AUCC and Excess Access Copyright

In the past, the Association of Universities and Colleges of Canada (“AUCC”) has usually been less aggressive in its dealings with Access Copyright (“AC”) than many would have liked to see. Things may now be changing.

Publicly available figures indicate that AC apparently receives about $11 million a year from post secondary institutions. AC distributes less because it has substantial administrative expenses of more than 18% of its revenues. By far, most of this comes from coursepacks. But close to $2 million appears to come from per capita FTE payments from colleges and universities. Much or most of this would come from universities - and in turn from the pockets of university students, since virtually all of the course pack costs ($0.10) per page are passed on to students, as are usually the per FTE (full time equivalent) student charges - currently $3.38 per year.

Those concerned with Canada's competitiveness may wish to note that there is no similar mechanism or payment requirement in the USA, to take the most obvious example. Another minus for Canadian competitiveness and a plus for those associated with AC particularly managers lawyers, and consultants.

Fears in the post-secondary world that AC would attempt to parlay its recent victory at Copyright Board in the K-12 (CMEC) case into vastly greater demands on the post-secondary sector are being confirmed.

According to an AUCC memo dated December 1, 2009 that I have obtained, even back in 2003 AC tried to boost these figures to $15 per FTE student per year (the “Part A” license) and $0.276 cents per age (the Part B license) - a whopping 444% and 276% respectively of the current amounts - and that was in 2003!

Since 2003 two important events have occurred:

1. The watershed CCH v. LSUC was rendered by the Supreme Court of Canada on March 4, 2004, which greatly expanded the potential reach of the fair dealing exceptions in Canadian copyright law, and made clear that they are “users’ rights” which must be given a “large and liberal” interpretation and should be looked at in preference where possible to the many specific little exceptions that follow in the legislation.

2. Notwithstanding that decision, and based upon an arguably very inadequate record before it, the Copyright Board issued a decision more than doubling the previously negotiated rate in the K-12 system to $5.16 per FTE, notwithstanding that the rate was negotiated prior to CCH v. LSUC and the decision was issued more than five years later on June 26, 2009. I've blogged about this before. One might have thought that the rate should have gone down after the CCH v. LSUC decision - but that's not what happened. Instead, as indicated, it more than doubled. Moreover, quite apart from problems with the evidentiary record such as those resulting from CMEC’s too late recognition of the significance of the CCH decision, the Board also made several sweeping and arguably incorrect legal pronouncements. An application for judicial review of this Board decision will be heard by the Federal Court of Appeal in the weeks or months ahead. (I should disclose that I have recently filed a motion for leave to intervene in this application on behalf of the Canadian Association of University Teachers.)

Now, it seems that AUCC may be seriously questioning AC. It has sent out the above mentioned memo to Access Copyright License Administrators in the universities outlining the current status of the AC university licensing situation. The memo points out that AC will likely be asking for even more money than in 2003. This is, course, notwithstanding the CCH decision and presumably buoyed by the unfortunate Copyright Board decision from earlier this year. From what I’ve seen, it seems that AC also wants to enforce a sampling regime for the Part A license - which would mean even more copyright bureaucracy in post secondary institutions and fodder for a Copyright Board confrontation. So far, in its one contested case, AC has done extremely well at the Copyright Board.

AC also wants to license digital activity that would normally be fair dealing or otherwise allowed - in which case no license is needed, thank you very much. However, licensing - or attempting or purporting to license - that for which no license is necessary and/or for which AC has no rights has always been a key element of AC’s business plan. AC is also backing away from its controversial “indemnity” scheme which, whatever one can say about it and the very awkward questions it raised, had a certain appeal to some copyright administrators.

The AUCC memo points out the importance of CCH and refers to many new alternatives to dealing with AC. The memo includes a questionnaire that asks some very pertinent and perceptive questions indeed:

Question 1

Are copying practices for teaching and research in your institution evolved significantly away from photocopying and towards the use of digital resources?

Question 2

Is photocopying still an important activity for teaching and research?

Question 3

Could your institution substitute the use of licensed digital works, open access journals, and the Internet for photocopying under the Access Copyright licence?

Question 4

Does your institution still need a Part A and/or Part B licence from Access Copyright?

Question 5

Is it feasible for your institution to operate without a Part A and/or Part B licence? Would your institution be prepared to do so?

Given the great concern in the post-secondary realm about AC’s strategy and next moves following its K-12 victory at the Copyright Board, AUCC’s initiative in, among other things, questioning AC’s relevance and necessity is both an interesting and timely development.

Could it be that the times, they are a'changin at AUCC? And that excessive demands by Access Copyright on the educational sector will begin to meet more effective resistance?

HK