UofT Governing Council Meeting of February 16, 2012 about the AC Deal

The Governing Council of the University of Toronto on February 16, 2012 spent some time dealing with an item that was initially intended to sail through under the radar. However, it got bounced from the “consent” part of the agenda to a fairly extensive discussion at the end of a long meeting.  The Vice President and Provost of the University, Cheryl Misak, attempted to explain and defend the UofT deal with Access Copyright (“AC”). The President, David Naylor, also made some interesting and important remarks. The Chief Librarian, Larry Alford also spoke briefly. They also allowed some frank statements and questions. What follows are some of their statements based on my notes with my comments interspersed in italics, and some conclusions. This does not purport to be a complete picture or even a partial transcript of what transpired.  Unless I use quotes, any words attributed to UofT officials are simply my paraphrase according to my notes. And my quotes may not be perfect because I am not a stenographer.  

UofT is to be commended for having allowed this Governing Council discussion to be live online.  It was sufficiently interesting that it would be useful if it were to be archived.

The Provost:

She emphasized that the UofT was in favour of “open access”.  However, she indicates that UofT is bound by a “statutory body” called Access Copyright. (“AC”)  (This is fundamentally incorrect. AC is not a statutory body. It is nothing more than a self-proclaimed collective with limited repertoire and limited rights. True, it has in place a controversial “interim tariff” imposed by the Copyright Board, which is a statutory body. But three dozen or so universities in Canada ranging from little Acadia to enormous York have legally opted out of it. The fact is that any two or more copyright owners can form a collective.  For example, Barry Sookman and I could do so, and the two of us really in fact and law do have a lot of actual “repertoire”. Indeed, I suggested back in 1999 that Canadian academics should form their own collective, but that idea has thus far fallen on deaf ears at the obvious existing institutions, such as CAUT or AUCC. AC is arguably vulnerable to legal attack on the basis of its lack of repertoire, lack or rights, and questionably legal indemnity scheme, not to mention its comparative inefficiency in terms of administration costs and well known distribution problems. However, for what may be more political than legal reasons, that has not yet happened.)

The Provost stated that AUCC, which is leading the charge at the Board hearing was “getting nowhere” with respect to AC. (Most would agree. Indeed, the AUCC case at the Copyright Board is not going well. It has lost its first reported court confrontation arising from the post-secondary Board case, and had costs awarded against it in a predictable ruling rejecting its attempt to introduce new evidence in the Federal Court of Appeal that had not been presented to the Board. Arguably, AUCC should have sought judicial review of the interim tariff itself at the outset, as I blogged about extensively over a year ago. That might have led to a very much simpler and more favourable landscape than we now see. There were good arguable grounds to overturn that interim tariff. But no attempt was made. Instead, about three dozen universities have opted out it – but into a situation of some avoidable uncertainty.

UofT was only being “occasionally” briefed by AUCC. (I’ve heard from some institutions that they first learned about important developments on this blog)

UofT believed that it could do better on this issue than AUCC. (That is understandable. Interestingly, UofT President David Naylor recently resigned from the Board of AUCC over its controversial statement on academic freedom. It seems that UofT and perhaps other institutions have some serious questions concerning AUCC. It appears that AUCC was completely unaware of the deal with AC until it was announced. So, if UofT didn't like the way that AUCC was handling the Board case, why didn't UofT take the initiative and use its considerable resources, prestige and leadership to start a new coalition that would continue the fight and take a "better" approach?)

There was a need to do “much, much, much better” (Agreed)

There was uncertainty over whether the proposed $45 tariff would include course pack copies. (It definitely did. That much was clear. Allocating costs and arrangements with off campus shops were and remain a messy problem to be resolved, but the proposed tariff was clear enough on this point and AC was quick to point out that course pack copies were included).

The reduction from $45 to $27.50 is a good deal. (Sorry to disagree. Given the CCH v. LSUC decision in 2004 and the fact the University already pays for a lot of what’s copied through direct licenses that allow for such copying, the huge reduction in paper copying, and the lack of repertoire and digital rights held by AC, it’s arguably a very bad deal and arguably much worse than even the Board might have awarded. AC has never made any public attempt to justify its $45 figure, which may as well have been and likely was pulled out of thin air. The real question is not what was saved in terms of the $45 figure, but why the overall amount being paid to AC has not been significantly reduced from the previous average amount per FTE university student paid to AC in 2008 was $18.64).

The cost of $27.50 is a huge saving for “lots of students”. (On balance, no matter whose figures are used, it’s a significant net increase on average. Based upon 2008 AUCC figures, it’s a 50% increase. Some students would have had little in the way of course pack costs).

The new deal includes digital rights. (Arguably, AC simply doesn’t even have any “digital rights” in most of whatever repertoire it does have. Moreover, some of these purported rights – such as for linking and display – are completely specious and do not even exist under the Copyright Act. There is no need to pay for or acknowledge rights that do not exist. Indeed, it is quite harmful to do so. Despite some vague language in the initial recitals, which mean relatively little, the agreement clearly and arguably very wrongly defines a copy to include:

·          “displaying a Digital Copy on a computer or other device”; and,

·         “Posting a link or hyperlink to a digital copy”).

UofT can get out this agreement if the law changes. (UofT is stuck with this agreement at least until the end of 2013. Unfortunately, there is a real chance that this agreement could very well influence the way the law changes, particular re fair dealing. U. of T. is probably the most important and influential university in Canada. The Copyright Board and hence the Courts and maybe even Parliament may see this agreement as the “new normal”, and and may adjust to it accordingly. Moreover, the agreement contains a “poison pill”, requiring UofT to block access to all digital copies made under the agreement if it decides not to renew it. If UofT has to comply with this provision, it may learn there is no way out without causing major disruption for the teaching and research done by its members.)

UofT hopes for favourable changes in the law. But AC is the “legal body that governs right now”. (That is completely wrong for the reasons stated above. Moreover, one can easily predict that AC will use the agreement and the upbeat media-releases from UofT and Western to strengthen the case against those “favourable changes”.  AC will likely say that two of the most important universities in Canada just signed this agreement with which they are quite happy and that this shows that there’s no need to change the law to give educators more rights, since the current law evidently is working very well.)

UofT would have been subject to “massive fines” for the inevitable “illegal copying” that would take place but for this agreement. (First, has UofT no faith in the Supreme Court of Canada’s decision in CCH v. LSUC and the concept of fair dealing? AC has no power to “fine” anybody and has never successfully sued an academic institution or any member thereof. AC cannot sue anyone without dragging the copyright owner into the litigation. Moreover, even if UofT were found to have infringed a number of works, the Court has the discretion to reduce the damages down to a nominal amount if the university is acting in good faith. Moreover, three dozen other universities – some of which are very large – believe that they can operate completely legally without any blanket deal with AC).

Absent this deal, the Board might have ordered an intrusive or “Orwellian” (as Chief Librarian Alford calls it) survey. (Let’s see what UofT ultimately agrees to under the agreement. If the Board were given the right evidence and then overstepped, recourse could have been sought at the Federal Court of Appeal.)

UofT has already spent “a huge amount of money on interrogatories”. (That is no doubt true. However, as I’ve pointed out before, AUCC apparently did not take the usual step of seeking to have only a representative sample of institutions – such a few large, medium and small institutions  – answer these interrogatories. This is commonly done at the Board but was not done here. While UofT may or not have itself been spared this pain and expense, dozens of other institutions could have been. Even the Board pointed out this possibility).

“We have to do it –it’s the law”. (No. What AC says is not the law. See above.)  

President Naylor:

The President emphasized that there was uncertainty as to how and when the Supreme Court would rule, not to mention Bill C-11 and whether and how the crucial “fair dealing” issue would be resolved in any event. (That is true, but this agreement seems to assume the worst and the conditions and costs follow in turn. As for getting away from it if events turn out well, the problem is that this agreement may in itself influence that outcome – at least in Parliament and at the Copyright Board. Naturally, it won’t have any effect on the current Supreme Court fair dealing cases – but it almost certainly will worsen the position for those remaining in the fight at the Board, if in fact the fight continues. If the Board takes this agreement as a “proxy” for a free market negotiated deal, which is very likely, the agreement will almost certainly end up setting the standard for the “new normal” for fair dealing and other issues.)

The President suggested that AUCC and other university may come to similar conclusions. (Indeed, that is the fear and as I noted a few day ago, this already seems to be happening at formerly tough-talking UBC.)

The President pointed out that there is also the matter of the creators’ interests – ranging from “starving artists to text book authors”. (Indeed, some – though fewer than might be expected - faculty in university community are members of AC. However, unless they are very prolific and very well read  authors, they will normally receive less than $300 a year in royalties from AC – before taxes. None of the tenured faculty are starving artists. Most if not all of them will be making substantial six figure incomes and are expected to create academically important work, which may already be further subsidized though Canada’s elaborate and generous taxpayer-funded grant system. Many professors would gladly give up this “beer money” in order to be free of the constraints of AC).

Provost:

UofT would like to be like MIT and make as much available freely as possible, but in the meantime needs the AC indemnity to cover “missteps in the input”. (This is not what the indemnity does. It does not cover works on AC’s “exclusion list” or use beyond the terms of the license. It is very limited, and AC is trying to get out from under it – presumably because of its questionable legality).

On governance and ratification, the last clause about “conditional on governance approval” was included because Western and AC were involved. UofT believes that its report for information only to the business committee was all that is required. (So, why is the agreement “conditional upon applicable Governance approval”? Clearly, many in the UofT community, some of whom spoke at the meeting, do not accept that the agreement is a “done deal” and that it needs no further governance approval).

My Observations and Conclusions:

Among copyright experts, some will applaud the UofT deal and others will criticize it. Their reasons will vary. As President Naylor said, noting that many other universities had taken a different approach, this is not a simple matter.

Leaving aside the UofT deal and speaking in generalities, copyright law often does not admit of black and white or right and wrong answers, even to basic questions. That’s why the Supreme Court of Canada heard five copyright cases in two days last December. That’s why the rhetoric is so intense. Even the best copyright lawyers in the country strongly disagree with each other at times on what the law even is, not to mention what they think it should be.  In some cases, and depending on the issue, these views may be heavily influenced by the nature of the lawyer’s clientele. For example, a lawyer who normally acts for large content owners and collectives may see things quite differently than one who normally acts for users. Anything to do with “fair dealing” is particularly contentious. Whether copyright law is or ought to be getting to be more and more like labour law, where the normal convention is that law firms simply don’t play on both sides of the fence, is an interesting general question that merits further exploration at the appropriate time and in the appropriate forum.

I am trying not to be critical of UofT. It is my alma mater and I have spent many of the best years of my life there beginning at UTS a long time ago and ending at Massey College. I have the highest admiration both personally and professionally for its current President, who is caught between 8 rocks and 10 hard places, to extend a metaphor that was brought up repeatedly during the meeting in other contexts. As a great medical doctor, researcher, academic, administrator and compassionate humanitarian, he will want and should get no less than the best possible information and advice from all necessary sources. He understands what is at stake. I do not know the Provost, but she clearly has impressive academic credentials. I know that it is UofT’s tradition of excellence and strong belief in academic freedom that will hopefully, at the end of the day, result in it holding a thoroughly informed discussion as to whether, as urged by an open letter on behalf of faculty and students, the Governors should “suspend any further step towards ratification of the Agreement until the Agreement has been thoroughly reviewed, and, if appropriate, re-negotiated or discarded.”

I do believe that UofT is really trying to do the right thing here and should be congratulated for this attempt. However, this may require more input from more experts and lot more analysis. Part of such analysis must be an evaluation of:

• How does the university rank its priorities, i.e. administrative pragmatism, passing along costs,  academic freedom, access to knowledge, or risk aversion, to name some parameters?
• Whether the risk factor may have become seriously overblown, given even the most cautious view of the state of the law and the fact that, as far as I know,  AC has never sued any academic institution or member thereof and cannot even do so by itself and that even a “successful” lawsuit may still result in minimal damages? Apart from its victories against small “mom and pop” copy shops, AC has lost or retreated from every single test case in which it has been involved – including most notably CCH v. LSUC. Risk aversion must be realistic.  Moreover, there are interesting arguments for another day that UofT may actually be increasing its risks by entering into this deal.
•  Expectations incumbent upon UofT as one of  the largest and most highly regarded research universities in Canada and even the world.
• Whether the stated goals of moving towards open access will be enabled or hurt by this agreement.

This won’t be easy. But given the public policy implications in the short, medium and long term, and the inevitable scrutiny in the twitterverse (see #ACdeal) and the blogosphere and at such sites as Slashdot, such a further examination  may be essential and, indeed, inevitable.

HPK