The Cats So Difficult to Herd? Copyright at Memorial University

In the past four years,Canadian writers and publishers lost roughly $53 million (CAD) in licensing royalties. How did this happen? 

In the past four years,Canadian writers and publishers lost roughly $53 million (CAD) in licensing royalties. How did this happen? 

According to recent Publishers Weekly estimates, this loss resulted from the decision taken by Canadian schools and universities, including Memorial University, to abandon their collective licensing agreement with Access Copyright.

While illegal photocopying is not a particularly sexy issue, the magnitude of this transfer of wealth from writers (the lowest paid professionals in the country) to educational institutions across Canada, demands immediate attention—particularly when considered in light of the lip service all-too-often paid to the value we place on our creative community here in Newfoundland and Labrador.

For example, Memorial University’s Sparks literary festival takes place on January 28, 2018. This year, as always, the festival includes an interesting line-up of performers, including noted Irish short story writer Colin Barrett, this year’s Giller Prize winner Michael Redhill, as well as numerous local writers. The festival, now in its 9th year, is one of a number of initiatives undertaken by Memorial University to promote writers and writing.

Others include the Visiting Writers Series and the Writer-in-Residence program. Memorial would like these efforts to be seen as examples of genuine engagement between the University, the writing community and readers, and yet, recent administrative decisions at the University to abandon its Access Copyright obligations cast these events and programs in a less flattering light.

Until 2012, Memorial University, in concert with most other English universities in Canada, regularly signed a collective licensing agreement with Access Copyright. These agreements (which consisted of an annual per-student fee) allowed students, faculty and staff to make reproductions of a certain amount of a copyrighted work without seeking permission from the copyright holder. The collected fees were then distributed by Access Copyright to writers across the country. It was not a perfect system—no writer got rich—but it was at least an attempt at fairness.

The arrangement broke down around 2012 when ill-defined changes to the Copyright Act and several Supreme Court decisions related to specific copyright-infringement cases were interpreted to mean that universities no longer needed an agreement with Access Copyright in order to reproduce copyrighted works.

English universities (perhaps under the guidance of Universities Canada and the Canadian Association of Research Libraries) all came to the same remarkable conclusion: they would no longer have to pay copyright holders for their works unless the amount to be copied exceeded a threshold set by the university. No writers—to my knowledge—were consulted about the amount of copying that could be done for free.

Needless to say, the collective decision by Canadian universities was hotly contested by non-university writers and writers’ organizations. The most high-profile of these challenges was that launched by Access Copyright against York University, the former charging that York’s copying guidelines were in violation of the fair dealing provision under copyright law. Fair dealing is the exception in the Copyright Act that allows one to reproduce a portion of a copyright-protected work for purposes such as research and private study provided that what one does with the work is “fair.”

In essence, York said its copying guidelines were fair and Access Copyright said they were not. It was up to Justice Phelan of the Federal Court to decide.

On July 12, 2017 Justice Phelan handed down his decision. The court found York University’s copying guidelines to be “unfair in terms and application,” and ruled that the university was “taking for free what they had previously paid for.” The decision was a damning indictment of both the guidelines and of York University’s ability to comply with its own rules.

Unequivocal in his denunciation of York University’s guidelines (and by extension the same or similar guidelines at Canadian universities (Memorial included), colleges and K-12 Departments of Education), Justice Phelan’s ruling should have brought all parties back to the table to negotiate new licensing agreements. Nothing of the kind has happened. Instead, educational institutions dug in their heels, hoping that the recently-filed federal court appeal by York University (A-259-17) will overturn the decision.

Canadian universities have had very little to say about their refusal to comply with the federal court decision. An eerie silence has gripped administrators, faculty, creative writing departments and librarians. One would have expected some principled argument about why readers’ rights trump the rights of creators. One might have expected trenchant critiques of the federal court judgement.

But apart from a few hurried blog posts and terse press releases, the airwaves have been quiet. One reason for this is perhaps the esoteric nature of the issues under discussion. Fair dealing, copyright licensing agreements, and exemptions under copyright law are not the kind of subjects that make headlines. The concepts themselves are complex. Most faculty members would not be able to explain them and many are not even aware of the current standoff between universities and the wider writing community. The ignorance extends even to those who should know better, to English Literature departments and creative writing faculty who are busily recruiting students with promises of a rewarding career.

Perhaps also there is an element of willful blindness in all of this. Acknowledging the standoff is awkward for those on campus who would champion writers and writing. Sparks festival organizers at Memorial say that the current copyright negotiation should not cast a pall over other university initiatives that promote writing and pay writers for their contributions. They ignore the fact that such programs have essentially become a smokescreen for Canadian universities, a way for administrators to have it both ways: on the one hand giving the appearance of supporting writers, while on the other hand taking away from them on a massive scale.

Tenured writers who work within the university have a duty to exercise academic freedom and speak up for their colleagues outside the academy. Writers invited to participate in university festivals, discussion forums, readings, as well as those invited to hold Writer-in-Residence positions should be informed of the current position taken by Memorial and other Canadian universities in regard to copyright and the fair compensation of writers for their work.

Copyright has been the backbone of the social contract between writers, publishers and readers since the eighteenth century. Canadian universities should defend that contract. They should not be in the forefront of the barbarian invasion that uniformly lumps all creative works together as “content” and would have us pay only for the platforms and machines that deliver it to our various electronic devices.

Article by Patrick Warner

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13 Comments

  • 10 cents per page on top of established costs, that seems excessive from a common sense standpoint. used to be 10 cents for a photocopy everywhere.
    this squabbling is hurting the students caught in the middle, who would be paying for the photocopies to aid their studies. thank goodness for PDF’s and the internet.

  • John Degen, in what world is it reasonable that in one year the copyright fees not only go up by almost eight times their previous amount but also a per-page photocopying fee is added over one year?

    I imagine an author would consider themself ill done upon if they were being forced into signing a contract that allowed their publisher to take eight times their sales per book, and also an additional fee to boot. And rightly so. Those sorts of sudden increases are unreasonable.

    Access Copyright clearly has some clout if they’re able to take universities to court for not agreeing to their terms, and they’ve been using that legislative authority to hang over peoples heads for years and years. I’ve been privy to their tactics, and they’re not as pleasant as you imply here.

    As opposed to this article and yourself, I’m simply suggesting that the grey area of AC’s behaviour and demands has been ignored. I’m not saying that authors don’t deserve money or that universities are pure and noble. Authors deserve far more than they get (both for copyright tariffs and from publishers). Universities need to do a better job of promoting copyright. Access Canada needs to cease trying to short authors while simultaneously demanding more from universities (royalties paid-out as a percentage of tariff revenue has been on a steady decline for the past number of years (to the tune of a 15% drop in the past five years), whereas one would think it would be increasing if the two were linked).

    Sorry, but, no Access Copyright is not allowed to come out smelling like roses on this. They’re not brave defenders of authors any more than universities are brave defenders of students.

  • I’m very happy to see this article. Thank you for writing it.

    The idea that tariff increases by Access Copyright led to the universities backing out of the agreements is post hoc reasoning. The institutions lobbied the government to add “education” as an exception in the 2012 Copyright Act, and then they decided how they wanted to interpret it. They refused to negotiate, or even meet with, Access Copyright, the Canadian Copyright Institute, or any other group representing Canadian creators or publishers.

    The York University ruling shows very clearly how one-sided this entire issue has been. Let’s hope the Copyright Act review this year sets things right.

  • Anonymous B,

    Your facts are wrong, and that doesn’t surprise me given the source you quote. Howard Knopf is one of the worst offenders in the inaccurate demonization of reasonable copyright protection and compensation for authors. Increases in licence fees were logically tied to increases in usage and were anything but exorbitant. Collective licensing remains the best bargain a school will ever be offered – the simple fact is they don’t want to pay because they think they might get away with not paying.

    The conflict between universities and the creative sector is being played out on two fronts – by administration cost-cutters who see an opportunity to (as York was rightfully upbraided for) grab for free what must be paid for, and by academic ideologues who follow the theories of Larry Lessig and the Free Culture movement in the States. This is a movement closely tied to Silicon Valley tech-utopianism, and is little more than a smokescreen for the business models that built Google and Facebook into the true monopolies that they are – selling advertising onto content you have obtained for free. Free Culture provides all sorts of motherhood-sounding arguments to the cost-cutters (“won’t someone think of the students!”), and the complexities of copyright make the topic just difficult enough to skate it under legislators’ noses, as happened in 2012.

    To suggest that Access Copyright, a relatively tiny collective built by independent Canadian authors and publishers, has any bullying clout on the scale of even a single university in Canada is to plainly not understand the landscape of this battle. The reason universities did not collapse in fear after the York decision was delivered is that they hold any potential fine for their infringements in a fraction of a fraction of their reserve funds. They are the Goliath who can afford to let this play out to the Supreme Court and beyond, and they do so knowing writers likely can’t afford that extended battle. An extraordinarily cynical gambit for them to play, and they’re playing it while, as the author points out, claiming to love and support Canadian writers.

  • Anonymous, oh yes, I’m not saying that there’s not illegal copying going on, because there certainly is. Any of that should be punished to the fullest extent. I’m just saying that the post-secondary institutes didn’t pull out of Access Copyright so they could be the wild west and copy willy-nilly. It was a calculated risk, and only one in response to AC not being willing to budge at all about their exorbitant fee increases. Shameful that AC is also screwing the people they’re suppose to protect out of income at the same time.

  • Anonymous B. You need only talk to published writers to find out how much their Access Copyright payments have shrunk in recent years, specifically since 2012. Mine is down about 75%. I take that as evidence that the fees do make it into the hands of writers. Regarding the Federal Court decision, well, time will tell. But I do know that Judge Phelan’s was the first thorough review of how universities have been monitoring and enforcing their own copying guidelines. And the the evidence does not speak for compliance. 27% of the documents surveyed at York violated their own guidelines, which were deemed unfair to begin with.

  • They certainly do. I’m also a writer, but I work professionally in a library at a post-secondary institution, so I’m intimately familiar with why universities fought back against Access Copyright. The issue started when access copyright tried to increase their fees per full-time student by almost 8 times the amount from the previous year, and added a royalty of 10-cents-per-page for photocopies done at each institution.

    I have nothing but sympathy for authors being a hobbyist myself, and think they deserve what they get and more, but those kind of increases are simply not do-able for post-secondary institutions, and they almost certainly weren’t going to find their way back to the authors.

    Anonymous, I did read it; you can also find a response to that in the link I share above, and why that judgement may not be entirely objective or correct.

  • Anonymous, to my knowledge, the last proposed increases by Access Copyright would have made Memorial’s annual fee roughly equivalent the combined salaries of to 2-3 senior faculty members or one senior administrator.

  • Anonymous. I suggest you read the Justice Phelan’s decision in Access Copyright V Youk University. It’s a comprehensive review of the evidence for “fair dealing” at that institution and it comes down heavily on the side of Access Copyright. You can find it here:

    https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/232727/index.do

    Section 14: ” York’s own Fair Dealing Guidelines [Guidelines] are not fair in either their terms or their application. The Guidelines do not withstand the application of the two-part test laid down by Supreme Court of Canada jurisprudence to determine this issue. “

  • I think it’s fair to present the other side, Anonymous, but hard to argue against the fact writers and publishers deserve fair compensation, lest we find ourselves in a world where no one’s writing or publishing anymore …

  • For a little background, the reason universities mostly unilaterially decided to stop supporting Access Copyright is because it very much became bad faith dealing on the part of Access Copyright. Fees were continually increasing to an extent that it became simply intenable for universities to afford to continue to pay them. AC is quite literally a monopoly which pushes its weight around, and uses the fact that copyright is not a sexy issue to try and force schools to pay its fees, knowing that there’s little point in them going public and calling out their demands. You can see a blog with a much more detailed history at: http://excesscopyright.blogspot.ca/2017/02/the-federal-court-of-appeal-rules-on.html

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