Canadian universities battle to preserve copyright exemptions

The Canadian parliament is considering tougher copyright protections that would raise costs for universities, after hearing complaints that many institutions have expanded a modest fair-use exemption into widespread piracy.

Since parliament granted the fair-use waiver in 2012 – with the intent of allowing the reproduction of books and other materials by non-profit providers – publishers have reported an 80 per cent drop in royalty payments from the sector.

Nearly all Canadian universities have dropped out of a contractual payment system that they used in 2012 and instead have turned to rampant duplications and electronic copies of entire academic texts without making rights payments, a major publishing group has alleged.

Lost royalties are costing publishers about C$30 million (£17.6 million) a year, according to Access Copyright, a not-for-profit organisation that handles payment collections for rights owners.

“The copying that they used to pay for is now being done under the guidelines” created in 2012, said the president of Access Copyright, Roanie Levy.

The Canadian Association of University Teachers, which for years has led legal and political battles against Access Copyright and other publishing industry groups, flatly rejected the accusations and predicted that the parliament and the courts would continue to side with educators.

Access Copyright and its authors may be experiencing a decline in revenues, said CAUT’s executive director, David Robinson. But that decline pre-dates the 2012 revision of the Copyright Act and should not be a reason for parliament to reverse its position during the ongoing review of the act.

“The business model that they’ve structured themselves on is failing,” Mr Robinson said of Access Copyright. The universities of British Columbia, Ontario and Alberta all have started open textbook platforms, through which authors, usually with university affiliations, agree to post their material for free.

“The whole business footing is shifting underneath their feet,” Mr Robinson continued, “and I think they haven’t responded to it, and they’re just blaming the Copyright Act.”

Analysis presented by Access Copyright during a lawsuit against Toronto’s York University found that the amount of material being copied for free was equivalent to 360 pages per student per year, Ms Levy said.

The 2012 update to the Copyright Act required a five-year review, so the country’s parliament is well behind schedule. Ms Levy said that she expected a conclusion within weeks, while Mr Robinson said that he believed that the debate on the Copyright Act would drag on past the national election in October.

Ms Levy said that she based her confidence about receiving an eventual payday from Canadian universities on her group’s victory in the York University case. In it, a federal judge faulted York on grounds that included its decisions to stop paying royalties and to encourage the free copying by its employees of up to 10 per cent of any published work.

“It is evident that York created the guidelines and operated under them primarily to obtain for free that which they had previously paid for,” the ruling said.

An appeal hearing in the case is drawing near, and Mr Robinson expressed confidence that the Canadian Supreme Court would overturn the trial decision.

Both he and Ms Levy agreed that major publishers appear to be under stress and reducing their output of educational content.

Ms Levy described this as a “big loss” for Canadian education. But Mr Robinson disagreed, saying that the replacement of traditional corporate publishers with open-access models would make questions about the fair-use exemption increasingly irrelevant.

paul.basken@timeshighereducation.com