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. The organization that represents the schools is now attempting to rush through a scheme that harms educators, students and taxpayers by forcing its members to sign on immediately or face retroactive penalties, and unless there’s a much-needed last-minute push from the public, this disastrous agreement is a done deal. The outcome has baffled some Canadian lawyers and professors who have followed the story for years.

In 2004, Canada’s Supreme Court issued a unanimous judgement in a dispute between legal publishers and a law library that changed the shape of copyright in Canada. The decision in CCH Canada Ltd. vs Law Society Of Upper Canada (pdf link) explored the limits of fair dealing (the Canadian analog of fair use) as it pertains to research, establishing several key principles that are strongly in favor of open access to information. The court stated that the term “research”, which is explicitly included as fair dealing under Canadian copyright law, should be broadly interpreted and is not limited to private or non-commercial endeavours—and that if a facility’s general purpose qualifies as research, it is protected under fair dealing even if some people might use the facility to infringe. It was a landmark ruling that, of course, provoked the ire of every collection society and copyright industry player in the country.

But for Canadian universities and public schools, it should have been a windfall. For years they had been paying a per-student fee to the collection society Access Copyright (previously CanCopy) for rights clearance on all the routine xeroxing and other copying that is a part of education. After the CCH ruling, most or all of that qualified as fair dealing, and the schools were in a position to negotiate much lower fees or just stop paying them altogether. Instead, the opposite happened—the schools ended up paying more.

To understand how this is possible, you have to know how the process works. The Copyright Board of Canada has the legal authority to impose copyright tariffs. When Access Copyright wants more money, they go to the board and request a ridiculously high tariff—then negotiate a voluntary rate with the schools, somewhere in between the current fee and the requested tariff. If the schools can get a rate that is lower than the requested tariff, they declare victory—even though they could have presented a much better and more effective fair dealing argument to the board, doubly so following the CCH ruling.

The K-12 public schools were the first to fall and be forced to retroactively accept a higher rate, the burden of which ultimately falls on taxpayers and students. Then, in 2010, Access Copyright moved against the universities, filing for a $45 per-student tariff after the old deal ($3.38/student plus ten cents per page for course packs) expired. Not only that, but by the end of the year they had managed to get the Copyright Board to approve an interim tariff to impose on the universities before reaching a final agreement or determination. A bunch of schools opted out, and started trying to clear their own rights without going through Access Copyright. At this point, the Association of Universities and Colleges of Canada was in the perfect position to go to the board and assert their fair dealing rights. Not only would they have the backing of the CCH ruling and its generous “research” provisions, they could point to Canada’s soon-to-be-passed copyright reform bill, which as currently written will specifically add “education” to the definition of fair dealing.

For some reason, apart from a few minor objections as the board continued to make procedural rulings against them, they haven’t fought back very hard, or at least not very effectively—and the process has been dragging on and on. They entered into preliminary negotiations with Access Copyright at the beginning of this year, but then suddenly something completely unexpected happened: at the end of January, the University of Toronto and Western University announced that they had cut their own deal with the collection society at $27.50 per student. Again, they declared victory because it was lower than the proposed $45—a laughable figure that the Copyright Board never would have granted. The capitulation of two major universities took the already-meager wind out of the AUCC’s sails, and now they’ve negotiated an ever-so-slightly better (but still, in the big picture, very bad) rate for universities and colleges across Canada.

In addition to the rates that went up when they should have gone down, there are plenty of other problems with both deals. Howard Knopf, a Canadian copyright lawyer, points out that Access Copyright is charging for ridiculous rights that don’t even exist, such as hyperlinking and displaying documents on a screen. University of Toronto law professor Ariel Katz, another outspoken critic of the deal, highlights several onerous provisions that will seriously interfere with the ability of professors to do their job:

Or consider s. 4(c): “Copies of Repertoire Works shall not be stored or indexed with the intention of creating a library of Published Works, except as permitted by this agreement as part of a Course Collection.” I don’t know when was the last time the people who negotiated these license agreements conducted academic research, but I’m happy to break the news that since the photocopier appeared on campus (and perhaps earlier than that) copying works (such as journal articles), and storing them “with the intention of creating a library” has been integral to the researcher’s life. Some of us annotate these copies, occasionally at least, and those who are better organized employ various methods for cataloging and indexing their collections. Believe it or not, some academics keep not only collections of photocopies but also collections of materials in electronic format called “pdf”. Yes, we sometimes do weird things up there in the ivory tower. Moreover–and I hope you’re ready for the shocking news–it has even been brought to my attention that some Canadian researchers use programs like Zotero, RefWorks, EndNotes, among others, in order to index those files for easy search, retrieval, and other seditious purposes. The agreements seem to prohibit that. Is this the best possible outcome? Really?

Or what would you say about the following gems, such as s. 5(a): “Digital Copies of Repertoire Works shall not be transmitted to, posted or uploaded to, or stored on any computer network other than a Secure Network”, and 5(b:) “Digital Copies of Repertoire Works stored on Secure Networks shall be made available and accessible only to Authorized Persons segregated by individual Course of Study”?

These prohibition seem benign enough until your read the definitions. A Secure Network is defined as: “a network that is operated by the Licensee [i.e., the licensed university, not the Authorized Person, AK], or for and subject to the control of the Licensee (such as a network hosted by a third party and/or accessible through a web interface) and which is only accessible by an Authorized Person who is approved by the Licensee by means of a process of authentication which, at the time of login, identifies the user as an Authorized Person, whether by user name and password or by some other equally secure method.”

Knopf believes many schools are going to be completely blindsided by the details of the agreement—but they may not have the time or resources to do anything about it. The AUCC is letting Access Copyright pressure the universities and colleges to agree now with what it brazenly dubs a “limited time offer”.

Believe it or not, there’s a “Limited Time Offer of Discounted Pricing on Retroactive Payments” (which Prof. Ariel Katz suggests is “an offer than can’t be refused”), that demands virtually immediate agreement in order to mitigate losses. According to AUCC President Davidson:

Access Copyright has agreed that the best retroactivity discounts available to universities will be available those that indicate in writing to Access before May 1, 2012 that they expects to sign the licence, and then actually sign before June 30, 2102 [sic]. While you need to indicate your intent to sign the licence by May 1, you may still reconsider your options after that date, and you could choose to delay signing (in which case the discount will be lower), or not sign at all. (highlight added)

However, among other things, it’s not at all clear: how this “”Limited Time Offer” will work; and, why it is so limited in time and so urgent?

Nor is it clear what AC means when it says that those who “advise Access Copyright in writing of their intention to sign the Model License by no later than May 1, 2012, and sign by no later than June 30, 2012, pay no retroactive payments.” What does “intention to sign” mean? What happens if the university changes its mind?

May 1st is seriously really soon. It is only a week away. What exactly is the emergency?

The emergency, of course, is that if Canadian universities wake up to what’s happening and have time to actually look at this deal, they might realize how bad it is for everyone other than Access Copyright. Nobody is entirely sure just how and why the AUCC, University of Toronto and Western have failed to put up a meaningful fight. Though time is short, critics like Knopf believe there may still be a chance for a hail-mary pass to stop this deal in its tracks. Some may think this is quibbling over a meaningless figure—a few bucks per student—but that misses the big picture. 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). It also adds fuel to the copyright industry’s ongoing campaign to minimize and ultimately reverse the effects of the CCH ruling, and to scale back all the good parts of the copyright reform bill—two things that must not be allowed to happen. Canada’s copyright laws are far from perfect, but they have been moving in very progressive directions lately, with a strong emphasis on user rights—and Canadian universities should be harnessing that momentum, not working against it.

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