Tuesday, August 02, 2011

academic restrictions in the news

(logo courtesy cbc.ca)

The proponents of free culture are spending the summer nudging Canada's post-secondary institutions to "opt-out" of an interim Copyright Board tariff designed to extend previous Access Copyright agreements with universities and colleges while a new price structure for new uses and greater digital delivery is worked out at the negotiating table.

So far, free culture cheerleaders Howard Knopf and Michael Geist have compiled a list of about 26 schools (out of roughly 2000 in Canada) who have pre-empted negotiation and decided to see if they can manage to provide a high-quality Canadian education without collective licensing for the materials Access Copyright represents (most publicly available materials by Canada's professional writers, publishers and visual artists) leaning instead on their own definition of fair dealing and somewhat mysterious substitute materials, much of which will be sourced in the United States.

In past blog postings, I've pointed to declarations by opting out universities such as Toronto's York University and the University of Saskatchewan suggesting these schools intend to actively restrict the choice of materials used in the classroom by their professors and students. I continue to wonder how students and teacher associations can stand for this kind of interference with academic freedom, but so far not a peep from either about these new restrictions.

Someone's starting to take notice, though. In the last week, both CBC.ca and MetroNews have published reports about restrictions on academic freedom, and the ongoing uncertainty over cost in the decision by the University of Calgary to refuse the Copyright Board's tariff terms.

This quote from the Metronews article spells out the dilemma in which U of C students (and those of 25 or so other schools) will find themselves:
U of C business student Justin Fisher was concerned after learning about the new copyright restrictions.

“When you are writing a paper, you want to find as many resources and references as possible,” he said

And very telling indeed, for those who have long followed the free-culture attack on collective licensing in Canada, is this little slip of the tongue from U of C Chief Librarian Tom Hickerson in the CBC.ca story:

"...a rumoured change coming to federal copyright legislation could ease the growing burden on universities."

What rumoured change to copyright legislation is going to make life without an Access Copyright license or tariff easier for universities?

Could Hickerson be referring to an expansion of fair dealing to cover educational uses? That doesn't seem possible because when Canadian writers and publishers have publicly worried that just such an expansion would destroy fair collective licensing in Canada, we've been told by educators and free-culture cheerleaders that nothing could be further from the truth.

Hickerson's assertion in the CBC story suggests educational institutions are just waiting for new legislation so they can start claiming all educational uses as fair dealing, and that the worries of Canada's cultural creators are well-grounded indeed.

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Anonymous said...

“When you are writing a paper, you want to find as many resources and references as possible,” he said.

Duh, AC covers making copies of complete articles and chapters to make handouts for groups of students. Someone tell this student that the point of writing a paper is to search for the article, book etc. and do the work. This is not grade school where the teachers need to make copies for little billy and jane.

Darryl said...

There is no dilemma for students being able to "find as many resources and references as possible", unless an A-C license is now required to visit the library. As well, I expect anything the student might do with any works is already covered by fair dealings as "research or private study". Once again John, you are the master of hyperbole.

"Could Hickerson be referring to an expansion of fair dealing to cover educational uses? That doesn't seem possible because when Canadian writers and publishers have publicly worried that just such an expansion would destroy fair collective licensing in Canada"

That is because you saying that expansion of fair dealings will "destroy fair collective licensing" is a little like (actually a lot like) Valenti claiming the VCR would destroy the movie industry with his Boston Stranger metaphor. Yet more hyperbole.

Let me know when the sky starts falling Chicken Little. K? Thanks.

Anonymous said...

2000 universities and colleges in Canada? Uh, I don't think so. There are only about 4,000 in the whole United States. Try 100 universities, approximately, and maybe 200 colleges.

John said...

Hmmm, funny, I still get roughly 2000 when I do my googley searchy. I am also counting career colleges as post-secondary. Copyright should not be snobbish about where it applies.

Darryl said...

Yup, John's right. These are just a few renegades that are opting out. The majority is sticking with A-C, and there is no need for A-C to kowtow to these renegades' extreme demands.

It reminds my of a conversation I had with ID Games recently, regarding a similar market decision they had to make. Except that they made the opposite choice of course.

They only make games for one operating system. Just one!!! I told them that there are tonnes of OSes out there. There is Linux, OSX, FreeBSD, QNX, and more. Tonnes! They said that they only make games for Windows, and have no interest in addressing the needs of those other operating system users. Pffff, they are going to go bankrupt soon as a result of this arrogance. Imagine only publishing for one operating system. Hah! I am glad for their sake that A-C knows where the majority of their market is, and recognize that 26 schools is a drop in the bucket compared to 2000!!

John said...


Well, what you call a drop in the bucket, Access Copyright might very rightly interpet as organized, widespread and damaging copyright infringement - and since part of the collective's mandate is to protect the legal rights of its members, I would imagine there is going to be a great deal of scrutiny on these 26 schools and their 2011/12 academic practices.

That an institution would willingly expose its staff and students to such liability in the normal course of academic work is, in my opinion, extraordinarily irresponsible.

One alternative, of course, is for the schools to be hyper-vigilant and extremely restrictive about the materials used in the classroom - an unprecedented restriction of academic freedom in this country.

BTW, are you telling me that a company ignored your free advice? How is it possible?

Darryl said...


John said...

Hmmm, that's a funny noise. Are you cleaning out the space between your ears again? Must get awfully dusty up there.

Crockett said...

I have done an analysis of the number of students affected by the opt-out institutions. While this has been said to represent only 26 out of 2000 institutions, it does represent 33% of the student population of public Universities & colleges (outside Quebec).

Now here it the interesting math part:

Assuming a loss of 33% of students paying the AC tariff, and also that the tariff is eventually increased to the requested $45 per student (from $13 average) then there is going to be an increase in profits to Access Copyright in the rage of 200% or $24 MILLION dollars.

So even if the above universities continue in their opt-out plans and a further 33% of colleges do the same Access copyright is still going to more than double their profits.

To come out on the loosing side 72% of Canadian students would have to opt-out of AC use, while this is in the realm of possibility all in all I think AC made a smart gamble from a business perspective. How all this will affect our students is another question.

Gruesome said...

I think you need to put this into context. For this kind of change in institutions of this size the number is actually quite remarkable.
If these Universities and Colleges are successful and avoid litigation due to possible infringement you could see many more follow in the coming years.
I'm sure AC will be all over these these Schools looking for any excuse to file a legal action. The future of AC is on the line here ( At least the AC we know today)
Any legal action could be very costly to the individual university and could be determent enough for other schools not to follow.
The problem is I'm not sure if AC would want any cases to head to Supreme Court unless said school was in clear violation given some of the statements made in CCH
"The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively."
"The proper balance
among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature."

Despite John's assertion that the ruling was narrow (something he apparently pulled form the dust in his own head) the court gave clear reasoning to their interpretation of copyright in Canada.
The next couple of years could be quite interesting indeed.
My hope is that the courts continue to recognize copyright for it's foremost intended purpose which is as a benefit to society as a whole.

John said...


Please, when trying to be clever in your insults, be original as well. I know lack of imagination and originality are celebrated traits in the free culture camp, but this is my house.

There is nothing settled about fair dealing after CCH, and saying it's settled doesn't make it so. As a creator, I respect true fair dealing as a necessary tool in culture-building. I'd like it if others would respect the rest of copyright (you know, that huge chunk of rights untouched by fair dealing) as forcefully as they do this necessarily limited provision.


You take a very cynical view of how the tariff proposal came about. I'm not surprised by your cynicism (standard free-culture stick-it-to-the-manism), but I do think it needs to be pointed out.

New licence proposals from Access Copyright were and are about bringing everyone's copyright into the digital age - something free culture is always claiming rightsholders refuse to do. The proposals came in good faith and the spirit of negotiation. The universities walked away in the spirit of brinkmanship.

Characterizing AC's motivation as a cash-grab and a business gamble is inconsistent with the actual history of this licensing dispute. The gamblers are the universities who have opted out, and they are gambling not only with creators' rights, but with the academic freedom of their faculty and students.

Gruesome said...

I don't think I ever said things were settled, that seems to come from your vibrant thinking. But there does seem to be a view on the supreme court which may not make certain legal moves undesirable. As I said it would have to be a clear violation of copyright as loosing could be very dangerous for AC.
I could never be as creative as I've seen you on this blog.
From all the use your creativity has no dust.
And of course when it comes to insults you are the king.

Crockett said...

John, I do not hold the education sector as blameless in these negotiations, there is no short supply of brinkmanship.

I would suggest though that as much as my cynicism may come from 'free culture camp' your own view of AC's virtuous 'good faith' could use a dash or two itself.

Gruesome said...

'free culture camp'


John said...


You forget, or maybe you're just not aware, that I’ve been in this fight as a professional creator – intimately cognizant of all the anti-collective licensing invective – for a full decade now. I have the advantage of perspective.

I’ve watched the AC-haters change their tack whenever the sense a potentially favorable wind. Their arguments against AC change according to their own internal idea of where public opinion might be best influenced:

They’re too expensive; they’re unnecessary; they’re too restrictive; they don’t track usage well enough; they want to track usage; they’re inflexibly analog; they want to invade the Internet; they enrich creators on the backs of students; they don’t enrich creators; they’re too much like the US; they’re not enough like the US; they don’t understand the law; they have too many lawyers advising them; their administration is overwhelmed; their administration is too big; they’re not open enough; they’re too open; they’re not professional enough; they’re too corporate; not enough of the money goes to the rightsholders; too much of the money goes to the rightsholders.

There's no other word to describe such a determined, inconsistent, ever-changing attack. Cynical.

And through it all, AC has answered all questions, followed all laws, respected all mechanisms, offered itself up for public examination, extended its hand to Creative Commons, celebrated access and the public domain, and worked very, very hard on behalf of creators and publishers. That’s what good faith is.

I call it as I see it.


That explains the incomprehensibleness of your last comment. Maybe you should go sleep it off.

Crockett said...

John, I do not hate AC or creators and I must admit I read from one side of the debate more than the other. I do find it hard to believe this impasse is all the doing from one side of the court, but I could be wrong in that.

What I do see is a request from AC for a 200% increase in their fees. I get this figure from a few different sources that pegs costs per student under the old agreement at an average of $13. Now notice I am not claiming 1200% as other did initially, we all know that was spin.

Yet tell me what supplier can call for a 200% increase in price and not call that a gamble. The only way it is not is if the supplier felt they had a lock on the market.

Yes, AC does consider there to be added value in that fee but others feel there is less, as well as added compliance burdens. The whole subject of linking from a legal perspective is in question and who knows what the government will cook up in C-32 redux?

In such an environment I find it hard to call AC's submission to the copyright board anything but a gamble. Having said that I do hope this can all be worked out with less rancor from all.