Rocky start for post-Access Copyright era? Not quite

The Varsity last Monday published a story with the headline “Post-Access Copyright era off to a rocky start“, and the sub-headline “Professors confused, frustrated by new copyright rules”. Great headlines, for sure, but in reality, that’s probably an exaggeration. My impression, which I have confirmed with colleagues in the UofT library system and the Faculty Association, is that so far the transition to the post-Access Copyright era has actually been even smoother than expected.

According to the Varsity,

The end of the license seems to be causing a problem for some professors as the winter semester begins. Numerous students have reported instances of professors explaining to their classes that they must remove content from Blackboard, and are unclear when or if this material can be reposted. In one instance a student reported an instructor emailing the material from a personal account so as to avoid the new copyright guidelines. In nearly a dozen other classes, students reported instructors expressing confusion and frustration over the mid-year switch.

Obviously, any transition from one system to another is prone to create some confusion and at times frustration, so without knowing any of the specific details of those reported instances, it is difficult to know what was really going on in those reported incidents, and whether those incidents are outliers or examples of a wider phenomenon. Nevertheless, I think that there are three general possible explanations:

(a) These reported cases involve instructors who have misunderstood what they had been required to do, and failed to take advantage of the support that UofT, through its new Scholarly Communications and Copyright Office, has offered to smooth the transition;

(b) These cases involve instructors who understood what they had been required to do, and realized for the first time that they had previously posted materials that should never have been posted (with or without the Access Copyright license); or

(c) These cases indeed demonstrate that there is a serious coverage gap between the materials that could have been used under the Access Copyright license and those that can be used lawfully without it.

Naturally, Access Copyright and its apologists would like to create the impression that option (c) (option ©?) is the correct one, and that without its license, a pedagogical and legal crisis is looming. They would like to convince UofT and the rest of the academic community that the University faces only two grim options: either refrain from using a substantial and indispensable body of works, or using those works illegally.

Don’t believe this propaganda. Access Copyright would be indispensable only if the following three cumulative conditions applied: (1) the vast majority of works that UofT instructors or students copy would be in Access Copyright’s repertoire; (2) UofT has not obtained other licenses (either from the publishers or from other content intermediaries) that permit such uses; and (3) UofT’s must have misunderstood its rights and obligations under the Copyright Act.

Put differently, life without Access Copyright is a problem only if the scope of uses that do not require permission is extremely limited; if UofT has not obtained permissions from the copyright owners of the materials used by its instructors when permission is necessary; and if Access Copyright’s license would have covered those works and their uses. But neither of that is correct. The scope of uses that do not require permission is broad, and the scope of works for which UofT has secured the permission to copy for educational purposes is vast and constantly growing, and as to the scope of Access Copyright’s repertoire, the truth is that there’s a wide gap between Access Copyright’s actual repertoire and the repertoire that it pretends to have.

Access Copyright purports to authorize the reproduction of any published work unless the owner of the the copyright in this work has explicitly excluded it. But the reality is that as a matter of law, Access Copyright does not represent all copyright owners except those who opted out. Rather, it can only authorize the reproduction of works when the copyright owners of those works have given it permission to grant licenses on their behalf. Therefore, when Access Copyright authorizes the use of works that are not part of its lawful repertoire, and when it collects money for that, it is–for copyright law’s purposes–not that different from Napster, Grokster, or whatever other copyright villain that comes to mind. And whenever it distributes to its affiliates the money that it collects for the use of the work of others, those who receive these payments (euphemistically named Payback), are the ones who reap where others’ have sown.

It is virtually impossible that all the owners of the copyrights in all of the works that Access Copyright claims to be in its repertoire have actually authorized it to license on their behalf. Access Copyright knows this all too well, or at least ought to know it, and this is probably the reason why it is extremely evasive about its repertoire, and why it has consistently refrained from providing any meaningful information about its scope, despite its legal obligation, under s. 70.11 of the Copyright Act, to provide this information to the public.

If you want to read more about Access Copyright’s evasiveness and misleading claims about its repertoire, you can read the Appendix of my letter to the Copyright Board from Dec. 20, 2013. Access Copyright even claims that the list of its affiliates is confidential information and should not be publicly disclosed; it purports to speak in the name of authors and publishers, but would not disclose who those authors and publishers are. If you don’t believe that Access Copyright’s actually claims that, see Exhibit AC-2H, which it has filed in a fully redacted form to the Copyright Board, the letter from its counsel objecting to my request to place the non-redacted version on the public record, and my reply to that letter.

If Access Copyright’s repertoire is as wide as it claims, it would be in its interest to show that even if it were not legally required to do so. But here’s an interesting fact, the number of full-time faculty members that UofT employs (11,581), all of which are authors of published works, is larger than the number of authors claimed to be affiliated with Access Copyright (10,480).

Next, UofT has concluded, based on serious analysis of what instructors actually use, that the use most of this material, whether or not it constitutes part of Access Copyright’s repertoire, is already permitted under the various license agreements that it has with publishers, or other content intermediaries. These findings are one of the main reasons why UofT has decided not to renew its previous license from Access Copyright. If this were not true, and if the copyright owners of these works were Access Copyright’s affiliates, it would have been very easy for Access Copyright to show that UofT’s (or other universities’) licenses do not cover the use of those works, and presumably it would have submitted such important evidence to the Copyright Board, because it would have been in its interest to do so. Has Access Copyright filed any such evidence? You guessed it. No.

Lastly, even if or when UofT has not been granted permissions from the copyright owners, most of what UofT’s instructors use and how they use it would probably be considered fair dealing, and when it would not, in most cases a license from Access Copyright would not have permitted those uses anyway. Of course, Access Copyright takes issue with UofT’s interpretation of the Copyright Act, but since it has already lost badly twice at the Supreme Court, and since it continues to endorse an interpretation that bears no resemblance to what the Supreme Court of Canada has actually said about fair dealing or fair dealing several times over the last decade, taking what it says with a big grain of salt seems to be in order.

The bottom line: if there are any works whose use had been previously permitted under the Access Copyright license but that cannot be used by UofT’s instructors today, their number is extremely small. It took a while for UofT to realize that, so it shouldn’t be totally surprising that not all of UofT’s instructors immediately understand that. Over the last few months UofT has been offering an impressive amount of quality resources and support to help instructors to manage the transition and educate themselves, and it can be trusted to exert additional efforts to  improve its support in order to dispel the confusion and avoid the frustration. Any transition is prone to cause some confusion and some frustration, but given the misinformation that Access Copyright has spread over the years, the real news is not that confusion and frustration exists, but how smooth the transition has actually been so far.

If what the Varsity has reported about is a rocky start then the Greenbelt can be named the Rocky Mountains.