access copyright

Calling out nonsense - John Degen

This post by John Degen looks like F.U.D., Fear, Uncertainty, and Doubt. If it doesn’t, please tell me why. The thing with F.U.D. is that there are generally misconceptions that lead to false conclusions, and that is what I am seeing in the post by Mr. Degen.

Mr. Degen, I respect the position you are in. Like me, you are standing up for a set of values, ethics, and rights for your profession. This is not a black and white issue. There are grey areas where we overlap, and that is where agreement or conflict can exist. In this case, we have a lot of conflict. But, we have a some stark lines drawn for us with Bill C-11, and the recent Supreme Court rulings. Simply put, rights around fair dealing and educational use have expanded.

Now, the misconceptions.

Misconception one. I am not the great dread pirate black beard of librarianship. In no way have I, nor the Ontario Library and Information Technology Association, said that creators should not be compensated. Yes, resolution language is ugly Robert’s Rules of Order legalese. That is what it has to be for the setting of an annual general meeting. Do I wish it was plain, simple, beautiful prose? Yes.

WHEREAS there exists model license agreements between Access Copyright and the Association of Universities and Colleges of Canada (AUCC) and between Access Copyright and the Association of Canadian Community Colleges (ACCC), and

WHEREAS there exist agreements between Access Copyright and the University of Toronto and between Access Copyright and the University of Western Ontario, and

WHEREAS the Canadian Association of University Teachers (CAUT), the British Columbia Library Association (BCLA), the Atlantic Provinces Library Association (APLA), the Manitoba Library Association (MLA), the Newfoundland Labrador Library Association (NLLA), the Progressive Librarians’ Guild (PLG) as well as many leading copyright scholars in Canada have taken strong positions against the Access Copyright licenses, and

WHEREAS the addition of “education” to the fair dealing categories, and the broad support for fair dealing in the Supreme Court’s pentalogy rulings of July 2012 provide further support for the position that the Access Copyright license does not provide any additional value to institutions beyond their existing rights, and

WHEREAS the fee structure is inequitable to students on whom the costs are imposed, and

WHEREAS several provisions in the license agreements limit the use of emerging technologies and increase the potential for monitoring and surveillance,

BE IT RESOLVED THAT the Ontario Library and Information Technology Association (OLITA):

  1. Stands opposed to the Access Copyright license agreements as they currently stand, including the AUCC and ACCC Model Licenses and the separate licenses with the University of Toronto and the University of Western Ontario,
  2. Urges Canadian post-secondary institutions not to enter into this licensing agreement,
  3. Encourages those who have already signed to exercise their termination options as soon as possible, and
  4. Recommends that institutions move toward the construction of systems of knowledge creation and sharing based on fair dealing, open access, site licensing as well as transactional licenses where they are needed.

The WHEREAS clauses provide the context, setting, or a lens with respect the the resolution. The resolution, I believe, is fairly explicit. OLITA, “stands opposed to the Access Copyright license agreements as they currently stand...” OLITA did not say, “Access Copyright is Cthulhu. It should be banished from this dimension, and no creator should ever be compensated.” We have an issue with those specific model licenses, and agreements. We are not the first to raise this issue. The Canadian Association of University Teachers, the Atlantic Provinces Library Association, the Newfoundland and Labrador Library Association, the Manitoba Library Association, the BC Library Association, the McMaster University Academic Librarians’ Association, the Progressive Librarians Guild Toronto Area Chapter, and many leading copyright scholars in Canada have all spoken out in opposition to these model agreements and licenses. OLITA isn’t even the first association to oppose or condemn the model licenses and agreements by way of a resolution. CAUT did so last spring, as did the BC Library Association and the McMaster University Academic Librarian’s Association, and believe it or not, the Ontario College and University Library Association. Furthermore, OCULA passed the same exact resolution as OLITA one day prior. Neither Mr. Degen or Access Copyright seemed to notice this at all from what I can tell via recent public communications by both parties.

Misconception two. The “dialogue”. I have tried my best to be as transparent as possible. Mr Degen and Access Copyright seem to be misrepresenting the narrative (“a strategic attempt to influence perception by disseminating negative and dubious or false information”). Mr. Degen and Access Copyright both refer to the letter I referenced in the previous post, and seemingly lead one to believe that the transmission of that letter is the end of the story. That Access Copyright tried to engage in an open dialogue with myself and OLITA, and both I and OLITA refused a dialogue. As I showed in my previous post, I welcomed participation in the process at the AGM for those Access Copyright board members, directors, employees, etc., who are OLITA members. From what I understand, we do have members of OLITA that are affiliated with Access Copyright, so there was every opportunity to participate. Moreover, the Access Copyright Executive Director followed up to my response saying, "We don't see how this can properly take place at your AGM. Would you consider delaying the motion until we have the opportunity to meet and begin a dialogue?" That, in my opinion, is attempting circumvent a democratic process. The executive director asked that I pull a resolution. There is no right or standing to ask such a thing. As for the following statement, “We don’t see how this can properly take place at your AGM.” Really? Resolutions are a normal part of AGMs. A member has every right to submit a resolution. If it is moved and seconded, then it moves to the agenda for the meeting. So, yes, it can properly take place. To think otherwise is silly.

Finally, if you want to talk let’s talk. Yesterday wasn’t an example of a constructive dialogue. In fact it got really unconstructive. Mr. Degen, I would like to personally apologise if there was any offense taken from any of my actions, and would also like to apologise on behalf of my colleagues. As I ended my previous post, if Access Copyright or Mr. Degen would like to open a dialogue about why these resolutions were unanimously passed, now is the time to do so.
 

Calling out nonsense - Access Copyright

Inspired by some fearless leaders in our community, this is my Access Copyright story.

This past week, a very interesting series of events unfolded with Access Copyright, or maybe better said, what unfolded was a lesson in how not to engage in open dialogue. I will not be speaking to the text of the the resolutions mentioned below, just the events surrounding them.

Last week was the annual Ontario Library Association Super Conference. During Super Conference, each OLA Division has their Annual General Meeting. Among other things, AGMs provide opportunities for resolutions to be put forward by the membership. At this particular AGM, we had two resolutions put forward: 1) A Memorial Resolution Honouring Aaron Swartz (Thanks ALA/LITA!) and 2) OLITA Resolution on Opposition to Access Copyright License Agreements. Standard procedures were followed, the resolutions were moved and seconded, and sent out to the membership in advance.

This past Monday (2013-01-08) something happened. I received an email from Robert Gilbert, New Media and Communication Services, at Access Copyright. This is what they had to say. I will explain why I am making this letter public later.

I addressed the incorrect information in the letter in a reply to the sender, and cc'd recipients:

Dear Mr. Gilbert,

I'd like to clear up some confusion with the resolution. The posted resolution[1] which I assume you have seen or been directed to is a proposed resolution for the Ontario Library and Information Technology Association's (OLITA) Annual General Meeting[2]. It was sent out in advance to membership.

The resolution has been moved and seconded, and will be put before the membership at the meeting for a vote. Prior to the vote, an opportunity will be provided to speak to the motion, ask questions, and propose amendments. If you are or your colleagues are OLITA members, you are more than welcome to participate.

cheers!

-nruest

[1] http://www.accessola2.com/olita/insideolita/wordpress/?p=58235 [2] http://www.accessola2.com/olita/insideolita/wordpress/?p=58053

A day went by, and other than I an out of office reply, I didn't hear anything in response. I figured we were done.

Nope.

On Wednesday evening (2013-01-30), I received an email from the Executive Director of Access Copyright. I will not publish the entire email, but I was asked to delay the motion, "We don't see how this can properly take place at your AGM. Would you consider delaying the motion until we have the opportunity to meet and begin a dialogue?"

I responded:

Hi XXXXXXX,

I due[sic] hope you understand the weight and merit of what you are asking. You are asking that I forgo a democratic process. This is a resolution that was put forward by a member of our association, and will be discussed as [sic] voted on at our AGM.

As I stated previously, if you or any of your colleagues are OLITA members, you are more then welcome to come and part take in this democratic process. You will be provided every opportunity to speak to the resolution on the table.

Other than that, I will in no way interfere this process as you have suggested.

Regards,

-nruest

I had hoped this was the end of the exchange.

Nope.

The OLITA AGM was Friday evening (2013-02-01). Access Copyright was present at the conference as they had a booth in the exhibitors' hall. During the day, a colleague of mine showed me the letter I mentioned earlier. Somewhat (well really a lot) flabbergasted, I asked where and how they got a copy, assuming the only people to see the aforementioned letter were those that sent it, and those that received it. Nope. Access Copyright decided the best way to engage in an open "dialogue" with me, our association and/or our community was to print off a stack of these letters (in a very classy paper stock!) to hand out at their exhibitor booth.

I fully appreciate, and can understand the rationale behind trying to open up a dialogue. However, Access Copyright tried to circumvent a democratic process, refused to engage in a public dialogue, and tried to misrepresent and embarrass OLITA on the exhibitors’ floor. I find these intimidation tactics unacceptable.

We played fair. We brought no mention of Access Copyright's behaviour to the assembly floor. The resolution went forward with a single friendly amendment, and was passed unanimously. The OLITA membership has spoken. If Access Copyright would like to open a dialogue about why these resolutions were unanimously passed, now is the time to do so.