they might seek to impose later. Both stand to do great harm to learning and research. Both run wholly counter to AU's mandate, and to the goals and purposes of Canadian postsecondary education more broadly.
I am not convinced no agency is necessary for the simple reason that the current royalty collecting agency, AC, is using their position as an effective monopoly to push a bad deal as pointed out by the CAUT briefing. (BTW: I consider calling it a bad deal to be excessively polite) For the monopoly to exist, suggests that they provide something their clients (universities) find valuable, otherwise universities would just not use their services and they would cease to exist. While digitial distibution costs are minimal, the cost of generating intellectual capital remains, so the funding to pay for it has to come from somewhere. My personal feeling is that it would be a good thing to have a foundation which is not royalty based, but does collect some monies to fund development and distribution. This way the creators can be compensated, there is a structure to manage it to the benefit of the universities and there is not a continuing cost to the material which benefits students.
My reading of the Sept 23 Copyright Board decision was that producing a fairness and equity are outside their scope. If universiities want a deal AC is not willing to give they must find someone else. But if a university choses to opt out, then they need to be COMPLETELY out. Perhaps with being completely out, there would be an argument that universities interrogated by AC would be able to bill them for the service. :-)
I agree it's a really bad deal, but given AC's behaviour and Copyright Board's position, I doubt a reasonable deal from AC is forthcoming. If you can do without AC, better to lead the way on a new publishing model that solves several problems.
Yes, I hear you about the "bad deal" euphemism :)
I'm not at all suggesting that doing without collecting agencies means leaving creators uncompensated. We do continue to compensate creators in numerous ways: library subscriptions to journal databases, library and course book purchases, etc. And if we're talking about academic creators, we well know that we get compensated in different ways: if not in royalties (which for even relatively successful academic books are still meagre) then in salaries and grants for doing and distributing research literature as part of our job.
The fact is that collecting agencies today have a worse track record in relaying royalties to creators and a conspicuously great track record in effective lobbying. AC is spending money it gets from students in Canadian universities and schools (AC has the K-12 sector over a barrel too, btw) to devise bigger and better sticks to beat them with.
And I expect they will continue to hit us with those sticks as long as the monopoly exists. Eliminating the monopoly means either cutting demand or creating a new supply. You have described some things that will cut demand and a new collection agency that is responsive to stakeholders creates a new supply. Personally, I really think a fresh look at any collecting agencies business model is also appropriate considering both costs and risks. I am skeptical that royalties, as opposed to some other approach, are even appropriate for the majority of new IP development in this context.