The great copyright battle: UBC’s bold stand against Access Copyright

By Arno Rosenfeld
The Ubyssey

Hubert Lai runs his hand over a ragged block of concrete affixed to a trophy stand in his office.

“There’s supposed to be a glass box around it,” UBC’s highly acclaimed university counsel said, lost in the memories of what the concrete represents.

Lai had spent the past hour or so detailing the university’s battle with Access Copyright, the intellectual property rights behemoth from which UBC licensed nearly all its copyrighted classroom material until two years ago.

Much of the interview consisted of technical explanations of tariffs, committee work and the responsibilities of his office, but when the discussion veered into other topics, Lai was transformed.

Leaning back from the table, where he had been sifting through papers to answer questions about the complex timeline of the Access Copyright fiasco, Lai relaxed as he began to speak of his start as an attorney.

Attending law school out of pure interest, Lai was unsure until the end of his final year whether he actually wanted to become a lawyer. But looking back now, Lai seems pleased with his choice of career. His praise for the work of judges parallels terms others would use for ballet dancers or theatre performers.

“There were these incredibly interesting problems — social problems, disputes, thorny, thorny issues. Then you would see the solutions the judges had reached, and in many cases those solutions were elegant, or just beautiful,” Lai said, hanging on both of the final adjectives.

And Lai’s interest in architecture — what he said he’d likely be doing if he weren’t in the legal profession — offers insight into how he approaches his work at the university.

While lawyers don’t design buildings, Lai said, many build the legal structures that determine how people behave, much like how architectural plans govern how occupants of a building go about their lives.

The hunk of concrete that Lai admired is a memento of his work helping raise funds for the new Faculty of Law building, Allard Hall. Lai, who was recruited to work his contacts in the legal community, played down his role in the overall fundraising effort. But the $4–5 million he said he was responsible for pulling in were, no doubt, essential in the construction of a building that was pressed for funds right up until its opening in September 2011.

But it’s another project that came to fruition in September of that year that bears Lai’s handprint, even more than the beautiful new law building. The project was constructed of legal analysis and gutsy decision-making, rather than metal and glass, so it makes sense that Lai doesn’t have anything as tangible as a chunk of concrete to remind him of his work. There’s no doubt, however, that Lai’s work on the Access Copyright spat will be inextricably linked to the way Canadian universities treat intellectual property in years to come.

File-sharing sites like Napster, Limewire and Megaupload have all incurred the wrath of entertainment producers and record labels. But with the exception of these occasional high-profile lawsuits, issues of intellectual property and copyright law have flown under the radar for most people in North America. The digital landscape has changed what it means to steal, as anyone who has streamed a television show or downloaded music without paying can attest to. But the anonymity of the Internet and ubiquity of illegal downloads means few people worry about landing in legal trouble. Outside of the vague understanding that what they are doing is illegal, intellectual property law is not part of most people’s consciousness.

Not so for a university, as demonstrated by the Access Copyright–UBC dispute, a rare example of an explosive and very public university debate. The battle was fought between a copyright licensing agency trying to resist technological changes that wreaked havoc on their business model and a university determined not to acquiesce to what it considered outrageous demands, even if it meant causing uncertainty for its own students and faculty.

The essence of the dispute was over who UBC had to pay for the rights to copyrighted materials used in teaching, like the pages from books and academic journals included in coursepacks and, increasingly, in academic databases made available to students through the UBC Library.

For years, UBC, along with nearly all Canadian colleges and universities, had entered into licences with Access Copyright, a non-profit collective representing the major publisher and creator groups in Canada. For universities, signing an Access Copyright licence meant they didn’t have to establish individual rights to the works published or created by the 36 groups Access Copyright represents. For the publishers and creators, joining Access Copyright meant they didn’t have to figure out how to licence all their own work, and they gained the bargaining power of an entire industry.

Access Copyright, in this sense, provided a valuable service for universities, publishers and creators.

But this harmonious relationship began to break down as more and more copyrighted learning materials moved online.

The photocopier industry grew exponentially throughout the late 1970s and 1980s, and copyright holders began to fret. It was becoming easier than ever for a copyrighted work such as a book, paid for only once, to be widely duplicated through photocopying.

An influential journal article published in 1985 highlighted copyright owners’ concerns.

“Creators and owners of intellectual properties are alarmed by the growth of technologies that ease the task of copying these properties,” read the paper by copyright expert professor Stan Leibowitz, now at the University of Texas.

By the time Access Copyright was founded in 1988 to help publishers get ahold of the changing dynamics, photocopier sales were booming. Japan produced 2.21 million units in 1987, and by 1993 photocopiers were a $23.4-billion industry in the United States.

Fittingly, the licences Access Copyright negotiated were based on the number of copies made. The licences charged a small fee per student, plus a fee for each copy of a copyrighted page.

The only problem was that these licences remained essentially unchanged, even as the technology being used by universities eclipsed photocopying.

In 2010, the photocopier retailers were responsible for just $512 million in sales. As the 1990s progressed, desktop computers became common and the explosion of the Internet meant documents and other files could be shared without physical copies. At a time when many photocopier companies were diversifying their offerings, several companies failed to make it out of the dot-com boom. For example, the Mito Corporation, known for their advertising motto, “All we make is great copiers,” was acquired in 2000. Even Xerox, its name synonymous with photocopying, expanded its offerings beyond photocopying to include credit card processing and other business services.

Yet despite the reduction in actual photocopying, as of 2010, Access Copyright’s licence with UBC still consisted of a $3.38 fee per student, plus $.10 per photocopied page.

It should not have come as a huge surprise, then, that when the agreements Access Copyright had with UBC and other members of the Association of Universities and Colleges of Canada (AUCC) came up for renewal, the collective announced they wanted new terms.

“See, it was easy with photocopying,” said Stan Leibowitz, now the director of the Center for the Analysis of Property Rights and Innovation at the University of Texas at Dallas. “You knew where the photocopiers were and who was getting them.

“Now, with works that are digital, the question is: can the publishers accurately gauge which copies are going to high-volume users?”

In seeking to answer this question and account for the shift from photocopying to digital sharing of copyrighted works, Access Copyright seemed to overplay its hand. In negotiations with AUCC, Access Copyright proposed a fee of $45 per student and no per-page copying fee. With an eye toward monitoring copying in the digital age, Access Copyright also wanted access to universities’ emails, computer systems and auditing records. AUCC was opposed to these terms, and with each side blaming the other for the breakdown in negotiations, Access Copyright went to the Copyright Board of Canada to seek the imposition of a temporary tariff.

“Changing things at universities is very hard. It’s like trying to turn an aircraft carrier: it takes time and it takes space.”

—  Hubert Lai, university counsel

The Copyright Board of Canada is a regulatory agency charged with, among other things, overseeing disputes over the use of copyrighted work. The board also has the power to impose tariffs, which is what it did in the case of Access Copyright. The temporary tariff stipulated that any institution that used material belonging to Access Copyright, and that didn’t secure the rights independently, had to pay the collective a fee determined by the board.

The dramatic changes in the terms Access Copyright was seeking for licences, and the speed with which they left the bargaining table with AUCC and sought the tariff, would eventually backfire.

Eight months after the interim tariff was imposed, on Jan. 1, 2011, 26 Canadian colleges and universities announced they would stop paying the tariff and secure the rights to copyrighted works independently. On the list were 14 of Canada’s 25 largest universities, including the University of Alberta, Queen’s University, York University, Carleton University and, of course, UBC.

And Hubert Lai believes UBC’s decision to operate independently, made very early in the process, encouraged many of the other universities to follow suit. The move obliterated what had been Access Copyright’s monopoly on English-language academic works used by Canadian universities.

“You don’t want to be the first,” Lai said. “UBC was prepared to be the first because we knew nobody else wanted to be.”

Legal backing was crucial to UBC’s VP Academic David Farrar, the man who oversaw the university’s decision to withdraw from Access Copyright and the tariff.

“The decision that we made was based on the fact that I thought then, and I still think now, that it was right thing to do,” Farrar said. But, he added, “It put the university in a situation that may have been a bit more risky.”

It was the fear of legal retaliation from Access Copyright that kept many universities from being the first to break away.

“I think UBC showed real leadership,” well-known legal commentator Michael Geist said in an interview. “They were the first major university to do this and they did it at a time when they weren’t sure if others would follow.”
Breaking free

For UBC, the transition from operating under the Access Copyright licence to going at it alone was not easy. Not only was the university stepping into uncharted territory, but it was trying to change the habits of a massive institution in a matter of months.

“Changing things at universities is very hard,” Lai said. “It’s like trying to turn an aircraft carrier: it takes time and it takes space.”

Indeed, the first few months of operating outside of the tariff were difficult for the university, with some TAs and professors lamenting delays in distributing readings as they tried to determine what they had the rights to use.

To preempt this problem, UBC opened a copyright office as a resource for faculty. Spearheaded by Allan Bell, the office offers educational clinics and works with faculty one-on-one to answer questions about what material can be used.

Joy Kirchner oversees the office’s staff and gives talks to different faculties about how to deal with intellectual property in the classroom. She said the office has been able to assuage many of fears faculty had about the changes to handling copyright.

Rather sheepishly, she added that she now sometimes receives standing ovations from faculty at the end of her presentations. Such is the power of putting uncertainty to rest when it comes to issues of copyright in the classroom.

This comic series not only contained unattributed excerpts from Wikipedia, but a Captain Copyright appeared first in a Singapore copyright bureau’s publicity. Comic courtesy Access Copyright

This comic series not only contained unattributed excerpts from Wikipedia, but a Captain Copyright appeared first in a Singapore copyright bureau’s publicity. Comic courtesy Access Copyright

The Access Copyright fight was unique among administration-level debates at UBC, in large part because of the rhetoric it took on.

Gone were the buzzwords and vague rhetoric that is so often heard from high-ranking administrators during controversial initiatives.

“We were, frankly, being held hostage — I use that term intentionally — and we decided we had to push back,” UBC President Stephen Toope said at his annual town hall meeting, just weeks after the university began operating independently of Access Copyright.

In an interview with The Ubyssey in September 2012, Lai referred to Access Copyright’s proposed new licence as “extortionist.”

“All the universities looked at this and said, ‘Are you kidding?’” Lai said at the time.

Access Copyright fueled the contentious atmosphere when in September of last year, it announced it was asking the Copyright Board to demand that universities and colleges operating independently of Access Copyright answer a lengthy questionnaire detailing their copying practices.

“Access Copyright would have greatly preferred to avoid this process entirely,” read an Access Copyright statement. “Unfortunately not all post-secondary institutions … have joined their colleagues in signing licences.”

In response, Lai told The Ubyssey, “It is UBC’s position that Access Copyright has no entitlement to require universities to undertake a massive interrogatory exercise.”

The trading of passive-aggressive barbs is probably not the most effective negotiating strategy for Access Copyright, whose business model has been, in large part, eviscerated — both by the number of institutions who dropped their Access Copyright licences, as well as several recent Supreme Court case decisions and a change in copyright law.

The Supreme Court released a batch of decisions on intellectual property over the summer, expanding the definition of fair dealing to include much of what is distributed in coursepacks and used by teachers in class. Personal use for educational purposes, such as photocopying a chapter in a library book, had long been accepted as fair dealing and did not require the user to obtain rights to the work. The Supreme Court determined that teachers making copies of a chapter and distributing them to students was also protected under fair dealing provisions. The change in law came with Bill C-11, which explicitly stated that educational use falls under fair dealing.

But then again, Access Copyright has long seemed out of touch with the communities it was theoretically providing a service to.

In the summer of 2006, Access Copyright launched a propaganda website featuring Captain Copyright, a superhero educating children about the virtues of strong copyright laws. Targeting students as young as first graders and intending to be used by educators, the website featured assignments like writing a letter to the editor in support of copyright laws.

The Captain Copyright project was criticized for making no mention of fair dealing exemptions to copyright law, as well as for violating copyright law itself. The website contained a number of unattributed excerpts from Wikipedia; some bloggers also alleged that the Intellectual Property Office of Singapore used a character also named Captain Copyright.

Access Copyright disputed the last assertion, claiming they thought of the idea first. In any event, the Singaporeans came up with a new character, Detective IP, who wore a grey fedora and trench coat rather than Captain Copyright’s green-and-white spandex.

But Access Copyright hasn’t only gotten in trouble for targeting children with propaganda characters. In the spring of 2011, the Writers Union of Canada, angry with Access Copyright’s lack of transparency and what the union considered inability to fairly distribute the fees it collected, announced it would look at separating creators from publishers within the collective.

The essential problem was that Access Copyright took fees charged to universities on a per-use basis, but then distributed the revenue to its members in a uniform manner not based on whose work was used most.

“I’m a supporter of copyrights,” Farrar said. “So in many ways, I thought it was fairer, although a lot more work, to simply obtain the copyright from the publishers directly.”
Why the wait?

If Farrar felt so strongly that maintaining a licence with Access Copyright was not in the best interests of UBC, and Lai offered the legal backing for UBC to go independent, the question must be asked: what took so long?

Geist, the legal commentator, speculated that universities had long treated the relatively affordable Access Copyright licences as a type of insurance policy. With students footing the bill through coursepacks and tuition, the licence was a small cost to pay for protection against a litigious organization like Access Copyright. But when Access Copyright sought to massively change the terms of its agreement with universities, charging the schools exponentially more in fees, administrators started to more carefully examine whether they needed the licences.

“I think if I’d looked at it in detail six years ago, I would have come to the same conclusion,” Farrar admitted. “But it took Access Copyright trying to redefine their rights and really raise the cost of [the deal] to force me to do that.”

Armed with the example of their peers in higher education, the recent Supreme Court cases and Bill C-11, the universities that did renew licences with Access Copyright may not keep them for long.

“My sense is many of the institutions that signed on will seek to leave Access Copyright at their earliest opportunity,” Geist said.

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