Tuesday, January 31, 2012

U. of T. and Western Capitulate to Access Copyright

In an astonishing development that has caught all but a handful by surprise, U. of T. and Western have signed copyright deals with Access Copyright that appear to be an early and complete capitulation to an important battle over the costs and parameters of access to knowledge in Canadian post-secondary institutions.

See here and here.

In a nutshell:
  • The cost will be $27.50 a year per full time student.
  • The agreements include an indemnity and digital rights.
  • The agreements will be until the end of 2013 and will renew automatically for one-year terms during which any party can cancel or renegotiate the agreement based on six months notice. A UWO official says “The new royalty is substantially below the amount initially sought by Access Copyright in its Tariff application before the Copyright Board.”
A few preliminary comments:
  • This is an 800% increase over the current basic amount of $3.38 per student. Although this eliminates the current $0.10 a page cost for course packs, such course packs are increasingly irrelevant as more and more material is available legally online at no cost or through licenses that the university has already bought and paid for. Many students don’t need or use “course packs” anymore.
  •                 It is unclear how this new deal will affect existing arrangements at U. of T., for example, where many course packs have long been printed off campus by third parties, who have been separately licensed by Access Copyright on the basis of a $0.10 a page “royalty”. Since this is to be an “all you can eat” rate, how and by whom is the course printing going to be handled and how will the costs be allocated? Will students who don’t need course packs have to subsidize those who do?
  •  As Access Copyright itself admits, the $45.00 figure was only a “suggested” figure. It may as well have been – and probably was – pulled out of thin air. The comparable rate in the USA – for the relatively few universities (usually the smaller ones) that feel any necessity to pay it – is about $3.75 per head.
  • Those familiar with the way the Copyright Board usually works might reasonably expect the final tariff to be less than half of the $45 “suggested” rate. Where there are two somewhat rationale rate proposals, the Board usually finds a position somewhere near the middle. Even the K-12 decision, which CMEC appealed, essentially split the difference between the two parties’ positions. $27.50 is a VERY, VERY GOOD DEAL for Access Copyright. In fact, it is about 50% MORE than Access Copyright now gets per university student on average overall in Canada – and this is almost 8 years AFTER CCH. For any number of reasons, including the proliferation of already paid for or cost free legal digital alternatives and reliance on the empowering fair dealing provisions of CCH, one would have expected the payments to Access Copyright to significantly decrease, not to increase.
  • In the present case, the $45 “suggested” figure was pure conjecture even on the part of Access Copyright. Cutting this back by less than 30% is unlikely to be widely seen as a victory.
  • The deal supposedly includes an indemnity and digital rights. There is plenty of reason to question whether Access Copyright has any chain of title to any significant amount of the repertoire required by Canadian universities, much less in the digital rights to such repertoire. Therefore, whether Access Copyright has the right to grant these digital licenses and offer any indemnity and whether the universities should rely on such provisions are good questions.
  • Both of these institutions will almost certainly pass this $27.50 cost entirely on to their students and wash their hands of this issue. Once again, this is more than 8 times the current basic rate under the already controversial interim tariff that most universities have walked away from. Should two leading universities negotiate with their students’ money in a way that will affect the entire post-secondary sector in Canada both quantitatively and qualitatively for years to come?
  • U. of T. has prepared a document for its student body rationalizing its decision, which is available here. The document contains too many questionable assumptions and assertions to discuss here. However, the most surprising aspect is that the settlement is apparently being rationalized by the rates being paid in Quebec.  Suffice it for the moment to say that this is quite possibly the least logical and appropriate rate precedent or proxy that could possibly have been chosen. The document also refers several times to the fear of possible retroactivity of any ultimate Board tariff. This fear is arguably overstated. 
Some preliminary questions:
  • Why would two such prestigious and financially able institutions not stand up to fight against a proposed tariff that is so problematic and expensive?
  •  Why did they not wait to hear what the Supreme Court of Canada had to say about fair dealing?
  • Why not wait for Bill C11, which Access Copyright proclaims will enhance the educators’ position with the explicit  inclusion of "education" in "fair dealing"?
  • What are the all-important terms and conditions that have been agreed to? For example, did the universities acknowledge that absurd provision purporting to entitle payment to Access Copyright for mere linking? Or the outrageous and privacy invasive demand to monitor professors’ email accounts? Or the completely arbitrary quantitative limits in the proposed tariff?
  • What effect will this have on the future of current post-secondary case at the Copyright Board? 
  • Will that case proceed and set a tariff that will be effectively “mandatory”? Were the other universities – which had reportedly budgeted two million dollars for this fight and then mostly “opted out” of any dealing with Access Copyright – aware of this development and, if not, how will they react? How can the publicly “agreed” upon and arguably much too high high rate of $27.50 NOT affect the outcome at the Copyright Board for everyone else?
  • Was the AUCC – which was coordinating the universities’ fight at the Copyright Board – involved with or even aware of  this development?
  • Of immediate concern, when will these agreements be made public? These agreements surely should be made public because tens of thousands of professors and students are now bound by them, whether or not they wish to be.  And tens of millions of taxpayers’ dollars per year are now at stake if these agreements become the new normal in Canada. 

PS - Here is a a copy of the executed U. of T. license. It is not in searchable format. At the time of posting, I haven't had a chance to read it yet.

PS - Sam Trosow offers some possible answers to the above questions here.

Wednesday, January 25, 2012

Seeing Red - Can Copyright Protect the Idea of a Red Bus on a Black & White Background of the Houses of Parliament?

Does the lower image constitute copyright infringement of the upper one? The highly respected Judge Birss of the Patents County Court in the UK has ruled  in Temple Island v. New England High Teas that it does. The images – which are both collages - are clearly not identical. However, there is clearly some similarity in look and feel. The ruling seems to challenge the conventional wisdom in  many circles that taking a picture of a public place taken from the same perspective and under similar conditions to an earlier picture is not an infringement. The idea of a red object or figure on an otherwise black and white background is hardly new. In fact, the Plaintiff  got the idea from the famous film Schindler's List.  The ruling is controversial and has been discussed by in some detail by my favourite feline IP bloggers at the 1709 Blog and the IPKat blog.

Americans will not be particularly astonished by this ruling, given that the US 2nd Circuit ruled in 1992 that Jeff Koons sculpture at the bottom infringed Mr. Rogers photo above it. See Rogers v. Koons.

For more on Jeff Koons' various copyright cases, see here - from whence the above images come.

The Koons decision is a major and controversial  milestone in the American law of fair use. The UK decision - which is not binding on higher courts - does not mention fair dealing.