nlla.ca

Want to keep track of which post-secondary institutions are signing the licence agreement with Access Copyright and which ones aren’t? Ariel Katz, Associate Professor at U of T’s Faculty of Law, has an excellent site where universities who have publicly announced they are not signing the agreement are inducted into the “Hall of Fame” and those who have signed the licence are relegated to the “Hall of Shame.” Universities who have released a letter-of-intent to sign but have not yet actually signed the agreement are currently listed in “purgatory.”

Check it out: http://arielkatz.org/archives/1803

On May 15, 2012, Memorial University’s Vice-Presidents’ Council approved signing a letter of intent to accept a model licence negotiated between the Association of Universities and Colleges of Canada (AUCC) and Access Copyright (AC), the Canadian Copyright Licensing Agency. Although this decision is non-binding, the fact that Memorial University is even considering accepting a deal that, as it is currently worded, has restrictions that seriously impact research, teaching and learning and will cost an estimated $400,000 per year, is of great concern.

Memorial University had opted out of licensing agreements with AC, along with over 30 other Canadian universities and colleges, due to AC’s proposed post-secondary tariff. The tariff represented a significant increase in per-student fees, the introduction of what many consider to be intrusive and impractical monitoring requirements, and the assigning of rights to AC that do not exist under Canadian law.

The AUCC had been representing Memorial University and other Canadian Universities and Colleges in the Copyright Board post-secondary tariff hearing, arguing against the tariff, but recently withdrew from the hearing after negotiating a model license agreement with AC. The NLLA had previously released a statement reviewing the model license and strongly advising universities and colleges not to sign it.

While some universities have publicly stated similar intentions to sign the AC licence agreement, others such as the University of British Columbia, Athabasca University, the University of Windsor, and the University of Winnipeg have all decided against it. UBC’s May 15 statement released by David H. Farrar, Provost and Vice President Academic (Vancouver) and Doug Owram, Deputy Vice Chancellor and Principal (Okanagan) states “We believe we are taking the bolder, more principled and sustainable option, which best serves the fundamental and long-term interests of our academic community.”

In the statement released by Memorial, Dr. David Wardlaw, provost and vice-president (academic) says “Signing this letter of intent allows us to undertake further consultations, to seek clarification of details of some of the terms in the model licence and to compare thoroughly the benefits and costs of signing versus not signing the new licence.” The NLLA sincerely hopes that the university does not sign the agreement with its current wording intact, and that the “clarification of details” will involve negotiations on some of the questionable and controversial terms that will have long-term consequences for the future of access to online information in Canada.

Memorial University’s statement also refers to “certain retroactive discounts offered on the new licence.” The NLLA does not see an annual $26.00 per full-time student fee as an incentive, nor could it be described as a “discount” when it represents a roughly 800% increase from what Memorial University was previously paying. This month, after the province’s budget was released, the University announced that it needs to find almost $4 million in savings. The NLLA questions how the University can concede to paying the exorbitant fees being demanded by AC, especially since much of what they will be paying for is already permitted for free.

The deadline to actually sign the AC licence agreement is June 30, 2012. This gives Memorial University time to re-consider its intentions of signing and the NLLA urges they do so.

Yesterday, Memorial University of Newfoundland Students’  Union, Marine Institute Students’ Union, Grenfell Campus Students’ Union, and the Graduate Students’ Union released an open letter to the university’s Copyright Action Committee and the university community.  Their letter makes it clear that students are “very concerned about some of the clauses contained within the Access Copyright agreement and believe that the new $26 fee is unjustified.” The students’ unions  “urge the administration to stand firm in their decision to provide for the needs of our campus without signing on to an agreement with Access Copyright.”

They also point out that both the faculty association MUNFA and the NLLA have written open statements to the university urging them to reject the model license, and say they “support the messages of those groups unequivocally.”

Read the entire letter.

In 2011, over 30 Canadian universities and colleges, including Memorial University of Newfoundland, opted out of licensing agreements with Access Copyright, The Canadian Copyright Licensing Agency, due to Access Copyright’s proposed post-secondary tariff. The tariff represents a significant (1,300%) increase in per-student fees; the introduction of what many consider to be intrusive and impractical monitoring requirements; and the assigning of rights to Access Copyright that do not exist under Canadian copyright legislation.

The Association of Universities and Colleges Canada (AUCC) had been representing its member institutions in the Copyright Board post-secondary tariff hearing, arguing against the tariff, however, in April, the AUCC abruptly withdrew from the hearing, a decision that has been described as “astonishing.” The AUCC and Access Copyright agreed upon terms of a model licence agreement, which AUCC is recommending that its members enter into.

The NLLA has reviewed the model license and it is our position that no post-secondary institution should sign it, for some of the following reasons:

• Questionable value for the money: The agreement only covers Access Copyright’s “Repertoire Works”. The Library has already obtained licenses to a significant volume of materials directly from publishers or aggregators not in Access Copyright’s repertoire, and a considerable amount of scholarly material is freely available through open access. Much of the usages of any materials at educational institutions are permitted under Fair Dealing or the Educational Exemption under soon to pass Bill C-11. We question whether Access Copyright’s repertoire (particularly their digital repertoire) justifies a $26 per student fee.
• Definition of copying: The proposed license gives Access Copyright additional rights that simply do not exist under Canada’s copyright legislation. Their definitions of a “copy” include:
  • “projecting an image using a computer or other device” – This is already permitted by the Copyright Act: “29.4 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority…(b) to make a copy of a work to be used to project an image of that copy using an overhead projector or similar device for the purposes of education or training on the premises of an educational institution.”
  • “displaying a Digital Copy on a computer or other device” – How else would students or faculty access a digital copy? This is the equivalent of saying reading a book constitutes “copying”.
  • “posting a link or hyperlink to a Digital Copy” – This definition has not been upheld by the Supreme Court of Canada. To concede such a definition by signing the agreement as it is currently worded will have long-term consequences for the future of access to online information in Canada.
• Restrictions that impact research, teaching and learning: The proposed licence states that “Copies of Repertoire Works shall not be stored or indexed with the intention of creating a library of Published Works, except as permitted by this agreement as part of a Course Collection.” This has serious implications for scholarly research. For example, faculty and students could not keep copies of journal articles (in AC’s repertoire) for the purpose of research and private study (a right they do have under Fair Dealing). Since Access Copyright defines linking as copying, researchers could not keep even keep links to Access Copyright materials.
• Intrusive and impractical surveillance requirements: The proposed licence mandates the monitoring of the particular works utilized on campus and the volume of use. Because Access Copyright defines “copying” to include transmission by email, linking, and displaying content on a computer, it’s difficult to envision how this monitoring would not be intrusive to faculty, librarians, researchers and students, and jeopardize the principles of privacy and academic freedom essential to scholarly research.

Many other organizations have spoken out against the proposed agreement including the Canadian Federation of Students, Queen’s University Librarians and Archivists (QULA), Carleton University Graduate Students’ Association, Memorial University of Newfoundland’s Faculty Association (MUNFA), the Atlantic Provinces Library Association (APLA), and the Canadian Association of University Teachers (CAUT). Condemning the agreement, CAUT is advising universities and colleges that “It‘s time to stand up for the right to fair and reasonable access to copyrighted works for educational purposes.”

The NLLA strongly advises universities and colleges, particularly those in Newfoundland and in Atlantic Canada, not to capitulate to Access Copyright’s unfair and unreasonable demands. Please do not sign the AUCC’s proposed license agreement.