It has been over two months since the AUCC and Access Copyright agreed to a new, $26 per-FTE fee to cover access to copyrighted printed and digital materials, replacing a previous $3.38 per-FTE fee plus a $0.10 per-page fee paid to Access Copyright by most universities previously. At the time, we expressed our frustration with this agreement, pointing out that universities and Access Copyright had essentially agreed to let students pay for copyright protections that may not have been necessary.
Many developments have occurred since the AUCC/AC agreement was signed, some positive and some negative. It is worth touching on a several of the negative ones, since they have troubling implications for students and universities. However, it is also worth highlighting where universities have been able to make the most of this bad situation. Several recent responses by universities and student associations have set an excellent precedent for others embroiled with this issue and should set an example for the rest of the province.
How Ontario Universities have handled the Agreement
While many universities have agreed to sign the model license agreement acquiescing to Access Copyrights proposed model until 2015, some universities who withdrew from Access Copyright previously have indicated that they will remain outside the agreement. In particular, York University, which had previously opted out of the Access Copyright interim tariff, has remained steadfast it it’s decision to remain outside of Access Copyright’s agreement. Citing the evolving landscape of copyright law and technologies for teaching, York’s written decision points out that entering into a rigidly modeled, multi-year agreement in such a landscape would be unwise. Instead, the library at York will be expanding the reach of its independent agreements with publishers and vendors of copyrighted works. As York, and several other institutions, have noted, the definition of copying covered by the model license is broader than permitted under Canadian copyright law. In light of similar concerns, the University of Waterloo has made a similar decision to remain outside the agreement, and several other institutions are also carefully considering their options.
Canada’s new copyright bill, Bill C-11, was passed by the House of Commons on Tuesday, and is currently being considered by the Senate. The new copyright bill has an expanded clause on fair dealing, or copy uses not subject to copyright fees, for educational institutions. The modernized copyright bill exempts anything projected for instruction, reproduced for an exam, included as part of a performance, or works shared over the Internet with students, from copyright law. Access Copyrights excessive tariff, however, interprets all of these exempt uses as copies in the new model tariff agreement.
While students are disappointed that many universities have not yet recognized that that the AUCC/Access Copyright agreement overreaches the limitations of Canadian copyright law, OUSA has received indications that some of the universities that have signed on will be looking to remove themselves from the Access Copyright relationship in the long term.
How Student Associations have handled the Agreement
Students, including OUSA member associations, have met the Access Copyright agreement with overwhelming criticism. In addition to the aforementioned legal concerns, this is primarily due to the fact that the new fee can be passed onto students without any real consultation. While Ontario’s compulsory ancillary fee regulations protect students from a variety of fee increases, they permit universities to levy fees negotiated on a system-wide basis (such as Access Copyright) to be passed to students without formal approval.
In this case, students’ associations have been working hard to ensure that their memberships are educated and aware of the new fee and what it covers. Where possible, they have also expressed their disagreement that the fee is necessary to cover copyright liability. The McMaster Students Union at McMaster University, the Federation of Students at the University of Waterloo, the Alma Mater Society at Queen’s University have all released statements questioning the agreement’s applicability and necessity, as well as the decision to pass on 100 per cent of the fee increase to students.
Steps for the Future
Among OUSA’s many concerns about the new Access Copyright fee is that it pays for copying done by faculty and administration, including that used for research purposes, conference presentations, and other endeavors. While it is safe to say that the majority of the copying at a university takes place for instructional purposes, students do not believe it is entirely reasonable to expect the full cost of an agreement to be borne by only some of the beneficiaries. Moreover, given the lack of proper data on the level of copying carried out by students, faculty and the type of copying, it is hard to know how much of this actually requires Access Copyright’s model tariff or if the vast majority is covered by fair dealing, open-source publishing, and individual agreements with publishers.
OUSA has received indications that some institutions are considering acknowledging this dilemma and sharing the cost of the new fee with students. Queen’s, which had previously subsidized the $3.38 per-student fee, will continue subsidizing this portion of the fee. Students are encouraged that some of our institutions have recognized the need for institutions to contribute to the (marginal) benefit that students will receive from the new agreement. OUSA greatly hopes that other institutions unwilling to opt out of the agreement will adopt similar cost sharing models.
The new fee imposed by the Access Copyright model tariff agreement is unnecessary for our post-secondary system to pay. At a time when student and institutional budgets are already facing such a great degree of constraint, it is perplexing that so many in Ontario’s university system have been unwilling to question the necessity of this new fee. At a minimum, it would be judicious to wait until the Bill C-11 is passed, and ensure that provisions within a new Access Copyright tariff are necessary under Canadian law. In the words of Ottawa lawyer and blogger Howard Knopf, “Intellectual property law is good. Excess in intellectual property law is not”. And from our perspective, excess in intellectual property law is particularly concerning when it comes at the expense of those least able to afford to pay: students.
Director of Research, Ontario Undergraduate Student Alliance