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The Varsity

The University of Toronto's
Student Newspaper Since 1880

Post-Access Copyright era off to a rocky start

Professors confused, frustrated by new copyright rules

By Sarah Niedoba
Published: 1:32 am, 13 January 2014
Modified: 11 pm, 19 January 2014
Vol CXXXIV, No. 14 under
Bobby Glushko U of T’s copyright librarian. CAROLYN LEVETT/THE VARSITY
UPDATED

Following inquiries by The Varsity, U of T students have received a $13 reimbursment for fees paid to Access Copyright at the beginning of the year. In the past, the university has chosen not to reimburse students, as in Febuary of last year when they chose not to provide a refund for “illegal” ancillary fees. The university made the decision to end their license with Access Copyright earlier this past December, allowing for the refund. The end of the licence has been met with a mixed response, with student unions seeing it as a victory and writers unions calling it unfair to the Canadian community of creators and publishers.

The end of the license seems to be causing a problem for some professors as the winter semester begins. Numerous students have reported instances of professors explaining to their classes that they must remove content from Blackboard, and are unclear when or if this material can be reposted. In one instance a student reported an instructor emailing the material from a personal account so as to avoid the new copyright guidelines. In nearly a dozen other classes, students reported instructors expressing confusion and frustration over the mid-year switch.

Munib Sajjad, president of the University of Toronto Students’ Union (UTSU), said that the union applauds the move by the university. The union feels the ancillary fee students were paying to the company were unnecessary given a 2012 Supreme Court decision that expanded the definition of fair use of copyrighted materials for educational purposes. Cameron Wathey, vice-president internal, echoed Sajjad: “This tremendous victory will save each student $27.50 per year, which ultimately will save students $1.5 million in total.”

Despite the positive outlook from the UTSU, several organizations representing Canadian creators and publishers feel the university is not respecting their work by ending the license. The Writers’ Union of Canada, the Canadian Authors Association, the Professional Writers Association of Canada, the Association of Canadian Publishers, the Canadian Publishers’ Council, and the Canadian Educational Resources Council have all expressed their disappointment with the university’s new approach. Dorris Heffron, Chair of The Writers’ Union of Canada (TWUC), feels the university’s interpretation of copyright law does not support Canadian writers and publishers.

Currently the university is operating under a policy where if a professor uses 10 per cent or less of a work it is constituted as fair dealing, and therefore does not require a copyright license. “People aren’t buying our books, but they’re taking excerpts of them to teach, and that’s not supporting us,” explained Heffron. “I get a hundred emails a day from our members upset about this matter.” Heffron said that the union is considering a wide range of potential responses, but that a protest on the university campus will likely follow.

Bobby Glushko, head of the newly founded one-man copyright office at U of T, disagrees with Heffron. “It really bothers me when people say that we’re not respecting authors — it’s unfair because we actually pay authors a tremendous amount of money — we employ thousands of published authors. Almost all of your faculty are published authors; we have nothing but respect for authors and authorship.” Glushko went on to say that he believes the problem lies in the interpretation of copyright law — Access Copyright and TWUC believe that the university is interpreting the new fair dealing guidelines unfairly. “Our response is: Well is it fair for our students to be subsidizing these authors when no one else is?” said Glushko, explaining that he would have preferred to keep the university’s license with Access Copyright, but that they were unable to negotiate a price that the university thought appropriate for the services provided.

Executive director of Access Copyright, Roanie Levy, acknowledges that the disagreement lies in different interpretations of copyright law. “The university has indicated it will rely, in part, on an expanded interpretation of fair dealing that is not supported by law,” said Levy. “Canada’s creators and publishers believe that it will ultimately prove harmful to the supply of Canadian content.” Access Copyright is currently involved in a lawsuit against York University based on York’s current copyright office’s practices regarding copyright law.

Beyond disagreements about interpretation of the law, Access Copyright has also called into question the university’s readiness to take on the task of handling its own copyright; U of T has hired a single copyright librarian to oversee the change; Access Copyright is a national organization that has been handling copyright issues since 1988. “The issue now is the scope of the university’s copyright responsibilities in the absence of the Access Copyright license,” said Levy.

Glushko hopes he will eventually have more people working under him, but is unable to confirm if this will ever be a possibility. “It’s me, and two unfilled positions. I envision an office with three or four employees and a few student employees and myself. It’s really up to the budgeting process,” said Glushko. When asked if he was able to handle the copyright office on his own, Glushko was confident that he was up to the task. He explained that the university is using a similar model to the one it used before ending its agreement with Access Copyright.

According to Glushko, the only change since the end of the license is that where previously professors had the ability to use 20 per cent of any material found in the Access Copyright repertoire, now faculty must make the decision to either use 10 per cent of the material and have it fall under fair dealing, or ask the students to purchase the entire book. Chief librarian Larry Alford expanded upon this point, explaining that professors are required to take down any material on Blackboard that is included in the Access Copyright repertoire, but can replace it if it is included in a license currently held by the university, or if it falls under fair dealing or the public domain. If the material in question is not included in any of these categories, the faculty must work to either pay for it on a transaction basis or find alternative material altogether.

Glushko remains confident that the university is up to the task despite pushback and a need to divert other library resources to help cope with the shift: “We’re the University of Toronto; we’re a very special institution. We’re obviously going to try and learn from people who have come before us, but ultimately, we’ll create something that works for us.”

With files from Murad Hemmadi

  • http://www.flora.ca Russell McOrmond

    Interpretation of Fair Dealing is only one issue.

    Access Copyright(AC) offers a very specific financial service that some authors may choose to use, but can no more be said to “represent” authors than Scotiabank can be said to represent their customers on political issues. AC has been trying to impose themselves on all authors, making it harder for authors to use other mechanisms to get paid. The issue isn’t whether authors get paid, as they do through a wide variety of services, but whether authors choice will be respected or whether AC will become mandatory.

    It is frustrating that AC has been able to spin this as Universities being in the way of authors getting paid as it is AC that represents that threat.

  • jkdegen

    Thanks to The Varsity for a well-balanced look at this ongoing copyright dispute. Two quick responses:

    1) U of T’s new copyright officer confuses two important points. The fact that a university spends money on library books, journal subscriptions and online content subscriptions does not give that school permission to take other educational materials for free. Materials are a cost of doing business in education, as is fair pay for faculty (whether they are published authors or not), electricity, computers, chairs, carpets and cleaning services. No one else providing a service to U of T (not even the copyright officer) is expected to give up 10% of their earnings; just authors and publishers. That’s an unfair and unsustainable expectation. As well, licence payments for copyright-protected materials are not subsidies. They are commerce.

    2) All authors have a choice whether or not to affiliate with Access Copyright, and many choices about how or even if they intend to offer their work for educational use. Mr. McOrmond’s characterization of collective licensing is factually incorrect. Educational institutions have a broad choice of materials providers and a broad choice of models for accessing those materials, including subscription services (like the one for which Mr. McOrmond works). Institutions tend to use a mix of materials models, and collective licensing is part of that mix, providing permission to copy large amounts from publicly available (but copyright-protected) books, periodicals and digital sources. Unlike Mr. McOrmond’s service, Access Copyright does not lock materials behind a subscription. The only thing “mandatory” about an Access Copyright licence is that if work has a price tag on it, the consumer is expected to pay the price. That’s true for any service providing materials.

    John Degen, U of T alumnus (BA 1990, MA 1993)
    Executive Director, The Writers’ Union of Canada
    Access Copyright affiliate

    • http://www.flora.ca Russell McOrmond

      I’ll add some clarifications to the well rehearsed misdirections from John Degen.

      If dealing with Access Copyright was just about authors getting paid, then AC would be offering (even promoting) transactional licensing as institutions have been asking for for years, rather than imposing blanket licensing. AC would also be fully disclosing their repertoire so that their potential customers would know what they have to offer and could pay for — or even what the blanket license did or did not cover.

      Given the confusion caused by blanket licensing and a lack of adequately published repertoire, authors are forced to either join AC or not get paid for uses which institutions inadvertently (because of AC caused confusion) think are covered by the AC license. This is a clear case of authors having their choice removed, even if John likes to spin the AC scheme differently — “We’ve always been at war with Eastasia”…

      Institutions know this misdirection by Access Copyright devotees, so I assume John is trying to confuse others into believing that it isn’t Access Copyright making it harder for authors to get paid.

      It’s curious how John tries to misdirect people by bringing up where I happen to work at the moment. I’ve been fighting on behalf of fellow technology owners and independent creators (including but not limited to software authors) for decades now, only recently starting work at Canadiana.org.

      Not that Canadiana is relevant to my rights activist work (my activism isn’t on behalf of my current employer), but it it still consistent. Canadiana offers services to digitize and provide access to works. Payments are for access to the website we host, and for the digitization work we do on behalf of clients (primarily educational institutions). The materials are not “behind a subscription” in the way that John claims as these are works in the public domain, where the types of restrictions (legal or technical) John concerns himself with don’t even exist.

      John is aware of the public domain, lobbying to reduce it (by even further increasing or obfuscating the existing length of copyright) for as long as I’ve known him (decade+). Reducing the public domain that new authors build upon is also harmful to authors interests, while it does benefit intermediaries like publishers and AC.

  • Paul Jones

    Access Copyright and the Writers’ Union continue to trot out a tired set of arguments concerning their imagined mistreatment by Canada’s K-12 schools, colleges and universities.

    One would think that with their dubious arguments having been carefully considered and ultimately rejected by students, professors, librarians, institutional administrators, the general public, the Parliament of Canada and the courts (including the Supreme Court of Canada), the Writers’ Union and Access Copyright would hit the reset button, end their pity party and come up with something new to say.

    Alas they have not and are consigning themselves to irrelevancy on this issue as a result.

  • jkdegen

    It seems the Writers’ Union’s opinions about copyright are so irrelevant that the Policy and Education Officer of the Canadian Association of University Teachers, Paul Jones, closely follows my comments in the student press.

    The discussion about the definition of “short excerpt” has really just begun and the new guidelines claiming so much copying for free directly contradict almost everything suggested by both Parliament and the Supreme Court. That being so, and since most officials attached to the academic community nervously refuse to even address writers’ concerns on this topic, I’d say we’ve got a live one here.

    I have personally spoken with hundreds of students and professors who feel no certainty, only confusion, and a great deal of anxiety about being left blowing in the legal wind by their administrations and associations. This article suggests that’s a common, and growing, experience.

    Mr. McOrmond’s characterization of this entire situation is best viewed in light of his creative description his own subscription based service:

    http://eco.canadiana.ca/view/oocihm.76847/194?r=0&s=1

    “Subscription Required.”

    • http://www.flora.ca Russell McOrmond

      I think anyone who took a moment to look would realize that “Access Copyright” and Canadiana are unrelated services. I’m also only a system administrator here, and it is no more “my service” than http://atlas.agr.gc.ca/agmaf/ is “my service” because I happened to work there for a while.

      Canadiana is: Access, No Copyright — this is a web service for customers that offers *access* to digitized works from the public domain. There are no copyright related restrictions, and what people are paying for is access and the tools to search to find what they are looking for. It is primarily funded by educational institutions, and the service is available for free to anyone at those institutions. Canadiana also offers a subscription service for people who want to access from outside of these institutions. Even though most of the pages are no-subscription-required, John of course likes to highlight the tiny subset that is subscription required in his misdirection.

      AC is No Access, Undisclosed Copyright — AC doesn’t offer a web service to get access to the works in in its repertoire, or even a search engine or database that lists all the works in its repertoire. This is a common complaint from people who would like to get what AC claims it offer. They complain that they don’t know what they are paying for as they don’t even get a list of covered authors and covered works.

      I know John is trying to distract people by suggesting I work at an organization that is more restrictive in some way than AC, but it is not even an apples-to-oranges comparison. There are competitors to AC which offer both Access and Licensing of the works they offer access to, and these online databases are what Libraries are actively moving to and why they see the AC blanket license as largely irrelevant.

      If AC actually offered useful services like the database access services, rather than trying to push a blanket license for an undisclosed series of works that it doesn’t even offer access to, then maybe AC would become be more relevant.

      That a current staff member at the Writers Union continues to promote the interests of AC rather than the often competing interests of Writers Union member writers is an internal issue within the union. Hopefully members will increasingly recognize the problem, and handle staff appropriately.

  • Bobby Glushko

    Hello! Bobby Glushko here. I’m not going to weigh in on the other comments, but I do want to take a second to correct something in the article. I’m not a single person trying to handle all of the business of a transition away from an Access Copyright license; there are many, hardworking, qualified people at several libraries across the tri-campus system who are working with faculty, staff, and students to help ensure that this transition is as smooth as possible.