Friday, April 27, 2012

the talking points have gone out

... and, they're wrong.

Yesterday, I had the pleasure (?) of being CCed on a Twitter invitation to group-edit (what the kids are calling crowdsourcing these days) an open letter to the AUCC being prepared by a group of west coast post-secondary faculty. The letter expresses a number of concerns the academics have with the recent Access Copyright/AUCC model licence. It begins "We were dismayed to learn of the agreement reached between Access Copyright and the AUCC. This model agreement is a bad deal..."

If you are asking yourself "why would anyone invite John Degen to a group editing session for such a letter," welcome to the inside of my brain.  This was clearly a case of mistaken tweeting, but it gave me a glimpse into the inner sanctum of ground-level free-culture activism on copyright in general and the model licence in particular.

I had a quick look at the letter, realized I was in the wrong place, so tweeted back:

"are you asking me to comment on this open letter? I think it's both uninformed and unoriginal."

That didn't go over well up in the towers. Let's just say I won't be attending any faculty barbecues at the University of Victoria this summer. I guess open access actually means open to those who share our opinions.

So, what's going on at ground level of free culture?

Well, sadly, an awful lot of incorrect talking-point repetition is going on. The letter I saw contained little more than the exact same inaccurate points of dismay expressed by the Atlantic Provinces Library Association at the School of Information Management at the University of New Brunswick, which in turn are little more than the exact talking points expressed by, who else, Prof. Michael Geist in his Toronto Star column from a week ago. Similar concerns are expressed by the CAUT on their website, and in two recent press releases from the Canadian Alliance of Student Associations and the Athabasca University Graduate Students Association. Taking a look at those two releases really illustrates free culture's love of copying:

Zachary Dayler, National Director of the Canadian Alliance of Student Associations says “This deal makes it harder for students and teachers to discover and share their findings.”

AUGSA President, Amanda Nielsen eerily agrees "This agreement makes it difficult for both graduate students and faculty members to share and discover their findings.”

AUGSA: "this new deal represents a price increase of nearly 800% per student."

CASA: "increases the Access Copyright flat fee by over 600%." (whoops, someone either misread the higher number or had a calculator mishap)

AUGSA: "Ultimately, most universities will be forced to pass these costs on to students."

CASA: "Most colleges and universities will pass this fee directly on to students."
I'm really not sure how to express my own, um, dismay at how completely this model license is being misread by certain students and scholars. But I'd like to be clear about one thing. I don't blame either group for having had their genuine concerns about the quality of education co-opted and abused by the  free-culture lobby. Scaring students and teachers with copyright bogeymen is what the free-culture lobby does best. I know plenty of higher education academics who have not bought the anti-copyright sales pitch (hell, I'm married to one), but I certainly see how that sales pitch can be awfully inviting.

So consider this my own open letter to Canada's post-secondary students and teachers. Please be more critical in your approach to these campaigns against collective licensing. Don't just repeat the talking points that come across your desk. It's crucial for Canadian culture that negotiations and discussions around digital copyright, education and the cultural sector continue, and that fair deals are reached. But it wastes everyone's time and emotional energy if one side of the discussion is founded on deliberate misinformation. The folks feeding you your talking points are not only doing so out of self-interest, they are wrong.

Case(s) in point:

The per-student fee increase is neither 600%, nor 800%. The old fee maxed out at $19 per student. The new one is $26. That comes out to a 36% increase, but importantly, the new fee adds new permissions for the digital age. In effect, universities (and their students) are now getting much, much more than they used to get for their $19. It makes perfect sense, then, that they should pay a bit more.

There is no stipulation in the agreement that schools pass on the cost of licensing to students. I have done the math. The University of Ottawa could pay the licence fee covering the entire student population of Canada with about one-tenth of 1% of their own budget. This deal is not expensive. $26 for unlimited copying of a vast repertoire of learning materials is a bargain.

The agreement does not define hyperlinking as copying. It just doesn't, and the implication that it does comes directly from the aforementioned Geist column where he writes the agreement "defines copying as including 'posting a link or hyperlink to a digital copy.'" This statement is demonstrably false and is a misreading of the licence intent. The agreement defines the digital copy at the other end of a hyperlink as a copy, which is an entirely different thing. Think about it. If professors previously handed out 100 photocopies of an article as course material, and now only send out one hyperlink to a hundred students, have the number of copies being used been reduced from 100 to one? How would that be fair to Canada's creators? A copy is a copy; the legal structure for its distribution and use should be technologically neutral.

The agreement does not affect teacher or student fair dealing provisions and cannot possibly trump or undermine Canadian Copyright law either existing or pending. This may be the most diabolical of the talking points making the rounds - the suggestion that somehow with the imminent passing of Bill C-11 and an expanded definition of fair dealing the uses covered by this model licence will be free anyway. By their very definition Access Copyright licenses cover uses of works that sit outside fair dealing. You cannot license a fair dealing - that's a legal impossibility. It has always fallen to Access Copyright, and it will continue to do so, to show the uses they license are genuine. But let me just say, after watching representative after representative from higher education appear before Parliament making assurances that educational fair dealing under C-11 would not adversely affect copyright-holders in our licence agreements, it is a bit gutting to now hear the exact opposite line in objections to this deal.
To the professor who mistakenly invited me to view her open letter, I'm sorry my response upset you so much. My opinion stands.

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Eric said...

Okay, I'm thinking everyone's calculators are broken. Just kidding. What logic did you use to describe a flat fee as a maximum? The old flat fee was $3.38 plus a variable per page component. The new flat fee in the model is $26. I will resist the urge to demonstrate my calculator skills because of a lack of data on transition to other sources even though I have heard several numbers.Do you have data on the transition that you would share?

John said...


Thanks for your comment.

My figure is based (by my understanding) on the actual amounts collected and the number of actual students represented. The per page rate was 10 cents. By "variable" I assume you mean different students would require different page amounts.

No one is saying there isn't averaging going on. That has simply been, and remains, the system most agreed upon by both parties in the negotiations- the schools and the copyright collective. I want to stress that point - this is essentially an agreement about supplies between school administrations and a supplier. It is calculated per-student, using averages, but Access Copyright does not require and probably does not even intend that each student pay out of pocket $26. It is up to the individual administrations to decide how they are going to cover this cost - which, btw, is a miniscule part of each individual budget when compared with areas of real cost. Schools could afford to NOT pass this cost on. Suggesting otherwise is one of the great disingenuities of free culture.

If folks want to quibble about whether the previous per student fee averaged out to $17 or $19, I welcome such quibbling - because including the net result of the per-page fee is the only fair way to get at a percentage increase... something the proponets of free culture have never been able to work out on their special freeculators.

If schools actually want to move away from AC's repertoire and only access subscription-based resources, or depend on open-access, they will have to actually stop using the materials covered by this licence. To date, they have shown no intention of doing so. Until they do, the revenue that by law belongs to AC's affiliates has to flow to them. No other solution is fair.

I assume some percentage of students today will end up working professionally in the cultural economy. We should probably try to make sure there is a cultural economy for them when they graduate.