Wednesday, December 04, 2013

Copyright Board Says No to Access Copyright's Attempt to Consolidate 2011-2013 and 2014-2017 Proposed Tariffs

This is fresh from the Copyright Board. Comments to follow in due course.

From: "Gilles.McDougall at" <Gilles.McDougall at>
Date: Wednesday, 4 December, 2013 1:08 PM
To: Ariel Katz <ariel.katz at>, "Randall.hofley at" <Randall.hofley at>, "Nancy.Brooks at" <Nancy.Brooks at>, David Fewer <dfewer at>, "smagu039 at" <smagu039 at>
Subject: Access Copyright Post-Secondary Educational Institution Tariffs, 2011-2013 and 2014-2017


The November 18, 2013 application by Access Copyright to consolidate the examination of the above-referenced tariffs is denied. The examination of the proposed tariff for 2011-2013 will proceed as scheduled, subject to what the Board may decide when ruling on the November 7, 2013 application of professor Katz for a reference. The reasons for this ruling are as follows.

First, the proposed tariff for 2014-2017 purports to licence the so-called making available right. Notwithstanding the arguments of Access Copyright, the Board concludes that this raises significant new factual and legal issues. Both proposed tariffs suppose that posting a link or a hyperlink to a digital copy is a protected use. To support the conclusion, Access Copyright argues that such posting triggers both the making available right (mentioned in the 2014-2017 tariff) and the reproduction right (mentioned in the 2011-2013 tariff). Access Copyright does not comment on what may happen were the Board to conclude that such posting triggers the first right but not the second. The making available right, if it exists here, apparently is a form of the right to communicate a work “to the public”: see s. 2.4(1.1) of the Copyright Act. If so, presumably the Board would then have to decide a mixed question of fact and law, i.e. what constitutes a “public” in the context of post-secondary education, a task that was not made simpler by Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37: see para. 27.

Adding these to the issues already raised by the 2011-2013 proposal would disrupt the current proceedings, slated for a hearing set to begin a mere two months hence. This, of itself, would be sufficient to justify denying the application.

Second, if any of the assertions of the objectors concerning past and continuing changes in the copying practices of potentially targeted institutions are correct, then certifying now, for 2014-2017, a tariff structured as Access Copyright proposes supposes far too great an ability to predict future copying practices. In such a potentially unstable market as this one, certifying tariffs based on what occurred, to the extent that this is indeed ascertainable, is (at least for the time being) preferable to certifying tariffs on the basis of what may happen. The continuation of the 2013 tariff on an interim basis pursuant to section 70.18 of the Act will provide sufficient certainty in the relevant market from January 1, 2014, until a tariff for the years 2014 and beyond is certified (assuming that the Board has the jurisdiction to certify such a tariff).

We note that some of the parties' pleadings in this application as well as in the related application seeking a reference to the Federal Court of Appeal have adopted a tone and aggressive style that is not appropriate in matters before this Board and fail to deal with the issues in an objective manner. The parties are requested to show greater respect and equanimity.

Gilles McDougall
Secretary General | Secrétaire général

Copyright Board of Canada | Commission du droit d'auteur du Canada
56 Sparks, Suite| Bureau 800
Ottawa ON K1A 0C9
Telephone | Téléphone 613.952.8624
Gilles.mcdougall at

1 comment:

  1. Regarding linking, simply put: the map is not the territory.

    Merely talking about a work and reproducing a work (the act of which copyright exists to regulate) are qualitatively different kinds of speech. Linking is obviously protected speech and one without which the machinery of the Internet would grind to a halt. Where a resource "linked" to even actually exists as represented, a link is not only one of the clearest examples of meta-data possible (meta-data is, by definition not the content it describes), it is also one on which everything on the Internet relies, from the search engines that index them to XML's arbitrary namespaces (that very often, but quite unnecessarily, correspond to a valid web address). In other words: a link is not, and should not be deemed, to contributing to copyright infringement or to itself constitute “making available” (inductive of, or contributory to, publishing) since it does not itself necessarily resemble reproduction and merely refers to an external act of publishing (in fact, a link may not point to anything whatsoever).

    A link to a work is analogous to noting where a work can be viewed, as if I were to mention on my blog that some specific book can be found in my local library (or on, and when it contains nothing of the work it should not be viewed as contributing to publishing. The destination of a link must remain the focus. Unless a link actually contains a work (for example, encoded in the address itself), it relies on a secondary work (the one referred to) to even *be* a link. Rather, links should be recognized once and for all as merely talking about other works (assuming the link even remains valid).

    Furthermore, since the validity of a link can change with time and its interpreter, it is fundamentally variable in nature and, if for no other reason than this, it should not be considered within copyright; the meaning of a link is itself a moving target, but laws cannot be. Linking must necessarily be protected speech since the alternative would lead to vague, highly variable, and necessarily unenforceable interpretations of copyright that contribute to conflict when they should be promoting clarity.

    Regarding the board's admonishment and request for greater respect and equanimity, I sometimes wonder if they realize the growing distance between copying in the real world and copying as granted by law. Both sides of this increasing schism are digging their heels in as they see the other making what feel like increasingly irrational demands. I do not envy the board since I think the animosity will only increase as the impracticality and contradictory nature of copyright (the desire to enforce a legal monopoly when the physical costs of reproduction are already negligible, and constantly decreasing) strain these relationships further.