Thursday, March 03, 2011

the tuition/copyright connection - privatization?

Is a privatization agenda driving copyright advocacy in post-secondary education?

A coincidental juxtaposition of two stories in my in-box this morning has perhaps shed some light on the campaign by certain prominent educational spokespeople to have a broad and vaguely worded exception included in the copyright modernization bill currently before Parliament.

Firstly, the Innovation Law Blog out of the University of Toronto reports on a talk given to U of T's Technology and Intellectual Property (TIP) Group by Roanie Levy. Levy is General Counsel and Director of Policy and External Affairs for Access Copyright, a collective representing writers, publishers and visual artists. In her talk, Levy outlined the dangers to this constituency of a too-broad educational exception in Bill C-32. I quote:

Levy argued that the exception for education is so broad that they could indeed undermine the legitimate interests of the rights holder, thus preventing the normal exploitation of the work and creating problems under [the] Berne [Convention].

Levy further pointed out that the crux of the tension lay with the question of whether the scope of fair dealing under C-32 is oriented around payment or access—or, more specifically, whether it is about simplifying the process of accessing works for educational purposes, or allowing for broad access, but with payment required in compensation for said access. Levy argued that access with payment is a viable alternative and one that should be pursued under copyright reform provisions, going forward, instead of the broad provisions that are currently being adopted.

Note the explicit connection between access and payment.

I have argued extensively that much of the current campaigning for a broad educational fair dealing category and interpretation is aimed less at increasing access than at decreasing, if not eliminating, payment. Those who deny this cost-reduction connection today have previously advised that with a broad interpretation of educational fair dealing much licensing cost could be eliminated.

The argument for cost-savings on the backs of rightsholders usually references the poor students. I have shown a number of times that copyright licensing as currently structured and even with proposed increases is exceedingly affordable for Canadian universities and should not represent a burden to individual students. In fact, one large Canadian university could pay the licensing fee for every post-sec student in Canada with little to no pain at the bottom line. And since universities continue to charge ever-increasing tuition to students attending and graduating from their programs, education is unquestionably a commercial use where copyright is concerned.

This week we learn of one Canadian university that is actually being fined for increasing tuition fees beyond provincially mandated standards – a 900% increase, it seems. From the Toronto Star:

The Quebec government’s punishment of McGill University comes amid an increasingly heated debate about tuition fees — which are lower in that province than anywhere else in the country.

Education Minister Line Beauchamp says the government will penalize McGill for imposing fee hikes that go well beyond the provincial limit of $1,673 per semester.
The Montreal university began charging $29,500 in tuition for its MBA program this year.

The Canadian Press digs deeper into the story:

In order to charge the higher rates, McGill has given up the public funding it receives for the MBA program. The move follows a similar one by Queen's University, which privatized its MBA program in the 1990s, allowing it to set tuition rates higher than provincial limits. Several other MBA programs, including those at the universities of Toronto and Western Ontario, have since followed suit.

Is the trend of privatization in Canadian post-secondary education driving the cost-savings agenda around educational fair dealing? I think it’s a fair question that deserves careful consideration by the C-32 Committee currently studying the bill and its many new exceptions. After all, if privatization leads naturally to 900% tuition hikes, wouldn’t it stand to reason private programs will look for any cost-savings they can find?

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Crockett said...

I think it is obvious that business will look for any way to decrease costs and increase profits. That is the natural order of business practices.

For example, Access Copyright (referenced in this article), is in essence a business to generate profits for it's clients. In it's submission last year it significantly increased it's fee proposal before the copyright board. Now true, there was exaggeration and inaccuracies from some critics, but it is still evident that the increase was substantial as well as it, possibly, being overreaching in scope.

So why did Access Copyright put in for these increases instead of continuing with it's old model? Well, to be fair in some regard to address changes in the marketplace, but also obviously to increase their income.

Is there much functional difference in trying to increase your income over decreasing your costs? That is a complex question, but the take away from this is no one is all pearly white in their motivations or tactics.

Regardless I support both AC and the Universities to make their distinctive cases before government committee and the copyright board then let it fall where it may.

John said...


Since you insist on cross-posting here and at Geist's blog, I will quote my response to this comment from over there in the hive mind:

Access Copyright is a non-profit collective tasked with licensing actual use and collecting royalties. It is exactly NOT a business generating profits.

That's where the wrongness starts. It continues in your discussion of the tariff proposal. The tariff proposal is based on new technological uses and increased usage in general. Again, royalties are tied to actual usage. If income rises (a terrible thing for artists, I know, shameful), it's because use has increased as well.

I expect immediate and ideological disagreement everytime I post something on my blog, just as I can count on a Geistian chorus of "yes professor" everytime something new pops up over there.

I'd appreciate it if you would TRY to be accurate at least. The copyright discussion has enough Darryls.

I note that Darryl responded @Geist with his standard "I know you are but what am I." I'd avoid that path as well. Some folk put a premium on originality.

Darryl said...

Oh very good John, You criticize me without ever actually addressing the point that was made.

AC is in business to create profits for its members. Royalties for use would be included in that definition by most people. Perhaps you think real money does not change hands in these agreements?

That is where the failure of your criticism starts. It does of course continue in the rest, but we have all been over this material many times in the past so I see little point in reiterating it now.

Crockett said...

@Degen "The tariff proposal is based on new technological uses and increased usage in general."

OK John, maybe I have some misinformation on this, if you could clarify.

Was not the new proposed tariff a fixed amount per student, replacing the previous base plus per page charge? How is that then tied to actual usage?

Is there not increasing usage of open source and other paid sources of material outside the AC portfolio? How then is there increased (rather than decreased) use of AC materials as well to justify the significant proposed fee increase?

Maybe if you have some numbers or data to show this then this matter could be all cleared up? That would be great!

Crockett said...

And just to be balanced on this, if it is as you say, that educational institutions are thinking 'push c-32 through so we will not have to pay for materials at all anymore' then that is a attitude that must be countered. Greed comes in many forms.

John said...


I think you're going to have to wait awhile for actual numbers, since it looks like the Copyright Board won't allow AC to share its usage audits. It's all in the Interim tariff, which is currently in place (an online at the AC website). AC is not allowed to use actual numbers to justify a requested increase. Funny that. Can't imagine which side would have demanded such a ruling.

The interim tariff also brings us closer to the here and now with a digital option that includes, it looks like, everything AC asked for, including the linking to digital copies that caused such consternation in the hive.

I can't respond to Darryl because mendacity tires me so, but just so you know, there is a difference between profit and payment for use. You can likely find all sorts of handy definitions of things like "royalties" and various uses in the tariff or in AC's info package about it.

Finally, I want to very carefully clarify a suggestion from your last comment. I am not saying educational institutions want to avoid payment for copyrighted materials. That's way too broad a criticism, and I don't make it.

I am saying that certain academic advocates are happily making a career of the theoretical ideology of free culture (initially posited by Lawrence Lessig). These folks are showing a disturbing lack of regard for the collective preferences and individual rights of professional artists as they intentionally muddy the waters around copyright reform.

Further, and more disturbing, I feel this small but loud group of free culture academics are very happy to see a broadly permissive and poorly defined fair dealing confuse the issue and create a political rift within the traditional partnership of content creators and educators.

They insert fair dealing as a wedge to drive this partnership apart and weaken (if not destroy) a traditional and effective business model, hoping they can then fill that space with their ideologically sound, and personally rewarding, "open" model.

I further believe the cost-cutting drive of a private institution or department might encourage the broadening of the fair dealing interpretation, which of course muddies the waters further.

I hope that helps your understanding.

Crockett said...


Thank your for your detailed explanation. There does seem to be a conflict between the "open" and licensed models, I have no disagreement there. And I do understand that collecting royalties that are due is not a true profit generation activity.

My concern though is that AC is moving outside that to increase, shall we say revenue, for their clients that they may not be entitled to.

On the surface, the increase in the fee that AC was asking for coupled with the impression that more open sources are being used, leaves a perception of doubt. This may or not be the case but until numbers and methodology is made public that question will be left hanging.