Ariel Katz: AUCC makes Right Diagnosis but Prescribes Wrong Remedy re Access Copyright Transactional License Issue at Copyright Board

Prof. Ariel Katz, who is Canada’s leading expert in the interplay between copyright, competition and collective administration issues, has filed a very interesting and important submission at the Copyright Board. Below is part of what he has to say, which is posted on his blog, where a link to his entire submission can also be found.

Essentially, Prof. Katz takes issue simultaneously with both Access Copyright for its “monopolistic excess, abuse, and inequitable conduct” and AUCC for diagnosing the problem but asking for a solution that could “inadvertently backfire and serve the interests of Access Copyright to the detriment of Canadian academic institutions.”

Here’s a taste - and I strongly recommend anyone interested in any or all of the post-secondary tariff hearing, copyright law, competition law, Access Copyright, collectives generally and the Copyright Board should read his whole submission:

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The AUCC’s Application draws a dim picture of monopolistic excess, abuse, and inequitable conduct.  It confirms that many of the concerns raised in the course of Access Copyright’s Application to grant the Interim Tariff have materialized.  The Board should intervene to rectify this problem.

Unfortunately, while the AUCC correctly diagnosed some of the problems, it asks to Board to prescribe the wrong remedy.  I am not persuaded that amending the Interim Tariff to require Access Copyright to grant transactional licenses on a per copy basis—as the AUCC requests—is the optimal remedy for these issues.  In fact, I am concerned that ordering Access Copyright to grant transactional licenses might actually—under some circumstances—aggravate the problem.  While I am confident that this was not the AUCC’s intention, I believe that the remedy that it proposes could inadvertently backfire and serve the interests of Access Copyright to the detriment of Canadian academic institutions.

Canada’s academic institutions need competitive alternatives to Access Copyright, not to enlarge its mandate.  They deserve to have the benefits of a competitive licensing marketplace, with competitive licensing practices, and competitive prices.  This marketplace is emerging and the Board should make sure that it continues to evolve despite occasional difficulties.  Extending the mandate of Access Copyright and installing it as the place to go for all licensing needs will not guarantee successful evolution of this emerging marketplace; it will ensure its stagnation.

Academic institutions need competitive alternatives to Access Copyright, not alternative offers from Access Copyright and ongoing expensive proceedings at the Copyright Board. ...

(emphasis added)

HK