McMaster University is currently in negotiations with Access Copyright on a licence agreement that would legally allow the McMaster

community to continue reproducing copyrighted works in both print and digital formats. McMaster would like to take this opportunity to provide the students, staff and faculty with responses to some concerns raised to date. Q1. Why has McMaster accepted a $26 per Full-Time Equivalent (FTE) student flat rate fee when the prior agreement with Access Copyright only charged $3.38 per FTE? A1. Under the pre-2011 Tariff and 2011-2013 Interim Tariff, Access Copyright charged each university $3.38 per FTE and another $0.10 per page per copy for coursepack copying, which was paid for by the students as part of the cost of each coursepack. McMaster has completed a review of the fees remitted to Access Copyright under the pre-2011 Tariff and 2011-2013 Interim Tariff. Based upon McMasters review, the university has consistently remitted approximately $26 per FTE to Access Copyright under those tariffs. Unlike the situation at other universities, the new licence agreement would have little net financial effect relative to the fees paid in the previous years. R1. This is interesting information, but not that useful as presented. The AUCC has previously claimed that AUCC members and students currently pay an average price to Access of about $17 per FTE. Of course, its possible that McMasters students read more than the national average, but it seems a little strange that its internal review yields a figure that is exactly the figure that the AUCC negotiated. It would be useful if McMaster provided the data so that its students, staff, and faculty could verify the conclusion. Moreover, even if $26 figure is correct, its not entirely clear what this average reflects. In particular, if McMaster has indeed collected the data, it would be interesting to know not only what the average per student has been, but also the variation among students, as well as the total annual amounts paid by the university, and how they changed over time. Without this information, it is difficult to evaluate the benefit of signing the Model License. Consider the following: 1) Under the old agreements, most of the money paid to AC came from the $0.10 per page variable fee. This means that it was mainly a pay-per-use model. Some students, in course-pack-heavy courses might have paid more than students enrolled in other courses, and some students might have paid very little, if anything, beyond the flat $3.38 fee. Therefore, if McMaster is planning to pass the cost of an AC agreement on to the students, the result will be that some students might see a significant increase while others will might pay less than before, even if the average per-student remains the same. 2) Even if the average remains the same, it is entirely possible that the total payment to AC might as well increase substantially (and it probably will, because otherwise AC would have no reason to change the model). McMaster has approx. 30,000 students. If it signs the Model License, it will pay a total of $780,000 per year for the years 2011-2015. Is it more or less than it paid in each of the previous years?

3) Moreover, if McMaster has the data, it would be interesting to know what the trends were over the previous period. This is important because there are strong reasons to believe that the pay-per-use model under the old licenses with AC would generate decreasing royalty payments to AC over time, as increasing amounts of materials are available to universities through direct licensing, resulting in cost-savings to students and the university. Signing the Model License is not a substitute for the subscription fees that universities pay to publishers and content aggregators. Universities will continue to pay these fees whether they sign the Model License or not. However, many of those subscriptions already give universities greater permissions that those available from AC. This is very likely the reason why AC moved from a pay-per-use model to a flat fee, because a payper-use means decreasing payments to AC over time, as universities move to rely on the content that they license directly. Signing the Model License guarantees to AC a transfer of $3.9 million from McMaster alone, most of which could probably be avoided (and we havent mentioned fair dealing yet). Furthermore, this fee reflects current market rates under other copying agreements between universities and other copyright collectives. For example, universities in Quebec remit $25.50 per FTE to the Quebec copyright collective, Copibec. Treating the license fees payable to Copibec by Quebec universities as market rates is ridiculous. Prices set by cartels such as Copibec or Access Copyright are not market rates. Treating such prices as market rates in an environment where the government encourages payments to such cartels makes even less sense. A more reliable benchmark for what would be a market rate is the price that the US-based Copyright Clearance Center is offering (and most American universities still think it too high and dont buy): $3.56 per student (see the chart on my earlier post). The difference does not reflect any significant differences between the copyright laws of the US and Canada, certainly not after the Supreme Courts ruling in CCH, and certainly not after the explicit mentioning of education in Bill C-11. The true difference lies in the willingness of American educators to assert and reclaim their rights, and our reluctance to do the same. If using the fees requested in the US as a benchmark seems too radical an idea, how about using the $10 fee negotiated by the ACCC instead? Is there a convincing argument to justify why universities should pay a fee 2.6 times higher than colleges? Usually, the ability to charge such different prices reflects market power or monopoly power not market rates.

Q2. The definition of Copy includes hyperlinking to a digital copy. Is this definition granting Access Copyright more rights than the law requires? A2. Despite the ruling of the Supreme Court of Canada in Crookes v Newton, it is still unclear whether posting a hyperlink could make a person liable for authorizing the copying of a digital work under Canadian copyright law. The broad definition of Copy means that more activities will be covered under the licence agreement, which also broadens the scope of legal protection afforded to the McMaster community.

R2. This is simply false. The Model License defines posting a link or a hyperlink to a Digital Copy as an act of copying, not as an act of authorization. There can be no question that a link is not a copy since the link itself is not a reproduction of the work, and therefore posting it does not create an additional copy. Clicking on a link may or may not result in a reproduction of the linked-to work, and usually the person who posted the link will not be deemed to have authorized the reproduction, except, perhaps, in very specific and unusual circumstances. But this is irrelevant to the present case because a person cannot be held liable for authorizing the making of a non-infringing copy. Since the Model License permits the copying of Repertoire Works, an Authorized Person cannot be held liable for authorizing the making of such copies, by posting a hyperlink to it or otherwise. If for some reason McMaster is concerned that acts of authorizing may not be covered by the license, then it should insist on making it clear that the license explicitly covers the acts of authorizing.

Q3. Wouldnt McMaster be prejudicing itself in the future by agreeing to such a broad definition of Copy? A3. The definition of Copy will be accepted by McMaster on a without prejudice basis and the licence agreement we sign with Access Copyright will clearly reflect that. McMaster reserves the right to take a different position on the meaning of the term Copy in any legal proceedings related to this licence agreement. R3. Incorrect. Under the Model License the definitions are binding with respect to proceedings related to this agreement. The without prejudice language is limited to proceedings unrelated to this agreement. One possible implication of the definition is that AC would have a basis for demanding a survey that includes studying the linking behaviour on campus, or how many times works are displayed on computers or other devices. It is also unclear what proceedings will be regarded as unrelated to this agreement. For example, when the previous AUCC-negotiated agreements were about to expire in 2010, AC applied to the Copyright Board and asked to impose an interim tariff to preserve the status quo. The unrelated interim tariff incorporated the agreement. Or, what happens if McMaster decides not to renew the license and AC demands that McMaster deletes all hyperlinks. Will it be open for McMaster to argue that the obligation to block access and delete all copies when the agreement is not in force does not apply to hyperlinks? Moreover, the reality is the universities who sign the Model License acquiesce to extremely wide definitions without good reason and thereby contribute to the culture of fear and doubts about their rights. The copyright chill that results from subscribing to ACs maximalist definitional wish list is the real prejudice to universities, even if they maintain otherwise.

Q4. Is McMaster paying for rights that it already has under Canadian copyright law and other licence agreements? A4. This licence agreement provides the McMaster community with incremental rights above and beyond the fair dealing exception (as well as other exceptions) that are found under the Copyright Act or as part of separately negotiated agreements with publishers. As such, the payment under the licence agreement is not for copying that may be done otherwise with permission. R4. This is pure sophistry. The Model License authorizes very little, if anything, that could be categorized as beneficial incremental rights above and beyond what is permissible under the Copyright Act and separately negotiated agreement, and in many cases it imposes restrictions and limitations that are not required under either. Moreover, if it signs the Model License McMaster would most likely pay more than it paid under the old agreements that were negotiated before the Supreme Courts ruling in CCH, and before separately negotiated agreements providing wide use-permissions were available. Therefore, even if the Model License adds any incremental value, the price should be lower, rather than higher than before. Furthermore, the statement the payment under the licence agreement is not for copying that may be done otherwise with permission is meaningless, as long as AC does not provide any meaningful and reliable data about the scope and composition of its repertoire. Without this information, it is impossible to tell what is the incremental benefit of the Model License and whether this benefit is worth the cost.

Q5. Will signing a licence agreement mean that Access Copyright will have access to the personal emails of faculty and students? A5. McMaster University has and will continue to respect the McMaster communitys reasonable expectation of privacy, especially in the realm of personal communications. The proposed survey under the licence agreement will respect the principles of academic freedom and privacy. The agreement explicitly states that the survey will not provide access to electronic communications of students and academic staff. R5. Incorrect. The only thing that the agreement explicitly excludes is providing access to chat rooms and e-mails but it does not exclude other forms of electronic communications. Moreover, while it guarantees anonymizationwhich is often insufficient to protect privacy and academic freedomthis guarantee is only to the extent possible, thereby explicitly contemplating a situation whereby non-anonymized data will be shared. There are additional serious privacy and academic freedom issues that are not sufficiently guaranteed. See e.g., Sam Trosows recent posts: here and here.

Q6. Will the licence agreement limit the ability of those covered by the licence agreement to communicate with colleagues from other institutions? A6. When discussing what any person can or cannot do with a copyright-protected work, statutory exceptions, including fair dealing, will always trump the terms of a licence agreement. If a certain use of a copyright work is allowed under the Copyright Act, then such act will be allowed despite any language in the licence agreement to the contrary. In other words, the licence agreement will not limit what a student, staff or faculty member can do pursuant to the fair dealing exceptions under the Copyright Act. For example, if a faculty member requires a copy of a periodical article for his or her research, the faculty member would be able to copy the article and transmit it to a colleague with whom the faculty member is collaborating in the research. R6. Technically this is correct, but this answer ignores the practical effect of the signing the Model License and the institutional incentives that it creates. Since extreme risk-aversion is the main motivation of signing the agreement, it is very unlikely that universities who sign the agreements would implement internal policies that empower the members of their communities to take advantage of the provisions of the Copyright Act that grant and preserve their rights. Moreover, the Model License explicitly requires the university to take reasonable steps to ensure that it complies with the conditions in sections 3, 4, 5 and 6 and that no Copying by Authorized Persons or Subcontractors takes place in contravention of the conditions set out in sections 3, 4, 5 and 6. It is reasonable to expect that universities signing the Model License will implement policies encouraging compliance with its provisions, and that compliance with the various restrictions will be de facto the norm. An administration that is risk averse and interested in the (largely imaginary) indemnity that the Model License provides is unlikely to encourage acts that would put this indemnity in jeopardy.

Q7. Will the McMaster community be provided with access to more educational material under the licence agreement? A7. The licence agreement will increase faculty and student access to educational material. Access Copyright has a repertoire of works in digital format that McMaster did not have access to under the previous Tariffs. The licence agreement now provides the faculty and students with the right to use and copy those digital works as part of their academic pursuits. McMaster will be remitting the similar amount of fees to Access Copyright for the right to copy more copyright-protected works than before. R7. Incorrect. The Model License does not provide universities access to works to which they have not obtained legal access. It applies only to what a university can do with its existing collections, but it does not expand these collections. Moreover, legally, Access Copyright can only authorize the reproduction of works that are within its repertoire, but its repertoire is significantly narrower than what it would like

universities to believe, and its digital repertoire is even narrower than that. Anyone who reads the Model License carefully enough would notice that the indemnity provision applies only to (i) the Copying of: A. a Published Work that has been made available in print format to the public with the consent or acquiescence of the copyright owner that was not, at the time the Copy was made, on the Exclusions List; or B. a Published Work that has been made available in born digital format to the public with the consent or acquiescence of the copyright owner that was, at the time the Copy was made, on the Inclusions List, To the best of my knowledge, the said Inclusion List is not available. There is only a limited and cumbersome look-up tool on ACs website, which often does not provide any determinate answers. If McMaster has any information about the scope and composition of ACs digital repertoire, I hope that it would be willing to share it.

Q8. Will the licence agreement allow me to store copies or create an index of published works for academic purposes? A8. The licence agreement will not allow you to store or index copies of copyright-protected works with the intention of creating a collection of copyright protected published works (i.e. a library). A faculty member or student who keeps copies of journal articles on topics of academic interest would not be creating a library, provided that the faculty member or student does not copy the entire journal. Furthermore, in most instances the copying of periodical articles for the professors research or private study would amount to fair dealing and be outside the scope of the licence agreement. R8. The Model License prohibits storing or indexing copies with the intention of creating a library of Published Works, except as permitted by this agreement as part of a Course Collection. The Model License already prohibits copying of an entire journal, so the clarification in A8 is irrelevant, and while it is encouraging that McMaster believes that keeping copies of journal articles on topics of academic interest would not be creating a library, there is nothing in the Model License that would support this interpretation. Unfortunately, the ordinary meaning of the term library is much broader. For example, the dictionary on my Mac includes the following definition of the term library, which arent as comforting as A8 suggests: a building or room containing collections of books, periodicals, and sometimes films and recorded music for people to read, borrow, or refer to: a school library | [ as modifier ] : a library book.

 a collection of books and periodicals held in such a building or room: the Institute houses an outstanding library of 35,000 volumes on the fine arts. a collection of films, recorded music, genetic material, etc., organized systematically and kept for research or borrowing: a record library. a series of books, recordings, etc., issued by the same company and similar in appearance. a room in a private house where books are kept. (also software library) Computing a collection of programs and software packages made generally available, often loaded and stored on disk for immediate use. While academics would think that prohibiting them from keeping copies of journal articles on topics of academic interest is ridiculous, this view is consistent with ACs views about copyright. It is also encouraging to read that McMaster believes that in most instances the copying of periodical articles for the professors research or private study would amount to fair dealing and be outside the scope of the licence agreement, and I hope that McMaster believes that this applies to students research and private study as well, but then the question arises why is the Model License necessary to begin with?

Q9. Does this licence agreement limit my ability to rely upon modern technology (i.e. cloud services) for academic purposes? A9. Once again, the exceptions provided under the Copyright Act would trump any limitations under the licence agreement. Storage of digital copies of material on personal or other networks would be permissible so long as the making of copies of that material fall within the fair dealing exception. R9. See R6. Moreover, there is a serious tension between the claims in A4 and A7 (that the agreement provides greater access to more materials) and the claims in A6 and A9 (that the restrictions arent troublesome because fair dealing is preserved). It difficult to claim that signing the agreement provides real benefits in terms of ability to use materials that cant be used otherwise, and then maintain that the limitations that it imposes are insignificant because people can rely on fair dealing.

Q10. If McMaster decides not to renew the licence agreement with Access Copyright after it expires, the university would be required to limit access to any copies made under the licence agreement. Why would McMaster agree to this perceived form of coercion?

A10. The licence agreement would only require McMaster to limit access to copies of published works made under this particular licence. This does not apply to copies that were made under an exception under the Copyright Act or to copies made pursuant to other licence agreements or permissions. R10. See R6 & R9. Also, is there a practical way for staff, instructors, and students to determine which copies were made under the particular license, under other licenses, or are permitted by the Copyright Act? Will they have to document their determinations to guarantee that they wont be denied access in the future? If McMaster decides not to renew, but then AC threatens to sue it for copyright infringement under the theory that it did not block access and that copies made pursuant to the agreement have not been deleted, will McMaster not find it rational to renew the agreement after all instead of facing the risk of liability?

Q11. Would it have been better for McMaster to wait until after the amendments to the Copyright Act becomes law and the Supreme Court of Canada rules on fair dealing in the K-12 schools before signing a licence agreement with Access Copyright? A11. Bill C-11 and the upcoming Supreme Court decisions on fair dealing are unlikely to affect the need to secure a licence for copying required readings for students for inclusion either in coursepacks or on course websites. R11. What is the basis for this sweeping assertion? The reference to required readings probably reflects the holding in the K-12 case. This case and whether required readings are categorically excluded from the purview of fair dealing is currently before the Supreme Court, and in any event, the exclusion of required readings would become irrelevant once the term education is explicitly mentioned in the fair dealing provision, according to Bill C-11. It is regrettable that universities make unnecessary concessions that limit the scope of their rights to justify a flawed agreement. Signing a licence agreement now would provide the McMaster community with the protection afforded under the agreement while the legal landscape on copyright law remains unsettled. Perhaps, but at what price? Running a university involves various kinds of risks, legal, and otherwise, and the legal landscape is always unsettled to some degree or another. Copyright law is not unique in this regard. As long as universities choose to pay protection fees instead of asserting and defending their rights, the copyright racket will continue and the landscape will remain unsettled. Even worse, a significant amount of the money paid to AC funds its litigation war chest and its lobbying efforts to defeat changes in the legal landscape. Universities that want to see change should use their funds to pursue it; they should not volunteer to fund the campaigns to prevent it.

Q12. How will this impact McMasters participation in the Copyright Board of Canada proceeding regarding Access Copyrights proposed Tariff?

A12. Institutions that sign the proposed licence agreement will not be required to participate further in proceedings before the Copyright Board, including providing further answers to interrogatories nor the need to participate in a survey to measure the volume of copying of published works to be used in the proceedings. R12. What is the basis for the assumption that if McMaster decides not to sign the Model License it will be compelled to provide answers to interrogatories or need to participate in a survey imposed by the Copyright Board? The Copyright Board has limited powers and limited jurisdiction, and Canada has very good reputation for maintaining the rule of law. If AC seeks to use (or abuse) the proceedings before the Copyright Board to force universities into signing the Model License, the proper reaction is challenge this abuse of process, not to capitulate. As noted earlier, among other considerations, changes to the Copyright Act as well as a ruling from the Supreme Court may alter the landscape of copyright law in Canada. McMaster is aware of these external factors and their impact on the McMaster community. We will continue to monitor the situation to ensure that the McMaster community is provided with the necessary legal protection to pursue their academic endeavours. For more information on McMaster Universitys continuing efforts in this regard, please visit http://copyright.mcmaster.ca where you can also find a copy of McMaster Universitys Fair Dealing Policy.