The Death of the Copyright Agency

The combined impacts of technology, legislation and judicial decisions on copyright licensing are beginning to show how rights licensing agencies are likely to face a difficult time extending their current business models in the future. In Canada, Access Copyright (AC) has struggled to impose a new pricing model on universities which accords a high per student fee for unlimited access for publisher content covered by an Access Copyright agreement. Since AC imposed their new model about two years ago, the agency has lost out in court over the concept of ‘fair dealing’, with the practical impact being, that universities are now requesting significant revision to their AC agreements. Led by the University of Toronto which has refused to renew their current agreement, academic libraries in Canada believe that their content rights under the court’s interpretation of ‘fair dealing’ are already broad based and that the universities do not require a license anywhere as expensive (and potentially limiting) as the license imposed by CA. As a result of these interpretations it is a widely held belief that CA faces a very difficult future given their main revenue model has been significantly undercut by the courts.

For an interesting review of the legal situation in Canada here is a quote from an interview with Prof Ariel Katz, Associate Professor at the Faculty of Law, University of Toronto:

So does Access Copyright still have a role to play with universities?

It’s not clear at all. For one thing, it’s not that Access Copyright offers a very generous license. Even though it’s now well established that fair dealing could have a generous application in education, fair dealing doesn’t cover everything, it’s not a carte blanche that allows the free copying of everything. Therefore, educational institutions may still need licenses for activities that go beyond the scope of fair dealing, and they have always been willing to pay a lot of money for such licenses. The problem is that Access Copyright’s licenses do not offer a generous license at all. In fact, the licenses they offer are very restrictive – you can copy no more than 10% of a work or a chapter from a book, and this permission comes not only with payments but also with many strings attached. In fact, many believe that what AC offers for a fee would very likely be considered fair dealing anyway.

Are there any universities still subscribing now?

Yes. About half of Canadian universities (outside Quebec, which has its own collective) are still licensees of AC. U of T and Western were the first to sign new licenses outside of the Copyright Board proceeding tariff, but to their credit they signed a short term license, which expires by the end of this year. Both of them announced that they would not renew it, but invited AC to negotiate a new license on more favorable terms. It’s still unknown whether AC can or will be willing to offer something that would be worth paying for.

Technology is also enabling a shift away from permissions based commerce as more and more content is made available via publisher’s electronic platforms. As these platforms become more sophisticated and comprehensive (as well as easy to use), libraries are able to provide immediate access to content for their academic patrons as part of their base subscriptions. Content on these platforms is then integrated into course management systems and other similar distribution vehicles directly to students. Where in the past fees for this use needed to be negotiated (and the content retrieved), we are increasingly seeing ‘all you can eat models’ which include course pack use, researcher access and on/off campus access to name only a few of the options. Where publishers include these additional rights in their platform agreements, they enable a more functional site for users and will potentially begin to reduce the amount of content fees generated by collecting agencies such as copyright clearance center (CCC) and others.

In the US, CCC is a more-broad based collecting agency with less reliance on the educational segment and the blanket license approach followed by the UK, Canada and elsewhere has not been widely adopted by US academic institutions. In the US, the impact of technology as described above is likely to eat away progressively at their model as publishers place more of their content in easily accessible locations. That said, CCC is unlikely to face the issues that AC and the UK and Australian agencies are currently facing.

In Australia, as documented by fellow traveler Peter Donoughue, similar issues surround the interpretation of ‘fair dealing’ and the elimination in Australia of the so-called statutory license governing academic use of publisher content. As Peter states:

The next five or so years will see most educational publishers sign tailored subscription-based licenses with tertiary institutions and premium school customers. They will have the option of using newly developed Copyright Agency voluntary licenses for the rest if that makes sense.

Under these emerging business models publishers will have the freedom to offer comprehensive content offerings - primarily digital but inclusive of print. And the schools will demand liberal free use provisions as part of the deal, particularly involving content distribution in the classroom. Remunerable 'multiple copying' will be a thing of the past and the concept itself deemed quaint.

Such arrangements are the mainstream future. As content goes digital, primary exploitations (formerly sales of books) and subsidiary 'bits and pieces' (eg photocopying) will collapse into comprehensive content offerings via licenses.

Peter does believe the Australia copyright agency (CAL) will be able to support a business in this new environment; however, he does note that pending legislation in Australia may halve the amounts collected under the current permissions based program. With much less money to go around it will create a challenging environment for any agency like CAL.

Earlier this month I attended a user group meeting for the library permissions tool “Heron” which is one of my Publishing Technology business units. Heron helps libraries manage their permissions reporting obligations to Copyright Licensing Agency (CLA) using PubTracker. Pubtracker is a simple tool which saves libraries days’ worth of time each month to compile content usage. At this meeting, there was a lot of discussion about the new CLA universal license which had recently been negotiated and agreed between CLA and academic libraries. Here the issue was less with the model and more about what was ultimately covered by this agreement. The view of most of the librarians in attendance was that CLA had misled the group with respect to the extent of content covered by the agreement. Indeed, most librarians believe the content covered was significantly less than the prior agreement with specific reductions in access to US based content. Some librarians were contemplating not signing this new agreement.

The UK Librarians were most angry about the impact the new limitations would have on their roles on campus. One librarian stated that they’ve been focused on educating lecturers about the appropriate use of content and to seek the right authorizations however; with the new CLA license they would be stuck trying to explain to a lecturer why last year authorization was available but this year it wasn’t (or was much harder to gain). They felt this would lead to more disobedience by lecturers. The crux of the issue is that US content may not be covered by the new CLA license and UK librarians will be forced to go directly to US publishers which almost by definition is a more cumbersome and frustrating process.

By far the most difficult situation is being faced by the Canadian Access Copyright office which has already downsized and faces stiff opposition from it’s’ user community. Other licensing agencies also face challenges related to technology advancement, legislation and judicial challenges, and as more and more content becomes digitally available, all these agencies will need to undergo comprehensive change in order to maintain their role and relevance.  Whether the experience of AC is a trend setter is an open question but there is certain to be much more on this subject over the coming years.