from the laying-down-your-arms dept
On Monday, I wrote about a troubling situation for Canadian universities that is coming to head. Their association, the AUCC, has negotiated a very bad copyright clearance deal with the collection society Access Copyright, which has been pursuing a hefty tariff from the Copyright Board. There was already tremendous pressure on AUCC members to sign on quickly, with a bizarre two-part deadline to avoid retroactive fees, but now things have gotten even worse. The AUCC has announced that it has withdrawn its opposition to the proposed tariff before the Copyright Board?meaning anyone who doesn't sign on to the model agreement will automatically face even higher fees and worse terms under the ridiculous and unrealistic requested tariff that kicked off the negotiations. As professor Ariel Katz points out, this is the opposite of what you'd expect:
If the AUCC thought that it would be in the universities? best interest to settle with Access Copyright, it should have insistent that Access Copyright would withdraw the Proposed Tariff as part of such settlement, and then let universities decide whether they wish to sign an agreement or operate without a license from Access Copyright. Instead, AUCC negotiated a model license that forces universities to choose between a bad agreement and a combination of an even worse Tariff and continued litigation before the Board.
The only hope is for universities to back out of the AUCC agreement and continue fighting the tariff on their own?but that might be easier said than done, and the Copyright Board could easily rubber stamp the tariff as unopposed. Katz continues:
What?s even worse is that?setting aside the issue of cost?it is not even clear how a university that wishes to continue objecting to the Proposed Tariff could do that, because procedurally, individual universities were not ?objectors?, only the AUCC was, and at this point its members have no independent standing in the proceedings. And substantively, it might as well be the case that the Board would regard the AUCC?s withdrawal of its objection as binding on its members. Unfortunately, the AUCC?s submission does not mention any agreement with Access Copyright that would allow AUCC members to continue to challenge the Proposed Tariff, nor asks the Board to make any order that would guarantee that. It would be an error for the Board not to allow remaining objecting universities to continue challenging the Proposed Tariff, or to view the AUCC?s withdrawal of objection as binding on them. However, this is a position that Access Copyright might indeed argue, and that if accepted could leave those universities in a very difficult situation.
The AUCC has really thrown its members under the bus here. From the very beginning of this whole mess, they have been in the position to make an argument for much lower tariffs on the basis of their fair dealing rights?and that position has only gotten stronger as Canada moves closer to its copyright reform bill. And yet, somehow, not only did they strike a terrible deal, they're now giving Access Copyright free reign to set tariffs at the board. Howard Knopf raises several important questions about the situation, and the last and most optimistic item on his list is perhaps the most important:
If this development is a sour ?lemon? to some institutions (e.g. the three dozen or so ?opt-outs? and others that may not be satisfied with result), what options are open to them to turn can it into lemonade ? maybe even ?spiked lemonade?? This may well be as possibility if the AUCC?s abrupt departure clears the deck for a fresh and very vigorous approach by institutions that don?t want to sign the model license and may therefore decide to fight to the finish.
In the U.S., large universities have their own copyright clearance offices that bypass the collection societies. With Canadian universities stuck choosing between a bad deal and a worse deal, now is the time for them to bring a vigorous argument to the Copyright Board and establish a new way of doing things?one that leverages their substantial fair dealing rights under the law to reduce the cost to schools which, ultimately, is a cost to students, taxpayers and all of Canada. It's disappointing (and astonishing) that AUCC not only won't be backing them if they do, but has apparently made things even harder for them. Nevertheless, the AUCC's withdrawal has cleared the playing field for a counterattack from the universities that could be highly effective with the right strategy. It won't be easy, but it's a fight that needs to be fought.
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