PDAD&C#23, 2013-14
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To:
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Principals,
Deans, Academic Directors and Chairs
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From:
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Cheryl Regehr, Vice-President and Provost
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Date:
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November 5, 2013
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Re:
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Status of Negotiations with Access Copyright
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PLEASE
DISTRIBUTE WIDELY
As
announced in June (PDAD&C #64, 2012-13), the University gave notice to
Access Copyright that it did not wish to renew the License on its current terms
but would be prepared to negotiate for renewal at a substantially lower royalty
rate. Access Copyright responded that it was prepared to enter into
negotiations. Accordingly, after considerable preparatory work by both parties
(including data analysis by means of a review of a sample of anonymized
documents uploaded to Blackboard), the University has commenced negotiations
with Access Copyright. The negotiations (which, by agreement between the
parties, are being conducted on a confidential basis) are continuing in
November. The University is aiming for a date by the first week of
December, at the latest, for conclusion of negotiations one way or the other.
If, despite
the University’s good faith efforts, the parties are not able to reach an
agreement about a fairly-priced royalty rate that takes into account the
changing legal, technological and educational sector landscape, the University
needs to prepare for a) the expiry of the License on December 31, 2013; and b)
operating thereafter without a License and outside of any interim or final
tariff that might be set by the Copyright Board.
What the
License Requires Upon Expiry
Among other
things, the License requires that, upon expiry, the University “shall
immediately use reasonable efforts to (i) prevent access to Digital Copies of
[Access Copyright] Repertoire Works made under this agreement and stored on a
Secure Network under its control, and (ii) inform all Authorized Persons
[faculty, students, etc.] that the [University] no longer has a license from
Access Copyright for the use of Repertoire Works”.
Each
instructor should already have a good sense of the specific content of what has
been uploaded to Blackboard, but to prepare for the contingency that the
University may be unsuccessful in persuading Access Copyright to accept a
royalty rate that the University views as fair, all instructors will be asked
to do the following:
1.
Review the content of all documents uploaded to
Blackboard or other learning management system (LMS).
2.
Focus only on published works. In other words,
the instructor need not do anything about their own notes or other
non-published materials that have been posted.
3.
Confirm whether the published works in question
are covered by an existing license (other than the Access Copyright License)
that permits Blackboard uploading. This information can be found on the item’s
record in the
library catalogue.
Works covered by such a license can remain on the LMS. Again, Library staff
will be available to assist, so please send inquiries to
copyright@library.utoronto.ca.
4.
For published works that are not covered by a
license other than the Access Copyright License, it will be necessary to
ascertain if the published works are within the Access Copyright
Repertoire. Access Copyright has always argued that works are included
within its Repertoire unless the rights holder advises them to the contrary so
that the work may be identified on the “Exclusions List”. Thus, if a work is
not on the Exclusions List, it may be within the Repertoire. Here is the
link to the
Exclusions
List. Additionally, you may use the Access Copyright
Repertoire Look-Up Tool.
Library staff will be available to assist instructors in confirming whether a
particular work may be within the Repertoire, so please send inquiries to
copyright@library.utoronto.ca.
5.
If a work appears to be within the Repertoire
and is not otherwise licensed, the instructor should apply the
University’s
Fair Dealing Guidelines, and the additional guidance in the
Copyright
Roadmap and in the
Copyright
FAQ and make an assessment as to whether the work is within the scope of
“fair dealing” and thus available for use under the
Copyright Act
without payment or permission.
6.
If a work appears to be within the Repertoire,
is not otherwise licensed, and is likely not covered by fair dealing, the
instructor will need to be prepared to remove the work as of January 1, 2014
unless a transactional license can be procured from the rights holder before
that date. Library staff are available to assist with transactional licenses,
but exploring this option takes time and the likelihood is that many
transactional licenses would not be able to be secured within such a short time
frame. If a work has to be removed, the instructor may wish to explore
alternate materials that are already licensed, or are clearly within the fair
dealing exception.
Operating
without a License and outside of an interim or final tariff
If the
University needs to operate without a License and outside of an interim or
final tariff ordered by the Copyright Board, it will follow the approach taken
by UBC, York, and other universities that have been doing so over the last one
to two years. Such an approach involves a combination of: good copyright
guidance and education, so that instructors have a clear sense of what is
permitted; reasonable use of exceptions permitted under the Copyright Act,
such as fair dealing; and greater use of transactional licenses, open source
material and other similar resources. In addition, such an approach
will require instructors to ensure that, with respect to course packs, which
would again (as before the current License) be subject to a per page
royalty if they use Access Copyright Repertoire materials, they only have course
packs copied at copy shops that are licensed by Access Copyright.
Distribution
of this Memo
Please
ensure that this memo is distributed to all instructors. The University
will provide further updates as required. The cooperation of everyone is greatly
appreciated – copyright compliance is everyone’s business, and working together
makes the task much easier.
