Salvo in the samizdat wars
Not a few educators and researchers evade journal paywalls via samizdat: asking a colleague at another institution to provide a PDF of an article not otherwise accessible save through extortionate individual-article fees. Journal publishers are unenthusiastic about this, but seem mostly to have considered it wasteful and dangerous to fight with anything more serious than finger-shaking and Attributor test runs.
Until now.
Access Copyright, the hateful and dishonestly-titled Canadian analogue to the abominable Copyright Clearance Center in the US, managed to con two Canadian universities into signing a deal that lets Access Copyright have a backdoor on faculty and student email, to look for links and PDF attachments that might represent publisher-copyright journal articles.
University of Toronto law professor Ariel Katz has an excellent rundown of why those two universities just did a stunningly dumb thing; the Loon needn’t add to it. (IP law professors are a treasure. Because they’re not the university’s lawyers, they can and do call out its legal missteps with excruciating precision. Pity LIS professors don’t call out information-management missteps more often.) No, the Loon is more interested in how this happened and what it portends.
The Loon can’t quite sort out who exactly greenlighted this agreement at either university. Katz’s blog post and comments thereto indicate that usual governance channels have thus far been bypassed; Katz is careful not to imply malice, but the Loon must say that currently-available evidence points to a hasty smoke-filled-room signing and subsequent coverup, presumably by one or a very few individuals in high places.
Three reasons to sign such a horrendous agreement suggest themselves:
- Access Copyright bought the signers.
- Access Copyright intimidated or blackmailed the signers, possibly by threatening one or more lawsuits against the university.
- Access Copyright told the signers “just sign this, it’s boilerplate, no one will know, if they do know they won’t care, and all your copyright worries will magically disappear once you’ve signed” and the signers were stone-dumb enough to believe that bushwa.
Perhaps we shall yet find out which, or which combination, it was. The first and third should be grounds for immediate firing of all signers. The second? The second is interesting, for appalling values of “interesting.” Perhaps the signers understood this deal as legal immunity just for their schools; the Loon certainly wouldn’t put it past Access Copyright to hold up the Georgia State lawsuit and hint strongly that other lawsuits are in the works. (The Loon has no evidence that such lawsuits are imminent; neither has she any evidence that they’re not.)
The Loon’s heard variants on “our people über alles” from many a serials librarian and liaison: “never mind all that open-access stuff, never mind the larger information world; we’re here to serve and protect our people, and we do that by buying them what they ask for.” It’s appalling shortsightedness in librarians, and just as appalling in high-level university administrators. Where is principle in all this? Expediency is at best a poor substitute for principle—and this backstabbing by Access Copyright should prove that dealing with the devil isn’t even expedient in the long run.
Ah, well. If academic-library collection developers had placed principle over expediency, the Big Deal would never have happened. (It’s not as though they weren’t warned.) Perhaps they can yet learn something from their public-librarian colleagues’ spirited and principled resistance to the Patriot Act, or to the ridiculous lending restrictions currently bruited for mass-market ebooks.
What happens now?
Well, if anyone thought signing whatever Access Copyright puts in front of them was a good idea, they will be speedily disabused of the notion, as Toronto and Western Ontario faculty rebel against an email panopticon. The Loon hopes word gets out to American academics as well, because Register of Copyrights Maria Pallante has been making noises about an Access-Copyright–like scheme, and she must be stopped.
The real question is how much Access Copyright will have harmed itself by its overreach. Canada already has a significant resistance movement, led by the estimable Michael Geist. With luck, this madness will be yet another example of Big Copyright Pyrrhically placing its foot before the pistol in its hand.
(The Loon thinks Access Copyright could have put forward a successful frog-boiling gambit, if they’d chosen to follow Attributor in paying attention to copyrighted material on faculty’s public-facing websites. They’d have discovered plenty of grist for their mill there, which they could have used to tighten screws further, and opponents would have no obvious privacy- or academic-freedom–based counterarguments. The Loon can only boggle at Access Copyright’s actual conduct, in light of this much more defensible tactic available to them. Did they truly think they’d get away with it? This is, of course, not the first time the Loon has boggled at Big Copyright’s moth-to-candleflame behavior.)
As for academic samizdat, this won’t be the last salvo. At minimum, we can expect more takedowns on the shadier side of samizdat. If Big Copyright has a mind to continue firing at its feet, we may see additional Georgia-State–style lawsuits, though the outcome in the actual Georgia State case will of course influence the odds.
The uneasy balance of the war for academic copyright has rested on the stolid ignorance and apathy of the faculty and librarian majority, colored here and there with (often equally ignorant) fear of lawsuits. Open-access activists have tried to budge that balance, with only scattered success until the last couple of months. Until then, publishers knew that all they had to do was stand pat and let the herd-minded academic majority do their ugly work for them.
The Loon can only assume that Big Copyright’s various recent overreaches, from the Research Works Act to this Access Copyright panopticon, were predicated on the assumption that faculty and librarian ignorance and apathy could not, in fact, be shaken—that Big Copyright (greased by lobbying money) had an open field.
The Loon thinks, rather thankfully, that Big Copyright was wrong. We’ll shortly experience the exact magnitude of that error.
One thing you might not understand about this situation is that Access Copyright has jacked up their price ninefold and they claim this is because of the extra rights that we are compensating for. But they don’t actually have the ability to grant us the rights they claim to be charging us for, since all online access is negotiated and compensated directly with the publishers.
Oh, and AC is also claiming that linking to an article is a copyright action that needs to be licensed. And the contract claiming this was signed mere weeks after the Supreme Court of Canada ruled (in a different context) that linking is not “publishing”. So I think AC would have a hard time making a case for this either.
Cynically, I think that the universities signed because that was simpler than telling AC to go away, and because it doesn’t actually cost the university anything at all to sign, since the fees that AC charges are collected from the students anyway.
The Loon thinks the university officials who signed those agreements are about to be disabused of the notion that knuckling under to AC was “simpler.” Quite possibly with the loss of their jobs.
AC and CCC claim similar falsehoods; the Loon is familiar with the syndrome. It’s why she uses the extreme adjectives she does for them. They are vile.
Also it should be pointed out that AC has applied to the Copyright Board to create a blanket tariff of $45/student with all the nasty monitoring provisions found in the UofT & UWO agreements. Were they to succeed it would apply to all post secondary institutions in Canada. The more you read about it the more absurd it seems that AC would have any chance of success but the Copyright Board is unpredictable so until they are turned down it is important that Canadian librarians and academics remain vigilent.
I am hopeful that given UofT’s international reputation outside pressure might be able to force a reversal of this policy…
It still blows my mind that any lawyer (they supposedly got legal advice) would look at Canadian copyright law, recent case law, the licensing situation at both of these institutions and then say “ya know I really think this AC offer is a good deal.”