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Access Copyright's Executive Director on Recent Dispute with Canadian Universities and Colleges

University and college campuses across Canada are caught up in a frustrating dispute with Access Copyright. The quarrel is causing needless anxiety for faculty, and threatens the quality of educational resources available to students.

As you know Access Copyright provides access to copyright-protected publications from around the world under comprehensive licences that take away the headache of getting permission from rights holders one by one.

Over this past summer, about 25 post-secondary administrations took the unfortunate step of walking away from the licences that worked so well for decades. In place of clear procedures for worry-free copying, students and faculty now face a jungle of prohibitions and guidelines that leaves them scratching their heads, unsure if the copying they need to do will expose them to legal liability for infringement, or if they should just forget about using that material altogether.

Three unfounded objections appear to have driven post-secondary administrators to act as they have. The first, and most dubious, is that their institutions no longer need access to the millions of published titles in the Access Copyright repertoire, because alternative access to digital content is readily available.

This is really surprising. In 2010, over 100 million pages from close to 120,000 unique titles were copied into paper coursepacks alone. This number does not include many more millions of copies made and distributed through other means, including digital. Where has all this copying gone? Did it suddenly disappear, or has it gone underground?

University administrators have told faculty to clear the rights to content themselves on a case-by-case basis, or else restrict usage to digital content already under licence in their libraries. That might sound reasonable, but universities have no way of knowing if it will work. More likely, content will continue to be copied whether authorized or not. Some administrators have warned faculty that they will be the ones to face legal liability if caught using materials that have not been licensed or cleared.

The fact is, universities have little basis for saying what materials they need licences to copy and whether they no longer need ours, because they refused to work with us to determine that very issue.

The second objection is that reporting what is copied intrudes on academic freedom. This is spurious: reporting is not new. It is the means by which Access Copyright ensures that the right creators and publishers are compensated for what is used. One wonders if academic freedom is really a red herring to get faculty on side.

It's unfortunate that professors have been dragged into this. Not only are their employers saddling them with the responsibility to clear rights that administrators once managed on their behalf, they are making them carry the risk of getting it wrong.

Finally, the universities that opted out of the Access Copyright licence object that it has become too costly. This too is misleading. Previously, students had to pay anything from $3.38 to over $200 per year in royalties. This included a flat fee plus $0.10 cents per page when protected works were included in coursepacks. That easily adds up. We have offered instead to blend the flat fee and the per page fee into one. Students would no longer pay the per page fee each time they buy a coursepack. The proposed tariff also includes digital scanning and posting, a growing practice not currently paid for.

While we suggested an upper limit of $45 per student, the actual rate will be decided by the Copyright Board, an independent arbitrator that will make its own value assessment based on facts presented by us and the educational institutions themselves. Pending that, no institution is facing a sudden cost spike.  It is disingenuous to suggest otherwise.

At institutions that have walked-away, infringement on a mass scale now seems inevitable.  People will simply go on using what they need. The pay-per-use option advocated by some as fairer is simply not practical, given the enormity of copying and titles involved. It would also be much more expensive, assuming it could ever be effectively implemented and policed by educational institutions.

We do not accuse anyone of piracy or stealing. But we do know this: in the years before collective licensing, illegal copying was rampant. Collective licences significantly reduced piracy, and created a manageable framework for compensated access to copyrighted works.

A disorderly marketplace for the works of leading researchers, writers and thinkers is in nobody's interest. A mutually supportive partnership between creators and publishers and Canada's institutions of higher learning is. My door is open: let's talk.

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