Several major schools have made the Hall of Fame so far: the universities of B.C., Athabasca, Windsor, Winnipeg, York and New Brunswick all turned down the deal in May. Meanwhile, the universities of Manitoba and Victoria have joined U of T and Western, who signed all the way back in January. McMaster University is also listed as signing, but apparently that remains unconfirmed.

Unfortunately, the real losers here are the smaller colleges across Canada, which don't have the resources to set up copyright clearance offices or to assert their fair dealing rights in the tariff fight at the Copyright Board. In theory, that's why we have both the AUCC and Access Copyright: to streamline the process by negotiating a good model agreement that schools can sign, with a set rate that eliminates the hard work of copyright clearance. But that only works if the AUCC does its job and stands up for the schools, making sure that the deal is fair. That didn't happen. For whatever reason, the AUCC failed to strongly assert the fair dealing rights of schools—rights that were strengthened in a series of recent Supreme Court rulings, and which are about to be even further expanded by the soon-to-pass copyright reform bill, all of which should have resulted in lower fees and looser restrictions for schools. Instead, they agreed to significant rate increases, and bizarre restrictions and fees based on rights that don't even exist under copyright law, such as linking and maintaining a personal research archive.

Hopefully, the schools that have chosen (and are able) to cut their own path continue to do so—and maybe, as they demonstrate that it's possible and work out the kinks of their copyright clearance systems, we will begin to see a shift in attitudes surrounding copyright and education that eventually benefits all of Canada's schools. But for the time being, many are going to have to face the consequences of the AUCC's lackluster performance at the negotiating table and before the Copyright Board.

It's already hard to understand why U of T and the AUCC would go along with this—but it gets even more concerning with the addition of a previously unnoticed detail. According to an email I've been provided with, and a disclosure made at a conference, U of T's advisor Casey Chisick was retained at the end of 2010 to advise Access Copyright on copyright reform legislation. It's unclear if and when this ended, and when I contacted Chisick to find out, he replied declining to comment or even to confirm or deny whether the relationship existed. But what's obvious is that Access Copyright's interest in the legislation (bill C-32 in 2010, bill C-11 now), and their submissions to Parliament, revolves around eliminating the new explicit fair dealing provisions for education that are being considered, since that would cripple their entire business model.

One big question here is, will the students accept all of this? Ultimately, they are the ones paying—directly in schools that pass the cost on to them, and indirectly in those that absorb it and have to find the money somewhere else in the budget. On one side they've got law professors inside their own schools loudly and publicly criticizing the deal, saying the universities agreed to ridiculously high rates (which should in fact have gone down from the previous deal) and unfair limitations based on rights that don't even exist; on the other they've got the U of T and the AUCC insisting it's a good deal, while working with lawyers who have histories of representing, advising and lobbying for organizations with a direct interest in stronger copyright and higher licensing fees. Now they learn that U of T's advisor also apparently advised Access Copyright themselves on a related legislative issue that bears heavily on the negotiations (he's also actively registered as a lobbyist for a music collection society, the CMRRA). How exactly are students supposed to react?

Quebec (which has its own copyright clearance system for universities and is not a part of this otherwise country-wide deal) is in its third month of widespread and intense student protests over tuition hikes, which have grown into a serious movement. It's a time of unrest for Canadian education, and not a time to ask students to swallow a bad deal negotiated under so many questionable circumstances. Appearances matter, and nothing about this looks good.

There's one glaring problem with the situation that's impossible to ignore, though it has mostly only been mentioned in passing: the lawyers. The AUCC was represented by Glen Bloom, and the University of Toronto was advised by Casey Chisick—both prominent Canadian copyright lawyers with a history of acting for clients who are against generous fair dealing provisions. Both Bloom and Chisick argued for narrow interpretations of fair dealing during a series of important Supreme Court cases last year. Both lawyers have also acted as lobbyists for the entertainment and publishing industries, and Chisick is actively registered as a lobbyist for the Canadian Musical Reproduction Rights Agency. Chisick also expressed his own views on the need for stronger copyright laws two years ago in the Globe & Mail, and this year in the Financial Post.

In short, these are both lawyers who have spent a lot more time working against fair dealing than for it, now acting for clients who badly need a strong fair dealing argument.

This alone is not necessarily so crazy. In law, it's often prudent to get a lawyer who has experience on the other side. Although it may seem like a conflict of interest on the surface, it's probably not a breach of professional ethics. However, even setting aside those questions, the fact remains: U of T and the AUCC, working with these lawyers, failed to assert their fair dealing rights to the degree that many observers think they could and should have. It certainly seems like, for whatever reason, they got bad advice.

Perhaps copyright is not something where lawyers can easily "switch sides". For example, in employment law, firms usually specialize on either the employer or employee side of things, and rarely jump back and forth. If the Access Copyright deals are any indication, copyright may need to be treated the same way: so many of its details (especially fair dealing) are open to interpretation and debate that the philosophical gap between the two sides is huge, and it's difficult if not impossible for a lawyer to effectively argue for both. Moreover, it is a minefield for genuine conflicts of interest: if a lawyer has an ongoing client relationship with a copyright collective, they have a strong incentive not to argue for fair dealing, since any pro-fair-dealing ruling makes their own job harder and reduces their other client's income.

Why did U of T and the AUCC not seek out lawyers who were prepared to make the argument they needed? Why did they accept these terrible deals despite multiple experts telling them they could do better? Why didn't their lawyers tell them that, under the current Supreme Court rulings on fair dealing, they have a powerful argument for lower fees? The whole situation is raising a lot of whys, and students and faculty across the country are starting to want answers. The deadline for universities to indicate their "intention to sign" the AUCC model license has passed was pushed to May 15th, but it's still not clear what that even means, and with resistance to the agreement growing, this deal might not be as done as Access Copyright and the AUCC want it to be.

If the AUCC thought that it would be in the universities’ best interest to settle with Access Copyright, it should have insistent that Access Copyright would withdraw the Proposed Tariff as part of such settlement, and then let universities decide whether they wish to sign an agreement or operate without a license from Access Copyright. Instead, AUCC negotiated a model license that forces universities to choose between a bad agreement and a combination of an even worse Tariff and continued litigation before the Board.

The only hope is for universities to back out of the AUCC agreement and continue fighting the tariff on their own—but that might be easier said than done, and the Copyright Board could easily rubber stamp the tariff as unopposed. Katz continues:

What’s even worse is that–setting aside the issue of cost–it is not even clear how a university that wishes to continue objecting to the Proposed Tariff could do that, because procedurally, individual universities were not “objectors”, only the AUCC was, and at this point its members have no independent standing in the proceedings. And substantively, it might as well be the case that the Board would regard the AUCC’s withdrawal of its objection as binding on its members. Unfortunately, the AUCC’s submission does not mention any agreement with Access Copyright that would allow AUCC members to continue to challenge the Proposed Tariff, nor asks the Board to make any order that would guarantee that. It would be an error for the Board not to allow remaining objecting universities to continue challenging the Proposed Tariff, or to view the AUCC’s withdrawal of objection as binding on them. However, this is a position that Access Copyright might indeed argue, and that if accepted could leave those universities in a very difficult situation.

The AUCC has really thrown its members under the bus here. From the very beginning of this whole mess, they have been in the position to make an argument for much lower tariffs on the basis of their fair dealing rights—and that position has only gotten stronger as Canada moves closer to its copyright reform bill. And yet, somehow, not only did they strike a terrible deal, they're now giving Access Copyright free reign to set tariffs at the board. Howard Knopf raises several important questions about the situation, and the last and most optimistic item on his list is perhaps the most important:

If this development is a sour “lemon” to some institutions (e.g. the three dozen or so “opt-outs” and others that may not be satisfied with result), what options are open to them to turn can it into lemonade – maybe even “spiked lemonade”? This may well be as possibility if the AUCC’s abrupt departure clears the deck for a fresh and very vigorous approach by institutions that don’t want to sign the model license and may therefore decide to fight to the finish.

In the U.S., large universities have their own copyright clearance offices that bypass the collection societies. With Canadian universities stuck choosing between a bad deal and a worse deal, now is the time for them to bring a vigorous argument to the Copyright Board and establish a new way of doing things—one that leverages their substantial fair dealing rights under the law to reduce the cost to schools which, ultimately, is a cost to students, taxpayers and all of Canada. It's disappointing (and astonishing) that AUCC not only won't be backing them if they do, but has apparently made things even harder for them. Nevertheless, the AUCC's withdrawal has cleared the playing field for a counterattack from the universities that could be highly effective with the right strategy. It won't be easy, but it's a fight that needs to be fought.

In 2004, Canada's Supreme Court issued a unanimous judgement in a dispute between legal publishers and a law library that changed the shape of copyright in Canada. The decision in CCH Canada Ltd. vs Law Society Of Upper Canada (pdf link) explored the limits of fair dealing (the Canadian analog of fair use) as it pertains to research, establishing several key principles that are strongly in favor of open access to information. The court stated that the term "research", which is explicitly included as fair dealing under Canadian copyright law, should be broadly interpreted and is not limited to private or non-commercial endeavours—and that if a facility's general purpose qualifies as research, it is protected under fair dealing even if some people might use the facility to infringe. It was a landmark ruling that, of course, provoked the ire of every collection society and copyright industry player in the country.

But for Canadian universities and public schools, it should have been a windfall. For years they had been paying a per-student fee to the collection society Access Copyright (previously CanCopy) for rights clearance on all the routine xeroxing and other copying that is a part of education. After the CCH ruling, most or all of that qualified as fair dealing, and the schools were in a position to negotiate much lower fees or just stop paying them altogether. Instead, the opposite happened—the schools ended up paying more.

To understand how this is possible, you have to know how the process works. The Copyright Board of Canada has the legal authority to impose copyright tariffs. When Access Copyright wants more money, they go to the board and request a ridiculously high tariff—then negotiate a voluntary rate with the schools, somewhere in between the current fee and the requested tariff. If the schools can get a rate that is lower than the requested tariff, they declare victory—even though they could have presented a much better and more effective fair dealing argument to the board, doubly so following the CCH ruling.

The K-12 public schools were the first to fall and be forced to retroactively accept a higher rate, the burden of which ultimately falls on taxpayers and students. Then, in 2010, Access Copyright moved against the universities, filing for a $45 per-student tariff after the old deal ($3.38/student plus ten cents per page for course packs) expired. Not only that, but by the end of the year they had managed to get the Copyright Board to approve an interim tariff to impose on the universities before reaching a final agreement or determination. A bunch of schools opted out, and started trying to clear their own rights without going through Access Copyright. At this point, the Association of Universities and Colleges of Canada was in the perfect position to go to the board and assert their fair dealing rights. Not only would they have the backing of the CCH ruling and its generous "research" provisions, they could point to Canada's soon-to-be-passed copyright reform bill, which as currently written will specifically add "education" to the definition of fair dealing.

For some reason, apart from a few minor objections as the board continued to make procedural rulings against them, they haven't fought back very hard, or at least not very effectively—and the process has been dragging on and on. They entered into preliminary negotiations with Access Copyright at the beginning of this year, but then suddenly something completely unexpected happened: at the end of January, the University of Toronto and Western University announced that they had cut their own deal with the collection society at $27.50 per student. Again, they declared victory because it was lower than the proposed $45—a laughable figure that the Copyright Board never would have granted. The capitulation of two major universities took the already-meager wind out of the AUCC's sails, and now they've negotiated an ever-so-slightly better (but still, in the big picture, very bad) rate for universities and colleges across Canada.

In addition to the rates that went up when they should have gone down, there are plenty of other problems with both deals. Howard Knopf, a Canadian copyright lawyer, points out that Access Copyright is charging for ridiculous rights that don't even exist, such as hyperlinking and displaying documents on a screen. University of Toronto law professor Ariel Katz, another outspoken critic of the deal, highlights several onerous provisions that will seriously interfere with the ability of professors to do their job:

Or consider s. 4(c): “Copies of Repertoire Works shall not be stored or indexed with the intention of creating a library of Published Works, except as permitted by this agreement as part of a Course Collection.” I don’t know when was the last time the people who negotiated these license agreements conducted academic research, but I’m happy to break the news that since the photocopier appeared on campus (and perhaps earlier than that) copying works (such as journal articles), and storing them “with the intention of creating a library” has been integral to the researcher’s life. Some of us annotate these copies, occasionally at least, and those who are better organized employ various methods for cataloging and indexing their collections. Believe it or not, some academics keep not only collections of photocopies but also collections of materials in electronic format called “pdf”. Yes, we sometimes do weird things up there in the ivory tower. Moreover–and I hope you’re ready for the shocking news–it has even been brought to my attention that some Canadian researchers use programs like Zotero, RefWorks, EndNotes, among others, in order to index those files for easy search, retrieval, and other seditious purposes. The agreements seem to prohibit that. Is this the best possible outcome? Really?

Or what would you say about the following gems, such as s. 5(a): “Digital Copies of Repertoire Works shall not be transmitted to, posted or uploaded to, or stored on any computer network other than a Secure Network”, and 5(b:) “Digital Copies of Repertoire Works stored on Secure Networks shall be made available and accessible only to Authorized Persons segregated by individual Course of Study”?

These prohibition seem benign enough until your read the definitions. A Secure Network is defined as: “a network that is operated by the Licensee [i.e., the licensed university, not the Authorized Person, AK], or for and subject to the control of the Licensee (such as a network hosted by a third party and/or accessible through a web interface) and which is only accessible by an Authorized Person who is approved by the Licensee by means of a process of authentication which, at the time of login, identifies the user as an Authorized Person, whether by user name and password or by some other equally secure method.”

Knopf believes many schools are going to be completely blindsided by the details of the agreement—but they may not have the time or resources to do anything about it. The AUCC is letting Access Copyright pressure the universities and colleges to agree now with what it brazenly dubs a "limited time offer".

Believe it or not, there’s a "Limited Time Offer of Discounted Pricing on Retroactive Payments" (which Prof. Ariel Katz suggests is “an offer than can’t be refused”), that demands virtually immediate agreement in order to mitigate losses. According to AUCC President Davidson:

Access Copyright has agreed that the best retroactivity discounts available to universities will be available those that indicate in writing to Access before May 1, 2012 that they expects to sign the licence, and then actually sign before June 30, 2102 [sic]. While you need to indicate your intent to sign the licence by May 1, you may still reconsider your options after that date, and you could choose to delay signing (in which case the discount will be lower), or not sign at all. (highlight added)

However, among other things, it’s not at all clear: how this “”Limited Time Offer” will work; and, why it is so limited in time and so urgent?

Nor is it clear what AC means when it says that those who “advise Access Copyright in writing of their intention to sign the Model License by no later than May 1, 2012, and sign by no later than June 30, 2012, pay no retroactive payments.” What does “intention to sign” mean? What happens if the university changes its mind?

May 1st is seriously really soon. It is only a week away. What exactly is the emergency?

The emergency, of course, is that if Canadian universities wake up to what's happening and have time to actually look at this deal, they might realize how bad it is for everyone other than Access Copyright. Nobody is entirely sure just how and why the AUCC, University of Toronto and Western have failed to put up a meaningful fight. Though time is short, critics like Knopf believe there may still be a chance for a hail-mary pass to stop this deal in its tracks. Some may think this is quibbling over a meaningless figure—a few bucks per student—but that misses the big picture. A deal like this represents a massive and completely unjustified transfer of wealth from one class (students, who we we want to support for the good of the entire nation and economy) to another (publishers, who are asserting rights they don't even have). It also adds fuel to the copyright industry's ongoing campaign to minimize and ultimately reverse the effects of the CCH ruling, and to scale back all the good parts of the copyright reform bill—two things that must not be allowed to happen. Canada's copyright laws are far from perfect, but they have been moving in very progressive directions lately, with a strong emphasis on user rights—and Canadian universities should be harnessing that momentum, not working against it.