Looking past the gloss: What does the Model License really say about monitoring and reporting?
One of the recurring issues that seems to keep coming up is the extent to which the AUCC-Access Copyright Model License satisfactorily addresses the concerns raised with the proposed tariff with respect to monitoring, surveying, privacy and more generally the effect of these clauses on academic freedom.
As we are getting closer to the end of June, presumably the deadline that has been internalized by many campuses for their final announcement, this issue is looming larger. More effort needs to be made to carefully review the provisions in the AUCC model license that are being used to justify the resolution of these earlier concerns.
It is my view that the terms of the model license fall far short from providing the types of protections and assurances that are needed with respect to these important issues. As I wrote in my previous entry about the University of Alberta:
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.”
At the risk of sounding repetitive, I’ll reiterate this point again, stated in three parts:
- While the proposed tariff application included provisions that were on their face unwarranted invasions of privacy and destructive of academic freedom . . .
- . . . and while there is indeed some additional language in the model license which attempts to address these issues…
- the actual operative text of the model license does not itself provide sufficient protections against overbroad monitoring and surveillance of activities relating to teaching and learning, especially those that take place within the university’s “secure network”.
Let me put this point another way for emphasis:
The model license does not provide adequate protection that the ultimate monitoring and survey provisions that will actually be put into place will necessarily satisfy the legitimate concerns that have been raised about privacy and academic freedom. They might. But then again, they might not. It would be premature to guess. Rather than hammer out detailed and precise monitoring and reporting provisions on the face of the agreement, AUCC and Access Copyright simply agreed to defer these difficult questions for a later date, delegating it to a yet-to-be-appointed committee for determination.
And to carry the point a step further, the text of the AUCC Model License represents an abdication of a university’s responsibility to insure that important values relating to teaching, learning and the integrity of the academic process are protected on their individual campuses. Any university that signs the Model License as it is now drafted is essentially surrendering its autonomy and decision-making about the precise terms of how the eventual surveying and monitoring will take place. Under section 11(c), the determination of these terms will be delegated to a joint-committee to be struck in the future.
Colleges and Universities must understand the implications of signing this license as it is now drafted:
- They have agreed in the most certain of terms to be bound by the determination of the joint committee and to implement the survey (“and/or further reporting” as the contract puts it) if requested to do so;
- they will not retain the ability to consult with its internal stakeholders about the terms of the survey/reporting or its implications for privacy, academic freedom or otherwise;
- if they refuse to implement the survey, they could be deemed to be in breach of a material condition of the contract that could trigger the termination clause.
So while the assurances that are written into section 11(d) may give some comfort to a casual reader of the contract, there are no provisions for what would happen if a college or university has concerns about the scope of the yet-to-be-agreed-upon survey and further reporting.
All sorts of alarm bells should be going off. But instead we are seeing an unwarranted degree of optimism in how the model license is being received. For example, the announcement from the University of Manitoba happily stated that:
Notable in the agreement is a statement that academic freedom and privacy will be respected.
This optimistic belief that academic freedom concerns have been resolved in the new license was repeated by the University of Alberta:
Under the terms of the new agreement, 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.
The May 16th release from Memorial University announcing they had signed the letter of intent but was reserving a final decision was more cautious:
“We share the concerns of other universities around issues such as cost, timing, privacy, academic freedom and implementation and will ensure the best decision is made for the future of Memorial University, its students, faculty and staff. I wish to emphasize that no decision has been made at this point as to whether to sign onto the new licence.”
Hopefully the decision-makers at Memorial and elsewhere will see through the gloss in the agreement and recognize that substantial monitoring and reporting issues remain problematic, especially with respect the university’s secure network. Like Memorial, Queens and Calgary have also signed letters of intent but final decisions are pending.
The Calgary announcement suggests that they will continue to take the feedback they received into account in reaching its final decision before June 30th, and that they are also reviewing existing usage data from the past academic year. This approach is certainly more precise than simply pulling numbers out of thin air (as had been done by Western, Toronto and ultimately AUCC).
Queens has also engaged in consultation, but their announcement about signing the letter of intent also indicates they believe the monitoring and privacy concerns are better addressed in the model license:
Signing the licence would protect the university community from the imposition of a tariff and associated monitoring practices, which are likely to be more onerous than what will occur under the model licence.
Any survey of an institution’s copying under the provision of this licence would respect the principles of academic freedom, would not extend to faculty emails or interactive portions of learning management systems, and would acknowledge each institution’s collective agreements.
Actually, the provision in question [section 11(d)(iii)] does not mention learning management systems so there is a concern that Queens is also being unduly influenced by the argument that the model license adequately resolves the privacy issues in the model license. Indeed, it is the site of these learning management systems (situated in the university’s “secure network”) that are precisely the cause for the ongoing concern.
A careful reading of all of these announcements is useful though, as it does indicate that different universities are taking different approaches. Certainly, institutions like Queens and Calgary deserve a certain degree of credit for taking a more consultative, cautious and independent approach than that of Toronto, UWO and Manitoba.
As we enter the final two weeks of June, careful attention to the very serious flaws in this Model License will hopefully prevail over the optimistic gloss that is being promoted by several institutions.
In the next few days, I will revisit some of these other flaws.