Wednesday, May 16, 2012

refusing to pay for work used, and stifling academic freedom - the more principled approach?

Canada's free culture cheerleading squad is today making much of the University of British Columbia's decision to forgo collective licensing through Access Copyright. Ariel Katz (one of the head cheerleaders) has placed his own employer (University of Toronto) in what he calls the Fair Dealing Hall of Shame while celebrating the left-coast announcement. U of T, which pays Prof. Katz for his work, signed a deal with Access Copyright long ago because it also respects the work of Canadian artists. UBC, for its part, has declared that its decision to not pay artists through collective licensing represents the more principled approach. Following their logic, not paying for something you intend to use, or just flat out ignoring illicit activity on campus are each far more principled and high-minded approaches to copyright compliance than simply paying artists a fair price for their work.

Here's how sustainable, and principled, and just plain easy the UBC is making life for their professors and students (from the UBC copyright compliance explanation page). The parentheses are mine, as if you couldn't tell:

Using content from the Web:

Materials available on the Internet is [sic] copyrighted in the same way as print and other formats, even if there is no copyright symbol or notice. Linking directly to the web page containing the content you wish to use is almost always permissible [a legally unproven assertion], although you need to make sure that the content you are linking to is not in and of itself infringing copyright [please obtain an IP law degree before continuing]. If there are signs that the web site contains content posted without the permission of the copyright owner [pirate flag logo, anti-corporate blather, etc.], you should avoid linking to it. You should check the website’s ‘Terms of Use’ section to confirm whether it has any specific linking prohibitions [still considering using this material? really?]. If there are none, you may link to the website but make sure that the webpage opens up in a different browser window [because if you distance yourself from the use by an extra browser window, you're not actually using the material?]. If the web-page does not clearly identify the website and content owner, you should also include the full details of the author, copyright owner and source of the materials by the link [you have all the extra time in the world for this level of detail in course planning, right?]. This will avoid any suggestion that the website is your own material or that your website is somehow affiliated with the other site. The website’s ‘Terms of Use’, or ‘Legal Notices’ section may also confirm whether specific consents have been provided by the copyright owner to allow use of the website’s materials. In some cases [to be determined by you, not us], you may be able to use the website materials for free for non-commercial and educational purposes. However, please note that if the website, including the Terms of Use or Legal Notices sections do not provide any consents relating to use of website materials, you should assume that copyright consents are required from the copyright owner [and that means you do not have permission from UBC to use those materials in your teaching].

And here's how I interpret these convoluted "helpful" instructions:

Since the Access Copyright licences will cover web-based materials (as well as print materials) under copyright, each and every use of materials (including web links) will have to be thoroughly pre-vetted by individual professors before being used, to make sure they are not covered by Access Copyright licensing. If, after onerous pre-vetting, it is determined the material cannot be had for free by the university, the professor will not be permitted to use it. Even if the material is deemed to be essential to the teaching of the course, it will not be permitted.

Academic freedom? What's that now?

What is the likelihood UBC professors and students will be using Access Copyright repertoire materials in licensable ways? I estimate, conservatively, the likelihood at 100%*, which will place them legally offside and subject to a Copyright Board-certified tariff.

The end result being that UBC pays later exactly what they are refusing to pay right now. But, at least, they will have struck a blow for free culture theory and sent the important and principled message to Canada's artists that our universally declared human right to be compensated for use of our work ends at the corner of Blanca Street and University Boulevard in West Vancouver.

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* It took me less than two minutes of web searching to find an upcoming UBC humanities course that includes coursepack materials unlikely to be covered by fair dealing or private licensing:

Course pack containing: Christine Jorgensen’s memoir “The Story of My Life” (1953), Mark Shane’s pulp novel Sex Gantlet to Murder (1955), a selection of short stories, press clippings, historical medical scholarship, and critical readings.

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