Tuesday, September 17, 2013

AC seeks $26 per university and $10 per college FTE “Mandatory” Tariff in Copyright Board filing

Access Copyright has now filed its “Statement of Case” at the Copyright Board for the forthcoming Post-Secondary hearing set to commence on February 11, 2014. 

Here is the “OVERVIEW” of AC’s case in AC’s own words:


2. Access Copyright will submit that the value of the tariff to be certified by the
Board is $26.00 per FTE for Universities and $10.00 per FTE for all other Educational
Institutions (as those terms are defined in the Proposed Tariff). In support of this valuation,
Access Copyright will present evidence about the reproduction licences it has entered into with a large number of Educational Institutions since January 1, 2011. These licences (the
"Benchmark Licences") provide for an annual royalty rate of $26.00 per FTE for Universities
and $10.00 per FTE for all other Educational Institutions. Access Copyright will assert that the Benchmark Licences are reasonable and appropriate proxies for the licence granted under the Proposed Tariff and that the royalties paid under the Benchmark Licences, the term of which is January 1, 2011 to December 31, 2015 (except for the licences with the University of Toronto and University of Western Ontario, which expire on December 31, 2013), are directly indicative of the fair market value ("FMV") royalty rates for the Proposed Tariff.

3. It is also Access Copyright's position that the fair dealing policy (the "Policy")
promoted by the Association of Universities and Colleges of Canada ("AUCC") and the
Association of Canadian Community Colleges ("ACCC") and adopted by many Educational
Institutions, which purports to characterize as fair dealing amounts of copying essentially
identical to that licensed by Access Copyright, is unfair and results in copying that is not fair.
Access Copyright asserts that, on the evidence to be filed, the Objectors will not be able to meet their burden to establish that the Policy and copying being carried out under the Policy are fair.  Therefore, any such copying constitutes compensable copying which (for any Educational Institution that is not operating under a licence entered into with Access Copyright) is subject to the tariff to be certified by the Board.
(highlight added)

I offer no comment at this time, other than to remind readers that AC clearly embraces the “mandatory tariff” or “one copy of one work” theory that would mean that this tariff, if approved on this basis by the Board and not struck down by the Courts, would impose enormous additional costs and restraints on universities that already legally clear all their copyright requirements at considerable expense. For example, as President Stephen Toope of UBC recently pointed out in an open letter to the Writers’ Union of Canada:

The Parliament and the Supreme Court of Canada have established a legal framework that recognizes the rights of both authors and users. I assure you that UBC respects these rights and is committed to meeting its legal obligations. Indeed, UBC pays in the neighbourhood of $25 million to publishers and authors every year. In fiscal 2011/12, UBC spent approximately $2 million on book acquisitions, $2 million on print serials, and $10 million on digitally licensed subscriptions for students and faculty to access through its library system. UBC also sold approximately $14 million of books directly to students and faculty (for which UBC paid publishers about $10 million).

UBC is just one of Canada’s more than 100 universities and colleges that would be adversely affected by the imposition of any form of “mandatory” tariff.

It will be recalled that the AUCC abruptly withdrew its objections and withdrew from the Copyright Board hearing in April of 2012, leaving its member universities unrepresented and after having spent about $1.7 million. The ACCC, representing community colleges, is still involved at the hearing.


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