Access Copyright prevails in "fair dealing" suit against York University

Though it is but one step in what may still be extended litigation, it was heartening to see that after a long struggle, Access Copyright, the Canadian copyright licensing agency, won a suit against York University over copyright infringement. 

It is a test case against York, but could well apply to other universities who took a button in the new Copyright Act and sewed a suit on it, essentially turning "fair dealing" provisions into a wholesale grab for the work of artists and other creators. 

Universities have in recent years opted out of agreements with Access which required fees to be paid for copying digital and hard copies for students, according to a tariff published by Access Copyright. Universities have interpreted the regulations so broadly that writers and publishers had virtually no rights at all to control the use of their work that was deemed for "educational" purposes. 

The guidelines adopted by various universities, including York, said that up to 10% of a given work could be copied, but it effectively meant much more. The result has been that Access, which previously has passed on a modest share of fees to creators, wasn't able to pay but a pittance. Justice Michael L. Phelan  of the Federal court said in delivering judgement,

““The fact that the guidelines could allow for copying of up to 100 per cent of the work of a particular author, so long as the copying was divided up between courses, indicates that the guidelines are arbitrary and are not soundly based in principle.”

“York has not satisfied the fairness aspect of the quantitative amount of the dealing. There is no explanation why 10 per cent or a single article or any other limitation is fair.

"It is evident that York created the guidelines and operated under them primarily to obtain for free that which they had previously paid for.” 

Here is a summary of the judgement.

The full judgement can be obtained from the web site of the Federal Court.  

U of T and Western back out of paying royalties to writers and publishers for copying

Two of Canada's leading universities -- University of Toronto and Western -- are walking away from a 20-year relationship with Access Copyright, the copyright licensing agency. And the Professional Writers Association of Canada is livid about it. As is The Writers' Union of Canada. Essentially, the decision means that the two schools will no longer pay a collective royalty fee to creators through an Access license; in fact it may mean they will pay nothing. 

The two schools had settled with AC in January 2012 and signed a licensing agreement, which was thought to provide a model for other schools to follow. Apparently minds have changed.   

“They seem to have been persuaded by the most fanatical ideologues in their midst that the recent reform of copyright law in Canada gives them free rein to copy at will without any regard for the realities of the marketplace”, said PWAC president Michelle Greysen. “Unfortunately this devaluation of creativity will lead to the general impoverishment of Canada’s knowledge base. As frontline knowledge workers, Canadian writers cannot accept this direction. We are looking at legal options up to and including mounting a class action suit against the universities for infringing upon our economic rights.”

A PWAC press release elaborates

We realize that digital technology has changed in education. But the fact that it is easier to reproduce text and images because they have been reduced to ones and zeros does not mean that the process of creation — the sweat and inspiration and hard critical analysis that goes into professional writing — can be reduced to zero in terms of compensation for the widespread use of a given piece of writing, be it a textbook, a poem or a piece of investigative journalism. Universities don’t provide any other services without paying for them — why should content be free?

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Supreme Court copyright decision does not unleash a "free for all", says Access Copyright

Access Copyright, the Canadian copyright licensing agency, says while it is concerned about yesterday's Supreme Court decision about photocopying in elementary and secondary schools, the decision leaves blanket licensing of hard copy and digital materials in schools intact.

"The fact is the Supreme Court was only looking at about seven percent of the copying done in schools,” Maureen Cavan, Executive Director, Access Copyright, said in a statement emailed to media and posted on its website. "The decision absolutely does not mean a free-for-all on copyright-protected materials used in the classroom. On the contrary, it leaves copyright licensing in the education sector alive and well."

The Supreme Court decision did not pass judgement on whether the copying was "fair" under the terms of the Copyright Act, leaving that determination to the Copyright Board. By referring the case back to the board, the court left it to decide whether the ruling changes the terms of the tariff it granted to Access. 

Universities and Access Copyright sign agreement governing use of printed and digital content

After years of acrimony and long negotiation, Access Copyright has signed a model license with the Association of Universities and Colleges of Canada (AUCC). It means Canadian universities can now reproduce copyright protected materials in both print and digital formats while fairly compensating publishers and creators for the works they are using. Previously, Access licenses had largely been related to photocopied and scanned material, but things had changed dramatically with the growth of digitization.

The agreement, which will be in place December 31 and will renew automatically for one-year terms, provides that over the next six months, a survey methodology will be designed to assess the type and volume of usage so that Access can distribute royalties fairly. According to a joint press release

The model licence will see universities pay Access Copyright a royalty of $26.00 per full-time equivalent student annually.  This royalty includes what used to be a separate 10 cents per page royalty for coursepack copying, so there will no longer be a separate royalty for such copying.  

Paul Davison, president of the AUCC said

“We believe that this negotiated agreement provides the best possible outcome for universities, their students and faculty. It provides long-term certainty on price, and access to a new range of digital materials. Most importantly, the agreement respects the principles of academic freedom and privacy that are important to universities, and ensures that the administrative burden on institutions is minimized.”

Maureen Cavan, the executive director of Access Copyright said

“The licence provides easy, legal access to copyright protected works for students, professors and staff, in a simple, fast and cost efficient manner.”

Access Copyright is a not-for-profit collective licensing organization that collects royalties for copying and use of intellectual property and disburses it to publishers and creators, both in Canada and on behalf of foreign rights holders. 
Access  had been in a frustrating and drawn-out dispute with universities and colleges over its wish to have an omnibus agreement covering both copying and digital use. Access was asking the Canadian Copyright Board to impose a tariff -- as much as $45 a student -- a blended fee that would replace a hodge-podge of flat fee and per-page royalties which had grown up over the years, ranging from $3.38 to over $200 per student. 
Universities were essentially arguing that the collective licensing was redundant and that there should be a pay-per-use model,  one in which schools or individual faculty members would be responsible for clearing rights themselves, something which Access said impossible to manage and a virtual invitation for wholesale copyright infringement. 

Western and U of T settle with Access Copyright on annual fee covering print and digital copyright

Two of Canada's A-list universities -- Western and University of Toronto -- have settled with Access Copyright on a licensing agreement to reproduce copyright-protected material in both digital and print format. The deal is that each will pay Access Copyright $27.50 per full-time student annually to cover reproduction of copyright material for student use. The fee is less than Access is seeking in tariff negotiations at the Canadian Copyright Board, but does cover digital use and does put an end -- at least for these two leading schools -- to a contentious dispute over fair compensation for creators of written and visual material used by students.

“We welcome this opportunity to work in partnership with Western and U of T” said Maureen Cavan, executive director of Access Copyright. “The education and publishing industries depend on one another. An agreement that provides for usage of content, fair compensation to those that provide the content, with rules that favour sustainability, is in the interest of all players” said Ms. Cavan.

 The agreement is back-dated to cover digital uses not covered by previous agreements and will be used until 2013, with an automatic annual renewal. A method is being explored to assess and sample the actual amount of copying  being done of copyrighted materials to assist in setting the royalty in following years.

“This agreement gives us a convenient, comprehensive way to share content digitally and in paper form from a repertoire of millions of publications,” said Janice Deakin, provost and vice‐president (academic) at Western. “The backdating of the agreement gives us peace of mind by covering past digital uses that may have exposed the university and the indemnity provision increases the university’s legal protection against copyright  infringement.”

Last fall, the Copyright Board rejected attempts by Canadian universities and colleges to force transactional, pay-per-use licenses rather than comprehensive licenses that had gone before. At issue, among other things, was the use of digital copying, never contemplated or covered by previous tariffs. And Access argued that the pay-per-use model (without any means to monitor or track it) was an invitation for copyright violation. Higher education and Access have been working under (and arguing over) the terms of an interim tariff, pending the conclusion of a drawn-out Copyright Board process to settle on a permanent tariff. The interim tariff gives permission for day-to-day copying by instructors, students and administrators; production of paper coursepacks; and the option to make digital copies. Access's principal role is to collect the fees and distribute them to the creators.

Writers' Union video pushes back against proposed copyright changes

The Writers' Union of Canada (TWUC) with the assistance of ACCESS Copyright (of which TWUC is a member) is distributing a video featuring five prominent Canadian writers talking about the perils of bill C-32, which is intended to amend the Copyright Act. Specifically, TWUC and others are alarmed that educational institutions, including colleges and universities, will be exempted from having to pay license fees for the copying of published works. A press release is also being widely distributed and TWUC says it is hoping to see the video go viral.

The video features five prominent authors [says an e-mail sent out to ACCESS Copyright board members], including two-time Governor General’s Award winner Nino Ricci, and builds awareness on how Bill C-32 and the education exceptions will hurt Canadian writers' ability to make a living.

“Without strong copyright protections, professional writing in this country will be irreparably harmed,” says novelist Alan Cumyn and author of the video. “Thousands of authors and artists across the country have been writing their MPs, protesting parts of this bill. This video puts faces and voices to our concerns.”

Also featuring in the video are Canadian writers Erna Paris, Sandra Campbell and Susan Swan.

 

Access Copyright announced $300,000 in new funding for research and professional development

Access Copyright Foundation has announced $300,000 in new funding in 2011, directed to the creation and dissemination of publishable Canadian works. It's the second year for the grants, which are being administered nationwide in partnership with the Saskatchewan Arts Board, but it holds out major opportunities in two new categories for Canadian magazine writers, in research and professional development.

The funding for the grants comes from a one-time $3 million from royalties accumulated by Access Copyright from copyright licenses it administers to cover the copying of Canadian books and magazines. This will be topped up annually by 1.5% of the annual copyright licensing revenues. A release says

Each year, the Access Copyright Foundation will award grants to Canada's writers, visual artists and publishers to support professional development opportunities, research projects and events. All three activities are vital to ensuring that Canadians will continue to create new cultural works that will be enjoyed by their fellow citizens, and those around the world.

"Canada's writers, visual artists and publishers are cornerstones of this nation's cultural identity. They work hard telling Canada's stories, both nationally and internationally. The Access Copyright Foundation is committed to supporting this essential work through these new grant programs," said ACF Founding Chairperson, Michael OReilly, a Thunder Bay-based writer and communications consultant.

Last year, 11 grants were made for events  (to organizations seeking to support creativity through deepening appreciation of Canadian culture). This year two new categories are being added: for professional development (e.g. attending events that will develop or refine their craft); and for research (to cover expenses for magazine articles, books or exhibitions). Eligible for the research category are creators (up to $7,500) and organizations and publishers (up to $10,000).Applications are available at the ACF website and submissions are due by February 1.