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We’ve had a week of responses to the Access Copyright (AC) lawsuit against York University, and predictably they haven’t been very supportive of AC’s decision to defend what the Canadian Federation of Students calls “obsolete licensing agreements” and “archaic models.” Canadian Association of Research Libraries (CARL) President Thomas Hickerson said in CARL’s statement,
Access Copyright’s action seems to question rather clear copyright law and jurisprudence, and feels very much like an attempt to intimidate universities into buying their blanket licence.
But why would AC need to be intimidating institutions into using its services? A big answer to that question comes from the Supreme Court’s 2012 decisions supporting Fair Dealing for education. It was these rulings that undermined AC’s business model by supporting a more open approach to copyright in educational matters. In those rulings, as Howard Knopf pointed out at the time:
- Collectives cannot assume that they will be entitled to an additional “layer” of remunerated rights every time there is a new method of delivery. Technological neutrality matters.
- The Court said what it meant and meant what is said in CCH v. LSUC in 2004 and will move forward from there – not be pushed backwards. Users have rights that must be given a “large and liberal interpretation”. Copyright doesn’t exist solely for collectives.
- Educators are in a “symbiotic” relationship with students and the Copyright Act serves the goal of education, which includes access to essential material. “Instruction and research/private study are, in the school context, tautological.”
There’s much more at that link highlighting the kinds of things that in this lawsuit Access Copyright seems to be pretending the court did not say.
Last summer Michael Geist also took a closer look at what those Supreme Court cases meant:
Led by Justice Abella, the court has reaffirmed that fair dealing is a user’s right that must be interpreted in a broad and liberal manner. In fact, the court provides further guidance on interpreting fair dealing with an emphasis on the need for a flexible, technology-neutral approach. In reading the decisions in the Access Copyright and song previews cases, it is hard to imagine a bigger victory for education, Internet users, and innovative companies.
That victory for Fair Dealing and education in general was last year though, and maybe we’ve seen a huge amount of terrible activity at York University since then to justify lawsuits? Nope. As AC’s statement says, its “legal actions signal to institutions that we continue to strongly disagree with their interpretation of the law.” This is not a case of specific infringement, but a policy disagreement that is leading AC to spend the money it makes from its members litigating educational institutions.
The Canadian Association of University Teachers (CAUT) issued a letter to Access Copyright noting that AC’s lawsuit is not in the service of education:
As we have explained, the availability of new contractual models (specifically site licenses directly between content providers and academic institutions), modes of scholarly communication (Open Access publishing), and user rights (the CCH and Alberta decisions and Bill C-11) has had a profound impact on the utility of Access’s services in the post-secondary education sector. It is now clear that Access Copyright’s only plan is to try to hang on to the past. This serves no one well.
And that’s really the problem with this whole thing. Suing people/educational institutions to protect a business model is not a way to help students and scholars. In CARL’s statement Brent Roe said,
[Fair dealing] unlocks knowledge for generations of students, who are the future of innovative research. Education as fair dealing must be protected against predatory lawsuits.
That is a position that we totally support.
Since we posted about it last night, Michael Geist has written specifically about this new lawsuit by Access Copyright against York University, and Howard Knopf has a post about the tariffs mentioned in the press release has posted a copy of the Statement of Claim in the lawsuit.
The Canadian Association of Professional Academic Librarians has released a short statement, which also linked to the Canadian Association of University Teachers’ analysis of Access Copyright’s bad deal for education.
Also, it’s probably worth noting that BCLA wrote a letter to BC College and University presidents (PDF) in 2012 about Access Copyright, and made a resolution on the matter (PDF) too.
If you care about copyright enforcement in Canada you probably noticed a little news piece today. Access Copyright is suing York University for not signing onto its agreement. Or, in their words “York’s purported fair dealing guidelines authorize and encourage copying that is not supported by the law, and that there is no justification for the University to operate outside the interim tariff.” You can check out York’s fair dealing guidelines on their website.
To really get into the meat of this would require someone with more knowledge of the documents than me, but I just want to highlight the language used. As well as saying this is “a last resort” AC’s press release includes the following sentences:
But for those institutions that have walked away from our shared interests of reading, writing and learning, there are ramifications. … On behalf of writers and publishers, as well as those who need the materials they produce, Access Copyright is taking a stand.
Maybe that kind of rhetoric is normal in press releases, but it sounds almost parodic ominous supervillainy to me. Also the funding sources for this lawsuit aren’t lost on information professionals:
I’m pleased that by signing on with AC we’ve helped fund this lawsuit against York and others </sarcasm>
— Ian Gibson (@IanGibson11) April 8, 2013
If you want some more detail Michael Geist has been writing about this issue for quite some time, looking at such things as the Supreme Court’s thoughts on how to assess fair dealing in Canada, why the Access Copyright model provides little value, and how the Supreme Court’s decision eviscerated Access Copyright’s business model.
We’ll try to keep you informed as this issue progresses.
There was an excellent little panel discussion on CBC’s Spark podcast this week about ebooks and how public libraries deal with them. It’s almost 40 minutes long but well worth the listen.
One thing I appreciated was how the panelists discussed the fact that there’s an intermediary between the libraries (who have a mission that includes giving access to as wide a population as possible, along with freedom of expression, community development and preservation) and the publishers (who have a mission to get their books as wide an audience as possible while still being able to pay the people who produce the books). Giving control of the actual distribution of ebooks to these corporate intermediaries could be the source of many of the ebook licensing issues.
After listening to that, I read Evgeny Morozov’s article on Tim O’Reilly and his techno-publishing empire, The Meme Hustler. This included some fundamental criticism of our technocratic age and how Silicon Valley ideas have affected the way we think about technology.
Fuzzy, contentious, and complex ideas have been stripped of their subversive connotations and replaced by cleaner, shinier, and emptier alternatives; long-running debates about politics, rights, and freedoms have been recast in the seemingly natural language of economics, innovation, and efficiency.
It’s interesting (to me) how these two pieces played into each other. In the ebook realm libraries have invited in this technological, non-librarian intermediary. These intermediaries don’t have the same goals as information professionals and independent publishers.
An easy example from the podcast comes when they’re talking about wanting friction for borrowing ebooks. The language of “friction” applied to ebooks isn’t something that came from a publisher. It’s such a technocratic word, targeting our culture’s distaste for inefficiency. But why do we see inefficiency as such a terrible thing? Democracy can be a very spiky inefficient thing, especially when we’re trying to be informed citizens.
Anyway, even if you don’t agree with everything said in these two pieces (and maybe even if you think this is a weird juxtaposition in the first place), they’re both/each separately worth a bit of time and thought.