Copyright Corner (May, 2012)

7 COPYRIGHT CORNER AUCC-Access Copyright new model license In this Copyright Corner contribution I was initially going to spotlight the Spring 2012 digital readings pilot project. Two weeks ago, however, a negotiated new model license for print and digital copying was announced by the Association of Universities and Colleges of Canada (AUCC) and Access Copyright. Because the U of L will need to decide whether or not to be covered once again by an Access Copyright license, I will instead brief you on the main issues at stake. To recap, in the fall of 2009 AUCC and Access Copyright began to negotiate terms for a renewed model license for copying. Negotiations were effectively halted in March 2010 when Access Copyright filed a proposed 2011-2013 tariff with the Copyright Board of Canada. Among the proposed tariff’s worrisome terms are: the definition of a “copy” as encompassing all digital copies, including those “made by or [existing] as a consequence of . . . transmission by electronic mail . . . [and] posting a link or hyperlink to a Digital Copy,” Access Copyright’s “right of access throughout the Educational Institution’s premises, including full access to the Secure Network and all Course Collections” to carry out annual surveys on the nature and volume of copying, and an annual royalty amount of $45.00 per FTE inclusive of day-to-day and coursepack copying, a rate that is well beyond twice the comparable calculated rate under our former license (U of L payments to Access Copyright averaged $17.35/FTE over the past nine years, invoiced in two separate parts: i) day-to-day copying based on a per-FTE royalty which had risen to $3.38/FTE by 2010, and ii) coursepack copying based on a per-page royalty which was $0.10/page in 2010). Objections to the proposed tariff were filed by AUCC, the Association of Canadian Community Colleges and others over the summer 2010, which the Copyright Board was then obligated to investigate before determining the tariff’s final terms. In March 2011 Access Copyright sent AUCC a list of 134 interrogatories that sought various data on member institutions’ use and copying of published works for the determination of a fair royalty rate. By July 2011 the U of L submitted its interrogatory responses except for nine particularly onerous questions which the Copyright Board agreed to hold in abeyance pending negotiation of the design for a copying survey of AUCC members. The Copyright Board has not yet certified the proposed tariff. TOPIC OF THE MONTH ULFA NEWS May / June 2012 8 COPYRIGHT CORNER In the meantime, because AUCC members’ licenses were set to expire in August 2010, an extension to the end of 2010 was offered, which the U of L signed. The U of L’s decision against further renewal of its Access Copyright license was announced in November 2010. In late December 2010 the Copyright Board approved an Access Copyright application for a 2011-2013 interim tariff containing terms similar to the license that was about to expire. The U of L opted to be covered under the interim tariff from January to August 31, 2011 to avoid introducing major changes in the middle of the academic year. From September 1, 2011, the U of L is one of about 36 opt-out institutions that have chosen to operate outside of the interim tariff, representing roughly 34% of AUCC’s total membership. The U of L Copyright website outlines copying options that may be applicable to teaching and research needs, and a Notice Board posting describes coursepack options and alternatives for Summer and Fall 2012 courses. These events have been unfolding within a national (and international) state of copyright flux. Having wended its way through first and second reading, Bill C-11 is now poised for third reading and the remaining legislative steps required to enact it into law. It contains Copyright Act amendments that include education as a new fair dealing purpose. We also anticipate Supreme Court of Canada decisions later this year on five copyright-related cases heard in December 2011, one of which includes the question of whether multiple copies of text excerpts for classroom instruction constitutes fair dealing (case 33888). And in the March 2012 newsletter I noted the signing by two AUCC (opt-in) members of an independent Access Copyright license containing some worrisome definitions, terms and conditions. This brings us to the April 16 announcement by AUCC and Access Copyright of a negotiated new model license for print and digital copying covering January 1, 2011 to December 31, 2015. Despite AUCC’s suggestion that the new model license “provides the best possible outcome for universities, their students and faculty,” a number of problems and questions have been raised (by, for example, CAUT), as the model license is substantially similar to the one signed by two universities in January. AUCC’s publication, University Affairs, provides another perspective. The new model license comes with a discount offer providing opt-in and opt-out institutions with an incentive to sign the agreement as soon as possible to obtain a price reduction on royalty back payments for the period from January 1, 2011 (effective date of the license) to the date the license is signed. The deepest reduction is available for institutions that indicate an intention to sign by May 15, 2012. TOPIC OF THE MONTH ULFA NEWS May / June 2012 9 COPYRIGHT CORNER—continued On April 24 AUCC withdrew the objection it had filed against the proposed tariff because a negotiated model license is now available as an alternative to the tariff. For AUCC, the “main issue addressed by the blanket license . . . is the need to secure a license for copying required readings for students in course packs or on course websites.” AUCC says that one risk of operating without an institutional license is that after the tariff is certified, it would take only one proven instance of use of a work without required permission to trigger the obligation to pay the full tariff fee (currently proposed to be $45.00 per FTE). My largest concern is that while I agree with and have some data specific to our institution that support a number of the concerns raised about the fairness and validity of components of the new model license, the U of L currently lacks solid data on the kinds and amounts of copyright-protected works that may reside in Moodle as course readings. And until we do have this data, we will be unable to conduct a full analysis of whether or not our students and faculty, in the long term, are best served by operating within or outside of a copying license or tariff. I hope to share more about this in the coming months. Because the results of the Spring 2012 digital readings pilot project may be of interest as you plan your Fall 2012 course readings, I’ll likely e-mail a summary report via the faculty and sessional lists later this month. As always, don’t hesitate to contact me or Betsy Greenlees if you need assistance with any copyright-related matters. Rumi Graham University Copyright Advisor copyright@uleth.ca (403) 332-4472 TOPIC OF THE MONTH ULFA NEWS May / June 201