Access Copyright is the Canadian equivalent of the U.S Copyright Clearance Center. Like the CCC, which is helping to finance litigation against Georgia State University designed to force US universities to pay more and higher licensing fees for course materials, Access Copyright is also on a quest for ever greater income.
I and others have predicted for some time that a victory in this copyright infringement lawsuit would result in fewer educational options for our students, not more money flowing from university budgets into the coffers of the CCC. Now we have a Canadian parallel that seems to confirm those fears.
The situation for reserve materials in Canadian universities is already far worse than it is in the US. A Canadian judge has ruled that putting required course materials on physical reserve in a library abets copyright infringement (when students make personal copies, presumably). Based on this insane ruling, Canadian schools have been paying $3.38 per student per year for physical reserves, along with .10 per page for course packs, to Access Copyright. Now Access Copyright wants to change the fee structure and simply collect $45 per student per year for both physical reserves and course packs.
The upshot of this change, of course, would be a huge cost increase for universities and much higher revenues for Access Copyright. And just as predicted, universities have started to opt for reduced student access in order to avoid a drastic drain on their budgets. The University of Alberta has announced that it will no longer purchased the vastly more expensive license from Access Copyright and will, instead, simply stop providing reserve readings and course packs for students. Students who cannot afford to purchase all the required readings will, it seems, be out of luck.
Who are the winners in this situation, I wonder? Certainly not the students, who will have less access to course materials and higher costs for their education. The university is obviously a loser too, since its basic mission is impeded. And while Access Copyright will get richer, it is not at all clear that authors will benefit from the increased fees either. Most academic authors – who are usually the ones who write textbooks – do not depend on that small additional income they receive from licensing fees after the large cut is taken by the rights organization. In any case, often the author never sees any of that money; I have documented several times the situations in which the CCC collects fees for works whose authors it cannot identify. Those are cases where no incentive at all is created, only income for a bloated bureaucracy that feeds on fees that seem to have no rational justification.
When we compare the Canadian situation to the US it is clear that, in spite of some major differences in the law, we may be looking at our own future. Physical reserves are not the problem in the US, since they are clearly covered by our first sale doctrine. But fees for course packs and electronic reserves are climbing all the time, to unsustainable levels. The Canadian system at least has the advantage of a predictable fee structure. As US librarians know, we have no such predictability in our licensing budgets; the fees are inconsistent and capricious. If we are to avoid a similar situation, in which professors are forced to adopt a more cramped and costly pedagogy, we need our courts to recognize that the current system is leading to a system that serves no public interest at all and is injurious to the educational system we have long been so proud of.
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Extended Collective Licensing schemes are back on the agenda again in the UK, having been knocked out of the Digital Economy Bill last Easter. Your story is a fine example of how such schemes and the collecting societies who benefit from them tend to work to the advantage of bureaucrats rather than creators, scholars or the general public.
Stop43, the photographers’ movement that led the fight against commercial orphan works and ECL provisions in the Digital Economy Bill, went on to develop a proposal we call the National Cultural Archive to make all creative IP, orphan and non-orphan, freely and publicly available for cultural use. Our proposal can be viewed at http://www.stop43.org.uk. Please read it and give us your feedback.
Kevin – do you happen to know what case name is wherein a judge ruled that textbooks couldn’t be kept on reserve shelves (I know there was a ruling made with respect to copying textbooks in the K-12 environment — but am curious about the reference to a “judge’s decision). It will be very interesting to see where this proposed tariff goes…
As far as I can tell, the linked article is interpreting the case of CCH Canadian, Ltd. V. Law Society of Upper Canada, a 2004 decision by the Supreme Court of Canada.
Ahhh – I wondered if it was that one but thought it must be something more recent. Thanks for your response!
My understanding is that the linked article refers to the Copyright Board decision from 2009 in which it held that when a teacher makes multiple copies for his students for the purpose of teaching it is not fair dealing for the purpose of “research or private study”. There’s a big fight right now in Parliament about whether or not to add “education” into the fair dealing provision. Unlike in the US, in Canada fair dealing must be for one of the enumerated purposes in the Act; it’s not enough that it is fair.