Access Denied: Canadian Academics Debate Controversial Copyright Licensing Deal

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

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.

© Foley Hoag LLP - Trademark, Copyright & Unfair Competition | Attorney Advertising

Written by:

Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Foley Hoag LLP - Trademark, Copyright & Unfair Competition on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.