Over the past few weeks, a growing number of Canadian universities have announced plans to opt-out of the Access Copyright interim tariff effective September 1, 2011 (the University of Calgary’s Gauntlet has an excellent article on the issue). Those universities join many others that opted-out from the start of the year. While many universities are moving on to alternative licensing approaches, the universities and Access Copyright continue to battle over the prospect of transactional (or pay-per-use) licensing which the universities want and Access Copyright refuses to grant. The AUCC filed its response on the issue earlier this week, which included some notable correspondence between Access Copyright and academic publishers.

According to Access Copyright “it’s virtually impossible to ‘opt-out’ of the interim tariff. The only way an institution would be able to ‘opt-out’ would be an absolute ban on all copying.” This is simply false and it is stunning to see Access Copyright advise major publishers that that is the case (along with advice that publishers tell universities that the interim tariff is the only option – “take it or leave it”).

As the Copyright Board states:

An interim tariff does not force Institutions to pay royalties absent any evidence that they require a licence. A tariff applies only to those who need the licence; those who do not, need not pay. Under the general regime, which applies in this instance, users whose consumption patterns justify different rates remain free to secure, from Access or from others, transactional or other licences that will trump the tariff.

Many Canadian universities have determined that they do not need a licence since they can cover their campus copying through a combination of site licences, open access materials, open educational resources, fair dealing, and transactional licences (whether from Access Copyright, directly from publishers, or from other collectives such as the U.S. Copyright Clearance Center). The question for the large academic publishers is whether they want to pick a fight with their biggest customers and lose out on potential royalties by rejecting university efforts to pay for using their works.