Access Copyright Repertoire Look Up Tool - Beta Version - Not Yet Ready for Prime Time

(Lesser Ury: Leser mit Lupe, c. 1895)

So, AC has launched an Access Copyright Repertoire Look Up Tool in beta version.  What follows is copied from the AC website with my comments inserted in bold red - except for the links, which are green. AC's words are in black italics.

I make no comment as to whether this lookup tool complies with the Board rulings to date in this matter, especially the comments in paragraphs 16-22 of the Board’s reasons of April 7, 2011 regarding the amended interim tariff.   Interestingly, no effort at all was made by AUCC or ACCC to have the interim tariff or its amended version reviewed by the Federal Court of Appeal. Rather, these comments are directed toward the utility of this lookup tool and AC's comments - or lack thereof. 

*********

The Access Copyright Repertoire Look Up Tool ^(beta) is a tool designed to advise you whether a particular publication is in Access Copyright's repertoire. This tool can be used to help you determine whether you can make a copy from a book, journal, magazine, newspaper or similar publication if your educational institution, board of education or provincial or territorial government is licensed to copy works pursuant to a licence or any of the following tariffs:

• Access Copyright Interim Post-Secondary Educational Institution Tariff, 2011-2013
• Access Copyright Elementary and Secondary School Tariff, 2010-2014 (There is no such tariff. It has not been certified and there is no “interim” tariff)
• Access Copyright Provincial and Territorial Governments Tariff, 2010-2014 (There is no such tariff. It has not been certified and there is no “interim” tariff)

What AC is not telling you is that anyone can copy anything protected by copyright as long as the copying does not constitute a “substantial part” of the work, or if it does, the copying falls within the users’ rights of “fair dealing” or, if necessary, the other exceptions found in ss. 29.3 ff. of the Copyright Act. There is no categorical quantitative rule as to what is a “substantial part”. This will be context specific. For example, it would be fundamentally wrong to categorically assert, as a general statement, that copying any more than one sentence of any work necessarily entails copying a “substantial part” of it. Depending on the context and circumstances, copying a few or even several sentences, paragraphs, pages or even more than one section or chapter may not be a “substantial part”.  See David Vaver’s 2011 book at pages 182 – 188 on this and some of the “hyperbole”, “nonsense” and “risible claims” that arise on this basic issue.

As to what is “fair dealing”, the law was clearly stated by the Supreme Court of Canada in CCH v. LSUC in 2004, which should be seen as the “Magna Carta” of users’ rights under Canadian copyright law. AC and others, such as CMRRA and CRIA (now Music Canada), are trying to effectively reverse this decision both in that Court in one or both of the “pentalogy” fair dealing cases and in Parliament in Bill C-11. (I acted for the intervener, Centre for Innovation Law and Policy at the University of Toronto, in the K-12 case). 

The tool is not intended to advise whether you are required to obtain authorization from Access Copyright to make a copy of a publication. The user acknowledges sole responsibility for determining whether a licence to copy a publication is required, including determining whether the publication is in the public domain.

AC has refused to issue transactional licenses. That issue is now before the Federal Court of Appeal, with AUCC having predictably lost the first round because it sought to introduce evidence that was not before the Copyright Board.  What exactly is the point of providing and charging for a blanket license if the user cannot know whether they are “required to obtain authorization from Access Copyright to make a copy of a publication”? AC has no right whatsoever to consider public domain works as part of its repertoire, and should not under any circumstances be remunerated for use of such works. BTW, whatever happened to its vapour-ware “public domain registry”, which AC proudly announced six years and two days ago on March 3, 2006 and for which we still wait, but without holding our breath.

Recall that in 2009 I blogged about how AC was quite happy to take your money for copying works that are in the public domain. 

For any other user or entity, Access Copyright makes no representations regarding your authorization to make copies of any publication. Access Copyright declaims all liability for any such user or entity.

Once again, if AC effectively accepts so little, if any, responsibility for anything, why pay for a license? What about AC’s “indemnity” scheme, which the Board ordered to be included in the post-secondary interim tariff for paper but not digital copies but which is questionable from a legal standpoint as being a potentially “illegal” and “void” indemnity scheme, along with the corollary that AC may be operating illegally as an unlicensed insurance company, as I wrote about in 1999? See here at pp. 121-122.

Click here to search Access Copyright's repertoire and determine whether you can make a copy of a publication. One needs to know the precise ISBN number and publisher. This may not be known, if one does not have the “original” in one’s hands.  Why can’t one simply quaere, for example, whether a particular work of Margaret Atwood or Jack Granatstein or a publication by Oxford University Press are in AC’s repertoire?  Why force the user to provide an ISBN number? That is the kind of thing that people need to know. For example, here is a link to my paper from 1999 on setting up an alternative collective to AC that would be run by academics themselves. You won’t find the ISBN number on this scanned reproduction. You could search it out, but this may be very time consuming unless you have the original journal from which this scan came – or unless it can be readily easily found online, which would not be the case in this instance. There are simple ways of fining  some ISBN numbers, at least for most recent books, but AC does not tell you how. In fact, the ISBN system was not even implemented in 1967, which means that countless books and journal articles still protected by copyright do not have ISBN numbers. AC does make its exclusion list available online, if you can find it. But this list does not allow for “cut and paste” copying of ISBN information, which would be a simple courtesy to users. Why isn’t this list linked to the repertoire finding tool, so that if a work is clearly excluded, this will be obvious? Nor does it follow that, just because a work is not listed in AC’s exclusion list, it is in AC’s repertoire either directly or indirectly through a valid foreign affiliation. In fact, most of the millions of works in Canada’s post secondary libraries likely are neither directly nor indirectly part of AC’s repertoire. If that is the case, AC has no basis to license such works. Reliance on AC’s questionable indemnity scheme in such cases raises other questions in turn. Above all, this implies that no work can be copied unless it is in AC’s very limited repertoire. This is incorrect. If the work is protected by copyright, and if the copying requires permission – which will often not be the case in either the K-12 or post-secondary or governmental context if the concepts of “substantial part” and “fair dealing” are correctly understood – then the work can be copied with permission obtained directly from the rights holder. This is what dozens of universities that have opted out of the AC Interim Tariff are doing.

If you do not have the ISBN/ISSN of the publication you wish to copy, you can seek permission to copy the publication by filling out our online permission request form. We will respond in 1-2 business days. How does it follow that AC can give permission to copy because a user does not have the ISBN number, which will often be the case? AC has no legal basis to grant permission to copy for works not in its limited repertoire. In any case, this takes 1-2 business days and requires giving AC the requester's email address. Those concerned with risk aversion and privacy may not be very happy about giving their email addresses to AC in an inquiry about repertoire status. In any event, this is clearly not much of a database if it requires what appears to be a manual search and manual response by old fashioned email. *********** CONCLUSION At least AC says that this is the Beta version. It clearly has a long way to go before it’s ready for prime time, even as version 1.0. Never mind the six year old vapour-ware promise of a public domain registry. This latest effort raises many more questions than it provides answers.

 HPK