The Best Possible Outcome for Universities, Really?

The Model License is quite similar to the unfortunate agreement that UofT and UWO signed a couple of months ago. Like the other agreement, this one suffers from the same conceptual flaws that I described in an earlier post. The two agreements also contain similar provisions that create unacceptable intrusion and limitation on academics' ability to conduct research and teach. For example, s. 4(a) provides that "Except as specifically authorized under section 3(b), no Copies of Repertoire Works shall be made available, distributed, or transmitted to a person who is not an Authorized Person." This appears to mean that even though the Agreement allows me to copy a journal article, I can't share it with a colleague from outside my institution, even if that colleague is a co-author. Is this the best possible outcome? Really?

Or consider s. 4(c): "Copies of Repertoire Works shall not be stored or indexed with the intention of creating a library of Published Works, except as permitted by this agreement as part of a Course Collection." I don't know when was the last time the people who negotiated these license agreements conducted academic research, but I'm happy to break the news that since the photocopier appeared on campus (and perhaps earlier than that) copying works (such as journal articles), and storing them "with the intention of creating a library" has been integral to the researcher's life. Some of us annotate these copies, occasionally at least, and those who are better organized employ various methods for cataloging and indexing their collections. Believe it or not, some academics keep not only collections of photocopies but also collections of materials in electronic format called "pdf". Yes, we sometimes do weird things up there in the ivory tower. Moreover--and I hope you're ready for the shocking news--it has even been brought to my attention that some Canadian researchers use programs like Zotero, RefWorks, EndNotes, among others, in order to index those files for easy search, retrieval, and other seditious purposes. The agreements seem to prohibit that. Is this the best possible outcome? Really?

Or what would you say about the following gems, such as s. 5(a): "Digital Copies of Repertoire Works shall not be transmitted to, posted or uploaded to, or stored on any computer network other than a Secure Network", and 5(b:) "Digital Copies of Repertoire Works stored on Secure Networks shall be made available and accessible only to Authorized Persons segregated by individual Course of Study"? These prohibition seem benign enough until your read the definitions. A Secure Network is defined as: "a network that is operated by the Licensee [i.e., the licensed university, not the Authorized Person, AK], or for and subject to the control of the Licensee (such as a network hosted by a third party and/or accessible through a web interface) and which is only accessible by an Authorized Person who is approved by the Licensee by means of a process of authentication which, at the time of login, identifies the user as an Authorized Person, whether by user name and password or by some other equally secure method." This definition inspired me to write the following short poem.

Bye bye CDs, au revoir USB drive,

Goodbye local hard-

disk and memory card.

No more Dropbox, no more Gmail,

Adieu, dear Cloud. Take care. Farewell.

Is this the best possible outcome, Really? And who the heck should be "segregated by Individual Course of Study"? Should the Digital Copies be segregated or the Authorized Persons?

And if that's not bad enough, how about the "poison pill" in s. 5(d): "(d) Where the Licensee is no longer covered by this agreement, the Licensee shall immediately use reasonable efforts to (i) prevent access to Digital Copies of Repertoire Works made under this agreement and stored on a Secure Network under its control ..." Get it? If the Access Copyright decides to terminate the Agreement, or if the university decides not to renew it, the university will have to block access to all the copies that you made. Immediately. Who wants to be the university administrator that will decide to divorce Access Copyright under such conditions? “Educational institutions and the publishing industry depend on one another,” said Greg Nordal, President, Nelson Canada and Access Copyright Board Member. They depend on each other so much, that care must be taken to avoid withdrawal symptoms. Thank you.

What else does the Agreement has to offer? Probably in response to the outcry over the surveillance provisions of the UofT-UWO agreements, the equivalent provisions under the AUCC Model License are more detailed and guarantee that "The Survey shall respect the principles of academic freedom, for example, by not providing access to the Licensee’s, its Students’ and academic staff’s chat rooms and e-mails" (s. 11(d)(iii)). What a relief. Your emails and chats won't be put under surveillance, but everything else might. The best possible outcome, Really? And now to the last nugget, which I saved to my faithful readers, my fellow Access Copyright geeks. Here's one of the most interesting and worrisome aspects of the agreement, s. 18.

18. Application of the Tariff Consistent with section 70.191 of the Copyright Act, Access Copyright will not seek to enforce the Tariff, and any renewals, extensions or replacements of the Tariff, against the Licensee during the Term.

Why is it interesting? Because it indicates that the Agreement with the AUCC is not even part of a settlement of the Tariff proceedings before the Copyright Board. That is, Access Copyright does not intend to withdraw the Proposed Tariff but plans to use the Proposed Tariff as a threat against the Opt-Out institutions, those rebellious universities that decided to get over the Access Copyright addiction. As you may recall, the Proposed Tariff requested a fee of $45 per student, and included surveillance, monitoring, and auditing requirement that make the equivalent requirements under the Model License look like The Charter of Rights and Freedoms. Moreover, the Copyright Board has expressed the view that the option of opting out is merely theoretical, because the Final Tariff would apply to any institutions that made even a single copy of a single Repertoire Work, and will be levied retroactively.

One of the things that I learned over the last several weeks is that one of UofT's motivations to settle the case was the realization that the AUCC was handling the Copyright Board challenge quite badly. Apparently, UofT concluded that it would rather settle than participate in funding a legal challenge that was handled in a way that guaranteed defeat. I suspect that additional universities have reached the same conclusion, and the result is a classic prisoners' dilemma for the universities. If all of them could coordinate and mount a serious challenge they could win the case, but if they cannot coordinate to mount such challenge, then those who continue to fight would lose and be subject to a retroactive draconian Tariff, whereas those who settle will get a bad deal, but one that is not as bad as a retroactive Tariff.

To accelerate this outcome, Access Copyright and the AUCC even negotiated a Limited Time Offer of Discounted Pricing on Retroactive Payments, that provides relief from retroactive payments for the institutions that sign the agreement early. The message to university administrators is clear: "Yes, you can opt out and try to challenge the tariff; but you will lose anyway. Instead, here's an offer that you can't refuse."  

So no, Mr. Davidson. This deal is not the best possible outcome for universities. The AUCC may believe that under the current circumstances "this negotiated agreement provides the best possible outcome for universities". But if such a dismal outcome is the best that Canadian universities believe they could get, then Mr. Davidson and other senior university administrators still owe faculty, staff, students, and taxpayers some serious explanations. They should explain how instead of coordinating and leading the academic community to set itself free from the tyranny of Access Copyright, they ended up colluding and brokering a deal with their bully. If they were advised, or came to the conclusion on their own, that this agreement is the best they could get, they should explain why they have used and have continued knowingly to seek legal advice from counsel who regularly advise and act for copyright collective and other big content owner interests. The AUCC and other senior university administrators should explain why retaining counsel who have lobbied on behalf of publishers and copyright collectives, and argued in the Supreme Court of Canada last December against a "large and liberal" interpretation of fair dealing that would be beneficial to academia was a wise decision to make. We deserve to know why these flawed agreements are the best possible outcome for universities. We really do. Really.