Counterpoint: The University of Waterloo Should Reject the Access Copyright Deal

On June 7th, the University of Waterloo announced that it decided to forego the renewal of the Access Copyright agreement. The decision was a bold one, considering that other post-secondary institutions in Ontario, such as the University of Western and the University of Toronto, had just signed the agreements. However, Waterloo’s rejection of Access Copyright could not have been met with more appreciation from students and staff alike. Although Access Copyright might have seemed to be an aid in the past, the current agreement is a tremendous inconvenience for post-secondary institutions from both a financial and a legal perspective.

To begin, let us look at what Access Copyright really is. Access Copyright is an institution that claims to provide “innovative copyright licensing solutions to governments, businesses, and educators” for supposed ‘hassle-free’ access to copyrighted material. They aim to act as liaisons between institutions and publishers to ensure that external institutions can retain as much legal use as possible of copyrighted works, while simultaneously ensuring that authors and publishers get paid for said works.

The last agreement between UW and Access Copyright expired in December 2010. The agreement mainly consisted of two fees: the first was a fee of $3.00 per full-time equivalent (“FTE”), which covers any ‘unidentified copying’ performed by a staff member or student of a variety of copyrighted works. The second part of the agreement was a fee of $0.10 for identified copying from any course package per course package (which is defined as a ‘physical assembly of readings’). The total fee works out, on average, to about $3.38 per FTE.

When the agreement expired on December 31, 2010, Access Copyright came up with a new agreement of $27.50 per FTE. Apparently, this increase in fee is due to the fact that the agreement now includes digital materials, and to encourage environmental sustainability. However, this fee is a 600% increase from the last agreement, and with over 30,000 students attending Waterloo, this would cost the university an extra $700,000 per year.

However, apart from the financial burden, the pinnacle of the flaw of the Access Copyright agreement is that it does not provide noticeable benefits to the university or to its students and staff members. In fact, Access Copyright actually has more clauses that are detrimental to educational institutions. To discuss this, we must look at the definition of copyright itself.

According to the Copyright Act, owners of a work have the sole right to reproduce the work in any shape or form, to publicly perform the work or communicate the work to the public (in various types of media), or to authorize any of these rights to others. Thus, if the university already received consent from the owners of the work for any of these rights (for instance, if the publication of any material is already available through the university’s library catalogue), then the university should not be paying an more money with Access Copyright for using these works (these fees should not be included exempt from any of the Access Copyright course packages). Finally, it should be noted that “consent” can either be explicitly stated or implied—so even instances where blogs invite you to ‘comment on a post’ or to ‘share the post with the public’, it is implied that the blog post has authorized the reader to communicate the work with the public.

Canada also has a lot of fair-dealing provisions that protect users from being sued for their use of copyrighted material. Material that is used for research or private study, or material which is used for criticism or review so long as appropriate credit is given to the owner and the source, won’t trigger copyright alarm bells. In fact, a ruling by the Supreme Court of Canada in 2004 elucidates the importance of protecting both the owner and the user in issues of copyright. In the case of the Law Society of Upper Canada versus CCH Canadian Limited, the Supreme Court stated that the fair-dealing provision is not just a ‘loophole’ or a ‘defense’ for users, but that users also have rights when it comes to dealing with copyrighted material. The Supreme Court went on to state that research “must be given a large and liberal interpretation to ensure that users’ rights are not unduly constrained’.

Ironically enough, it should be noted that the Access Copyright agreement that ended in 2010 did not cover the “fair dealing of material with any work for the purposes of private study (…) and review”. The agreement also stated that it was not exempting the universities or its full-time equivalents from copyright infringement for material that was accessed without the permission of the owner. Clearly, this begs the question of why exactly Access Copyright was deemed necessary to begin with.

Furthermore, Access Copyright actually has a slew of clauses that are very undesirable to both university staff and students. Examples include clauses which state that Access Copyright will have access to conduct surveillance on the university and its students’ use of copyrighted and educational material, to prevent users from sharing resources with anyone outside the university, and to prevent users from storing or indexing articles. Access Copyright also requires that for any material used for a course collection, a university should make note of information such as the name of the course for which the material is used, the course study code, the term start and end date, the number of authorized persons for the course study, and so on for another two dozen criteria.

The University of Waterloo has not been with Access Copyright since January 2011, with no perceivable negative outcomes on both the quality of education, or on access to educational resources. Although Access Copyright is masquerading as a ‘be all, end-all’ to Waterloo’s copyright problems, the fact of the matter remains that the university has never had any copyright problems to begin with. Shelling out hundreds of thousands of dollars to an organization with little perceivable benefit is an enormous waste of money, especially money that is coming from a student’s miniscule pocket.