Update on the University of Toronto/Access Copyright Deal and a Missing Link

Larry Alford is the recently appointed Chief Librarian at UofT. He has discussed the deal that UofT just made with Access Copyright and dealt with a number of questions in a UofT Town Hall webcast from February 9, 2012 at the 1 hour and 15 minute mark that I tweeted about. Here is where the archived online video was.  However, it seems to have been taken down and I cannot find it elsewhere.

I did take some rough notes. My comments/questions are in brackets.  He spoke about:

•  How the University acted on the basis of a “preponderance” of legal opinion from the university’s copyright counsel (does this suggest that the opinions were not unanimous?)
•  How there would have been a cost of at least $300,000 to “preserve evidence” during the Copyright Board hearing. (This would assume that a preservation order would likely have been made this late in the day, assuming there is no such order in place now.  This would assume that such an order could not have been successfully resisted or overturned. He did not explain why it would cost $300,000 to keep Blackboard or other data around a while longer than usual.)
• The benefit of an indemnity in respect of illegal copying within the university (He did not get into the significant limits and questionable legal basis of the indemnity provision. I’ve been questioning for years whether, in this respect, Access Copyright is essentially operating an unlicensed insurance scheme – but I’ve never had the satisfaction of an answer). 
• How UofT expected the Copyright Board to order an “Orwellian” survey. (Such an order might well be successfully resisted or overturned).  Instead, UofT has agreed to set up a survey according to unspecified to be negotiated parameters that might well prove to be, well, “Orwellian”).
• The notion that the new agreement covers digital rights (It is doubtful whether AC has such rights to any significant extent)
• Linking – and whether the agreement concedes that there is a linking right. (He says no. Others disagree).
• The notion that this is a good deal financially. (It represents a significant increase over previous payments to AC, and much more than the “mid-point” calculation that the Copyright Board often imposes, which in this case would have been in the $18 to $22 a year range. This is fully 7 years AFTER the landmark decision in CCH v. LSUC that one might have expected would have resulted in a reduction of payments to Access Copyright, rather than an approximately 50% increase, if calculated  based on the overall Canadian university average cost per student of $18.64 peryear for 2008 based upon AUCC figures. Access Copyright’s sought after figure of $45 per student had no apparent basis in reality and is arguably not a meaningful one upon which “success” can be measured. It appears to have been pulled from thin air).

Mr. Alford, to his credit, noted that there are others who would disagree with him, presumably referring to Prof. Ariel Katz, Prof. Sam Trosow and myself – as seen on our recent blogs.

Unfortunately, the archive of his Town Hall session seems to have disappeared. It has become a  “missing link” about the UofT/ Access Copyright deal.

One of the little noticed provisions of the agreement – which was made public by me and not by UofT – is the very last clause that makes it subject to approval “conditional upon applicable Governance approval”. It will be interesting to see whether such approval has been duly obtained at both UofT and Western, and if not why not, and if not, what is to come of such failure. 

There may be some discussion about the deal at the Governing Council meeting at UofT today at 4:30. The audio webcast will be available here.

Here is the official agenda for the meeting.  Keep an eye on Report Number 194 of the Business Board (January 30, 2012).

Last but not least, have a look at this new blog post by Prof. Ariel Katz  concerning a recent EU decision on copyright, collectives, censorship and possible lessons for UofT.

HPK