Paul Stacey

Here in Canada a Canadian Copyright Licensing Agency called Access Copyright has been operating since 1988. Access Copyright establishes licensing agreements that provide users with the ability to copy from millions of copyright protected materials while ensuring over nine thousand creators and publishers are fairly compensated. Access Copyright license agreements have traditionally been for the rights to photocopy books, magazines, newspapers and other publications. Access Copyright licenses this content through a combination of agreements with other rights licensing agencies and the Canadian divisions of global publishing companies.

These rights have been essential to education institutions where instructors photocopy either parts of publications or entire articles and provide them to students as course materials. Access Copyright estimates that 250 million pages of textbooks and other materials are being copied every year in Canada’s primary, secondary and post-secondary sector.

Access Copyright has been charging Canadian provincial governments, school boards, colleges and universities an annual tariff amounting to over $30 million a year. As per Copyright Board of Canada the tariff is charged on a per student basis and works out to about $5.16 per student.

All of this is subject to major change in the context of the digital age where reprography via photocopying is becoming increasingly obsolete. Copyright is a hot topic and organizations like Access Copyright, who have not traditionally been securing digital rights from creators and publishers, are faced with some significant challenges.

In the digital age there is a growing belief that rights are better handled directly by creators without using third party intermediaries like Access Copyright. In addition, in the US and Canada, there are allowable exceptions to copyright called fair use in the US and fair dealing in Canada. Access Copyright cannot charge licensing fees to content that educational institutions have a right to access for free.

All this hit the fan when in June 2010 Access Copyright submitted to the Copyright Board a Statement of Proposed Royalties to be collected by Access Copyright from post-secondary institutions for the years 2011-2013 for the reprographic reproduction in Canada of works in its repertoire. This statement covered digital copies and proposed a tariff of $45 per student for universities or $35 per student for all other educational institutions. The statement specifies conditions regarding digital copies and details extensive reporting requirements.

The statement caused an uproar on many fronts.

The Canadian Federation of Students together with the Canadian Association of University Teachers objected.
The Canadian Alliance of Student Associations objected.
The Association of Canadian Community Colleges objected.
The Association of Universities and Colleges of Canada objected.
The BC Association of Universities and Institutes objected.
The Government of Alberta objected.
And on and on.

In all over 101 objections were submitted. Interestingly Access Copyright response to the objections was to ask the Copyright Board of Canada to dismiss all of the objectors except AUCC and ACCC.

For some a key objection was the dramatic increase in per student charges.

Dave Molenhuis, National Chairperson of the Canadian Federation of Students said in a press release. “The proposal treats students as cash cows and ignores the fair dealing rights granted through the Copyright Act and affirmed by the Supreme Court of Canada.”

Amazingly, from my point of view, in asking for the increase in tariff from $5.16 to $45/$35 per student Access Copyright hasn’t submitted any financial justification or business case rationale for the increase. Nor have I seen anything that says they have acquired the digital rights to works or that the creators and publishers they represent want them to act as digital work intermediaries on their behalf.

If this is a cash grab its worth following the money. How does Access Copyright collect and distribute royalties?

Access Copyright publishes a schedule of distribution payments. Of the $30 million it collects Access Copyright holds back 20% (~$6 million) to cover its own administration and a further 1.5% (~$450,000) which goes to Access Copyright’s cultural fund which goes to promote and support Canadian culture through the provision of grants intended to encourage the development and dissemination of published Canadian works.

Howard Knopf notes that Access Copyright budgeted $3.1 million for lawyer and other professional fees in 2010 and that with 1.5 million students registered in universities and colleges in Canada if the new tariff goes through Access Copyright’s revenues from universities and colleges alone jumps to about $60 million.

Access Copyright’s distribution of royalites specifies that two thirds of Access Copyright royalties go to the rightsholder based on Access Copyright having actual knowledge that their copyright protected work was copied under an Access Copyright license. Licensees (eg. colleges and universities) are required to provide full reporting including complete bibliographic information on all the works they copy, including the number of pages they copy and the number of times they copy these pages. Royalty payments are made to rightsholders of the works appearing in these reports.

One third of Access Copyright royalties are collected for copying impossible or impractical to collect information. This portion of the tariff is calculated based on the number of full time employees or an operating budget scale. Access Copyright distributes these royalties 50/50 to publishers and creators.

I don’t think anyone objects to publishers and creators getting fair compensation for their work. However, colleges and universities are currently operating in highly constrained financial circumstances. Furthermore tuitions and student debt has been rapidly escalating. Going digital ought to reduce costs not increase them but Access Copyrights tariff seems intent on going in the other direction forcing institutions and students to bear the burden of costs for which its made no justification.

Unreasonable royalty fees were not the only objections. For me the best summary of objections have come from the Canadian Library Association (CLA). CLA’s objections include:

• Failure to recognize existing user rights and exceptions
• Overly inclusive and inapplicable definitions
• Unreasonable royalty fees
• Unwarranted anti-circumvention provision
• Unreasonable conditions placed on the use of repertoire works
• Unreasonable reporting requirements
• Unreasonable requirements of access for Survey purposes

CLA’s letter of objection concludes:

“Access Copyright‟s tariff seeks to require payment of an unreasonable amount of royalties for the use of works well beyond its previous licenses, beyond the scope of their legitimate remit under the current law and without regard to the rights of education institutions under the Copyright Act and applicable case law. In addition, it imposes onerous and often unenforceable new conditions on educational institutions and requires actions from them which may well be in contravention of existing legislation and contracts. CLA urges the Copyright Board not to approve any tariff without substantial changes in accordance with these objections and without a significant reduction in the royalty rates.”

I’m not going to go into every one of these objections but let me highlight just a couple more. In addition to unreasonable royalties another area of contention is around the breadth of Access Copyright’s definition of a copy. The three most contentious definitions of a copy Access Copyright included in their statement are:

• projecting an image using a computer or other device
• displaying a Digital Copy on a computer or other device, and
• posting a link or hyperlink to a Digital Copy

Claiming that a hyperlink is a digital copy is a good example of how excessive Access Copyrights claims are. Linking and displaying are not part of Canada’s copyright act and as such are not subject to copyright tariff. Teachers, students, institutions and taxpayers should not have to unnecessarily pay millions of dollars per year to exercise rights that they already have. It appears that Access Copyright is overstepping its mandate as it tries to move in to the digital sphere.

In an era where everyone is used to acquiring digital works through services like iTunes it seems ludicrous, at least to me, that the process Access Copyright proposes to use for tracking and collecting tariffs is essentially manual, labour intensive and place the onus entirely on the licensee to fully disclose every copy it makes. For example if an instructor emails students a digital copy of a document the educational institution is required to compile a record and report back every such e-mail.

One can only hope that the Copyright Board of Canada will bring some reason to all this and balance Access Copyright’s efforts to generate dollars for the creators and publishers they represent with the rights of the Canadian public for fair access. However, in December 2010 they approved Access Copyrights request for an interim tariff and amazingly conclude this announcement by saying: “This decision is being issued without reasons because the Board considers this matter to be urgent.” Yikes that doesn’t come across as a good example of public accountability.

In light of all this some institutions are deciding to no longer be Access Copyright licensees and instead to go their own way. Athabasca University has announced it will not renew the Access Copyright license and in doing so says they plan to “make more extensive use of open educational resources (OERs), material such as lectures, texts, lessons and podcasts produced by other universities and made freely available for use. Where the use of OERs isn’t possible, the university will approach copyright holders directly for permission to make use of their work.”

Here in British Columbia the University of British Columbia’s position regarding Access Copyrights new tariff can be found here. As part of its response and its desire to take a lead on promoting responsible use of copyrighted material UBC is developing a License Information Database which answers many questions students and instructors have about using the Library’s resources.

The University of Northern BC, like Athabasca, has decided they will not renew the Access Copyright license. UNBC has invited me to give presentations there in early February helping faculty and staff explore the alternatives. I’ve agreed and submitted the following as what I propose to do.

Presentation #1
Title: The Opportunity Side of Open
This presentation will explore the opportunities associated with converging forces of open source software, open access research publishing, open government/data, open educational resources, and open pedagogies. The combined impact of these “open” initiatives is of growing strategic importance in higher education as institutions look for alternative and creative ways of enhancing their education offerings through digital technologies. (For more on this see my University of Open blog post.)

Within this larger strategic context of open particular emphasis will be placed on the potential of open educational resources as a creative alternative to traditional Access Copyright sourced course materials. Intellectual property, copyright and licensing aspects of open educational resources will be described and demystified. Open educational resource examples from within BC and from around the world will be used to illustrate the rich and diverse range of resources already available for free and immediate use.

Tips on sourcing open educational resources and using them in whole or in part will be provided including urls, web sites and search engines. This presentation will conclude with opportunities for Q&A and dialog with the presenter about the opportunity side of open. An applied/hands on session will follow providing more in depth opportunities for participants to explore, discover, and dissect open educational resources pertinent to their academic domain of interest.

Presentation #2
Title: Finding and Using Open Educational Resources
This session takes concepts and ideas from the first presentation and moves them into a practical and applied context. It is structured as a guided exploration of how to find and use open educational resources. Using web-based open educational resource aggregators and repositories participants will be invited to find and select resources pertinent to their academic field of study and instruction. Searching, previewing and downloading resources will all be demonstrated. The potential to use open education resources for everything from a course supplement, to a course component, to a complete course, to curricula for an entire credential will be explored. Benefits associated with open education resource use from student, instructor and institution perspectives will be discussed. Open education resource license obligations such as attribution, and share-alike will be described. Open educational resource technical format, instructional design, and quality aspects will be considered. This session will conclude with an overview of current trends and directions associated with open education resource development and use around the world.

Its important to acknowledge that going your own way is not an effort to avoid paying appropriate rights fees. It simply means that the model being proposed by Access Copyright is not appropriate, especially for digital works.

So what are the alternatives? Here are the ones I see:

• Not all copying is a contravention of the copyright act. The Fair Dealing copyright exception allows copying portions of works for the purpose of study.
• Use site database licences that librarians already have in place
• Use open access licences to scholarly research
• Negotiate licenses directly with creators or publishers
• Use open educational resources and public domain materials

I’ve written widely about open educational resources elsewhere in this blog and think that openly licensed materials hold great potential as a significant alternative.

What do you think about Access Copyrights statement of proposed royalties?

Are there additional alternatives to the ones I’ve listed above?

[…] A second topic addressed involves the open access nature of the book and the willingness of authors to be part of this process. Related to this (and just published yesterday) is an interesting blog post from Paul Stacey in response to the 2011 change to Canadian licensing agreements. His posting is titled Access Copyright’s Royalty Demands Spark Interest in OER. […]

Pingback by Veletsianos Conclusion: “Emerging Technologies in Distance Education” « Elizabeth Tweets (blog) January 17, 2011 @ 10:58 am

Most excellent post Paul!
You touch upon many important issues around copyright, fair dealings and OER. There has been much discussion around this issue over the last while and your summary makes it easily understood. Thank-you. And I agree it seems like a cash grab to me, and I am happy some institutions are opting out. The correct decision that will encourage greater OER adoption and creation.

I really like your presentation topics. If you ever find yourself considering the topic titled, “Ask forgiveness rather permission” I would happily assist. What I mean by this is; If we don’t use our fair dealings clause we may lose it. We need more case law that provides precedents in the context of fair dealings. There isn’t any that I can find. I’d rather just shut down Access Copyright completely and encourage learners to copy what they need for their learning, all within fair dealings. And use the $30 million to support those where publishers / creators are suing. This would then create some case law around fair dealings. Therefore, testing fair dealings in practice and in the end saving the student / institution / tax payer $30 million in the process.

Comment by Peter Rawsthorne January 17, 2011 @ 12:48 pm

Hi, Paul

Thank you for an excellent overview of a highly complex subject. Although I am an author covered by Access Copyrights, I have two comments to make.

The first is that I am equally dismayed by their attitude and approach to digital rights in the field of education. As an author, I do expect to get royalties for what is usually at least six months to a year’s full-time work in writing a book. However, I want to balance that with accessibility to my work.

The charge of $45 per student per copy is ridiculous – that’s almost as much as what one of my books costs when first published, and nowhere near represents the usual return to an author. I personally get about $5 for the sale of each book directly from the publisher through direct sales of both print and e-books. Often students want to access just a section or a chapter from such works, and they can usually do this direct from the publisher for far less than the cost being asked by Access Copyrights.

My second point is perhaps more significant. I have yet to receive a single cent from Access Copyrights, despite the fact that I have been publishing for many years. I think they are nothing more than a clever scam.

Comment by Tony Bates February 20, 2011 @ 1:21 pm

lgcFDi Very true! Makes a change to see someone spell it out like that. 🙂

Comment by Bucky April 8, 2011 @ 9:39 pm

[…] will likely be offered again.  In the meantime, if you are interested in this topic, the following article provides a good background.  There are some helpful suggestions at the end of the […]

Pingback by ELI Tech » Blog Archive » Copyright May 11, 2011 @ 10:19 am

[…] AUCC, CLA, Canadian Alliance of Students, and others. I wrote about this development in Jan 2011 Access Copyright’s Royalty Demands Spark Interest in OER. By May 2012 at least 34 Canadian colleges and universities had opted out of Access […]

Pingback by Copyright and Personal Transformation « Paul Stacey August 21, 2012 @ 8:53 am

ThÉ‘nks for finally talking аbout >Access Copyright’s
Royalty Demands Spark Ó€nterest iin OER | Paul Stacey <Liked it!

Comment by العاب طبخ دورا April 4, 2014 @ 11:25 am

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