Tuesday, January 14, 2014

Update on Access Copyright's Proposed Educational Tariffs at the Copyright Board

This is an update regarding the pending Access Copyright hearings scheduled at the Copyright Board.

Regarding the Access Copyright (“AC”) proposed Post-secondary tariff, the most noteworthy point at this time is that the proceeding has become a default event. AUCC and ACCC withdrew long ago. CIPPIC (representing CAUT and CFS) has now withdrawn. Prof. Ariel Katz, has also decided not to file a Statement of Case, though he sent a letter making some very important submissions, as is explained below. The only objector who has submitted a Statement of Case and who plans to appear is a student named Sean Maguire, who makes some perceptive points. However, the Board cannot realistically treat this hearing as anything other than a default proceeding. That such an important Board hearing with so much at stake is proceeding by default is unprecedented and raises many very important and even troubling questions.

It will be recalled that the Board has rejected Prof. Katz’s request that the overwhelming “elephant in the room” issue about whether any tariff in this matter can be “mandatory” be referred to the Federal Court of Appeal, pursuant to an established procedure that can be used in such a situation. Such a reference would have been a very good idea from every point of view. Indeed, even Access Copyright did not disagree with making such reference, and there were only some minor semantic points of distinction between it and Prof. Katz over the proposed wording of the reference question, and there were really no facts in dispute. It seemed like the perfect case for a reference. However, the Board declined to seek this reference, and issued some fairly explicit hints that it may devise a tariff that is supposedly not mandatory. However, a tariff can appear to be optional in form but effectively be mandatory in substance.

Nonetheless, the fact is that the dozens of post-secondary institutions have concluded, based upon careful analysis and advice, that they don’t need an AC license in view of the extensive licensing deals that they already have in place, the new legislation, the three SCC decisions on fair dealing in the last nine years, and the measures that they have taken to comply with the current legal regime as they see it. They will find any tariff certified by the Board at any price to be unacceptable if it is “mandatory” in any sense.  Even a tariff for a nominal rate or some other scheme that lies between the extreme of all or nothing would still be highly problematic because of the inevitably “onerous obligations such as auditing, accounting and reporting”. There could very well be consequential legal and political repercussions if the Board certifies any tariff under these circumstances, unless such a tariff is truly and explicitly optional. And even then, it will be of interest to institutions only if it offers something clearly of value upon reasonable terms and conditions.

There is a lot at stake in this default proceeding. To mention just a few obvious points:

  • Whether any final certified tariff can be “mandatory”, either in form or in substance
  • Tens of millions of taxpayers’ and/or students’ dollars per year
  • Whether AC’s limited vision of fair dealing, its denial of the impact of SCC and relevant jurisprudence from other jurisdictions, its restrictive views on academic freedom and access to knowledge, and its agenda that is inimical to research and teaching have any legal foundation
  • Whether such views will adversely affect the quality of post-secondary education in Canada, the competitiveness of Canadian students, researchers and teachers, and, ultimately, even the ability of Canadians to innovate
  • The very existence of AC (i.e. if its clients see insufficient value in it licenses and these licenses are not legally “mandatory”, why would any rational institution sign on? OTOH, even if the licences are somehow ultimately held to be “mandatory” by the Courts but provide insufficient value, can government intervention be far behind?)
  • Whether the professors and instructors who provide most of the material that is used in Canada’s post-secondary institutions may see the need or the utility of forming their own collective that might be more efficient and responsive to the needs of Canada’s post-secondary educational system, something I have been talking and writing about for at least 15 years. 
  • The future of the Board itself, since an unacceptable result could provoke the Government to implement regulations sooner rather than later and eventually, if necessary, legislation that might deal with some of the problems that have arisen in this proceeding that are not simply attributable to the controversial withdrawal of the two essential institutional objectors.

Some key recent documents and links are provided below: 

BTW, virtually all of the above is also at stake in the K-12 hearing that is scheduled to commence on April 29, 2014.  AC has recently filed its statement of case for this hearing.  AC’s Statement of Case in the K-12 proceeding contains the following formulation of a “mandatory tariff”, which is notable not only for its breadth and scope but for its astonishing assertion about the burden on institutional objectors to prove that “every act of copying in K-12 schools during each year covered by the Proposed Tariffs was for an allowable purpose and was fair”.

10. A legal and factual issue in this proceeding will be the effect of the fair dealing exception under s. 29 of the Act. As of January 1, 2013, the Objectors have taken the position that all copying authorized under the Proposed Tariffs is “fair dealing” and they therefore are not obligated to pay a royalty to Access Copyright for any such copying. The Objectors have the legal burden of establishing that every act of copying in K-12 schools during each year covered by the Proposed Tariffs was for an allowable purpose and was fair. Access Copyright submits that the Objectors will be unable to discharge that burden. Simply, the copying at issue in this proceeding is not fair. Access Copyright bears the evidential burden in respect to one of the recognized fair dealing factors – the effect of the dealing on the published works. Access Copyright will discharge that burden by tendering the expert and factual testimony identified in Part V below.
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The K-12 proceeding will be defended by the school boards, which will be represented by experienced counsel.



  1. What would a professors'collective actually do? Surely the legislation, the SCC decisions and the use of Creative Commons licences and institutional repositories cover everything required?

    1. Given those professors would no longer have any reason for them or their associations (like CAUT) to be part of AC, it would further reduce any perceived pressure for institutions to sign onto any AC license.