York University, copyright collective brace for legal battle

TORONTO -- There's a battle brewing in the world of Canadian academia.

On one side stands Access Copyright, a collective which has provided institutions access to a pool of protected intellectual work for more than two decades while distributing royalties to the writers, artists and publishers it represents.

On the other is a group of universities who no longer feel the need to pay for the services offered by the collective, opting instead to navigate the world of intellectual property rights without a middle agent.

Simmering tensions are now threatening to boil over as Access Copyright takes one of Canada's largest universities to court -- a move some see as a warning to others who've ended relations with the agency.

Access Copyright is claiming Toronto's York University, which opted out of an agreement with the collective, has improperly been reproducing and authorizing the copying of protected works.

The issue goes beyond a single institution though.

To combat unauthorized copying, Access Copyright has also filed two applications to the Copyright Board of Canada requesting certain tariffs that would require schools and universities that don't have an agreement with Access Copyright to pay established rates to use works the agency handles the rights for.

Those institutions wouldn't have to pay the tariff if they have direct licence agreements with publishers, use openly accessible work or copy a portion of a work small enough to be considered "fair dealing."

The entire situation could have wide-ranging implications for students and educational institutions across the country.

"At the end of the day, if Access Copyright is successful -- although I have to say that based on where the law is at, that seems unlikely -- we're talking about millions and millions of dollars being paid by taxpayers to this group," said Michael Geist, a University of Ottawa law professor who is an expert on intellectual property.

"The goal here is to scare post-secondary institutions into signing the licence."

The licence at issue is an agreement reached between Access Copyright and the Association of Universities and Colleges Canada last April.

The deal, effective until December 2015, requires institutions to pay the collective $26 per full-time equivalent student annually -- an increase from a previous rate of $3.38 per full-time equivalent student plus a 10 cents per page royalty for copying protected works.

Access Copyright said the new rate did away with the per-page royalty to keep up with the digital revolution, but a number of universities -- who were already paying for individual digital database subscriptions -- balked at the cost.

According to Geist, Access Copyright would do better to evolve its practices and expand its services in sectors beyond its traditional educational clients.

"The practices are changing, Access Copyright doesn't seem to want to change and so the move to the courts is really just that somewhat desperate attempt to try and keep what is an increasingly outdated model alive," he said.

"It's not at all about whether we protect intellectual property or not. It's just about whether or not there should be some sort of requirement to also pay Access Copyright."

For its part, Access Copyright says taking York University to Federal Court was necessary to break a stalemate.

"We would have much rather sat down with York to reach a resolution on this matter. We tried it and it didn't work," said Erin Finlay, director of legal and government relations for Access Copyright.

"We need to act through litigation sometimes so that the classrooms of tomorrow will have the much-needed current and relevant content that their professors and students use."

Access Copyright says "the majority" of universities and colleges have signed onto its new licence agreement. Those who haven't are tracked to ensure they aren't violating copyright.

"We have and continue to monitor usage of copyright protected work through public sources only. We are not interested in monitoring professors' emails, in getting behind the walls of the university," said Finlay.

Much of the current controversy involving York is over what constitutes "fair dealing" and the university maintains it has done nothing wrong.

"We are confident that we are operating within the law and we will actively defend this case," said university spokeswoman Joanne Rider.

"York is continuing our commitment to ensuring access to copyrighted materials for study and research with appropriate payment to authors and publishers."

The issue of "fair dealing" was also at the heart of a Supreme Court case last summer, when Access Copyright went up against ministers of education and school boards across the country over how much schools had to pay for the right to photocopy parts of books for students. The court ruled against Access Copyright, arguing that when implementing tarriffs the Copyright Board had incorrectly treated teachers differently.

Meanwhile, some students at York university say whatever the outcome of the legal battle they stand to lose.

"The university is now going to have to spend money on this court case...which is money that could potentially be going toward improving the quality of education, putting more bursaries, improving services," said Alastair Woods of the York Federation of Students.

"Access Copyright has backed the university, and by extension students, into a corner because they want students to pay this fee."

York is not the only university that has chosen not to sign onto Access Copyright's new agreement.

One of the first to opt out was the University of British Columbia, which opened its own copyright clearance office to ensure it wasn't running afoul of the law.

"It wasn't necessarily the easier thing to do...(but) the costs that they were charging us -- which actually our students pay -- weren't justifiable," said David Farrar, UBC's vice-president academic.

The university already paid about $10 million for its own subscriptions to digital licenses and another $5 million for books and other licenses which seemed to cover at least half of the works Access Copyright's package included, said Farrar, so opting out made sense.

"It felt like the right thing to do. We generate intellectual property, our faculty members are hugely invested in copyright and it just became difficult to justify belonging to the collective when we felt we could do a better job at managing this ourselves."