Access Copyright Thrashes Thrice

Access Copyright (“AC”) today announced:

• A lawsuit has been launched against York University. It alleges that York's purported fair dealing guidelines authorize and encourage copying that is not supported by the law, and that there is no justification for the University to operate outside the interim tariff.
• An interim elementary and secondary school education tariff application has been filed with the Copyright Board of Canada. This application seeks an effective enforcement mechanism against the ministries of education and Ontario school boards for their stated intention to stop paying the royalties set by the Copyright Board.
• A proposed post‐secondary tariff has been filed with the Copyright Board of Canada for the period of 2014‐2017. With this application, Access Copyright ensures the continuation of an existing process at the Copyright Board to establish the royalties to be paid for the use of copyright‐protected content in post‐secondary educational institutions.

I have a copy of the second item, namely the interim elementary and secondary school education tariff application, which is attached.

This application for an interim tariff seeks an enforceable tariff based upon AC’s notion of fair dealing, notwithstanding that the K-12 schools have all apparently determined based upon legal advice from counsel that they do not need a license from AC, presumably because everything they copy is either not in AC’s repertoire or is insubstantial or is fair dealing. Much as certain folks may be in denial, we have heard from the Supreme Court of Canada and Parliament on these issues quite recently and quite explicitly. This application will be nothing if not controversial, if it indeed proceeds.

Interestingly, this follows a recent speech in Toronto by the General Counsel of the Board. A very reliable person who attended that speech (I did not) has advised me that the speaker commented that he had heard that schools would be relying on a fair dealing policy in which ‘everything is claimed to be fair dealing’ and that he thought it was “courageous” for schools to rely on such a policy. He reportedly then said, with AC very much present, that if AC wanted to move forward on the K-12 2010-2012 and 2013-2015 files, it could bring the fair dealing policy before the Board. My source of this information is “positive that he said the word “courageous” but the other sentences aren't exact quotes”.

I also attach AC’s proposed post-secondary tariff for 2014-1017. I haven’t read it in any detail. However, I note that it still purports to cover posting a link or hyperlink to a digital copy. And, ever the apparent voice of sweet reason, the proposed FTE rate is lowered by $10 to $35 and $25 for Universities and “all other Educational Institutions” respectively. That said, the fact is that dozens of post-secondary institutions have decided that an AC license is not worth taking at even the "discounted" prices earlier offered of $26 and $10 respectively. Prof. Sam Trosow has called this #ACdeal “a bad deal at any price”

I am waiting for a copy of the lawsuit against York University supposedly based upon its fair dealing guidelines. In the meantime, it’s interesting to speculate on why AC would seek what sounds like a very  vague declaration – which the Courts may be disinclined to even consider - rather than actually sue for infringement (if any, and leaving aside some rather existential questions about "standing") or to deal with this in the current and proposed Board proceedings.

HPK

PS - A vigilant and loyal reader reminds me that IP Osgoode reported at length on General Counsel Mario Bouchard's January 28, 2013 ALAI presentation referred to above here.

rev. April 9, 2013