A recent Supreme Court of Canada decision may mean that students will pay less for coursepacks as soon as January.
The decision in Alberta v. Access Copyright greatly expanded the definition of fair dealing in classrooms across Canada. The court majority wrote that one cannot “[draw] a distinction between copies made by the teacher at the request of a student and copies made by the teacher without a prior request from a student.”
The court rejected Access Copyright’s argument that fair dealing did not apply to works distributed by teachers to students, because teachers were not facilitating independent student learning but rather had a separate motive of “instruction.”
As a result of this decision, teachers may know photocopy and distribute the same materials that students can independently photocopy for personal use.
UBC spent $570,000 licensing materials for coursepacks last year, said Allan Bell, UBC director for library digital initiatives. Total coursepack sales in the UBC Bookstore were approximately $1,000,000, according to Bookstore Managing Director Debby Harvie. Harvie said the Bookstore does put a mark-up on coursepacks, and the price in part covers three staff members who oversee coursepack production.
University Counsel Hubert Lai said that if materials in coursepacks were to come under fair dealing, in light of the recent Supreme Court decision, it would be illegal to profit off the sale of those materials.
A decision on coursepacks will be made soon, Lai said, though it may not affect packs printed for second term due to the lag time in production. The Bookstore begins collecting materials for coursepacks from faculty beginning in October, though that process can go on for several months, said Harvie.
The Supreme Court decision reinforced decisions made by the university beginning in 2011, when it declined to negotiate a new licence with Access Copyright, an organization that manages the copyrights of a large group of commercial publishers.
At the end of 2010, the long-running licence Access Copyright had held with UBC expired. Access Copyright requested universities sign a much more expensive licence and give them the right to monitor copying activity and emails at the university, according to Lai.
“All the universities looked at this and said, ‘Are you kidding?’” Lai said. “Not a single [large] university agreed to enter into one of these, what we considered, extortionist licences.” UBC paid a interim tariff mandated by the Copyright Board for nine months, until September 2011, when the UBC Copyright Office took over the task of licensing all copyrighted work the university uses.
This past spring, Access Copyright negotiated a new licence with the Association of Universities and Colleges in Canada (AUCC) that was considered a compromise. Lai said while the deal was carefully considered, the only upside of signing the agreement would have been to avoid Access Copyright taking legal action. UBC declined to enter into the new licence.
Lai said that if the court decision had come earlier, it would have given them even more confidence about not signing the agreement in the spring. “This [decision] is good for universities,” he said. “Access Copyright is not happy with these decisions…. They clearly lost.”
Even before the Supreme Court decision, UBC had its position bolstered by Bill C-11, the Copyright Modernization Act, which expanded fair dealing to explicitly include education.
In public statements, Access Copyright has disputed that the court decision will cause any changes. On Monday they released a statement saying they had asked the Copyright Board to demand universities who have not entered licences with Access Copyright to answer a litany of questions about their copying practices.
Lai said the university will not answer Access Copyright’s questions and that the AUCC will oppose Access Copyright’s request to the Copyright Board. “Access Copyright has no entitlement to require universities to undertake a massive interrogatory exercise,” Lai said.
Lai speculated that the catalyst for Access Copyright pushing the new licensing fees significantly higher had to do with the new educational landscape.
“I think there’s a view on [Access Copyright's] part that the world is changing around them,” Lai explained, citing the use of the Internet and new media by students in university.
“If people are using more digital materials, then Access Copyright’s old model, which was basically based on photocopying, becomes less and less relevant. Their revenue model starts to shrink significantly, and their very existence becomes threatened.”