• Denise Brunsdon is a J.D./M.B.A student at the University of Western Ontario and is currently researching the legal implications of Turnitin.com, the plagiarism detection software used at UWO and many other Canadian universities.  Denise refused to submit her undergraduate work into Turnitin.com, igniting a multi-year battle with McGill University that successfully resulted in policy accommodations later adopted by multiple Canadian universities. She is also an Editor of IPOsgoode’s Intellectual Property blog, IPilogue.
  

• Lisa Di Valentino, M.L.I.S., J.D., is a doctoral student in Library and Information Science at the University of Western Ontario. Her research interests relate to information law and policy in the digital age, particularly in the fields of copyright and information privacy. As a law student, she was the founding Managing Editor of the University of Western Ontario Journal of Legal Studies. She will address issues arising out of the license agreement currently in effect between UWO and Access Copyright. 
• Lisa Macklem, J.D., LL.M. is a doctoral student in Media Studies at the University of Western Ontario. Her research interests include how the Entertainment industry is attempting to monetize in the digital environment, Internet law, global implications of Copyright law, and how the law is interpreted by the various stakeholders impacted by it, particularly in the area of Intellectual Property. She serves on the editorial board of The Journal of Fandom Studies and her article “This Note’s For You – Or Is It? Music, Copyright and the Internet” is forthcoming in the Journal of International Media and Entertainment Law. Her presentation will address the legal and policy considerations of cloud computing.
• Samuel Trosow is an Associate Professor at UWO in the Faculty of  Information & Media Studies and the Faculty of Law.  He is a Principal Network Investigator in the Graphics, Animation and New Media (GRAND) NCE which has provided funding for the ongoing research presented in this panel. He is the co-author of Canadian Copyright: A Citizen’s Guide, about to be released in its second edition, he maintains a website at http://samtrosow.wordpress.com and he is a frequent speaker on digital information policy issues. He will discuss issues pertaining to MOOCs including copyright, open access and digital labour issues.

There is no cost for the symposium and you can register online.

“It was, as such, my job to assess the quality of books, and I did so based on many years of experience in the field . . . As budgets decrease, the necessity to be more discerning increases, yet libraries have reduced their qualified staff numbers over the years. As a qualified and experienced librarian, I was sharing a professional opinion for consumption by peers.”

The review, posted under the title of “The Curious Case of Edwin Mellen Press,” was critical of the publisher’s practices on several grounds. (The posting itself is attached to the first Statement of Claim)

While the University itself has not issued any statement in support of its Associate University Librarian, the Canadian Association of University Teachers (CAUT) was quick to come to Askey’s defense.  The InsideHigherEd story quotes CAUT Executive Director James Turk as saying that the suit is deeply concerning and a clear attempt to silence Askey’s exercise of academic freedom by legal action. Turk adds that one of the most disturbing aspects of the case, is that McMaster has yet to provide Askey with legal support.

Other commentators have also supported Askey, including Oxford Law Prof Leslie Green, who is also affiliated with McMaster.  In a comment posted on a Leiter Report assessment of academic publishers in philosophy  (which ranked Mellon 34^th out of 34) Green said that

No one likes bad reviews; but Mellen’s approach is not to disprove the assessment, pledge to improve its quality, or reconsider its business-model. It is to slam McMaster University and its librarian with a three million dollar lawsuit in the Ontario Superior Court, alleging libel and claiming massive aggravated and exemplary damages. The matter is pending.

The lawsuit is threadbare. With respect to the parts of Mellen’s list with which I am familiar, the librarian’s statements noted above are all true and the quality judgments are correct. (And this survey suggests that would be a common assessment.) Moreover, on the facts in this situation, it is obviously fair comment, and public policy considerations strongly suggest that university librarians enjoy a qualified privilege with respect to their assessments of the books they consider buying for their universities. It would be a disaster for universities, students, researchers and the taxpayer if aggrieved publishers were permitted to silence discussions of the quality of their publications by threats of lawsuit.

Like CAUT’s James Turk, Greene was also critical of the McMaster administration for failing to come to the librarian’s defense.

McMaster University’s response to this appalling tactic has been surprising. Public silence. No one at McMaster has spoken in defense of the librarian or the University; no University administrator has pushed back against the crude threat to academic freedom that this represents. (But then the President of McMaster’s list of the seven ‘McMaster Principles’ omits any mention of academic freedom.) Are the McMaster faculty, administration, and faculty associations already so cowed by libel-chill that they are afraid to speak up? Or are they unaware of Mellen’s attack? Or—and this is just as worrying—is it that McMaster values its professional librarians so little that it is willing to let them bear the brunt of such harassment, so long as the University itself can avoid vicarious liability?

Let’s hope someone at McMaster forcefully says ‘enough’ to this sort of bullying. Universities have a negative duty not to abridge the academic freedom of their members; they also have a positive duty to see to it that others do not do it either.

A posting in the Academic Librarian (a blog maintained by Princeton University librarian Wayne Bivens-Tatum) says that “academic librarians should consider the implications of this lawsuit and its potential attack on academic freedom and the public expression of professional opinions on relevant subjects.”

This is an important case for librarians and their associations to be watching. The newly formed Canadian Association of Professional Academic Librarians (CAPAL) has stated

CAPAL wants to affirm the right of academic librarians to voice their opinions about materials they collect, and this includes the publishers from whom these materials are purchased. CAPAL will be watching to see whether the suit has any merit but want to state emphatically that we believe this to be a threat to academic freedom not just at McMaster University but academia everywhere.

It will be interesting to see if the other established library associations like the Canadian Library Association or the Canadian Association of Research Libraries will join CAUT and CAPUL in issuing statements defending the academic freedom of librarians.

It is posted in the FIMS Library and Information Science Publications series at http://ir.lib.uwo.ca/fimspub/24.

Here is the text from the Introduction….
On March 31, 2010, Access Copyright applied to the Copyright Board to certify a tariff that would govern the relationship between the organization and the members of the Association of Universities and Colleges of Canada (AUCC) and the Association of Community Colleges of Canada (ACCC). Previously, the relationship had been governed by a series of license agreements between the organizations which had been periodically renewed. But Access Copyright chose not to seek renewal of the licenses, and applied to the Board to certify a general tariff that would cover all post-secondary institutions for the period of 2011 through 2013.

Access Copyright was not merely trying to carry forward the terms of previous licensing agreements in the form of a Board certified tariff. Rather, they were seeking a tariff with a much higher rate, wider scope and broader application; one which would place new burdens on the institutions, their staff and students, and which would also jeopardize many of the rights of academic staff and students. This working paper reviews the terms of the Proposed Tariff and its progeny licenses and discusses several of the arguments that have been raised against them. The first general grouping is that many of the provisions are ambiguous, counterintuitive and are based on problematic definitions which attempt to extend the reach of the compensable activities beyond what is authorized by Canadian law. The second broad issue is the lack of value in the Proposed Tariff itself. The third general grouping deals with the audit, reporting, monitoring and survey (ARMS) provisions in the Proposed Tariff and the progeny licenses. With respect to the Proposed Tariff, we argue that several of its terms are also ultra vires the Copyright Act and would not have survived scrutiny had they been fully litigated.

While recent developments have cast a new light on these issues, many of the concerns raised in this report about the Proposed Tariff remain unresolved. Despite strong arguments to the contrary, and their previous opposition to the Proposed Tariff at the Board; AUCC, ACCC and several institutions still felt that a license with Access Copyright was needed. In January 2012, Access Copyright announced they had reached licensing agreements with the University of Toronto and the University of Western Ontario, the terms of which were substantially similar to the proposed tariff. Following the “lead” of UWO and the University of Toronto, AUCC and ACCC have since announced a similar agreement with Access Copyright, resulting in a “Model License,” and they have since dropped their opposition to the Proposed Tariff at the Copyright Board. In this report, we refer to the UWO and University of Toronto agreements and the AUCC/ACCC model licenses as the “progeny” of the Proposed Tariff because despite some differences, they are substantially similar in many respects.

To date, some institutions have accepted the Model License, others have rejected it, and many others had not yet announced their intentions as of the end of July 2012.

This paper is divided into five sections. Following this introduction, section 2 will address some of the definitional problems in the Proposed Tariff and progeny licenses in more detail. First and foremost are the definitions of “copy” and “course collection” which increase the scope of the statutory reproduction right and create other burdens. These overbroad definitions are foundational problems with the tariff/licenses which not only exceed the scope of owners’ statutory rights, but will have the potential to substantially impede the delivery of course materials, adversely impact faculty and student privacy rights, and ultimately threaten academic freedom. The other problematic definition involves the “Secure Network,” along with various limitations that flow from this definition.

The third part of this report will ask the question: What value would institutions obtain under the Proposed Tariff and its progeny licences? A review of section 3 of the Proposed Tariff and its progeny indicates that the scope of the permissions does not add very much to what is already permitted under fair dealing and other limitations and exceptions in the Copyright Act. In addition, the scope of Access Copyright’s repertoire is ambiguous, and the value of the indemnification clause in the progeny licenses is very limited.

The fourth section will turn to the audit, reporting, monitoring, and survey (ARMS) provisions in the Proposed Tariff. We argue that these measures are overbroad and ultra vires the Copyright Act. They should be substantially scaled back if not entirely eliminated from any eventual tariff order. And while these ARMS provisions have been cast in modified terms in the progeny licenses, these corresponding provisions remain highly problematic.

The last section will look at the implications of more recent developments (including the UWO and UofT licenses of January 30^th, the AUCC and ACCC Model License, and the withdraw of AUCC from objector status at the Board) for the tariff proceedings which are still pending at the Board. It will close with a summary of the recommendations made throughout this report. And while a full treatment of the implications of the passage of Bill C-11 in June and the Supreme Court’s historic July pentalogy is beyond the scope of this report, they will also be considered throughout this report.

Therefore, the overall purpose of this report is to identify and address some of the key issues that have been raised from the outset about the Proposed Tariff dispute, as they remain largely unresolved. In addition to highlighting flaws with the Proposed Tariff and its progeny licenses, we will offer some suggestions for how an effective and fair tariff or license could be crafted. We are calling this report a Working Paper as it is very much still a work in progress given the fast pace of current developments and the still unsettled state of the issues. Many institutions have yet to announce whether they will accept or reject the model license agreement and the status of the tariff proceedings before the Copyright Board still needs to be addressed.

So far only nine eleven CARL affiliated universities have signed a new agreement with Access Copyright.  They include the University of Western Ontario and the University of Toronto who had signed their own side-agreements with Access Copyright in January, as well as seven nine who have since signed the AUCC Model License (Victoria, Alberta, Manitoba, McMaster, Brock, Ryerson, Ottawa, and Dalhousie). While there has been no identifiable announcement from URegina, it appears from the context of their copyright pages that they have also signed the agreement.

It should be noted that of these nine seven, Ottawa, Victoria and Dal had indicated serious concerns with the terms of the license, indicating an intention not to renew the contract on its termination in 2015.

In contrast,  12 CARL member institutions (UBC, Simon Fraser, Calgary, Saskatchewan, Windsor, Waterloo, Guelph, York, Queens, Carleton, UNB and Memorial) have indicated they are not signing the model license. [statements compiled here]

Four Two other CARL member universities (Alberta, Calgary, Regina and Simon Fraser) have not yet indicated whether they are signing the agreement. Alberta and Calgary had previously signed a letter of intent, but neither has actually signed the license. Calgary has since announced it will postpone the decision until the fall. It would be hard to imagine any more schools signing the license in light of the SCC decisions, but anything is possible, and these school could still go either way. [Note: UCalgary and Simon Fraser have since rejected the agreement as well]

Really very few CARL member institutions seem at all enthusiastic about the deal and even the schools that have presented the license in the most positive light could still shift their position going forward. Western and UT are in particularly good positions to indicate such a change since their separately negotiated licenses will terminate at the end of 2013, not 2015 as under the Model License. Statements from either of these schools indicating they will not be renewing their licenses would indeed be very significant shift.

It will be interesting to see what CARL has to say about the fair dealing rulings, and whether this might perhaps embolden them to break their silence on AUCC’s Model License. CARL is an associate member of AUCC, and given the realities of institutional management structures, it would be unusual for CARL to publicly diverge with them on such a high-profile issue. But if ever there were a case to do so, this would be it insofar as the Model License is so at odds with the values of librarianship.

To date, no statement on the Supreme Court decisions has come from either CARL or AUCC. Of all of the sectors in the research university community, one would expect the libraries to assert more leadership on this issue, yet it seems like the major national library associations have all but abandoned this crucial aspect of the copyright file.

Note: With the recent rejections from Calgary and Simon Fraser, the roster of the CARL schools is complete with 11 signing and 12 rejecting.  Watch for a new posting…..

In holding that fair dealing was an important users’ right, and not just a technical defense to copyright infringement, the CCH court set out a two part analysis for determining whether fair dealing would apply in any particular situation.

In the first stage, the fair dealing claimant must come within one of the categories specified in the Copyright Act (which had been research, private study, criticism, review or news reporting to which education, parody and satire have been added in Bill C-11). If the first step is satisfied, then the six fair dealing criteria are applied in order to determine whether the infringement should be excused.

One of the recurring criticisms of fair dealing has been the lack of clarity in terms of how these criteria might be applied in particular instances. This subjective nature of determining fair dealing has been cited not only by its strong opponents, but also by many potential institutional fair dealing claimants like schools, colleges, universities and libraries.  Many institutions have not always fully embraced the full potential of the CCH decision because of continuing worries about potential liability. Indeed, the uncertain nature of potential infringement litigation has often been cited as a reason for opting for the perceived safety and certainty of various licensing arrangements, even where the arrangement otherwise imposed undue costs and burdens, such as licenses with Access Copyright.

The new endorsement of fair dealing from the Supreme Court not only reaffirms the importance of fair dealing at the overall policy and conceptual levels, but the decisions contain several concrete instances which should help clarify and guide future fair dealing determinations. This additional authoritative guidance comes at an excellent time, as  many institutions are now grappling with their copyright policies and how they should be updated.

Here is a summary of relevant parts of the decisions along with some key “take-aways” that will help apply fair dealing on the ground.

Threshold First Step

At the threshold step of whether the use qualifies as one of the enumerated fair dealing categories, it is very clear now that the categories are to be very broadly construed. In CCH, the court said that the category of research should be given a liberal interpretation. This was reiterated in SOCAN v Bell Canada, where the unanimous court rejected on several grounds the attempt by SOCAN to narrow the scope of research at this first level of analysis, stating:

Limiting research to creative purposes would also run counter to the ordinary meaning of “research”, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework. [SOCAN, paragraph 22]

In mandating a generous interpretation of the fair dealing purposes, including “research”, the Court in CCH created a relatively low threshold for the first step so that the analytical heavy-hitting is done in determining whether the dealing was fair. SOCAN’s submission that “research” be restricted to the creation of new works would conflate the allowable purpose with the fairness analysis and unduly raise the bar for entering that analysis. Moreover, its restricted definitional scope of “research” contradicts not only the Court’s admonition in CCH that “in order to maintain the proper balance between the rights of a copyright owner and users’ interests, [the fair dealing exception] must not be interpreted restrictively” (para. 48), but also its direction that the term “research” be given a “large and liberal interpretation” so that in maintaining that balance, users’ rights are not unduly constrained (paras. 48, 51). [SOCAN, para 27]

In addition to rejecting SOCAN’s attempt to narrow the definition of research, the court also rejected their attempt to shift the focus of the inquiry away from the perspective of the end-user:

SOCAN’s proposed definition of “research” as requiring “systematic investigation” and “new conclusions” is also at odds with its second submission about “research”, namely, that “research” be analysed from the perspective of the purpose of the online service providers, and not that of the users. But its own proposed definition shows that it sees research as a user-focused undertaking, since the investigation and creation of new conclusions are clearly done by a user, not a provider. The provider’s purpose in making the works available is therefore not the relevant perspective at the first stage of the fair dealing analysis. [SOCAN, para 28]

. . . in considering whether previews are for the purpose of “research” under the first step of CCH, the Board properly considered them from the perspective of the user or consumer’s purpose. . . [SOCAN, para 30]

In Alberta (Education) v Access Copyright, there was no controversy over whether the first step of CCH had been satisfied as it was agreed that the photocopying was for the allowable purpose of research or private study. [Alberta, para 14]

Second Step: Applying the Fair Dealing Criteria

Turning to the second prong of the fair dealing analysis, these two decisions also provide additional guidance on how to apply the six fair dealing criteria adopted in CCH.

On the first factor, the purpose of the dealing, the court rejected SOCAN’s claim that the purpose of the dealing was commercial. This follows from their earlier discussion about adopting the perspective of the end-user as the frame of reference. And since the previews were streamed and of lesser quality than the original, the court felt there were reasonable safeguards in place so the first factor weighed in favour of fair dealing. [SOCAN, para 36]

In the photocopying context, the court rejected the position of Access Copyright that private study did not include more general instructional purposes. This was a major factor in the Board ruling that the Category 4 copies were not under fair dealing. It then became a very significant worry on the part of many institutions, resulting in some very problematic policies even in the post-secondary sector. But the court was very clear that private study is neither inconsistent with broader instructional purposes nor limited to situations where the studying in isolation.

Justice Abella’s reasoning in the Access Copyright decision here deserves a very close reading as it has significant implications for the development of educational fair dealing policies going forward.The passage also demonstrates the majority’s incredible insights into the educational processes of teaching and learning and their relationships with instructional materials:

. . . Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study. It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological. [Alberta, para 23]

The Board’s approach, on the other hand, drives an artificial wedge into these unified purposes by drawing a distinction between copies made by the teacher at the request of a student (Categories 1-3), and copies made by the teacher without a prior request from a student (Category 4). [Alberta, para 24]

…photocopies made by a teacher and provided to primary and secondary school students are an essential element in the research and private study undertaken by those students. The fact that some copies were provided on request and others were not, did not change the significance of those copies for students engaged in research and private study. [Alberta, para 25]

It is also significant that the court put to rest the misguided reliance on some dated case law that was being used to limit the scope of private study as an allowable purpose:

Nor, with respect, do I accept the statement made by the Board and endorsed by the Federal Court of Appeal, relying on University of London Press, that the photocopies made by teachers were made for an unfair purpose — “non-private study” — since they were used by students as a group in class, and not “privately”. As discussed above, the holding was simply that the publisher could not hide behind the students’ research or private study purposes to disguise a separate unfair purpose — in that case, a commercial one. The court did not hold that students in a classroom setting could never be said to be engaged in “private study”. [Alberta, para 26]

The court concluded its analysis on the first factor in an unequivocal and clear manner – private study does not require isolation or solitude:

. . . the word “private” in “private study” should not be understood as requiring users to view copyrighted works in splendid isolation. Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude. By focusing on the geography of classroom instruction rather than on the concept of studying, the Board again artificially separated the teachers’ instruction from the students’ studying. [Alberta, para 27]

On the second factor, the character of the dealing, SOCAN had argued that since the consumer accessed on average, 10 times the number of previews as full-length musical works, this factor weighed against fair dealing. The court rejected this position insofar as the streamed previews were transient. [SOCAN, para 38].

SOCAN’s argument that the third factor, amount of the dealing, should weigh in its favour was also rejected. They argued the baseline for comparison should be the aggregate amount of the previews, not the length of each individual preview compared to the length of the work. SOCAN pointed to the large amount of previewing in the aggregate as reason to find the dealings unfair. In rejecting SOCAN’s aggregation argument, the court put the focus right back on the individual end-user, stating:

Since fair dealing is a “user’s” right, the “amount of the dealing” factor should be assessed based on the individual use, not the amount of the dealing in the aggregate.  The appropriate measure under this factor is therefore, as the Board noted, the proportion of the excerpt used in relation to the whole work.  That, it seems to me, is consistent with the Court’s approach in CCH, where it considered the Great Library’s dealings by looking at its practices as they related to specific works requested by individual patrons, not at the total number of patrons or pages requested. The “amount of the dealing” factor should therefore be assessed by looking at how each dealing occurs on an individual level, not on the aggregate use. [SOCAN, para 41]

This fourth factor had also been misapplied by the Board in the Access Copyright case:

. . . as discussed in the companion case SOCAN v. Bell, the “amount” factor is not a quantitative assessment based on aggregate use, it is an examination of the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated. [Alberta, para 29]

By putting to rest the aggregate approach to the amount of the usage, individual users and their institutions will retain more control and have more certainty over this factor.

On the fourth factor, whether there are any alternatives to the dealing, the court rejected arguments from both SOCAN and Access Copyright. In rejecting SOCAN’s arguments that there were various alternatives to previews such as album artwork, textual descriptions, user-generated album reviews and return policies, the court agreed with the Board’s position that

listening to a preview is probably the most practical, economical and safest way for users to ensure that they purchase what they wish and that the previews were reasonably necessary to help consumers research what to purchase. [SOCAN, paragraph 46]

The Board had misapplied this fourth factor in the Access Copyright case where it found that the schools had an alternative to photocopying textbooks – they could buy more copies of the texts to distribute to each student or to put in the library. The court rejected this reasoning:

. . . buying books for each student is not a realistic alternative to teachers copying short excerpts to supplement student textbooks. First, the schools have already purchased originals that are kept in the class or library, from which the teachers make copies. The teacher merely facilitates wider access to this limited number of texts by making copies available to all students who need them. In addition, purchasing a greater number of original textbooks to distribute to students is unreasonable in light of the Board’s finding that teachers only photocopy short excerpts to complement existing textbooks. Under the Board’s approach, schools would be required to buy sufficient copies for every student of every text, magazine and newspaper in Access Copyright’s repertoire that is relied on by a teacher. This is a demonstrably unrealistic outcome. Copying short excerpts, as a result, is reasonably necessary to achieve the ultimate purpose of the students’ research and private study. [Alberta, para 32]

On the fifth factor, the nature of the work, the court also rejected SOCAN’s argument that since these works are easily purchased and disseminated without the use of previews, the previews are of no additional benefit to promoting further dissemination. [SOCAN, para 47]

On the sixth factor, the effect of the dealing on the work with respect to the music previews, the court said:

Because of their short duration and degraded quality, it can hardly be said that previews are in competition with downloads of the work itself. And since the effect of previews is to increase the sale and therefore the dissemination of copyrighted musical works thereby generating remuneration to their creators, it cannot be said that they have a negative impact on the work. [SOCAN, para 48]

On the effect of the dealing on the work in the Access Copyright case, the court found the Board had adopted a flawed approach. Despite finding no evidence of a link between a decline in text book sales, the Copyright Board nonetheless held this factor weighed against fair dealing and in favour of Access Copyright. The court rejected this approach, noting that “other than the bald fact of a decline in sales over 20 years, there is no evidence from Access Copyright demonstrating any link between photocopying short excerpts and the decline in textbook sales.” [Alberta, para 35] To this, the court added:

. . . it is difficult to see how the teachers’ copying competes with the market for textbooks, given the Board’s finding that the teachers’ copying was limited to short excerpts of complementary texts. If such photocopying did not take place, it is more likely that students would simply go without the supplementary information, or be forced to consult the single copy already owned by the school. [Alberta, para 36]

Some clear take-aways for institutional policymakers

Taken together, these two cases add quite a bit to our understanding of how to apply the fair dealing factors in particular cases. In both of these controversies, the claims of SOCAN and Access Copyright, who were trying to limit the application of fair dealing, were soundly rejected. Emerging out of these cases are some very clear general principles which will be readily applicable to other situations:

• There is a low threshold for the first step in terms of coming within one of the enumerated statutory categories. This ease will be even greater with the addition of education, parody and satire as fair dealing categories.
• The “analytical heavy-hitting” will be done as part of the factual analysis looking at the six individual fair dealing factors in the second step.
• On the first factor, which takes a deeper look at the purpose of the dealing, the point of view of the end-user should be adopted. In schools this means looking at the use by the students, and in libraries it means looking at the use by the patrons.
• On the first factor, it is also clear that the research prong continues to have a broad meaning. It is not limited to formal and systematic inquiry but equally applies to consumer research, lifelong learning, and everyday information seeking activities.
• Also on the first factor, the word “private” in private study should not be taken so literally as to require isolation or solitude. Private study can occur in the classroom setting and there is an inter-relationship between the instructional activities of a teacher and the research and private study of the students. Instructors and librarians have always well understood this relationship, and it needs to be better reflected in institutional copyright policies.
• Lastly on the first factor, artificial distinctions like whether an instructor has required a reading are not determinative, assigning a reading does not preclude private study.
• The third factor regarding the amount of the dealing should be assessed by looking at how each dealing occurs on an individual level, not on the aggregate use. The issue of whether to adopt the aggregate versus individual point of view has been a highly disputed point, with the collectives pushing for the user-disabling aggregate approach. The individual approach, which was endorsed in both cases, keeps the control localized in the hands of the end-user who is best able to make reasonable assessments under this factor.
• As to the fourth factor, the possibility of simply purchasing the text for everyone (or having everyone purchase a text) was not considered a reasonable alternative. Policies can be justified where they are reasonably necessary to achieve the ultimate purpose of the students’ research and private study. This prong of the holding should provide some additional comfort for robust library reserve policies.
• On the last factor, the effect of the dealing on the work, these two cases clarify that demonstrable harm needs to be shown in order to turn this factor against the fair dealing claimant. Making generalizations about lost-sales due to copying will not suffice.

These are some very concrete and helpful take-aways from the two cases. Hopefully the additional clarity will give some comfort to institutions who have been previously uneasy about adopting and encouraging robust fair dealing practices.

• Simon Fraser University: <pending>
• University of Calgary: http://library.ucalgary.ca/copyright
• Niagara College: http://nclibraries.niagaracollege.ca/copyright
• Seneca College: http://seneca.libguides.com/copyright
• Humber College: http://www.humber.ca/news/copyright-update
• Royal Roads University: http://www.royalroads.ca/news-releases/royal-roads-opts-out-access-copyright-agreement
• University of Saskatchewan:
  http://www.usask.ca/copyright/news/model-license-decision.php”
• University of Northern British Columbia:
  https://library.unbc.ca/files/2012/06/June-29-announcement.pdf
• University of New Brunswick:
  http://blogs.unb.ca/newsroom/2012/06/29/unb-to-remain-outside-the-access-copyright-license-agreement/
• University of Guelph:

  http://www.uoguelph.ca/news/2012/06/u_of_g_opting_o.html

• Memorial University:
  http://today.mun.ca/news.php?news_id=7462
• Queens University:
  http://www.queensu.ca/news/articles/queen-s-not-signing-access-copyright-licence
• Trent University:
  http://www.trentu.ca/newsevents/newsDetail.php?newsID=2827
• Carleton University:
  http://www5.carleton.ca/students/2012/copyright-at-carleton-university
• University of Waterloo:
  http://www.bulletin.uwaterloo.ca/2012/jun/07th.html
• University of Windsor: http://web4.uwindsor.ca/units/leddy/leddy.nsf/CopyrightUpdateMay2012!OpenForm
• York University:
  http://yfile.news.yorku.ca/2012/05/29/york-will-not-enter-access-copyright-licence/
• University of Winnipeg: (press account) http://www.winnipegfreepress.com/local/u-of-w-rejects–copyright-deal-as-money-grab-152135325.html
• Athabasca University: http://president.athabascau.ca/messages/index.php?id=109
• UBC: http://www.broadcastemail.ubc.ca/2012/05/15/ubc-is-not-signing-a-license-agreement-with-access-copyright/

Here are the texts of the statements

Simon Fraser University
<pending>

University of Calgary: Copyright at the U of C (2012)
http://library.ucalgary.ca/copyright

Important Announcement
August 27, 2012

The University of Calgary has announced that they will not enter into an Access Copyright model licence but instead will manage copyright compliance and payments in-house.

The Copyright Office in Libraries and Cultural Resources has been expanded and new tracking software, Ares, has been purchased. Information Technologies is working closely with LCR to implement the software, integrate it with Blackboard and link it to other campus systems as required..  Library staff has begun working with the software which will later be rolled out to all members of the University community.

LCR Copyright Office staff will be contacting faculty and staff over the next few weeks with specifics about clearing course packs and digital materials. To further support this change, information sessions will be offered in September in faculty spaces as well as at the Teaching and Learning Centre. As well, a new FREQUENTLY ASKED QUESTIONS document is being developed and will posted shortly.

Individual questions and concerns can be directed to the LCR Copyright Office copyright@ucalgary.ca or by contacting the Copyright Officer…

Niagara College Canada: NCC Copies Right
http://nclibraries.niagaracollege.ca/copyright

Effective midnight, August 31, 2012, Niagara College will withdraw from the Access Copyright Interim Post-Secondary Educational Institutions Tariff, 2011-2013, and has informed Access Copyright that we will not be participating in  the Access Copyright- ACCC Model Licence agreement.   These decisions were taken after careful consideration of the following factors:

1)  Analysis of items copied at Niagara College over the past year indicates that a very small percentage of materials copied for teaching and learning purposes came from the Access Copyright repertoire.  The model licence offers limited indemnity since it only permits limited copying of a work and only with respect to materials included in the collective’s repertoire.

2)  The recent passing of the amendments to the Copyright Act (June 2012) and recent Supreme Court of Canada decisions (July 2012) support much broader educational uses of copyrighted material under the fair dealing exception to the Copyright legislation.

3)  Many alternate sources such as the collection of licensed e-journals, e-books, databases and open access materials offered through NC Libraries can be legally and appropriately accessed for teaching and learning.  Faculty are encouraged to make links to licensed electronic resources and sources provided by the Library, to ensure compliance with copyright and to assist the College in its reaching sustainability targets to reduce paper consumption.

NC Libraries will continue to manage compliance and due diligence with the new copyright legislation and will update procedures and practices on an ongoing basis.  Watch for a revised fair dealing policy to come early September.    There will be tutorials and workshops available for Faculty in October which will deal with the new broader provisions under fair dealing.

In the meantime, current procedures will remain in place, with requests for copying to go through the Libraries for clearance.  If you have any questions regarding what you can and cannot copy under the new fair dealing provisions, do not hesitate to call your Campus Library at Welland … or at Niagara-on-the-Lake…

Copyright at Seneca: Update

Seneca College no longer has a licence agreement with Access Copyright, Canada’s copyright licensing agency.

August 22, 2012

Seneca College is respectful of Canadian copyright law which includes fair dealing for educational use and appropriate remuneration to rights holders. In accordance with recommendations from the Association of Canadian Community Colleges (ACCC) legal counsel, Seneca has decided not to extend its licence agreement with Access Copyright, effective immediately and will be operating under fair dealing principles and guidelines.

This decision was based on legislative approval of the Copyright Modernization Act in June 2012 and recent Supreme Court of Canada decisions which support broader educational uses of copyrighted material. These factors in addition to the Seneca Libraries’ extensive collection of licensed resources provide faculty and students access to a wide range of materials for teaching and learning.

We will continue to refine our policies and guidelines to support this transition. An explanation of fair dealing will be available at the end of August and information sessions will be scheduled during the Fall semester.

Details on fair dealing will be available at http://seneca.libguides.com/copyright.

If you have any questions regarding the appropriate use of print and digital materials, please contact library copyright staff at copyright@senecacollege.ca

Humber College

After careful consideration, Humber College has decided to join other Canadian post-secondary institutions including York University, Queen’s University, University of Guelph, University of British Columbia and the University of New Brunswick and will not extend its licence agreement with the copyright collective, Access Copyright.  The Academic Schools have worked with the Copyright Librarian to prepare for this change which will take effect September 1, 2012.

As an academic institution, we are committed to the sharing of knowledge, respect for intellectual property rights, appropriate payment to rights holders and the fair application of copyright law.  Humber is choosing the option which best serves the fundamental and long-term interests of our academic community based on the following factors:

• The legislative approval of the Copyright Modernization Act in June 2012 and recent Supreme Court of Canada decisions which support broader educational uses of copyrighted material.
• Ready access to Humber’s extensive collection of licensed e-journals, e-books and databases through the Humber Library.  Materials in the collection are funded on an annual basis and can be legally and appropriately accessed for teaching and learning.
• The limited indemnity offered through the Access Copyright license since the license only permits limited copying of a work and only with respect to materials included in the Access Copyright repertoire.

Humber will continue to refine our policies and guidelines to support this transition. An explanation of fair dealing and how it supports the distribution of published works will be available mid-August.  Details on appropriate copying under the concept of fair dealing will be available at library.humber.ca > For Faculty > Copyright Issues.

If you have any questions regarding the appropriate use of print and digital materials, please contact library copyright staff at copyright@humber.ca.

Royal Roads opts out of Access Copyright Agreement
July 3, 2012

Royal Roads University announced today that after a review it has chosen not to sign onto the new agreement with Access Copyright that was negotiated by the Association of Universities and Colleges of Canada.

“We have worked as a community for many years to decrease our dependence on materials that require copyright clearance, and have the right policies and procedures in place to ensure we are complying with copyright laws, so this decision makes good sense for our institution,” said Steve Grundy, provost and vice-president academic. “In addition to not adding the financial burden of this licence onto our university and our students, we are also saving hundreds of thousands of sheets of paper each year.”

Grundy said the university has taken steps to eliminate print course packs and instead rely on articles and e-books for which it has already secured copyright permissions. In deciding not to sign the new agreement, Royal Roads joins many other post-secondary institutions, including the University of British Columbia, Athabasca University, York University and Carleton University.

Access Copyright is the copyright collective that collects fees from educational institutions across Canada to clear copyrighted materials with a number of publishers and charges a per student yearly fee.

Royal Roads University was established by the Province of British Columbia in 1995 specifically to deliver quality applied and professional programs to advance professionals in the workplace. The university blends online and on-campus learning with current, real-world relevance for doctorate, graduate and undergraduate degrees, certificates, diplomas, executive and custom education.

The U of S will not sign the Access Copyright model license

http://www.usask.ca/copyright/news/model-license-decision.php

July 3, 2012

After careful consideration, the University of Saskatchewan has decided to remain outside of the license agreement with Access Copyright. This communication explains the development of new copyright processes to support faculty, staff, and students and the reasons for this decision.

In order to assist faculty and staff with this transition, new procedures will be forthcoming shortly to support educational use of copyright materials.  For academic course material use, faculty, teaching staff and instructors will be encouraged to make use of hyperlinks and digital resources under license in library collections, while an expanded copyright office will support copyright clearance where needed, such as for printed course packages.

In April 2012, Access Copyright and the Association of Universities and Colleges of Canada (AUCC) agreed to a new model license for the reproduction of materials in Access Copyright’s repertoire.  Under this model license, Access Copyright would receive $26 per full-time student equivalent.  You will recall that the U of S has been operating without an agreement with Access Copyright since August 31, 2011, when we made the decision to opt out of its Interim Tariff.  Since that time an extensive education campaign has been underway to help staff, faculty and students understand how to use and distribute material.  We have been committing time, effort, and resources to put procedures and tools in place to utilize materials for which we already hold licenses and simplify seeking transactional licenses.

Our decision to remain outside of the Access Copyright agreement was based on the following reasons:

• The environment has changed with respect to how copyright materials are used for teaching purposes on our campus. An agreement with Access Copyright is no longer an essential tool for teaching and learning because of our dwindling use of printed coursepacks, our increased reliance on digital delivery of course material, and the limited repertoire included in the license agreement.
• The U of S, through our Library, has extensive license agreements for electronic materials that allow access to tens of thousands of journals and periodical.  The library has developed a searchable database that will allow users to quickly and easily identify permitted uses for each journal. It will be up and running by the end of July 2012
• The agreement with Access Copyright is not cost effective for us given the material that is covered by the license.

The U of S remains committed to providing our community with the resources necessary to easily and legally access and use material. These resources include:

• A dedicated website (www.usask.ca/copyright) that will be regularly updated with information and resources
• A dedicated Copyright Officer, who has been tasked with educating and supporting the university community on changes and developments with regards to copyright and related procedures
• Liaison librarians who are available to help faculty and teaching staff find materials for their courses
• A searchable database that will allow users to quickly and easily identify permitted uses for our electronic holdings in our library
• Dedicated staff in the Bookstore, eMAP, and CCDE to handle copyright clearance for course material
• The Copyright Advisory Committee, which is tasked with developing appropriate policies and procedures
• Establishment of a Copyright Office to enhance our ability to assist  faculty, staff, and students identify and locate available resources, as well as answer any questions they may have

Over the past year faculty, staff, and students at the U of S have worked diligently to be copyright compliant without an overarching copyright agreement. We appreciate effort thus far, as well as the input and support for this decision.  We are committed to continuing to provide the advice, support, and guidance needed as we all become accustomed to operating in a new copyright environment.

Sessions have been arranged throughout July where you can learn more about getting course material prepared for fall term. Please see our website (www.usask.ca/copyright) for exact dates and times.

For more information about copyright, please visit our website (www.usask.ca/copyright) or contact the Copyright Coordinator at copyright.coordinator@usask.ca.

Sincerely,

Brett Fairbairn, Provost and Vice-President Academic
Greg Fowler, Acting Vice-President, Finance and Resources

UNBC
https://library.unbc.ca/files/2012/06/June-29-announcement.pdf
June 29, 2012

The University of Northern British Columbia’s Office of the President issues the following announcement to the UNBC community:

The University of Northern British Columbia will not be entering into the Access
Copyright license agreement.

After careful consideration of the model license and the implications of signing
onto this agreement, the University believes that the academic culture at UNBC
is best supported by operating within our own guidelines, policies, and existing
licensing agreements.

UNBC, and several other institutions, have been operating outside of the Access
Copyright tariff since September 1, 2011. UNBC is strongly committed to
honouring the terms of copyright and creative commons licenses that enable
access to research and educational materials. All members of the university
community are responsible for respecting Canadian copyright laws, the terms of
the library’s agreements, and the terms of copyright and creative commons
licenses.

This decision was based on the size and scope of the library’s existing license
agreements, the passing of the third reading of Bill C-11 (The Copyright
Modernization Act), and Canada’s Fair Dealing extensions to include education.
UNBC has taken the necessary steps to assist faculty and staff with
understanding copyright compliant practices and providing copyright services
that meet our university’s needs.

We encourage faculty and staff to continue to participate in the workshops and
information sessions related to copyright practices, to talk . . . or visit the Library’s Copyright Information website.

The University of Northern British Columbia is committed to academic integrity
and enabling legal access to educational and research materials for all students,
faculty and staff.

UNB to remain outside the Access Copyright license agreement
http://blogs.unb.ca/newsroom/2012/06/29/unb-to-remain-outside-the-access-copyright-license-agreement/
Posted by UNB on 6/29/12

Following a thorough review, the University of New Brunswick has decided not to sign a license agreement with Access Copyright, recently negotiated with the Association of Universities and Colleges of Canada (AUCC). This decision reflects UNB’s concerns about academic freedom and the cost of higher education, supported by taxpayers and students.

Along with several other universities across Canada, UNB has been operating outside of the Access Copyright tariff since September 1, 2011. The measures taken by the university since that 2011 decision have strongly positioned UNB to enable students and faculty to access teaching and research materials, while ensuring that authors and copyright holders are compensated appropriately for use of their work. To this end, UNB Libraries has established a system of copyright clearance support and maintains negotiated licenses covering approximately 37,000 electronic journals and 500,000 eBooks that provide extensive rights for our use in teaching and research.

“The UNB Student Union is pleased that the University of New Brunswick has stopped the addition of a new ancillary fee to students by not signing the license agreement with Access Copyright, despite minimal discussions with students,” said UNB Fredericton Student Union President Andrew Martel.

“The Students’ Representative Council (SRC) at UNB Saint John is pleased that administration has decided against signing the Access Copyright agreement,” said UNB Saint John SRC President Brad Trecartin. “UNB, along with many other institutions across the country, has declared it to not be in the best interests of students nor worth the additional fees to that the students would be burdened with.”

“AUNBT (The Association of University of New Brunswick Teachers) welcomes this decision as signing the licensing agreement would have given up on hard-won fair use rights and imposed costs that would ultimately have to be borne by students,” said Jula Hughes, AUNBT President. “Our library colleagues are to be commended for the hard work that has made this decision possible.”

UNB’s faculty, staff, and students, with assistance from our librarians and copyright office, have worked very hard since 2011 when UNB decided to operate in a copyright compliant fashion without resorting to the interim tariff from Access Copyright. This action supports our strategic plan in respect of intellectual property rights and a sustainable future.

For more information visit http://www.lib.unb.ca/copyright/ .

University of Guelph Opting Out of Copyright Agreement
June 29, 2012 – Campus Bulletin
http://www.uoguelph.ca/news/2012/06/u_of_g_opting_o.html

After extensive review, the University of Guelph will opt out of a national copyright licensing agreement reached between the Association of Universities and Colleges of Canada (AUCC) and Access Copyright.

The University had signed a non-binding letter of intent to participate in the model license before a May deadline to qualify for discount incentives, and used the intervening time to arrive at this final decision.

The decision follows similar steps by numerous Canadian universities, including the University of Waterloo, Queen’s University, University of British Columbia, University of Windsor, York University and Trent University.

As well, Bill C-11, the Copyright Modernization Act, was passed recently. It includes several new educational exceptions that are not accounted for in the AUCC Access Copyright license.

“Guelph has a long history of attention to compliance issues and engagement with the principles of fair dealing and open access,” says Rebecca Graham,
U of G’s chief information officer and chief librarian.

She said the decision best meets the intellectual and financial needs of U of G students and faculty and fulfills the University’s commitment to academic freedom and open access, including the sharing of digital materials and scholarly content.

Graham said the University will continue to provide students and faculty with the resources needed to acquire learning and research materials, while ensuring access to copyrighted materials through existing licensing agreements, appropriate payment to authors and publishers, or by utilizing fair dealing and other exceptions in the Copyright Act.

Copyright clearance services and fair-dealing guidance are available through the library. With this decision, U of G continues to contribute to the growing community of institutions adopting best practices for managing their own copyright without the need for a collective license, Graham says.

Memorial will not sign copyright agreement between AUCC and Access Copyright
http://today.mun.ca/news.php?news_id=7462

Memorial University will not sign the model licence agreement negotiated between the Association of Universities and Colleges of Canada (AUCC) and Access Copyright, according to Dr. David Wardlaw, provost and vice president (academic) and chair of the Vice-Presidents’ Council which made the final decision.

“After considerable analysis of the pros and cons of such an agreement, extensive input from individuals and groups on campus as well as from provincial and national organizations, and consultation with the Senate Committee on Copyright, Memorial’s copyright action committee recommended to the Vice-Presidents’ Council that the university not sign the agreement. The Vice-Presidents’ Council has accepted this recommendation,” said Dr. Wardlaw. He noted that feedback from the university community had a significant impact on the committee decision.

“The copyright action committee is appreciative of the insightful and reasoned assessments contained in the input from members of the Memorial community. Those who provided feedback were almost unanimously opposed to the proposed licence agreement,” said Dr. Wardlaw.

A dominant theme running through all discussions, consultations and feedback on this issue was the absence of a compelling value proposition for Memorial under the proposed licensing terms.

Memorial joins a growing list of Canadian universities including the University of British Columbia, Athabasca University, the University of Windsor, the University of Winnipeg, the University of Waterloo, York University, Mount Royal University, Trent University and the University of New Brunswick who have opted out of the agreement.

“As an academic institution, we are committed to the sharing and dissemination of knowledge, intellectual property rights, due payment of royalties to copyright owners and the fair application of copyright law. We believe that these principles are best upheld by not signing this agreement. I wish to stress that this is a principled decision made in the best interests of Memorial University, its students, faculty and staff while at the same time respecting the entitlements of content creators, publishers, and copyright collectives under copyright law,” said Dr. Wardlaw.

“Memorial’s decision not to sign the Access Copyright licence agreement is an assurance that we will find the resources necessary to support the key principles of the sharing and disseminating of knowledge while simultaneously complying with our obligation to respect intellectual property rights and copyright law,” said Dr. Wardlaw.

He also acknowledged the role of the wider university community in actively protecting these principles and rights while at the same time assuming responsibility for individual copyright compliance, sharing responsibility for institutional compliance and participating in the institutional due diligence measures required to establish a copyright compliant environment.

Further details will be released in the near future.
June 28, 2012

Queen’s not signing Access Copyright licence

http://www.queensu.ca/news/articles/queen-s-not-signing-access-copyright-licence

After significant discussion with campus groups, Queen’s has decided not to sign a model licence agreed on by the Association of Universities and Colleges Canada (AUCC) and Access Copyright.

“We remain committed to respecting copyright interests and adhering to existing copyright legislation, and university policies and guidelines,” says Principal Daniel Woolf. “We are, however, convinced our decision not to sign the licence is in the best long-term academic interests of the university based on feedback and consultation with multiple campus groups, including the Queen’s University Faculty Association, the AMS, and the SGPS. There will be incremental costs to the university in declining to sign the licence, as we refine our own procedures for copyright clearance, but I believe that this is the fairer course and one which takes account of the strongly-expressed wishes of the community.”

The university will continue to develop its policies, practices and services to ensure that faculty and students have full access to required resources for teaching, learning and research, in compliance with copyright law.

Ongoing communications will advise faculty, staff and students on copying practices and guidelines that respect copyright legislation.

For assistance with any copyright related issues, contact the Copyright Advisory Office at copy.right@queensu.ca. 2012-06-28

Trent University Declines to Sign Access Copyright Agreement – University in Alignment with Internal Stakeholders Existing copyright rules to be respected From the Office of the Provost and Vice-President, Academic
http://www.trentu.ca/newsevents/newsDetail.php?newsID=2827

After much feedback, debate and discourse with various internal student groups and faculty, Trent University has decided not to sign a licence agreement with Access Copyright (AC) based on the model AC recently negotiated with the Association of Universities and Colleges of Canada (AUCC).

“It is important to stress that the Trent community is aligned on the issue of respecting and upholding copyright interests,” said Dr. Gary Boire, Provost and Vice-President Academic.  “With this decision, it is imperative that all students, faculty and staff recognize that existing copyright legislation and guidelines must be adhered to.”

The Provost noted that he received valuable insights from multiple groups expressing concerns about the proposed agreement, including input from Trent University Faculty Association (TUFA), Canadian Union of Public Employees (CUPE), Trent Central Student Association (TCSA), Trent Oshawa Student Association (TOSA) and the Graduate Students’ Association (GSA) – all of which opposed Trent signing the Access Copyright agreement.

Access Copyright, the copyright collective that collects copyright fees from Canadian universities and colleges on behalf of a number of publishers, offered certain one-time discount incentives to universities to sign a licence based on the model. In order to maximize such discount incentives, universities had to determine by June 30, 2012 whether or not they would sign.

The University believes it is choosing the option which best serves the fundamental and long-term interests of the Trent academic community.

Through additional consultation and collaboration, the University will further refine its policies, practices and services to ensure that members of the Trent community will enjoy full access to the teaching, learning and research resources they need, in full compliance with current law.

For example, the use of My Learning System, with its capability to link to the tens of thousands of journals, ebooks and other digital research sources for which Trent has existing licence agreements, will be actively promoted as the primary means of delivering learning material to students.

Additional communications will follow on how students, faculty and staff will need to operate within the guidelines of existing copyright legislation.

For additional information about Trent’s plans members of the Trent community can contact …

Posted on Tuesday, June 26, 2012.

Copyright at Carleton University
http://www5.carleton.ca/students/2012/copyright-at-carleton-university 

Carleton University has decided not to sign on to the new licence agreement with Access Copyright.

Since the new agreement negotiated between Access Copyright and the Association of Universities and Colleges of Canada was announced in April, we have given serious consideration to the pros and cons of signing and not signing.

Carleton opted out of the old Access Copyright tariff back in September 2011, and since then we have been carrying out our own copyright clearance process. Policies and procedures have been put into place in order to ensure that copyright regulations are respected, required permissions are obtained, necessary costs are covered, and the appropriate transparency and accountability are maintained.

This experience has allowed Carleton to operate effectively outside of the tariff, and puts us in a good position to continue to be responsible for our own compliance with copyright laws, rules and regulations.

In reaching this decision, we have consulted with internal stakeholders and sought external advice. In moving forward, we will continue to work with faculty, instructors, students and staff to ensure compliance.

Furthermore, we will be bringing in additional policies and procedures to maximize institutional due diligence and respond to whatever amendments are made to the Copyright Act, currently being considered by the Senate of Canada.

This was not an easy decision to make, but it is the right decision for Carleton University. I look forward to continuing to work with all of you to ensure that, at   Carleton University, we fulfill our copyright responsibilities as an academic community.

Sincerely,
Peter Ricketts
Provost and Vice-President (Academic)

For more information on copyright at Carleton, please go to: www.library.carleton.ca/copyright.

University of Waterloo: Copyright clearance agreement statement
a message from the Vice-President, Academic and Provost
http://www.bulletin.uwaterloo.ca/2012/jun/07th.html

The University of Waterloo has decided not to sign the copyright license negotiated by Access Copyright and the Association of Universities and Colleges of Canada.

The University will work with its internal stakeholders to ensure copyright regulations are respected, required permissions are obtained, necessary costs are covered, and appropriate transparency and accountability exist.

Further information will be provided as more specific details are available. In the interim, should you have any questions please do not hesitate to contact Bruce Mitchell, Associate Provost, Resources, or Mark Haslett, University Librarian.

University of Windsor
http://web4.uwindsor.ca/units/leddy/leddy.nsf/CopyrightUpdateMay2012!OpenForm

To: All University of Windsor Faculty, Staff and Students

The following message is sent on behalf of Gwendolyn Ebbett, University of Windsor Copyright Officer.

After careful consideration, the University of Windsor has decided to join a number of other Canadian post-secondary institutions in making the decision not to sign a license agreement with the copyright collective Access Copyright at this time.

This decision is in keeping with the position taken by the University in January 2011 to opt out of the Interim Tariff approved by the Copyright Board of Canada in response to an Access Copyright application. In the intervening months, diligent efforts have been undertaken across our campus in order to ensure campus activities have been in compliance with copyright law.

We believe our decision best serves the intellectual and financial interests of our students and faculty, and supports our commitment to academic freedom while positioning the university to participate more fully in the burgeoning shift toward a digital system of building and sharing scholarly content in support of research and teaching.

In coming to the determination not to enter into a license agreement, we considered

• Our existing license agreements for 75,000 e-journals and 1.1 million e-books containing negotiated terms for uses in support of teaching & learning activities.
• That any value a license agreement with Access Copyright may have is likely to be reduced with the imminent passing of the Bill C-11 and its introduction of new language into the Act in support of educational uses of copyrighted material.
• That pending decisions from the Supreme Court of Canada regarding the scope of Fair Dealing in educational settings may serve to shift legal interpretations in a direction which could prove favourable to universities.

Efforts across campus since January 2011 have ensured that faculty, students and staff are educated and supported to fulfill their daily activities in a copyright-compliant fashion without the need for reliance on either the interim tariff or a license agreement.

We thank you for your support since we embarked on this course last year. We believe it reflects UofW’s core values: academic integrity, the respect of intellectual property rights and a sustainable future.

UofW remains committed to providing our academic community with the resources it needs to easily and legally access learning and research material, including:

• The dedicated website (http://www.uwindsor.ca/copyright) with extensive information on how to efficiently and legally access teaching and research materials;
• The Copyright Clearance Service, available through Leddy Library for obtaining permissions to copy protected materials;
• The services of the campus Copyright Officer, Gwendolyn Ebbett, and her team in speaking to faculty and student groups about copyright issues and obligations;
• The services of your UofW librarian colleagues in offering one-on-one support for locating and identifying available resources in support of teaching and research;
• Ongoing support through copyright@uwindsor.ca in responding to questions regarding appropriate use of copyrighted materials.

For more information and new developments, please consult the University of Windsor copyright website at www.uwindsor.ca/copyright or contact Gwendolyn Ebbett, via copyright@uwindsor.ca.

York will not enter into Access Copyright licence
http://yfile.news.yorku.ca/2012/05/29/york-will-not-enter-access-copyright-licence/

Vice-President Academic & Provost Patrick Monahan, acting president of York University, issued this announcement to the community:

After careful review, a decision has been made that York University will not be entering into the Access Copyright licence agreement that was negotiated by the Association of Universities and Colleges of Canada (AUCC).

Along with several other Canadian universities, York has been operating outside of the Access Copyright tariff since Sept. 1, 2011. This decision supports York’s continuing commitment to ensuring access to copyrighted materials for study and research with appropriate payment to authors and publishers.

Copyright law and technologies for content sharing continue to evolve quickly. The York University Libraries has made it a priority to expand its digital collection so as to provide legal access to e-journals and e-books from thousands of publishers. This decision will permit us to continue to invest in the digital resources needed to expand electronic content available to students and to promote e-learning initiatives.

Copies will continue to be made under licences obtained directly from publishers, third-party vendors, content from our library subscriptions, open-access content, fair dealing or educational exceptions in the Copyright Act. Plans are being put in place to provide additional assistance with questions about copying for the 2012-2013 academic year. Further details will be provided to the community in the coming weeks.

For assistance in obtaining the permission required for copying or posting, contact York University’s Copyright Office at 416-736-2100 ext. 40706.

York’s Copyright Clearance Centre provides a convenient service for assembling course packs and selling them in the York University Bookstore. For more information on the production of course packs, including submission dates, contact the Copyright Clearance Centre at 416-736-2100 ext. 40049 or ckits@yorku.ca.

For more information, visit York University’s Copyright Office website.

University of Winnipeg

article in Winnipeg Free Press at http://www.winnipegfreepress.com/local/u-of-w-rejects–copyright-deal-as-money-grab-152135325.html

Athabasca University will not sign on with Access Copyright
17 May 2012
http://president.athabascau.ca/messages/index.php?id=109

Last month, The Association of Universities and Colleges of Canada (AUCC), of which AU is a member, accepted a new model licence agreement with Access Copyright. Under that model licence agreement, institutions had until May 15th to decide to sign up and receive a discount incentive.

After careful study and analysis of the costs and benefits, Athabasca University has decided not to sign the model licence with Access Copyright. It was a decision that was recommended by our Ad Hoc Copyright Committee, which is made up of representatives of faculty, library, administration and copyright office, supported by the Executive and the Academic Affairs Committee of the Board of Governors.

Under the new licence agreement, Access Copyright will receive a fee of $26.00 per full-time student equivalent, an increase in most cases of more than 500%. That, along with additional restrictions imposed by Access Copyright, constitutes an unacceptable financial and academic burden for our students and faculty, and also imposes a significant administrative cost upon the university in general. We believe we’ve made the right decision by staying out of the licence agreement.

As many of you know, AU opted out of the agreement with Access Copyright effective August 31, 2011. Since that time, we have been processing our own copyright permissions directly with the owners of the copyright. Our processes for dealing with these clearances are robust, industry leading and, in my opinion, are the best in the country.

I am encouraged by the support from faculty and students and will keep you posted as we continue to navigate the complicated waters of academic copyright.

UBC is not signing a license agreement with Access Copyright
May 15, 2012
http://www.broadcastemail.ubc.ca/2012/05/15/ubc-is-not-signing-a-license-agreement-with-access-copyright/

To: All UBC Faculty and Staff

The following message is sent on behalf of David H. Farrar, Provost and Vice President Academic (Vancouver) and Doug Owram, Deputy Vice Chancellor and Principal (Okanagan).

After extensive review, the University of British Columbia has decided not to sign a license agreement with Access Copyright (AC) based on the model that it has recently negotiated with the Association of Universities and Colleges of Canada (AUCC).

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.

AC, the copyright collective that collects copyright fees on behalf of a number of publishers from universities and colleges in Canada, offered certain one-time discount incentives to universities to sign a license based on the model. In order to maximize such discount incentives, universities had to determine by May 15, 2012, whether or not they would sign. In light of these new developments, UBC reviewed its 2011 decision (http://copyright.ubc.ca/broadcast-e-mails/broadcast-e-mail-copyright-and-fair-dealing-guidelines-august-8-2011/) to operate outside the tariff and has determined that it is in the best interests of its students and faculty to stay the course and to not sign a license with AC. In making this determination, UBC recognizes that the circumstances of each university are unique and that different decisions will be made across Canada.

We are determined to stay this course for three main reasons:

* UBC has existing license agreements with over 950 publishers providing access to online resources. UBC’s decision positions us towards a sustainable future and full adoption of digital learning and teaching technologies.

* UBC remains concerned about the affordability of higher education, which is borne in part by taxpayers and in part by students. The measures taken by UBC since its 2011 decision have positioned it well and enable UBC’s students and faculty to access teaching and research materials more cost-effectively than if UBC were to enter into a license based on the model.

* The AUCC model license only permits copying of up to 10% of a work (20% in case of course packs) and only with respect to a narrow repertoire that is almost exclusively print-based. Therefore, the license would not be cost-effective for UBC and does not absolve faculty members and students from the need to respect the legal rights of copyright owners.

UBC’s faculty, staff, and students have worked very hard since 2011 when UBC decided to operate in a copyright-compliant fashion without resorting to the interim tariff. We thank you for your efforts and support since we embarked on this course last year. We believe this reflects UBC’s core values: academic integrity, the respect of intellectual property rights and a sustainable future.

UBC remains committed to providing our academic community with the resources it needs to easily and legally access learning and research material, including:

* The dedicated website (http://copyright.ubc.ca) with extensive information on how to efficiently and legally access teaching and research materials;

* The existing UBC Copyright Advisory Group that responds to questions and supports faculty and staff regarding appropriate use of copyrighted materials;

* Ongoing course pack production with copyright clearances arranged through the Bookstore; and

* The new UBC Copyright Office, which will be established to further enhance UBC’s capacity to support faculty, staff and students, through the provision of one-on-one support for lecture note review for faculty members and other instructional supports.

For more information and new developments, please consult the Copyright at UBC website at: http://copyright.ubc.ca.

The case is important for some other reasons as well, and the Hon. Justice Rennie’s June 21^st decision should be read by anyone interested in blogging, tweeting or other aspects of online journalism. The controversy involved three separate claims for infringement of copyrighted works. The first two claims involved articles, the third a photograph. Applicants Richard Warman and the National Post claim that the respondents, Mark and Constance Fournier, who operate the website www.freedominion.com, infringed their copyright in the respective works.

The first claim involved a 2005 speech by Warman entitled, “Maximum Disruption: Stopping Neo-Nazis By (Almost) Any Means Necessary”. The text of the speech had previously been entered as an Exhibit into a Canadian Human Rights Tribunal case and the respondents posted a scanned copy on http://www.freedominion.com without Warman’s consent, who then demanded it be taken down. The court found that Warman was the author and owner of the work and that the respondents authorized its communication by uploading a copy of it onto their server, thereby establishing the elements for a prima facie case of copyright infringement. But the court held that the claim was time-barred by the limitations of section 41(1) and it was therefore unnecessary to delve further into potential defenses.

The second claim was about a National Post article written by Jonathan Kay entitled “Jonathan Kay on Richard Warman and Canada’s Phony-Racism Industry”. The respondents posted a copy of the article on http://www.freedominion.com, but took it down and replaced it with excerpts after receiving demand to remove it from the website. Warman alleged that the remaining excerpts were still substantial reproductions of the work within the meaning of section 3(1) of the Act. In a very significant passage analyzing the meaning of the substantiality requirement in section 3, the court found that the requisite substantiality was lacking and that there was no infringement. In determining substantiality, the court applied a five part test:

“The relevant factors to be considered include:

a. the quality and quantity of the material taken;
b. the extent to which the respondent’s use adversely affects the applicant’s activities and diminishes the value of the applicant’s copyright;
c. whether the material taken is the proper subject-matter of a copyright;
d. whether the respondent intentionally appropriated the applicant’s work to save time and effort; and
e. whether the material taken is used in the same or a similar fashion as the applicant’s: U & R Tax Services Ltd v H & R Block Canada Inc, [1995] FCJ No 961, at para 35″ [para 23].

As to the first substantiality factor, the court said:

“Quantitatively, the reproduction constitutes less than half of the work. The Kay Work itself consists of a headline and eleven paragraphs. The reproduction on Free Dominion included the headline, three complete paragraphs and part of a fourth. Qualitatively, the portions reproduced are the opening “hook” of the article, and the summary of the facts on which the article was based. Most of the commentary and original thought expressed by the author is not reproduced” [para 25].

As to the fourth substantiality factor, the court stated:

“It does not appear that the excerpts of the Kay Work were reproduced to “save time and effort”. Based on the context of the posting, the respondents reproduced portions of the Kay Work to preserve a record of the facts summarized in the article, so that members of Free Dominion could continue to discuss those facts on the forum. Also, contrary to the applicant’s argument, the reproduction does include a summary or paraphrase of part of the work, specifically the second paragraph” [para 27].

The court did not find the other substantiality factors particularly relevant to this dispute and concluded that

“. . . considering the matter as a whole I find as a fact that the applicant has not established that the excerpts of the Kay Work reproduced by the respondent constitute a “substantial part” of the work, and there is therefore no infringement” [para 28].

But the court continued its analysis to find that “even if the reproduced portions of the Kay Work amount to a substantial part, I find that the respondents’ reproduction constitutes fair dealing for the purposes of news reporting, pursuant to section 29.2 of the Copyright Act“[para 29].

Before turning to an analysis of the six fair-dealing factors, Justice Rennie reiterated the CCH doctrine that fair dealing is best understood as an integral part of the copyright regime and as a user’s right, and that news-reporting should be given the same “large and liberal” interpretation as research:

“The SCC stated in CCH, at paragraph 51, that the fair dealing purposes (in that case, research) “must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.” Applying this large and liberal interpretation to news reporting, I find that the respondents’ dealing in respect of the Kay Work falls within this purpose. They posted the excerpts of the Kay Work on Free Dominion to promulgate the facts recounted in that article. Thus, the first criterion for fair dealing is met. The news reporting exception also requires that the source and author be mentioned, which is also satisfied in this case“ [para 31].

Turning then to the 6 fair dealing factors, [(1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work] the court held that:

These factors militate in favour of a finding of fair dealing in this case. As discussed above, the dealing was for one of the allowable purposes under the Copyright Act. The amount of the dealing was very limited. The reproduced portion of the Kay Work contained mostly facts and did not contain most of the original commentary by the author. The nature of the work favours a finding of fair dealing. The Kay Work is not currently published, which supports a finding of fair dealing because one of the purposes of copyright law is to promote wider dissemination of works: CCH, at para 58. Furthermore, the dealing is not competing with the applicant’s use of the Kay Work because he does not seek to publish it. [para 33]

On the other hand, the court also found that some of the factors weighed less strongly in favor of fair dealing:

“…there was arguably an alternative to the dealing, namely providing a summary of the Kay Work instead of reproducing excerpts. Also, the character of the dealing does not strongly support a finding of fair dealing. The excerpts are widely distributed on the internet as opposed to the making of a private copy.” [para 34]

Balancing all the factors together, the court found that “the reproduction of the Kay Work falls within the fair dealing exception for the purposes of news reporting” [para 34].

“Thus, because the reproduction of the Kay Work did not constitute a substantial part, and even if it did, the reproduction falls within the scope of fair dealing for the purposes of news reporting, the application in respect of the Kay Work is dismissed” [para 35].

It is with respect to the third claim that the issue of linking arises. This claim involved a photograph of Warman (taken by photograher Barrerra and assigned to Warman) which Warman had posted on his personal website. Fournier never uploaded the photo to http://www.freedominion.com, but linked back to the Warman site. Later, Warman removed the photo from his website at which point the link from http://www.freedominion.com did not cause the photograph to be displayed. The court applied the general rule that “making a work available on an internet website accessible to the public constitutes authorization of communication by telecommunication” [para 36] and found that:

“The evidence is clear that the Barrera Work was posted on the applicant’s personal website and thus the communication of the Barrera Work occurred by creating a hyperlink to the applicant’s own website. Thus, the applicant authorized communication of the Barrera Work by posting it on his website and therefore there is no infringement” [para 37].

The court again stressed that Warman’s posting of the photo on his own website was within his own control:

“As the respondents submit, the Barrera Work was within the applicant’s full control and if he did not wish it to be communicated by telecommunication, he could remove it from his website, as he eventually did” [para 38].

While it is this last aspect of the case that is directly relevant to the issue of linking, bloggers, tweeters online journalists of all sorts can take much comfort in this decision. For one thing, we have another instance of a court giving purposeful effect to the language in section 3 that says the owners’ reproduction right is not even triggered without an initial substantiality analysis. For another, the broad application given to research in CCH is being applied here to “news-reporting.” And the treatment given to linking is consistent with the normal expectations of internet practice, previous case law, the statute and just plain common sense.

Yet when the University of Toronto and UWO made their bombshell announcement in late January that they had entered into side-agreements with Access Copyright, and that the agreements contained this very same treatment of linking, Access Copyright’s extra-legal demands began to take on a life of their own. Never mind that linking cannot be the basis for infringement under the act, two major educational institutions have just agreed that it does, or at least that it might. So the Western and UT capitulation to Access Copyright had an important effect, not only did it undermine the opposition efforts to the tariff, it further legitimated AC demands that otherwise had no other reasonable basis, much less justification in the law.

And when AUCC, and then as well ACCC, followed the bad example of UT and UWO, the legitimation of this and other unfounded claims about the scope of compensable activities just became further entrenched. What had started out as purely opportunistic and self-serving distortions of copyright law started to become real. Not because of any provision in the Copyright Act, or because of any judicial interpretation, but simply instead because of the acquiescence of powerful institutional actors.

In justification of its ill-conceived “model license” agreement with Access Copyright, a Q&A format memo was prepared by AUCC Counsel and sent to member institutions advising now that the infringement liability status of linking was still an open issue:

5Q: Does the definition of “Copy” in the AUCC model licence mean that AUCC accepts that posting a hyperlink to a digital copy is the same as authorizing the making of a copy and requires a licence?

A: Despite the ruling of the Supreme Court of Canada in a recent defamation case, Crookes v. Newton, it is still an open issue in Canadian law whether posting a hyperlink could make a person liable for authorizing the copying of the digital work. The definition of “Copy” in the model licence makes the licence and the indemnity very broad in scope. Another provision in the model licence clarifies that AUCC has accepted this definition on a“without prejudice” basis and reserves the right to take a different position on the meaning of the term in any other proceeding.

Having been circulated around to AUCC member institutions, this bad advice has re-emerged in the form of local Q&As issued in justification of campus-based decisions to sign on to the AUCC-endorsed agreement. So the McMaster Q&A, said:

Q2. The definition of “Copy” includes hyperlinking to a digital copy. Is this definition granting Access Copyright more rights than the law requires?

A2. Despite the ruling of the Supreme Court of Canada in Crookes v Newton, it is still unclear whether posting a hyperlink could make a person liable for authorizing the copying of a digital work under Canadian copyright law. The broad definition of “Copy” means that more activities will be covered under the licence agreement, which also broadens the scope of legal protection afforded to the McMaster community.

to which Ariel Katz responds:

This is simply false. The Model License defines “posting a link or a hyperlink to a Digital Copy” as an act of copying, not as an act of authorization. There can be no question that a link is not a copy since the link itself is not a reproduction of the work, and therefore posting it does not create an additional copy. Clicking on a link may or may not result in a reproduction of the linked-to work, and usually the person who posted the link will not be deemed to have authorized the reproduction, except, perhaps, in very specific and unusual circumstances. But this is irrelevant to the present case because a person cannot be held liable for authorizing the making of a non-infringing copy. Since the Model License permits the copying of Repertoire Works, an Authorized Person cannot be held liable for “authorizing” the making of such copies, by posting a hyperlink to it or otherwise. If for some reason McMaster is concerned that acts of “authorizing” may not be covered by the license, then it should insist on making it clear that the license explicitly covers the acts of “authorizing”.

And to only add insult to injury, AUCC and McMaster make the further argument that accepting the definition of linking is without prejudice because of language in the model license. McMaster’s Q&A again:

Q3. Wouldn’t McMaster be prejudicing itself in the future by agreeing to such a broaddefinition of “Copy”?

A3. The definition of “Copy” will be accepted by McMaster on a “without prejudice” basis and the licence agreement we sign with Access Copyright will clearly reflect that. McMaster reserves the right to take a different position on the meaning of the term “Copy” in any legal proceedings related to this licence agreement.

To which Prof. Katz responded:

R3. Incorrect. Under the Model License the definitions are binding with respect to proceedings related  to this agreement. The “without prejudice” language is limited to proceedings “unrelatedto this agreement”. One possible implication of the definition is that AC would have a basis for demanding a survey that includes studying the linking behaviour on campus, or how many timesworks are “displayed” on computers or other devices.

Similar arguments in response to AUCC’s initial Q&A were made by Howard Knopf.

This notion of linking liability was wrong when Access Copyright first raised it in the tariff application, it was wrong when the University of Toronto and UWO agreed to it, it was wrong when AUCC reversed its earlier position and tried to justify it in their April Q&A, it was wrong when it was then parroted by the McMaster admin, and it will be wrong when you see the same argument repeated on your campus.

Last week’s decision from the Federal Court of Canada in Warman and National Post v Fornier  simply reinforces what the many have been arguing all along, linking is not itself a copyright relevant activity and should not be taken into account by the Board in setting a tariff. Linking to a website containing copyright works is not an authorization to reproduce the works and it can not rise to the level of being included in any definition of “copy” or “copying”.

As Michael Geist said earlier today:

The Supreme Court of Canada has already ruled against attributing defamation to such links and now the Federal Court has concluded that links cannot be said to constitute unauthorized copying. The implications once again extend to forums, blogs, and other venues as well as the Access Copyright model licence.

Maybe now the failure of the University of Toronto, UWO and AUCC/ACCC licenses with Access Copyright to properly comprehend the relevance of linking will become a bit clearer. Maybe even enough for Toronto, Western, AUCC and ACCC to accept that they made a mistake.

But at the very least it should be enough to keep further institutions from repeating the mistake.

These announcements will likely be communicated to the broader campus community, and where the license is being accepted will contain various justifications and rationales for the decision.

Reviewing some of the relevant background documents will put these materials in better context and help you evaluate these claims:

1) Here is the text of a Q&A prepared by AUCC’s counsel for distribution to its members (it was subsequently posted at scribd).

See Howard Knopf’s point by point analysis of this Q&A as well as the analysis of the McMaster version of this Q&A posted earlier today by Ariel Katz.

2) The Q&A followed a letter from the AUCC President to members dated April 16th:

The letter and Q&A were distributed after AUCC counsel notified the Copyright Board it was withdrawing its objection to the proposed tariff:

3) And for reference, here again is the full text of the AUCC Model License Agreement:

(the ACCC version is substantially similar other than the rate structure)

4) Finally, and insofar as the relationship between fair dealing and the license remains a sticky issue, it will be useful to review the AUCC Fair Dealing Guidelines and compare them to section 3 of the model license as well as to the CAUT Guidelines for the Use of Copyright Materials.

Happy reading!