Last week Access Copyright came up with new offers for sharing literary works for educational and professional purposes with post-secondary educational institutions. Access Copyright is a Canadian copyright licensing agency that represents the authors and publishers of literary works and collects revenues on their behalf. When educational institutions sign up with the organisation, the professors and students are permitted to selectively copy copyrighted works. Access Copyright charges a base rate per full-time student for this license, which is usually passed down to students in mandatory fees.
The new offers permit copying upto 20% of copyrightable material, which is higher than the 10% standard established in most Fair dealing guidelines (University of Toronto’s Fair Dealing Guidelines). Depending on the package, you may be permitted to copy on paper or digitally (Premium package), or receive paper-handouts and email attachments of the desired material (Choice package). To ensure that professors and students do not exceed the 20% limit, Access Copyright also surveils digital communication, and has been heavily criticized for impinging on academic freedom. The new offers were announced to reclaim institutions which opted out of Access Copyright’s licenses when the latter refused to fall in line with Canada’s amended copyright law. The offers have been priced at 15 dollars for three years (Premium package) and 5 dollars for one year (Choice package) per student.
Canadian Courts have been instrumental in interpreting the fair dealing defence expansively relegating Access Copyright as an alternative in the system. Despite the rulings Access Copyright continued to make licensing agreements on rather unfavourable terms. Consequently, many institutions opted out of their tie-up with Access Copyright, especially when the former’s use of copyrighted works fell squarely within the fair dealing defence,
For our readers’ information, in 2012, the Supreme Court of Canada in Alberta (Education) v. Access Copyright ruled on the limits of fair dealing in terms of deciding the extent to which content that may be photocopied for educational purposes. The Court did not specify a limit and looked instead at the character of use and made a determination on a holistic basis. This interpretation was not met with much enthusiasm at Access Copyright. After the decision there were amendments to the Copyright Act and the Council of Ministers of Education Canada laid down the Fair Dealing Guidelines. Again, Access Copyright was dismissive of the guidelines. Many universities tried to renegotiate the terms of their license to reflect the amendments to the Act, however, Access Copyright refused to relent. As a result several schools and universities opted out of the licensing arrangements. The organisation has since to flagged the decision as a threat to sustainability of Canadian content by declaring the judgment as extremely broad, and that it promoted reliance on unlicensed copying. It also proceeded to challenge the amendments in a lawsuit against York University. In fact, the Canadian fair dealing defence is very similar to India’s. You may read Amlan’s analysis of important Canadian decisions (including Alberta) involving the fair dealing defence here.
Closer home, the legality of photocopying for coursepacks is still being decided by the Delhi High Court in the Delhi University photocopying case. During the case, IRRO had offered to license course material, but was denied registration later (IRRO is the Indian equivalent of Access Copyright). Before IRRO was refused re-registration, it had also challenged the amendments to the Copyright Act. Copyright collectives have been facing the heat internationally, with governments taking progressive steps to expressly legitimise copying for educational purposes. In Canada, students have reportedly complained about spending an exorbitant amount over coursepacks in the absence of Access Copyright licenses, i.e. when the University guidelines were in force (post the changes to Canadian copyright law). Thus, despite the well intentioned decision of the Courts, evidence suggests that students are still struggling to acquire course-packs and author groups are disgruntled with the use of their works. In light of these developments, the responsibility to ensure access to course-packs is becoming increasingly incumbent on educational institutions by evolving appropriate policies for their academic community. Hopefully, copyright collectives will also start adhering to progressive changes in copyright law to truly benefit students, publishers and authors alike.
I’ll leave you to ponder over the Access Copyright opt-in opt-out debate in particular, with this sketch –