Friday, March 25, 2011

free culture? -- sure, but say good-bye to academic freedom

York University to profs:

We'll tell you what you can copy and teach!

Canada's Copyright Modernization Bill C-32 sank to its death with the good ship Parliament today, and with it went the ill-conceived and poorly defined expanded fair dealing provision that resulted in so much controversy in front of the committee.

Luckily for educators, the Copyright Board approved an interim tariff request by Access Copyright, Canada's Copyright Licensing Agency -- I say luckily despite the fact that many in the educational community strongly objected to the interim tariff request. Those objections were summarily and somewhat embarrassingly dismissed by the Board, and, again luckily, now Canada's educators can continue to copy widely from the AC repertoire without fear of infringing the rights of Canada's professional creators -- and for the bargain price of exactly what they had always been paying, plus they get digital use thrown in as well.

You'd think that result would make Canada's universities sigh with relief. I thought so, and had a quick look at some university websites to see what they might be saying about the handy, ridiculously affordable new tariff.

To my surprise, the very first site I searched, Toronto's own York University, treated the interim tariff not as a helpful stepping stone to further negotiation with creators, but as an exit strategy into what they call their "transition to a copying regime outside of Access Copyright." What regime might that be? Well, it appears to have a whole lot to do with... you guessed it... fair dealing.

York's academic staff are advised the university will opt out of the interim tariff beginning Fall/Winter 2011-2012, but that the tariff provides them with covering protection to continue copying the AC repertoire until that time.

In the meantime, and presumably after opt-out, staff are required to follow the university's new fair dealing guidelines, which include the following two paragraphs:
9. University staff shall use reasonable efforts to guard against systematic, cumulative copying from the same work which in total exceeds the portion of the work that may be copied pursuant to these guidelines and to ensure that the number of copies made complies with this policy. If university staff suspects that a student, other staff member or faculty member is engaged in systematic, cumulative copying, the matter must be referred to the university staff member responsible for administering this policy or his or her delegate for review, and any further requests from that student, staff member or faculty member for a copy may be refused.

10. Requests for the making of copies which fall outside these copying guidelines and requests for making of copies of unpublished works may be referred to the university staff member responsible for administering this policy or to his or her delegate for evaluation. A determination will be made as to whether the proposed copies are permissible in all the circumstances relating to the requests and may ultimately be refused.

This is, well, astonishing.

As I read these two sections together with the intention of opting out of Access Copyright licensing, York University's administration is stating flat out they require academic staff to police their fellows and students to make sure they copy no more than is allowed under fair dealing. As well, they advise that requests to copy more may be refused.

It seems indisputable at this point the move away from collective licensing -- encouraged by prominent free culture theorists like Michael Geist -- has as a primary motive the saving of copyright licensing fees (otherwise, why so strongly advise that only free copying be done?). This motive is so strong, in fact, that the administration appears willing to interfere with and/or restrict the academic freedom of its professors to use what they consider to be the best materials for teaching their students.

These policies, publicly available on the York University website, contradict directly the testimony of educational representatives at yesterday's final Bill C-32 committee hearing. Those representatives claimed over and over again, under questioning from concerned MPs, that their desire for an expanded fair dealing exception for education had nothing to do with not paying Access Copyright licences, and would in no way restrict the material being used by teachers and professors.

Is it any wonder professional creators like Margaret Atwood and Nino Ricci worry about the appropriation of creator's rights under expanded fair dealing? Now, apparently, we have to start worrying about the rights of professors and students to even use our work in the face of unconscionably restrictive administration policies.

Free culture, indeed. Free, as in you may freely use only what we tell you to freely use.

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Darryl said...

That is some sort of Orwellian definition of the word freedom right?

By locking in universities to over priced AC blanket tariffs, it reduces the pool of money available to purchase works outside of AC's repertoire, and it gives significant motivation to only look within that repertoire because they are already paying for it.

That's double double ungood in my book.

Crockett said...

Administrators attempting to save money at the expense of delivering the best education possible to their wards is unacceptable. In any new venture, for instance the transition from using blanket AC licencing to other alternative methods, some are going to get it right while others will likely let greed interfere in good decisions.

I think we will have to wait a little longer to see how this shakes out and applaud those who make the effort to get the balance right.

Anonymous said...

"and for the bargain price of exactly what they had always been paying, plus they get digital use thrown in as well."

No one was has signed on to the digital option (which would also add additional costs) due to AC requiring the ability to snoop/request/grossly invade privacy of the computers, emails, etc. of the institutions students and staff.

John said...

Both Darryl and anonymous need to read the interim tariff decision from the Copyright Board. Not only is it always good to know what you're talking about before you comment, but the tariff decision is an excellent source of grounded reality in the often fantastical world of free cultural claims.

So, Darryl, as the Board indicates, no-one is locked into the tariff, and since it mirrors existing agreements it reflects actual use. As well, the interim tariff is a bargain because it extends the old pricing structure, which the Board recognizes as a miniscule portion of the average post-sec budget. As I've pointed out many times, even with the maximum increase requested by AC, the total tariff for every student in Canada would be 0.2% of just one university's yearly budget.

Those are the facts that disprove your claims; but let's look also at how silly the structure of your assertion is to begin with. You are saying that by having to pay for AC's repertoire, schools will have reduced impetus to shop elsewhere. That's a bit like saying Apple is unfair because if all those folks who lined up to buy their Ipad 2s yesterday didn't have to pay for the Apple product they want and will use, they'd have $500 extra to spend on someone else's product.

You sure are all about consumer choice.

Anonymous -- as the interim tariff provides all digital access under the terms of the previous agreements, you are also incorrect. All institutions, including York, currently using the interim tariff have signed on to the digital option. Please read before commenting.

I also note that while you pretend offense at AC wanting the right to track usage (which is also a demand from the university side -- they want prof they are paying for actual use), you don't seem to mind at all that the alternative is professors snitching on and policing their colleagues and students and the demand of their administrations.

Joe Clark said...

In fact, it is a matter of settled law that duplicating the entirety of most works is not fair dealing. The typical counterexample specified is photographs, which are usually nonsensical to duplicate only in part. Nonetheless, it stands to reason that duplicating almost all of, say, a book, even if done in pieces and even if for the enumerated purposes under the Act, will probably not constitute fair dealing.

If you read the quotation you didn’t even use BLOCKQUOTE for, the discussion is quantity of duplicated excerpt, not content. Disingenuous as ever, John.

Darryl said...

Last week a number of York University exchange professors got together with the school administration and decided to all go off to a restaurant for lunch. They decided to put everybody's tab together on one bill and the administration was kind enough to look after the details of doing so. After all, they did have a certain amount of expertise in the field.

Before heading off to the restaurant the administration collected 45$ from each professor to cover the cost of the buffet. Prof Geist gave them his last 45$, but did not worry too much because he knew this was a large all you could eat buffet.

Once all the famished professors were comfortably seated they made their way in an orderly way to the buffet. Dr Geist was very pleased with the wide selection of food and started by helping himself to a number of salads. Once he returned to his table and was part way through eating his salad he noticed the delicious steak that was being thoroughly enjoyed by the party at the table next to him. When the wait staff passed his table he enquired about the steak saying he did not see that at the buffet, and asked if he could get one. "Oh no", explained the waiter, the professor had paid for the buffet, and that steak was not on the buffet menu. If he wanted the steak it would cost him another 25$.

Sadly Dr Geist was out of money. His home food budget was small and strictly enforced by his wife. As he looked over the table toward the grand buffet, it started to look not quite as grand as it use to.

On the other side of him was John Degen, sitting with his plate overflowing with sweet and sour chicken balls and rice. John looked up at Dr Geist at that moment and exclaimed his great satisfaction of the tremendous quantity and variety of foods available at the buffet, and how wonderful it was that all the buffet patrons had total freedom to take as much as they wanted of anything the buffet offered.

"Yes, but have you ever eaten the steak here?" asked the professor.

"What? Why would I want to do that?" asked John. "I've paid for the buffet, and that steak is not on the buffet menu. I can eat as much as is humanly possible from the buffet. If I get the steak, I will have to pay more and I won't be getting as much value from the buffet anymore."

Dr Geist agreed and sighed as he finished his salad plate. He got up from the table to make his way to the buffet, being careful not to look too closely at what other patrons were eating, lest he witness another example of interesting foods not available from the buffet. He started to wish, just a little, that some day these staff lunches might NOT require always going to the buffet.

Crockett said...

The caterer, and a number of people at the buffet table got their ... just desserts.

Gruesome said...

I don't know, but now I'm hungry...

Darryl said...

Grusome, of course you are, but the question is; do you want steak or chicken balls?

John said...


Thanks, at least, for using a physical property analogy when discussing intellectual property. Most of the time, free culturists like yourself try to weasel around the idea that someone can own intellectual property in much the same way we own physical property.

Beyond that, everything about your analogy is wrong, and this surprises me not at all. You clearly have decided never to read the Copyright Board's interim tariff decision, and instead to just continue commenting from a state of blissful ignorance.

No-one is locking the very well-compensated Dr. Geist into any IP meal-plan. He doesn't even have to go into his own fur-lined pocket to pay for IP. He can get his extraordinarily wealthy university administration (nearly a billion dollars in annual revenues) to pay for anything on the IP menu he wants.

And, unlike at an actual buffet, he could make a whole meal out of fair dealing free samples without ever paying at all -- steak, chicken balls, salad, whatever his securely tenured heart desires.

It sounds like you are actually upset with university administrators, and that you think they are miserly. I suggest you take that up on one of their blogs.

Finally, when I want Chinese food, I don't eat sweet and sour chicken balls. I go to Spadina and Dundas and get authentic Szechuan dishes, which I pay for, happily, knowing the restaurant owners need to make a living as well -- and they don't get tenure.

John said...

Joe Clark,

You're going to have to explain to me how your comment has any relevance to my posting. I don't know that I mentioned the copying of entire books anywhere, and that has nothing to do with the point I've made.

You are awfully find of coming onto my virtual property, calling me names, and talking like you have five law degrees, but I've yet to see anything of substance in your attacks.

The link between fair dealing, the restriction of curriculum, and avoiding collective licensing fees is explicit. I didn't make the link; I'm just pointing out where anyone can find it for themselves... on York University's website.

Darryl said...

As you say John, it is an analogy, and as such is faulty. One of the biggest problems with property analogies is that too often people confuse what it is that is being compared, thinking the creative work itself is what is owned rather than simply state granted rights regarding what can be done with it. That is why I tend to prefer the less common but more accurate term "Intellectual Monopoly". There really is no such thing as Intellectual Property.

It is interesting that you say my analogy is wrong, yet the only criticism you can manage is to say he that could afford "to pay for anything on the IP menu". So what if he could? You are missing the whole point which is that when you put out a substantial amount of money for an unlimited catalogue, be it of food or of creative works, you will be significantly less inclined to look for works outside that catalogue. (For good financial reason) As well, those controlling the purse strings will have significant motivation to keep you there. That is where the academic freedom is really lost.

If you truly believed that Geist and other professors could make a whole meal of fair dealings, then why are you not cheering York U for not wasting money unnecessarily on unneeded licences?

Lastly, the other part you seem to be missing is that it is not simply a choice between AC catalogue and free material, there is an ever growing amount of material which is neither. Much of it is subscription based and it is eating into AC as much or more than the free stuff is. By getting their over priced tariffs passed, they are making the switch to subscription models more difficult which is their goal.

Access Copyright does not exist facilitate access to copyright protected works. It exists to facilitate access to copyright protected works IN ITS CATALOGUE. This puts them in direct opposition to creators who are not in their catalogue, the ranks of which are growing daily.

Some Universities are seeing the problems with this business model, both economically and academically, and are choosing to do something about it. Kudos to them!

John said...


It's your analogy, not mine. Even when you're disagreeing with yourself, you strut like you've just hit a home run. Ridiculous.

For the last time -- read the damn tariff decision. Know what you're talking about before you comment. Everything you say about Access Copyright and their tariff, AND curriculum AND how professors and schools make decisions indicates you haven't a clue about any of this stuff.

You don't think universities should use AC's repertoire? Nothing is stopping them from opting out.

You think private licensing and subscription services are the way to go? The tariff places no restrictions on use of these other sources.

You think universities can deliver quality, unrestricted curriculum by using just what fair dealing will give them of AC's repertoire? Then you agree with York U that professors should stop their use of material at the fair dealing line.

In the end, you seem to be declaring you are in favour of restricting the freedom of teachers to choose what they will teach. That's the position your unquestioning faith in the free culture theory has brought you to. Ignorance combined with miserliness, sprinkled generously with moral relativism.

Darryl said...

Odd, the comment I made last night does not seem to be here. No bother. Basically, WRT analogies John, you need to learn the difference between a "disagreement" and a general qualifier. Any disagreement I might have had would of course have been with your endorsement of physical analogies.

WRT the rest. I understand where you are coming from. You think what is spent on licensing is relatively small and therefore spending it wisely does not matter so much. You do not see cost as a factor in "academic freedoms". I am grateful you are not running in this election.

I happen to think how you spend your money is important and when money is limited, being forced by the school administration to spend it in particular ways is a significantly limiting factor on "academic freedoms".

Not having an AC licence restricts very little from their catalogue which cannot be had in other ways. The inverse of course is not true when AC licensing takes a significant portion of your media budget.

Crockett said...

It seems self evident that if AC licensing was correctly priced that it would behoove the education sector to accept it.

The increased effort to change and police the use of copyright materials on their campus is fairly onerous. There must be some reason other than ideology at work here?

Darryl said...

Crockett, that would make sense if you buy into all of John's conspiracy theories about professors and free culture.

On the other hand perhaps the fact the Universities are second guessing the value of AC and in some cases getting rid of it, that is actually and indication that it is not as self evident as you believe.

Crockett said...

Heh John ... Comments?

John said...


I'm not sure what kind of comment you're looking for.

Do I think industrial players who build their business models on the use of creative content should view creators as business partners and respect the property they wish to sell? Yes, I do.

Do I believe there are large industrial players who use their might to demand terms that are ultimately harmful to their partners? I think that has been proven again and again.

Do I think there's an element of hypocrisy in a business model that expects customers to pay for a certain level of convenience and delivery, yet doesn't want to pay suppliers for the same convenience and delivery? I think you need only look at my opinions about paid education to see that yes I do see hypocrisy there.

Then again, if we follow Darryl's "logic" we can't very well restrict the freedom of Amazon to deliver a product to their customer by actually expecting them to devote part of their budget to purchasing that product in the first place. That would be terribly unfair to the poor, struggling mega-corporation.

Crockett said...

Just bringing it to your attention John. I'm actually on the fence on this one, it would depend if (and how much) Amazon is profiting from this as opposed to offering a free service.

John said...


Of course you recognize, as with lunch, there is no "free" service on the Internet. There is always profit of one kind or another.

And if they are profiting from a supply without fair payment to the suppliers.... well... welcome to the last ten years of arguing about copyright.

Crockett said...

In one aspect this is a backup service for items people have already purchased. So does this come back to consumers having a backup right?

Then again it is also a defacto streaming service, but for already purchased content. John should people have to pay to stream purchased content to their devices?

This is a free service being offered by Amazon so there is no financial gain in that regard. The one caveat I see is by purchasing one item of music from Amazon they increase the size of the vault. So I suppose there is a promotional aspect to it, but peripherally.

In one aspect they are being sneaky by not even asking, on the other the content owners would likely have demanded too much.

Like everything else unreasonableness on all sides.

John said...


I'm happy to engage in discussion of what consumer's "rights" are under copyright, but it is essential that such a conversation start with the proper understanding.

Consumer rights cannot come into play until something is actually acquired. And I say this as a consumer. I can't demand as a legal right that a product be offered under specific terms (safety and civil rights regulations excepted, of course).

Rather I must either accept the terms offered or shop elsewhere -- and when the market speaks in that way, those wanting a market find creative solutions to consumer preference.

The reason I believe that consumers, like myself, do not have a "right" to back up their old DVDs is because we didn't buy that right when we bought the DVDs. Demanding it for future puirchases is perfectly valid, but we must wait for the industry to respond with terms that work for both us and them. And they can't satisfy the consumer until they first satisfy their own suppliers (the artists) with new terms that take into account these new rights sales.

The danger in NOT recognizing this basic starting point is that mega-corps like Google and Amazon can piggyback on the idea of "user rights" to advance the idea that, as a user of copyright protected material themselves, they don't have to engage in licensing or (re)negotiate terms with their suppliers. Your (and my) individual user right becomes co-opted for the benefit of multi-billionaires.

In their "power to the people" stance, neither Geist nor any of his merry band seem to recognize any of this, but then it's pretty clear that by "people" they sure don't mean professional artists.

Darryl said...

I'm happy to engage in discussion of what consumer's "rights" are under copyright, but it is essential that such a conversation start with the proper understanding.

I totally agree, and the same goes for any discussion of exclusive reproduction and distribution rights under copyright.

But copyright is not about acquiring or dealing in any way with goods, physical or otherwise. Copyright is a set of social norms codified in law which give a certain group of people rights to DO THINGS with information or data while denying these same rights to other people.

Your lack of right to backup your DVD is indeed the result of you not having purchased that right, but it only became a commodity to be bought or sold after your right to do what you want with your physical property was limited though copyright law. Understanding this is the proper starting point for any discussion on copyright.

The fact that mega-corps benefit from this is no different than their ability to benefit from free speech rights, or private property rights. Your hardly going to give up these rights because multinationals benefit from them too, are you?

It is this basic lack of agreement of a starting point for discussion which I believe is the reason the "copyright wars" will never end. Fortunately (for me), as far as private citizens are concerned, excessive copyright laws are tempered by the choice technology gives individuals as to whether to follow it or not. Unfortunately, companies and institutions, and even other creators, will remain hindered by the excessive copyright we currently have and the more draconian form governments are trying to impose.

Pieter Hulshoff said...

The reason I believe that consumers, like myself, do not have a "right" to back up their old DVDs is because we didn't buy that right when we bought the DVDs.

When I bought a chair I didn't explicitly buy the right to let others sit in it either. Should it therefore be illegal for me to let someone else sit in it?

My understanding of a purchase is that I can do with it as I please within the limits of the law. If you want to sell me something under different conditions (like a license), you'd better make me sign a license agreement or contract to limit my rights.

Btw, what DO you people sell me? Is it a license or is it a product? The record labels just argued in court that they sold a product rather than a license when it came to iTunes, but when their customers claim rights suddenly they've been sold a license? How about the industry make up their mind first before making claims?

John said...


"We people" sell copies of our work with limited rights attached (in other words, BOTH product and licence). Those limited rights are spelled out explicitly on the packaging with a copyright declaration.

Y'all ought to read and respect that.

This ain't rocket science.

John said...


Read a book about copyright... please. Read any book. It will help you.

Copyright is not about information or data; it is about works, expression, intellectual property.


Darryl said...

"Those limited rights are spelled out explicitly on the packaging with a copyright declaration. "

Nice try John, actually unless you make a contract to the contrary, those rights are spelled out in the copyright act. Precisely what those rights are and will be, is the subject of this debate.

And thanks for your advice, I've actually read a few.

"Copyright is not about information or data; it is about works, expression, intellectual property."

I'd be curious to see how you differentiate works & expression from data & information as related to copyright. I told you already John, there is no such thing as Intellectual Property.

John said...


"This debate" is happening in your head.

I can no longer be bothered with folks who can't differentiate between information and works. Come back when you've formed a basic understanding of copyright.

Or don't. Either way.

Darryl said...

Nicely done John. Totally ignore the first point, and claim the second is beneath your dignity.

As I said, it'll be a long time before any sort of sanity come to this copyright debate, and we shall all pay a high price for it in the mean time.

John said...

There was a point?

Darryl said...

Yes, and fortunately for me I can ignore copyright as easily as you ignore my point.

John said...

What is that faint buzzing noise?

Darryl said...

Teh heh, that's the sound of the Internet bursting with people downloading torrents as they give up on the established content industries ever hearing them and providing what they want with terms they want.

Warren said...


I don't think John's ignoring your points. It's just that they are so irritatingly wrong so often. Take for example this gem: "Copyright is a set of social norms codified in law which give a certain group of people rights to DO THINGS with information or data while denying these same rights to other people." As John has endeavoured to point out, copyright protects original forms of expression, not ideas or information per se. But hey don't let that basic fact get in the way of your unrelenting fight against 'the man'. Yawn.

Pieter Hulshoff said...

"We people" sell copies of our work with limited rights attached (in other words, BOTH product and licence). Those limited rights are spelled out explicitly on the packaging with a copyright declaration.

Y'all ought to read and respect that.

You know, I've tried that when buying from Amazon, but for some odd reason they won't show me that so called license of yours. Also, by law unless I actually sign the license I'm not bound by it.

You know very well my stance on copyright infringement: I do not condone it. My cabinets are full with original cds, dvds, and books. Still, it pains me to see an artist as yourself think that people will respect you for grabbing rights that by law don't belong to you. There's a good reason many people don't respect copyright these days, and I think it's a damn shame.