Monday, January 10, 2011

Early Fallout and Confusion from Access Copyright’s Interim Tariff in the Post-Secondary Sector

One had hoped to see reasons from the Copyright Board by this time regarding its unprecedented decision of December 23, 2010 to impose an Interim Tariff in favour of Access Copyright. The immediate effect of that decision will be to arguably make mandatory (for all practical purposes) a model voluntary agreement that had been virtually unanimously rejected by the post secondary community and which will result in ongoing payment requirements of about $48,000,000 over its expected three year minimum duration.

Here is a memo dated January 4, 2011 - i.e. 12 days after the decision - being circulated at a major Canadian university. I have redacted the identity information. Note the extreme restrictions on academic freedom that will harm both teachers and students:

From: XXXX
Sent: Tuesday, January 04, 2011 4:11 PM
Importance: High

XXXX University’s license agreement with Access Copyright has expired as of Dec. 31, 2010. Due to developments and negotiations occurring late in December, we were unable to inform the university community until today. Subsequently, we ask all faculty members, contract instructors, and anyone preparing course materials or other documents for teaching or research to observe the following due diligence in the teaching of their courses and otherwise dealing with copyright protected materials in any way:

1. As always, faculty should only provide links to source files in WebCT or other course web pages. Posting original digital copies (such as PDF files) within WebCT, without proper permissions, is a copyright infringement.

2. Any photocopying should observe the following provisions:
a. Made with the consent of the owner of copyright. Faculty are encouraged to find material for which the Library has a transactional licence for student use, or use open source material. Otherwise, faculty will need to contact the rights holder and negotiate use directly.
b. Made pursuant to an exception under the Copyright Act (e.g. fair dealing). This would apply to students making single copies of works considered optional readings for a course. This does not apply to required readings, copies of which would not fall under fair dealing. More information about fair dealing interpretations can be found at:
c. Made from public domain works (e.g. a work for which the author has been dead for more than 50 years).

3. There will be changes to the Library’s course reserves policy. Further information will be sent out from the Library shortly. 

At this point, we ask everyone to exercise extreme caution when dealing with copies of materials. Should you have any questions about your particular copyright situation, please contact 

More detailed information regarding copyright will be forthcoming in the very near future. We will be sending out regular notices and updates to the campus community over the next few months, as well as providing additional signs near photocopy stations and organizing information sessions.

Thank you for your kind attention to this most important matter.
Now, its not clear whether the official sending this memo even knows about the Board’s ruling of December 23, 2010 granting Access Copyright an Interim Tariff. The wording suggests that he or she does not - even though the memo is dated January 4, 2011. The memo doesn’t refer to the Board’s decision. 

On the other hand, it is also possible that this University is aware of the Board’s decision and intends to operate without dealing with Access Copyright, as suggested by the Board. If this is the case, the University takes that position that all staff must rely on;
1. transactional licenses
2. public domain
3. open source
4. direct negotiation with copyright owner
5. the public domain
6. Fair dealing

Note the extremely severe restrictions with respect to the University’s interpretation of fair dealing, which flow from the Copyright Board’s K-12 decision, as upheld by the Federal Court of Appeal (leave to appeal is pending in the Supreme Court of Canada):
This would apply to students making single copies of works considered optional readings for a course. This does not apply to required readings, copies of which would not fall under fair dealing.
(Emphasis added)

It’s difficult to imagine how it can be education as usual at a Canadian university with such restrictions - but this is what we now have as of January 4, 2011 at a major Canadian university. Anyone at American university would be astonished at such restrictions, which simply don’t exist in the USA.

The Board’s decision of December 23, 2010 imposes an interim tariff for universities that wish to or feel that they must deal with Access Copyright that presumably avoids some of these restrictions by offering what is supposed to be as much as possible the “status quo” licensing arrangements. However, the tariff imposed by the Board comes at a significant cost, which almost all of the Universities had rejected. 

It appears that there may be some considerable confusion at this point early in the new year about the Board’s decision of December 23, 2010 , which took effect on January 1, 2011. It is likely that few in the University community were aware of it and many may still be unaware. And many who are well aware of it are still pondering certain potentially very important implications of that decision. This is all the more difficult, since the Board has not yet released reasons for the decision. Releasing a major decision without reasons is unusual, though not surprising in this case, considering the haste of the process.

This also suggests that many may be unaware of the possibility of judicial review of the decision granting the application for an interim tariff  and the looming deadline under the Federal Courts Act for commencing such a process. An application for judicial review must be commenced within 30 days after the time the decision was first communicated by the Board to the party directly affected by it, unless the deadline is extended by the Court, which is unusual.  Anyone with any questions about potential judicial review should immediately consult with counsel as to the applicable deadline and procedure.

Successful judicial review could result in the Interim Tariff being set aside. It is clear from the material filed in opposition to the Interim Tariff by several participants that arguable grounds for judicial review could include:
Lack of jurisdiction; 
Lack of evidence; and,
Procedural fairness.



  1. There is unlikely to be an application for judicial review. AUCC is clearly happy with the outcome (status quo) and so even if someone else files, the likelihood of the interim decision being set aside is close to zero. And on the fair dealing interpretation, this does seem to reflect current Canadian law - even the SCC said it isn't open-ended and gave several examples (including scholarly articles) of the possible limits.

  2. Dear Anonymous (January 11 at 8:51 PM)

    AUCC has said that it “vigorously opposes” the AC application and said that the Board has “no jurisdiction” in this instance.

    No doubt, there are some members of AUCC that believe that the interim tariff makes their short term decision making process easier and may even be quietly relieved that AUCC lost is bid to stop the interim tariff. Perhaps they will simply pass the costs along to their students and be done with it. On the other hand, they may not have thought this through completely. Others disagree. The politics in this instance are much more complicated than the law, which is arguably quite straightforward.

    Even if AUCC retreats or reverses, which would clearly have political consequences inside the AUCC and beyond, it is only one of many potential applicants for judicial review.

    If there is an application to the Federal Court of Appeal by any party entitled to bring it, the Court will be concerned only with whether the Board erred, and if so, what consequences should follow, which would usually entail setting the decision aside. The Court will look only at the record before the Board and the Board’s decision and potentially its reasons, assuming that such reasons are provided sooner rather than later. These are legal questions. Politics are irrelevant.

    Based on the material filed, including that of AUCC, there is arguably a very strong case that an application for judicial review would succeed in this instance.