Blanket licencing called into question

Allison Declercq-Matthäs, Contributor Ω

TRU pays an average of $26 per full-time student for licenses such as Access Copyright. - Photo by Allison Declerq-

TRU pays an average of $26 per full-time student for licences such as Access Copyright. – Photo by Allison Declerq-Matthas

In the library the photocopy machine breaks the silence as it spits out copies of a book excerpt. On a computer monitor, a mouse cursor hovers over a link leading to an assigned reading on Moodle. After the mouse is clicked, an electronic copy scanned by your professor instantly fills the screen.

Did you know you paid for the right to produce those copies? Each TRU student contributes to the yearly fee paid to Access Copyright, a non-profit collective that acquires money from organizations like universities for the right to reproduce copyright-protected works and then distributes these revenues to those that own the rights.

Those fees are paid even now, despite changes to the Copyright Act law allowing people to copy portions of work without pay or punishment, so long as it is for educational purposes.

It’s this expansion of fair dealing to education and the lack of defined boundaries in its application that has the Writers’ Union of Canada (TWUC) concerned.

“We take issue with creators or producers having to give their work for free to the education environment, when teachers aren’t asked to teach for free,” said Merilyn Simonds, TWUC’s chair.

The union prefers institutions pay blanket licenses, like those provided by Access Copyright, so writers and publishers are paid appropriately and students and staff will have easy access to their work.

TRU spends an estimated $316,338, equal to $26 per full-time student or its equivalent for such a license. Called the Association of Universities and Colleges of Canada (AUCC) Model License, it permits students and professors to copy 10 to 20 per cent of the original source. TRU acquired this license from Access Copyright in late June 2012 just before the Copyright Modernization Act received royal assent.

Some universities, like the University of British Columbia (UBC), Queen’s University, the University of Saskatchewan and the University of Winnipeg chose not to sign on for a new license. Before 2010, 100 per cent of the eligible (outside of Québec) universities signed an agreement with Access Copyright.

“Now 65 per cent of the eligible universities signed,” said Erin Finlay, Access Copyright’s manager of legal services.

UBC expressed its decision in a letter to the faculty and staff, calling the move “the bolder, more principled and sustainable option.” It listed three reasons for its choice: 1) it has agreements with 950 publishers without Access Copyright; 2) it’s cheaper for UBC without the license; and 3) their direct method is less limited.

TRU considered similar arguments when it was making its decision. Those opposed argued the agreement was too expensive, infringed on the privacy of faculty and students, inappropriately expanded the definition of copying and that was unnecessary due to the new amendments to the Copyright Act, according to a release from the TRU Intellectual Property Office.

In the end it was decided signing onto the license would benefit TRU. A look at the estimated cost of acquiring copyright without the license revealed staff fees and royalties would make it just as expensive. The process without the license would require more time as each right holder would have to be tracked down individually.

“It could take three to six weeks to get a reply from the publisher,” said Scott Blackford, TRU’s rights and permissions supervisor.

The issue of privacy concerns was addressed by AUCC who negotiated some guiding principles to discourage breaching privacy. But Finlay insisted the guidelines were never needed.

“Access Copyright has no interest in monitoring emails and chat rooms,” she said.

The responsibility of monitoring staff and students has been left to TRU, where the Intellectual Property Office handles such matters.

“We monitor the print shop and call if someone is over [the guidelines],” said Blackford. “The faculty are pretty aware of copyright.”

For students, the boundaries are posted near all the copy machines on campus. But they aren’t set in stone. In fact, the perplexing tangle of exceptions to the “set” boundaries of fair copying and the added vagueness of the amended Copyright Act have everyone confused. Even the courts, the main decision-makers of copyright fairness, are slow to decide what constitutes as fair and within education. In this case, they lack what is known as common law or judge-made law, where judges draw on the decisions of the past in areas of indistinct law to help them come up with a decision.

But students won’t be easily persecuted if they overstep the boundary set by Access Copyright accidently.

“When it comes to non-commercial purpose [the courts] have a large fair dealing,” Blackford said.

For instance, the courts could continue to imitate the decision made in the case Commerce Clearing House Canadian Ltd. v. Law Society of Upper Canada, where a citizen’s right to produce copies of texts for personal use and research was upheld before a publisher’s right to profit.

The Law Society of Upper Canada, a non-profit organization, was taken to court by three publishers of legal sources, CCH Canadian Limited, Carswell Thomson Professional Publishing and Canada Law Book Inc., for providing photocopying services to the patrons of its Great Library at York University’s Osgoode Hall Law School.

Eleven works were considered for copyright infringement. The court debated whether the works were original, whether the Great Library was responsible for its patrons’ actions and whether any reproductions were outside of fair dealings.

“The Law Society does not infringe copyright when a single copy of a reported decision, case summary, statute, regulation or limited selection of text from a treatise is made by the Great Library in accordance with its access policy,” the Supreme Court held.

Further copyright restrictions would result in more court time, money and possibly the stagnation of intellectual and creative growth in Canada.

Updated Jan. 21, 2013 at 1:29 p.m. by copy/web editor.

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