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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.