Opting out: Why some universities are opting out of Access Copyright

This op-ed was published in the Hill Times on October 17, 2011

By Paul Davidson, president of the Association of Universities and Colleges of Canada

In recent weeks, Access Copyright and its supporters have published opinion articles making wild allegations about the decision of some universities to opt out of its proposed tariff. It’s time to set the record straight and to explain why some institutions have chosen this path.

In last week’s Hill Times, the Executive Director of Access Copyright claimed that universities are “walking away from the reprography licences that worked so well for decades.” This is simply not true. Universities, through the Association of Universities and Colleges of Canada, were prepared to renegotiate the model licence that formed the template for institutional licences with Access Copyright since 1994. Access Copyright never attempted to renegotiate the AUCC model licence.

It was Access Copyright’s decision to file a tariff with the Copyright Board on March 31, 2010, imposing a new copying regime on postsecondary institutions that would include far higher fees and a costly administrative burden on institutions choosing to use the tariff. Access Copyright chose the same approach in its dealings with other sectors when it terminated existing licensing arrangements and filed tariffs to cover copying in K-12 schools and copying by provincial and territorial governments. The fact is that it was Access Copyright that chose to upset the licensing apple cart in all of these sectors, not educational institutions and governments.

So why have some institutions decided to opt out of the Access Copyright tariff? Today’s students and faculty increasingly use materials in digital format. What Access Copyright is offering is primarily licensing for the use of photocopied and scanned materials. Secondly, the proposed fee of $45 per student is far higher than universities paid under the reprography licences that expired last year. The huge administrative burden associated with the tariff regime is equally disturbing.

For example, this spring, Access Copyright sent 122 interrogatories – very burdensome and onerous questions – to universities outside of Quebec. These questions, which the institutions using the Access Copyright tariff were obliged to answer, put those institutions to great effort and expense. The answers provided to Access Copyright, if printed out, would have weighed more than six Honda Civic automobiles.

Institutions using the tariff will also be required to participate in an Access Copyright survey of institutional copying to take place during 2012. This survey, too, will be administratively burdensome and costly. In addition, the tariff requires that institutions using the tariff submit detailed monthly reports on their copying.

There is no equivalent to these costly administrative burdens in the digital licensing agreements that universities have negotiated over the past decade with academic publishers. These agreements provide faculty members and students with access to digital works in each publisher’s database and broad rights to copy these works. Many academic publishers have bypassed Access Copyright because they do not need a “middleman” to license their works in the digital environment. The digital licences, for which universities pay more than $160 million annually, do not require universities to answer onerous questions, participate in copying surveys, or report on their copying. They are “pay and play” agreements that avoid the excessive administrative burdens associated with Access Copyright’s tariff.

Given the potentially high cost of the Access Copyright tariff, which may be applied retroactively by the Copyright Board when it makes a final ruling, and the huge administrative burden attached to using the tariff, it is not surprising that 35 universities have chosen to opt out of using the tariff and rely instead on their digital licences, transactional permissions, and statutory exceptions for their copying needs.

Universities are very willing to pay rights holders for the use of their works in education and research. However, each institution should have the right to choose, based on its particular circumstances, whether using the Access Copyright tariff is an appropriate solution to licensing its copying.

What Access Copyright is proposing is an antiquated model that doesn’t reflect the needs of our digital age. For students and creators, we need to find a better solution.