Universities to pay fees for eMailing links while faculty inboxes are monitored

One critic called the latest copyright agreement 'inexplicable.'

Sending hyperlinks via eMail could prove a pricey proposition for two Canadian universities after officials agreed to a controversial copyright policy that could also leave professors’ electronic messages open to surveillance.

The University of Western Ontario (UWO) and the University of Toronto (UT) announced in late January that they had come to terms with Access Copyright, a company that has collected fees stemming from faculty members photocopying copyrighted materials and distributes royalties to publishers and content creators.

The schools’ new agreement with Access Copyright would require an annual $27.50 per-student fee for the right to eMail hyperlinks that connect students and educators to copyrighted material – a concession that has drawn ire from at least one UT faculty member.

And in a stipulation that has raised privacy issues among educators at the two Canadian campuses, Access Copyright will require access to eMail accounts of academic staff members to ensure the schools are abiding by the copyright agreements. Access Copyright insists monitoring will “be done in a manner that is automated, anonymous, and protective of the privacy of faculty and students and the academic freedom of faculty.”

Ariel Katz, an associate law professor at UT, said the agreement with Access Copyright had “wide, deep, and long-term implication[s]” and should be “subject to governance approval” by university officials.

Katz wrote in a Feb. 12 blog post that the agreement didn’t get the proper public hearing and will not be revised even after a public outcry.

“… There are worrying signs that the agreement will not get the scrutiny that it deserves,” Katz wrote. “I hope I’m misinterpreting these signs.”

The Canadian Association of University Teachers (CAUT) roundly criticized the agreement with Access Copyright, calling the new policy an attack on educators’ electronic privacy just months before Canada’s Supreme Court is expected to clarify how faculty members can use copyrighted works for educational purposes.

“Toronto’s and Western Ontario’s actions are inexplicable,” said James Turk, CAUT executive director. “They have buckled under to Access Copyright’s outrageous and unjustified demands at a time when courts have extended rights to use copyrighted material … and just before the passage of new federal copyright legislation that provides additional protections for the educational sector.”

Cheryl Misak, UT’s provost, said in a statement that the university signed on to the copyright agreement so the school wouldn’t violate basic Canadian copyright laws.

“We believe that this agreement is fair for all the parties – those who create the materials, as well as students who gain access to copyright materials through the university,” Misak said. “This enables, within certain limits, reproduction of copyright material for students’ use without concern for infringing on copyright restrictions.”

The agreement will be in place until December 2013. UOW and UT can renegotiate the terms of the agreement after that. The universities’ renewal with Access Copyright will eliminate a 10-cent fee for every page of copyrighted material a student prints for a course packet.

Janice Deakin, UOW’s provost and vice president, said covering potential electronic copyright violations in the newest agreement would be an important legal maneuver to safeguard the university from lawsuits.

“The backdating of the agreement gives us peace of mind by covering past digital uses that may have exposed the university and the indemnity provision increases the university’s legal protection against copyright infringement,” she said.

A document outlining OUW’s negotiations with Access Copyright showed that university officials fought the inclusion of eMailed links in the final copyright agreement.

“We were adamant that we could not agree that hyperlinking constituted copying under the Copyright Act,” the university said. “In the end, we negotiated a compromise in which we essentially agreed to disagree over what constitutes copying, and there is a clear statement in the agreement to that effect.

UT’s agreement with Access Copyright doesn’t only deal with teaching-related copyrighted materials – it encompasses all materials used by university staff for professional purposes, Katz wrote.

“The university isn’t a ‘broker,’ but a ‘licensee,’ and has taken upon itself not only to pay license fees, but also to comply with a host of restrictions and obligations that concern the way most of its members conduct their day-to-day activities as researchers, students, librarians, administrators, and IT staff,” he wrote. “These obligations are not only unnecessary and burdensome, but may also threaten their privacy and academic freedom.”

Knowlton Thomas, a Vancouver-based associate editor of the blog TechVibes, described the universities’ Access Copyright deal as a “harebrained cockamamie copyright agreement” in a Feb. 21 blog post.

“And you just know that cost will be directly passed onto the poor students,” he wrote of the new per-student fee.

A UT spokeswoman did not respond to an eMail from eCampus News asking if the fee would lead to an increase in student tuition or technology fees.

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