Tuesday, June 14, 2011

Access Copyright & Transactional Licenses - The Goose and the Gander?

As I outlined here on June 9, 2011, AUCC filed a request to the Copyright Board to amend the interim tariff that was awarded to Access Copyright ("AC") just hours before last Christmas.  AUCC is concerned that AC is allegedly now refusing to issue "transactional" licenses, i.e. licenses for one or a limited number of works at a time. This precise point had been foreseen and an appropriate order had been sought by Athabasca University at the time of the submissions on the interim tariff. None of the institutional objectors sought judicial review of the interim tariff. However, now that a pattern of refusal appears to be emerging, the problem is being confronted. 

Less than 24 hours after AUCC’s request was emailed, the Board responded as follows.

From: "Gilles.McDougall@CB-cda.gc.ca" >
Date: Thu, 9 Jun 2011 14:04:39 -0400
Subject: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013) - Application to amend interim tariff


Parties have until Thursday, June 16, 2011 to reply to AUCC's application. AUCC can file a response by no later than Thursday, June 23, 2011.

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

This very tight schedule comes just as the participants are filing responses to interrogatories. Some participants have requested extensions of time from AC to do this. And it turns out that the responses of perhaps as many as 80% - 90% or so of the institutions were really not necessary.

This tight reply and response (or should that be response and reply?) schedule does not seem to allow much time to consider competition law issues - which readily come to mind in this situation. Competition law is rarely simple and straightforward - and jurisdictional issues are quite foreseeable in this instance. 

Sometimes, the Board moves quite slowly. But when it moves quickly, it does so very quickly. This file has been moving very quickly by any measure. 

From AC’s point of view, the need for speed is not obvious - since it has its interim tariff worth about $48 million over three years.

From the objectors point of view, a quick remedy regarding transactional licenses would be desirable to enable them to obtain licenses when but only when  necessary and to be thereby be compliant with copyright clearance principles - despite AC’s apparent efforts to frustrate such compliance and to renege on its long standing practice and that of the publishing trade generally of granting such licenses. I mention again but leave aside the interesting question of whether AC or a publisher could enforce any copyright rights against an institution who tried in good faith to get a transactional license but was refused in circumstances that are held to amount to abuse or misuse of copyright. 

The possible emergence of a major new issue that allegedly involves “gross abuse” and apparently involves potentially complex competition law issues could profoundly change the dynamic and the schedule of this file. Moreover, two cases will be heard by the Supreme Court in December that could profoundly affect the current state of the law on “fair dealing” as enunciated by the Copyright Board and the Federal Court of Appeal. The effect on this potential tariff could be enormous. The Supreme Court of Canada usually renders its judgments within about six months of a hearing. So - by this time next year, we should have a much more definitive and possibly quite different understanding of how fair dealing functions in the educational context.

The nature of this particular tariff application could profoundly change as a result of the Supreme Court decision and it may transpire that much work that was done in the meantime on this file could turn out to have been unnecessary or may need to be redone. 

Not to mention that we probably will have new legislation by a year from now that could also affect this proposed tariff. 

Maybe what’s needed now is an another quick “interim” decision requiring AC to issue transactional licenses. As they say, “what’s sauce for the goose is sauce for the gander”. And then, a halt in the proceedings until we have heard from the Supreme Court of Canada about a year from now. 



  1. Howard, what do you mean when you say "And it turns out that the responses of perhaps as many as 80% - 90% or so of the institutions were really not necessary"?

  2. "two cases will be heard by the Supreme Court in December that could profoundly affect the current state of the law on 'fair dealing'..."

    Are you at liberty to name these cases? I'm curious, for two reasons: I've been recently asked about fair-dealing court cases involving educators; and AC has just posted its own distinctive warning to educators about the AUCC fair-dealing guidelines; see

    with thanks for your always informative posts,

    - Mark A. McCutcheon
    Athabasca University