Access Denied: Canadian Academics Debate Controversial Copyright Licensing Deal

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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In 2006, square-jawed super hero Captain Copyright arrived in Canada, vowing “to protect the rights of artists, writers, musicians, photographers, filmmakers . . . and everyone in between.”

Captain Copyright was the brainchild of Access Copyright, a Canadian non-profit organization that serves as a licensing conduit between the authors of copyrighted materials and those who use that material in education, business and government. The idea, apparently, was to inculcate the nation’s youth with an innate respect for copyright law.

About two months after he appeared, however, Captain Copyright turned around and disappeared amid jeers and stinging parodies. Without him, Canada’s teens and tweens were left unprotected from the temptations of digital downloading at the dawn of the Bit Torrent era, just when they needed it the most.

Six years later, those teens and tweens have reached college just in time for another Access Copyright controversy. On April 16, 2012, Access Copyright announced that it had successfully negotiated a model license agreement with the Association of Universities and Colleges of Canada. Under the model license agreement, Canadian universities would have to pay a flat fee of CA$26 per student per year (the previous deal was CA$3.58 per student, plus 10 cents per page) for a license that allows the schools to make copies of Access Copyright’s considerable academic text repertoire for use in course packets and other academic pursuits.

While many of Canada’s large universities have announced that they will sign the deal, others, such as the University of Winnipeg, have described the model license as a “money grab” by Access Copyright and refused to sign on. The University of British Columbia, for its part, has announced plans to set up an in-house copyright licensing office to replace Access Copyright’s services.

The non-monetary terms of the deal are even more controversial than the cost. Organizations like the Canadian Association of University Teachers and the Society of Graduate Professional Students have issued statements outlining what they see as the most offensive terms. These include definitions of copying that would preclude mere hyper-linking to copyrighted material, and reporting requirements that have been criticized as amounting to a “surveillance” program on academia.

But what is really striking from the U.S. perspective is that, for all that money, the license only allows copying of up to about 10-20% of each text, or one full chapter. Some critics argue that such a license is unnecessary, because educators are already permitted to copy approximately that amount without a license under existing Canadian law, or at least they will be upon the passage of Bill C-11, which is currently pending before Parliament. That legislation would expand Canada’s fair dealing exception to include education, parody and satire as non-infringing uses, aligning it more closely to fair use under U.S. copyright law.

Those critics might be right. Coincidentally (or maybe under the direction of Captain Copyright’s arch nemesis, Private Infringer), the Canadian new model license was announced only a few weeks before the Northern District of Georgia issued its opinion in the closely-watched Georgia State University copyright case. In that case, Judge Orinda Evans held, among other things, that copying up to one chapter or 10% of an entire work for educational purposes is fair use. If Judge Evans’ view of fair use is widely adopted as an acceptable standard, and if the new law resulting from Bill C-11 is interpreted to bring Canadian fair dealing on par with U.S. fair use, then the Access Copyright model license would be requiring universities to pay for a right they already have for free. In that case, Captain Copyright may be making another graceless exit.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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