The Voice of Canadian Universities?

I suppose that I shouldn’t have been really surprised, but I am. The Association of Universities and Colleges of Canada (AUCC), which on its website calls itself The Voice of Canadian Universities, has just written to the Copyright Board that it withdraws its objection. Here’s what the AUCC writes (you can view the full letter here):

On April 16, 2012 AUCC and Access Copyright agreed upon the terms of a model licence agreement which AUCC is recommending that its members outside Quebec enter into with Access Copyright. I enclosed a copy of the model licence agreement.

The licence agreement that an AUCC member enters into with Access Copyright based on the model licence agreement (the “Member Agreement”) will licence that member to copy published works within Access Copyright’s repertoire. A Member Agreement will be for a term commencing January 1, 2011 and terminating December 31, 2015. In view of section 70.191 of the Copyright Act, the Interim Tariff that issued in the proceedings before the Board concerning the Proposed Tariff, and the Proposed Tariff when certified, will not apply to any AUCC member who enters into a Member Agreement.

Access Copyright has also agreed with AUCC to support the position, if taken by an AUCC member that has signed a Member Agreement, that the member should not be required to further participate in proceedings before the Board concerning the Proposed Tariff, including participating in surveys or providing further information as to its copying activities.

In view of AUCC’s agreement with Access Copyright, AUCC hereby withdraws its objection to the Proposed Tariff.

This is a remarkable development. Unless all AUCC members have already informed it that they are planning to sign the Model Agreement (which seems highly unlikely), this outright withdrawal increases the pressure on universities to sign the agreement, which is an offer that they can’t refuse. If the AUCC thought that it would be in the universities’ best interest to settle with Access Copyright, it should have insistent that Access Copyright would withdraw the Proposed Tariff as part of such settlement, and then let universities decide whether they wish to sign an agreement or operate without a license from Access Copyright. Instead, AUCC negotiated a model license that forces universities who feel that they still need a license from Access Copyright to choose between a bad agreement and a combination of an even worse Tariff and continued litigation before the Board.

What’s even worse is that–setting aside the issue of cost–it is not even clear how a university that wishes to continue objecting to the Proposed Tariff could do that, because procedurally, individual universities were not “objectors”, only the AUCC was, and at this point its members have no independent standing in the proceedings. And substantively, it might as well be the case that the Board would regard the AUCC’s withdrawal of its objection as binding on its members. Unfortunately, the AUCC’s submission does not mention any agreement with Access Copyright that would allow AUCC members to continue to challenge the Proposed Tariff, nor asks the Board to make any order that would guarantee that. It would be an error for the Board not to allow remaining objecting universities to continue challenging the Proposed Tariff, or to view the AUCC’s withdrawal of objection as binding on them. However, this is a position that Access Copyright might indeed argue, and that if accepted could leave those universities in a very difficult situation.

All of this does not mean that the AUCC’s move necessarily forecloses all options for its members that do not wish to sign the agreement. They, as well as the other remaining parties should consider what their next moves should be. The “lead” objector has now withdrawn and apparently left many issues unresolved and many of its members dissatisfied and unrepresented. It would seem that those of its members that are unhappy with the situation may need to find someone else to advocate for them.