Flawed rationales underline UA statement of intent to sign AUCC-Access Copyright Model License

The University of Alberta has issued a statement indicating its intention to sign the AUCC-Access Copyright Model license.

This announcement represents a turn-around from the university’s earlier position, taken in 2011, when it announced it was opting out of the interim tariff that Access Copyright had obtained from the Copyright Board. In retreating from its earlier position, the university has attempted to offer some justifications for the move.  But these rationales  fall short of explaining such a drastic about face in policy, and they demonstrate a lack of understanding about the full implications of some of the more subtler aspects of the AUCC-Access Copyright Model License agreement.

I’ll attempt to follow through some of the arguments made in the University’s June 8th release (in italics):

The settlement puts a halt on an extended copyright dispute that began Jan. 1, 2011…

It will hardly be a halt to the dispute. Given the broad opposition to many of the material terms of the license together with the uncertainty and vagueness of many of its terms, it is a stretch to suggest that the dispute is over, it is really just starting. There are going to be some very difficult questions of interpretation of the license as well as decisions to make about the allocations of its many financial and administrative burdens. The location and character of the dispute will shift as the University aligns itself with Access Copyright, but the underlying issues have hardly been resolved.

In September 2011, the university signalled that it would be joining 15 other AUCC members opting to operate outside of the tariff framework with Access Copyright, after deciding the copyright licensing agency’s proposal, which included some copyright monitoring elements that were counter to the principles of academic freedom and privacy, was not consistent with the way the university deals with today’s copyright issues. It called for a dramatic increase in the fee per full-load equivalent student to $45.

This was a good decision on the part of the university.  It was based on a careful assessment of the realities of the contemporary copyright environment as well as the interests of faculty, staff and students at the university. UA was quite right in its assessment that the monitoring elements were counter to the principles of academic freedom and privacy, and was not consistent with the way the university deals with today’s copyright issues.  They were also quite right that the proposed increase was unreasonable. But while the amount of the fee increase has been somewhat moderated under the model license, it is still an arbitrary assessment that has not been justified. It is hard to understand how the figure was arrived at other than by reference to the previous agreements with UWO and the University of Toronto.

“Our biggest concern was not so much the fee increase, but rather that the original Access Copyright proposal filed included some very invasive survey rights that we weren’t confident would respect the privacy of our faculty members and students,” said Carl Amrhein, U of A provost and vice-president (academic). Amrhein explained that the rights to audit in the initial proposal would essentially give Access Copyright unrestricted access to the university’s secure networks in its bid to get a full look at how the university community uses copyrighted materials.

The Provost appropriately recognized that scope of the survey rights in the proposed tariff were overly-invasive and presented substantial privacy concerns. And the access sought by Access Copyright to the university’s secure servers was certainly overbroad and invasive well beyond any legitimate purpose.

Under the terms of the new agreement, Amrhein says, the conditions of any copyright survey must be agreed upon by all parties, respect the principles of academic freedom (for example, by not providing access to the emails and chat rooms of faculty and students), comply with privacy legislation and policies and respect collective agreements already in place.

But this assertion that the conditions of the survey must be agreed upon by all parties is simply wrong.  Under section 11 of the model license, the university does not retain the right to agree to the terms of the survey. In fact, in signing the license, a university gives up its autonomy over this very decision.  Section 11(c) of the license provides that while the university MUST participate in the survey, it will be “designed by a group of experts comprising of no more than five representatives appointed by the Association of Universities and Colleges of Canada (AUCC) and no more than five representatives appointed by Access Copyright.”

AUCC is NOT itself a party to the agreement, each individual college and university must sign on its own behalf. Under its terms, the   individual institutions will not have veto power over the result of this survey design even though they have already agreed to be bound by this determination.

This clause constitutes a broad delegation of the autonomy of the university to an as-yet unknown group of representatives from AUCC and Access Copyright.

“To the extreme, Access Copyright could have had unobstructed access to faculty email and learning management systems,” said Amrhein. “This new licence gives us great comfort that the survey that ultimately will be arrived at will protect the privacy of our students, faculty and staff.”

Unfortunately, a careful review of the operative terms of the model agreement does not support this overly-optimistic interpretation, and the University is being too quick to find comfort in the language of the new license.  In fact, the license terms leave the exact scope and methods of the survey to be hammered out in a subsequent agreement. And, as indicated, the university has ceded its ability to have any control over this agreement to the joint AUCC-Access Copyright Committee.  Such an “agreement to agree” seems highly unusual, especially where the stakes are so high and the results will touch on so many sensitive matters central to the educational process.

Section 11(c) of the model license provides:

Within six months of signing this agreement, or as otherwise agreed between the parties, the Licensee shall participate if requested in the survey (“Survey”) and/or further reporting to be designed by a group of experts comprising of no more than five representatives appointed by the Association of Universities and Colleges of Canada (AUCC) and no more than five representatives appointed by Access Copyright. The purposes of the Survey and/or further reporting shall be to provide:

(i) valid and reliable bibliographic data to Access Copyright for the purposes of allowing Access Copyright to make a fair distribution of the Royalties to its affiliates; and
(ii) valid and reliable volume data to the Licensee and Access Copyright for the purposes of trending the appropriateness of the Royalties and other terms and conditions of this agreement.

While Section 11(d) does provide some language which seeks to ameliorate some of the previous criticism of the scope of the monitoring rights in the proposed tariff by referring to several principles like privacy and academic freedom, it is largely precatory as well as vague.  While the reference to e-mail is well meaning, unfortunately the definition of “course-collection” in section 1 still refers to e-mail.  The AUCC negotiators needed to insist that the reference to “e-mail” be removed from the foundational definition at the top of the license. And while e-mail and chat-rooms are specifically mentioned in 11(d)(iii), there are a whole range of emerging communication and course delivery mechanism that are not mentioned in 11(d).

Section 11(d)(iv) further provides that:

To the fullest extent reasonable, the Survey will only collect and provide Access Copyright with anonymized bibliographic and volume data

Given this loose and permissive language, it can hardly stand as a guarantee that methods employed and the resulting data gathering will not contain personally identifiable information and will not intrude into sensitive areas of the universities secure network.

In addition to its obligations under the as-yet-to-be-determined survey, section 12 of the license also contains a very broadly drafted provision obligating 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.”

What are these “reasonable steps”, and how will they be determined? Given the breadth of the restrictions contained in the referenced sections, this additional clause, which is separate and distinct from the section 11 survey obligations, is exceptionally troubling.

“We believe that the agreement negotiated between AUCC and Access Copyright provides the best possible outcome for the University of Alberta’s students, staff and faculty in its current context,” said Amrhein. The U of A now has until June 30 to sign the five-year agreement, which is retroactive to Jan. 1, 2011. 

Hopefully, the University will reconsider this ill-advised move and stick to the principled and well-articulated position it took last year.