Wednesday, December 11, 2013

Access Copyright's Press Release re: "Canada's Writers and Publishers Disappointed by U of T and Western's Non-Renewal of Licence"

I shall quote in its entirety Access Copyright's Press Release from just over an hour ago, with some highlighting:

December 11, 2013 13:29 ET
Canada's Writers and Publishers Disappointed by U of T and Western's Non-Renewal of Licence

TORONTO, ONTARIO--(Marketwired - Dec. 11, 2013) - Thousands of Canadian creators and publishers learned today that despite efforts to negotiate new and reasonable rates, the University of Toronto and Western University will not renew their current licences with Access Copyright.

"We are extremely disappointed," said Roanie Levy, Executive Director of Access Copyright. "Access Copyright's licence has enabled faculty to create efficient resource packages in both paper and digital form that are tailored to both their needs and those of their students. Millions of pages are shared in this way every year. Roughly 80% of the content copied comes from books. It is unlikely that access to these titles is licensed by the university through library or institutional subscriptions."

Instead of paying royalties to creators and publishers it is expected that these institutions will now rely on fair dealing guidelines, which are untested by law and closely replicate the scope of coverage in the Access Copyright licence. These policies represent a self-interested interpretation of what some in the education sector would like the law to be. Clearly fair dealing requires clarification. Renewing licences is difficult without fair dealing guidelines that work for everybody - educators, students, creators and publishers.

A comprehensive licence from Access Copyright provides pre-authorized permission, freeing faculty to systematically select and share resources without concern for copyright infringement, while ensuring appropriate rewards for the creators and publishers whose works are used.

Despite the enormous volume of usage of content in the Access Copyright repertoire, today's news means that, as of January 1, 2014, University of Toronto and Western University will end more than 20 years of cooperation with Canada's writing and publishing community.

For faculty who are accustomed to operating under Access Copyright licences, the termination will be accompanied by disruption and uncertainty. Faculty may be asked to change the way they share materials, or to assume greater personal responsibility for copyright, or to select different types of materials.

"Nobody wins in this scenario," said Levy. "That's why Access Copyright will continue its work in pursuit of a sustainable interpretation of fair dealing that benefits all those who read, write, teach and learn. Copyright should work for everyone."

There is much at stake for the future of Canada's classrooms. Access Copyright believes in a strong and vibrant culture of writing, publishing, reading, teaching and learning in Canada and is exploring new ways to meet the needs of educators and students in this new digital learning environment.

Access Copyright is a collective voice of creators and publishers in Canada. A non-profit, national organization, we represent tens of thousands of Canadian creators and publishers, and their copyright-protected work. Through agreements with sister organizations around the world we also represent the works of hundreds of thousands of foreign creators and publishers.
·     For media inquiries please contact:
Robert Gilbert
416.868.1620 x283 or
Some quick and personal comments that, as always, don’t necessarily reflect the views of any of my clients:

·        Re: ”It is unlikely that access to these titles is licensed by the university through library or institutional subscriptions”. 

In my view, it’s also essential to ask whether AC has an adequately documented and legally solid chain of title to a sufficiently substantial amount of the repertoire needed by Canadian universities in connection with their teaching and research activities in order to justify AC’s alleged entitlement to collect tens of millions of dollars a year from Canadian universities, backed up with a “mandatory” tariff.
E       Re: “Instead of paying royalties to creators and publishers it is expected that these institutions will now rely on fair dealing guidelines, which are untested by law and closely replicate the scope of coverage in the Access Copyright licence.”  

In my view, after an unprecedented three major and consistent decisions by the Supreme Court of Canada on fair dealing in the short span of eight years, and the inclusion of the word “education” in s. 29  of the Copyright Act as an explicitly allowed fair dealing purpose, it can hardly be said that the law on fair dealing needs more “clarification” at this time. Just because certain parties remain in denial about this, it doesn’t follow that the whole post-secondary sector needs to wait for AC and a certain few others to get up to speed.



  1. Access Copyright (aka The Canadian Copyright Licensing Agency) portrays itself here as a non-profit championing for the little guy. They are in fact a crown corporation that represents primarily publishers, and that places them in a conflict of interest when they argue in promotion of ever-stricter copyright licensing. They are effectively a government-sponsored cartel representing vestigial publishing interests; the government is necessarily and inappropriately sympathetic to their cause when Canadians would rather leave the monopolists they represent safely in the 20th century.

    Access Copyright says they are promoting clarity, but only if it falls in their favor. When it does not, they promote fear, uncertainty, and doubt in order to compel the outcome ("clarity") they desire. ("For faculty who are accustomed to operating under Access Copyright licenses, the termination will be accompanied by disruption and uncertainty." In other words, leaving undermines their relevance and their preferred form of clarity.)

    Their very logo contains the copyright symbol, as though they are have dominion over it, and - as a crown corporation - that could be considered confusing. This confusion has helped them to parle their poorly demonstrated title to far-from-exhaustive repertoire into an authority role. That trust is fading even as they are doubling-down to preserve.

    They are antagonistic towards the very value proposition of digital information and the Internet. They seem to want nothing less than a system of pervasive surveillance-based enforcement and micropayments (perhaps not so micro - they want linking to be the same as copying: full price); and the government seems sympathetic to that, since advancing strict copyright advances surveillance powers generally. If they weren't so sympatico, Access Copyright's license would have been revoked already. Instead, with the government's support, they are helping to turn the Information Super-highway into a highly-monitored toll road. (Notice no one calls it an information super-highway any more... I think we've lost sight of the disruption that everyone who flocked to it, and in turn lifted it up, was hoping for at the time.)

    Unlimited abundance and collaboration is itself a new way of creating, but that is lost on them.

    Instead of coming into the 21st century already, they and others are interested in maintaining creativity silos and publishing cartels under the glorious banner of promoting fair recompense, when the obstacles they place between participants prevents that goal. There is a very real opportunity here to drop these yokes entirely, and I hope the board and the courts can see that. It is not in anyones interest to continue to incentivise artificial scarcity and self-imposed ignorance in the coming years.

    A road without traffic is a tragedy. What Access Copyright is is a tax on publishing in the 21st century.

  2. Whatever can be said about AC, and much can be said, it is not a "crown corporation". That is a very technical term and doesn't apply here.

    Nonetheless, the Federal and some Provincial crowns have been, arguably, unnecessarily deferential and even generous to AC over the years.


    1. Howard is The Canadian Copyright Licensing Agency, a statutory authority? The Australian (rough) equivalent The Copyright Agency Limited (CAL) is a statutory authority and therefore is subject to questioning by Parliamentary estimates and other related committees, is the situation in Canada the same?

  3. Thank you! I was wrong about that. I attempted to clarify that point to myself before posting but must have taken a wrong turn and should have followed my remaining doubts further. The name (The Canadian Copyright Licensing Agency) doesn't help things, which I suppose was part of my point. Perhaps the federal and provincial governments have fallen victim to the same point of confusion.

    Anyways, thanks for the correction and the reporting!