As a UWO student (and at many other Canadian universities,) you automatically pay an annual fee to an organization called Access Copyright. An item is included in your student activity fee, and it used to be $3.38 per student per year, plus an amount based on the number of photocopies made at library photocopy machines. However, when the licence agreement expired last year, Access Copyright did not seek to renegotiate with UWO. Instead, it applied to the Copyright Board for a massive restructuring of the agreement. If the Board approves the request, Access Copyright would receive $45 per student per year. With 30,000 full-time students, this amounts to $1.35 million annually. But that’s not all. Access Copyright would also have the right to surveillance: Section 14 (4) of the proposed licence agreement states that:

The Educational Institution shall give Access Copyright, on reasonable notice, right of access through-out the Educational Institution’s premises in order to organize and carry out an audit, including full access to the Secure Network and all Course Collections.

This would include access to university email accounts.

There are a number of problems with the Access Copyright regime. First of all, every university student is presumed to be infringing copyright and this seems very unlikely given the Fair Dealing rights in the Canadian Copyright Act that expressly permit the copying of non-substantial portions of a work for the purpose of private study. As well, the university is presumed to be responsible for the presumed copyright infringement by students. This is contrary to the Supreme Court of Canada’s decision in CCH Canadian Limited v. Law Society of Upper Canada, [2004] 1 S.C.R. 339.CCD, which held that a library is NOT responsible for copyright infringement merely by providing access to photocopiers.

What is more troubling, though, is that by paying Access Copyright, our fair dealing rights become meaningless.

We are paying even though there is probably not much substantial copying taking place, and if this becomes the norm, fair dealing rights could be removed from the Copyright Act for the simple reason that no one behaves as if there is such a thing. Access Copyright denies flatly that they want to charge for non-substantial copying, but this does not square with the section 3 of the proposed licence agreement:

3. Subject to compliance with each of the conditions in Sections 4 and 5, this tariff entitles an Authorized Person for Authorized Purposes only, to
(a) make a Copy of up to ten per cent (10%) of a Repertoire Work;
(b) make a Copy of up to twenty per cent (20%) of a Repertoire Work only as part of a Course Collection; or
(c) make a Copy of a Repertoire Work that is

(i) an entire newspaper or periodical article or page,
(ii) a single short story, play, poem, essay or article,
(iii) an entire entry from an encyclopaedia, annotated bibliography, dictionary or similar reference work,
(iv) an entire reproduction of an artistic work (including a drawing, painting, print, photograph and    reproduction of a work of sculpture, an architectural work of art and a work of artistic craftsmanship), and
(v) one chapter, provided it is no more than twenty per cent (20%) of a book.

How else can this provision be interpreted? The university would be paying for permission to make non-substantial copies which are permitted without payment under the Copyright Act. We would be paying for our Fair Dealing rights.

Another problem is the bully-factor. This organization is not negotiating in good faith with the University, but threatening law suits instead and negotiating via an application to the Copyright Board – a rather passive-aggressive manoeuvre. By paying this organization, we are enabling it with massive financial resources and providing an enormous financial incentive to ‘discover’ new ways to ‘extort’ funds from university students … and the justifications can be based upon the results of spying on our email accounts.

The Access Copyright regimes treats scholarly works as if they were pop-songs broadcasted on the radio for a big fat profit when in fact University libraries are expensive, profitless resources for private study. The vast majority of scholarly works in these libraries are written by university professors and graduate students who aren’t looking for royalties. The main policy reason behind Fair Dealing rights is to prevent copyright law from inhibiting the intellectual development and sharing of knowledge within our society. The entire Access Copyright regime is an effort to push back against this reasoning. It is a kind of intellectual enclosure movement.

The University of Western is committed to this regime going forward. It proactively collected $15 per student last September on the assumption that the Copyright Board would ordain a fee of something less than $45 per student but substantially more than the $3.38 under the expired agreement. By doing so, UWO demonstrated its willingness to accept the surveillance, and the presumption of copyright infringement and the presumption of legal responsibility for the infringement.

The university has a choice. The licence agreement is optional and UWO can walk away from it. It would make much more sense to charge students a modest fee which would go to the libraries to implement procedures and negotiate licence agreements with publishers to ensure that students have the resources they need without exposing the University to the risk of law suits. If CCH has any force, Access Copyright is on very shaky legal ground. Quite simply, we don’t need Access Copyright.

NOTE: Access Copyright is trying to force all universities to sign on. Get informed & get involved. Join the FaceBook group ‘Fair Copyright Western’

For more information:

• The Access Copyright home page
• Access Copyright proposed licence agreement/tariff
• U of Manitoba  chooses not to renew their agreement with Access Copyright
• Canadian Library Association’s position
• UBC is saying “no” to Access Copyright

What legal scholars are saying:

• Michael Geist
• Samuel Trosow (of Western Law)
• Howard Knoff