First posted on Prof. Katz's blog.
In addition to serious copyright, privacy, and academic freedom problems arising from the Agreement signed last week between UofT and Access Copyright, the way it has been handled so far raises some questions about whether it is consistent with UofT’s governance procedures.
No serious consultation or discussion has taken place before the Agreement was signed, although, interestingly, s. 22 of the Agreement does contemplate it being conditional upon “applicable Governance approval”. It seems only natural that an agreement with wide, deep, and long-term implication such as this one would be subject to governance approval, yet it is less clear that UofT's Administration is going to seek the appropriate approval. The Administration has not done it yet, and in fact, there are worrying signs that the Agreement will not get the scrutiny that it deserves. I hope I'm misinterpreting these signs.
Two hours before the Agreement was announced on Jan. 30 at 7 pm, the Business Board of the Governing Council held a meeting. Item #9 on the agenda was titled "Access Copyright Fee". It was presented for information only, not for approval. The Agreement itself had not been presented. The Report briefly describes the Tariff hearing at the Copyright Board, notes that agreement between UofT and Access Copyright had been reached, and notifies the Administration's intent to cover the cost of the license by increasing the ancillary fees that students pay.
The Report portrays the Agreement as one pertaining solely to teaching materials, and justifies the increase in ancillary fees as a permissible step to recover the cost of "materials, services, or licenses where the University acts as a broker with a vendor for the students" pursuant to the Policy on Ancillary Fees. It concludes that the only remaining issue is how to distribute the fees among different students.
Portraying the Agreement in this manner is highly inaccurate. The Agreement deals with all aspects of reproduction of copyright-protected works by the University for "all purposes within or in support of [its] mandate," which obviously include not only teaching, but also research and various other purposes. Describing the University's role under the Agreement as that of "a broker with a vendor for the students" is plainly wrong. The University isn't a "broker", but a "Licensee", and has taken upon itself not only to pay license fees, but also to comply with a host of restrictions and obligations that concern the way most of its members conduct their day-to-day activities as researchers, students, librarians, administrators, and IT staff. These obligations are not only unnecessary and burdensome, but may also threaten their privacy and academic freedom.
This portrayal of the Agreement is troubling on several levels. First, while characterizing the Agreement as an issue of teaching materials may allow the University to shift the cost of the license fees onto the students in the form of ancillary fees, it is unclear whether it can actually do that. Since the Agreement is not limited to teaching materials, such a move seems to be inconsistent with the University’s own Policy on Ancillary fees (and possibly with applicable Ontario regulations). If the University cannot pass the cost onto the students, it may end up paying approx. $2 millions a year in license fees out of its own budget.
Second, the narrow portrayal obscures the fact that some of the obligations under the Agreement may cause the University to incur significant additional costs. For example, complying with s. 11, dealing with "Survey of Bibliographic and Volume Data" in a way that is consistent with all privacy laws and preserves academic freedom (if possible at all) may turn out to be extremely costly.
Third, the Agreement will significantly affect the teaching, learning, and research functions of the University, and the decision to sign it may have long-term implications for UofT’s ability to access scholarly materials on competitive terms. It may also affect its ability to compete globally because there is no equivalent to the tyranny of Access Copyright in the US or elsewhere. Moreover, contrary to the belief that the indemnity provision in the Agreement protects the University from liability, under some scenarios it may actually increase it. Therefore, this agreement is exactly the type of agreement that deserves full scrutiny by the Advisory Committee on the University of Toronto Library System and the Academic Board. It may not even be an exaggeration to say that as an issue having a major impact it requires the approval of the Governing Council.
To date, the Library Advisory Committee (of which I’m a member) has not been asked to review the Agreement, although we have discussed the relationships with Access Copyright in two separate meetings. To the best of my knowledge, the Academic Board has not been asked to review it either. The Governing Council's next meeting is scheduled to Feb. 16, 2012. The issue does not appear on the agenda although the Agreement may be reported on, or perhaps raised under “Other Business”. At the moment, no discussion is scheduled. Indeed, it would be inappropriate to bring the issue before the Governing Council on such short notice, and before the Library Advisory Committee and the Academic Board had an opportunity to review it.
I truly hope that the fact that no steps towards "appropriate Governance approval" have been taken yet simply reflects the slow pace that characterizes a complex organization such as UofT, and that the Agreement will be thoroughly reviewed in the appropriate fora. Maybe the conclusion will be that signing the agreement has been the best decision under the circumstances, and it may turn out that all the alternatives were thoroughly considered, but given the many problems in the Agreement, this conclusion is not self evident.
