Access Copyright Opt-Out List (revised): 34 and Counting - About 25% of Canadian Universities

Here's the latest Access Copyright Opt-Out list revised on August 2, 2011 and in alphabetical order based upon information provided by readers. Further updates are, of course, welcome at any time:

ACCESS Copyright Opt-out List

Opted-out (August 2010, January 2011 or August 2011)  

1.    Acadia University (NS)
2.    Athabasca University (AB) - as of August 31, 2011
3.    Carleton University (ON)
4.    Columbia Bible College (BC)
5.    Concordia University College of Alberta - January 1, 2011
6.    Dalhousie University (NS)
7.    Grant MacEwan University - January 1. 2011
8.    Holland College (PEI)
9.    Lethbridge College (AB) - August, 2010
10.    Memorial University (NL)
11.    Mount Saint Vincent University (NS)
12.    Mount Royal University (AB)
13.    NorQuest College (AB)
14.    Northern Lights College (BC)
15.    Portage College (AB) - August, 2010
16.    Queens University (ON)
17.    Quest University (BC)
18.    Royal Roads University (BC)
19.    Saskatchewan Institute of Applied Science and Technology  - January 1, 2011 (SK)
20.    University of Alberta (AB)
21.    University of Calgary (AB) - as of August 31, 2011
22.    University of Guelph (ON)
23.    University of Lethbridge (AB) - as of August 31, 2011
24.    University of Manitoba (MB)
25.    University of New Brunswick (NB)
26.    University of Northern British Columbia (BC) - as of August 31, 2011
27.    University of PEI (PEI)
28.    University of Regina (SK)
29.    University of Saskatchewan (SK) - as of August 31, 2011
30.    University of Waterloo (ON)
31.    University of Windsor (ON)
32.    York University (ON) - as of August 31, 2011


To Opt-out in 2012

33.    University of British Columbia (BC)
34.    University of Victoria (BC)

Some of these are colleges and not degree granting universities. But most by far appear to be the latter. This is a very substantial number of the degree granting universities in Canada that are members of AUCC outside of Quebec - at least 25% it would appear - ranging from very large to very small and of all shapes and sizes.

Access Copyright doesn't operate in Quebec, where its counterpart COPIBEC licenses post secondary institutions.


HK

Wire Report on the Music Canada (CRIA) "challenge of the scope of the Supreme Court's CCH precedent"

The Wire Report has a story (no paywall)  on the Music Canada (CRIA) factum in the forthcoming SOCAN “previews” case in the Supreme Court of Canada (“SCC”)  and how its  “arguments amount to a challenge of the scope of the Supreme Court's CCH precedent” and how, in turn,  it may affect the current post-secondary tariff proceeding in at the Copyright Board, where AUCC is the lead objector. The article points out that “Music Canada and the AUCC are both represented by the same lawyer, Glen Bloom, of Osler, Hoskin & Harcourt LLP.”

The article quotes Sam Trosow and Ariel Katz on the CRIA factum:

“CRIA is asking the court to significantly scale back the scope of fair dealing,” Sam Trosow, associate professor at the University of Western Ontario’s Faculty of Law and Faculty of Information and Media Studies, wrote on his blog late last month.

“What they propose is a general framework for exceptions,” Ariel Katz, a law professor at the University of Toronto, added in an interview.

“It’s broader than research. It applies to private study, review and all the other exceptions.”

I was asked by the Wire Report what would be the fallout be from a narrower fair dealing framework if Music Canada (CRIA) succeeds on the arguments in its SCC factum. I am quoted as saying:

“There could be much higher costs in the educational system—potentially tens of millions per year—and much less access to essential information in Canadian schools, colleges and universities than other competitive countries such as the U.S.A. enjoy.”

“It would be a self-inflicted serious wound for Canada—nothing less.”

It’s fair to say that fair dealing will be the main substantive issue in two forthcoming SCC cases - the SOCAN “previews” case mentioned above and the CMEC K-12 case, which will be heard on December 6 and 7, this year respectively. Fair dealing will also likely be the main issue in the current Copyright Board post-secondary case. The SCC will likely rule on these fair dealing cases by June or July of next year, based upon its normally very timely and extremely efficient record in rendering judgments.

The Copyright Board post-secondary case won’t likely be heard for a long time after that. Interestingly, the Copyright Board case involving Provincial and Territorial Governments Tariffs is scheduled to start October 2, 2012. That case, too,  could also be profoundly affected by the SCC’s judgments - since it would seem logical to assume that a lot of the copying going on inside provincial governments would qualify as “research” in light of the CCH decision.  One would assume that, in both of these pending Board cases, the evidence being collected and the arguments being framed will be suitable to fully assist and inform the Copyright Board with respect to any conceivable rulings of the SCC on fair dealing.

And then there’s that little question of what Parliament might do in the meantime...particularly with respect to “education”.


HK

Oh, to be in England - More Copyright Tourism on the Way?

 England has long been well known (some might rather say “notorious”) for its welcoming attitude towards defamation actions that would have less chance of success in other fora and where the defendant may have assets.. For example, because the USA has its famous “absence of malice” defence based upon the landmark New York Times v. Sullivan decision, which often makes libel actions by public figures much less likely to succeed in the USA than the UK, there has been a great increase of “libel tourism” in the UK courts - much to the delight of the UK defamation bar, one can assume.

George Lucas may have just brought about a similar result, even if for rather different reasons, for UK copyright lawyers. The UK Supreme Court (which was formerly known by that most illustrious of legal trademarks as the “House of Lords”) has just rendered an extraordinarily important judgment in Lucas v. Ainsworth [2011] UKSC 39

There are two parts to this decision. The first - which is getting all the attention - is the bad news for Lucas that the famous Star Wars Imperial Stormtrooper helmet is not protected by copyright in England because it is not a work of “sculpture.”  We would likely come to a similar conclusion in Canada, but through a very different reasoning process. S. 64 of Canada’s Copyright Act would appear to deal neatly with the issue.

The UK Supreme Court made some interesting observations on this issue, i.e.

    But it was the Star Wars film that was the work of art that Mr Lucas and his companies created. The helmet was utilitarian in the sense that it was an element in the process of production of the film.

And, in speaking of different periods of protection afforded to “different classes of work”:

Although the periods of protection accorded to the less privileged types have been progressively extended, copyright protection has always been much more generous. There are good policy reasons for the differences in the periods of protection, and the Court should not, in our view, encourage the boundaries of full copyright protection to creep outwards.

    (Emphasis added)

The emphasized statement may be of interest in Canada.

However, the good news for Lucas and the UK copyright bar is that Lucas can bring an action in the UK against a UK resident for infringement of US and not UK copyright law.

Thus, it would appear that a UK resident could be enjoined and found liable  in the UK by a UK court for activity in the UK that may be legal in the UK but which would result in copyright infringement in another country “ if the acts are anticipated to achieve fruition in another country”. The essential conclusion on the case is worth quoting in full:

109. There are no issues of policy which militate against the enforcement of
foreign copyright. States have an interest in the international recognition and
enforcement of their copyrights, as the Berne Convention on the International
Union for the Protection of Literary and Artistic Works shows. Many of the points
relied on by the Court of Appeal to justify the application of the Moçambique rule
in this case as a matter of policy would apply to many international cases over
which the English court would have jurisdiction and would in principle exercise it,
especially the suggestion that questions of foreign law would have to be decided. It
was also said by the Court of Appeal that enforcement of foreign intellectual
property law might involve a clash of policies such that a defendant may be
restrained by injunction from doing acts in this country which are lawful in this
country. But such an injunction will be granted only if the acts are anticipated to
achieve fruition in another country, and there is no objection in principle to such
an injunction. Nor is there any objection in principle, as the Court of Appeal
thought, to a restraint on acts in another country. Extra-territorial injunctions are
commonly granted here against defendants subject to the in personam jurisdiction.
The Court of Appeal also thought that it was relevant that there was no
international regime for the mutual recognition of copyright jurisdiction and of
copyright judgments, but this is no reason for the English court refusing to take
jurisdiction over an English defendant in a claim for breach of foreign copyright.

This part of the decision goes through a lot of UK common law, statute law, and EU law. Whether this decision might ultimately be followed in Canada is an interesting and potentially very important question - which I will leave for another day.

However, a couple of things are very clear. The long arm of US law just got a lot longer - with the considerable help of the UK Supreme Court. And UK copyright lawyers can expect a lot of new business.

I am delighted for my fellow feline followers at the IPKat, who as often is the case, brought this to my attention.

HK

http://www.supremecourt.gov.uk/docs/UKSC_2010_0015_Judgment.pdf

York University to Exit Access Copyright on August 31, 2011

York University - one of Canada's largest and finest (I disclose that I am Osgoode grad) post secondary institutions - has become perhaps the most prominent member of the list of those universities who are exiting Access Copyright as of August 31, 2011. According to a recent filing on behalf of AUCC at the Copyright Board:

Seventeen out of 77 AUCC members located outside Quebec elected to opt out of the Access tariff as of January 1, 2011 and instead to justify their copying practices by relying on their digital licenses, transactional permissions and exemptions under the Act.

A number of additional institutions ranging from very large to very small are taking the next opportunity to opt out, which is August 31, 2011. Other recently announced opt-outs include Waterloo, Queen’s, Calgary, Saskatchewan, and Athabasca University according to Michael Geist.

Here's York's announcement released today, July 25, 2011:

  

UPDATE ON COPYING AND COPYRIGHT 

York University’s licence with Access Copyright ends on August 31, 2011.

York University operated under an interim tariff for the Winter and Summer terms to assist members of the university community to transition to copying outside of Access Copyright’s licence.

In order to copy published materials after August 31, 2011 specific permission or a licence from the copyright owner is required. Alternatively, you may copy or post in compliance with York University’s Fair Dealing Guidelines http://copyright.info.yorku.ca/fair-dealing-guidelines/. 

Why is York University’s licence with Access Copyright ending? 

The changing landscape in technology has led to an increase of licensed electronic resources in the York University Libraries. There are also materials available through Open Access, Creative Commons, fair dealing and transactional licences. These changes mean that Access Copyright’s proposed licence, accompanied with a substantially higher tariff, became less useful. York University, along with other universities across Canada, supported the Association of Universities and Colleges of Canada’s opposition to this tariff increase. 

How do I get more information? 

Information sessions will continue to be held in July, August and September to assist members of the York University community with this transition. See www.yorku.ca/copyright for answers to frequently asked questions.

You can also contact Patricia Lynch, Copyright Officer, at copy@yorku.ca or (416)736-2100 ext. 40706. 

Who do I contact for assistance with my course materials? 

Textbooks for your classes can be ordered from York University Bookstore, http://www.bookstore.yorku.ca/. 

To develop customized course kits or to arrange permission for class handouts contact the staff at the Copyright Clearance Centre at ckits@yorku.ca.

For information on how your Departmental Liaison Librarians can help you select course materials see 
http://www.library.yorku.ca/ccm/Home/About/liaison-librarians.en.

York's announcement is significant. Many other prestigious institutions have already opted out. But, in this instance, it could well be said that size also matters.

It will be quite interesting to see which and how many more post secondary institutions join this trend (could it become a bandwagon?) in the next days, and what effect this will have on Access Copyright, AUCC, and the Copyright Board hearings. 

Many eyes may now turn south in Toronto - between Bloor Street and College Street for example - to watch for possible future interesting developments.

A list of all opt-outs is being compiled and I shall post as soon as available.

HK

A Kaddish for Ketzel, the Komposer

 

 Sivan Cotel

Say a Kaddish (Jewish prayer for the dead) for the elderly Ketzel, the Komposing Kat, who passed away recently in New York at age of 19, which is a pretty good age for a working feline mewsician. Nonetheless, her loss is still catastrophic.

Some may say simply that she “passed.” I must say that I can’t quite get used to the use of the term “passed” instead of “passed away”. I know what it means to say that someone “passed” from Grade 2 to Grade 3.  Or that someone “passed” their bar admission exams. Or that someone “passed gas”. Or has “passed” something else. I’m old fashioned. I  still believe that when someone or some cat has died, they have, at the very least, “passed away”. They have not just simply “passed”.

Ketzel lived on the upper west side of Manhattan, like many sophisticated New Yorkers, and is survived by her mother, Ms. Cheskis-Cotelm. According to Ketzel's New York Times obituary, Ms. Cheskis-Cotelm’s husband, and presumably Ketzel’s father, died in 2008. He was Morris Moshe Cotel, who retired as chairman of the composition department at the Peabody Conservatory in 2000 and became a rabbi. “He said she was his best student and her fame surpassed his,” Ms. Cheskis-Cotel is reported to have said concerning Ketzel, according to the Times.

The Times obituary explains Ketzel's contribution to the world of avant-garde composition with her post-Webern  "“exquisite atonal miniature", Piece for Piano, Four Paws and how Ketzel received her first royalty cheque for a performance in Rotterdam of her one and only but legendary composition in the amount of $19.72.

Such a mewnificent sum goes a long way for most cats in terms of sustenance, and is doubtless much more in both relative and absolute terms than many  ASCAP, BMI and SOCAN (the Canadian counterpart of ASCAP + BMI) members, who are less successful than Ketzel, may see for long stretches of time.

We don't know if Ketzel ever got to collaborate with Norah, the far younger, more famous and far more commercial but still incredibly talented composer/performer shown here:

Norah, who is the feline purrfessional equivalent of Lady Gaga. no doubt, could have purrformed Ketztel’s magnum opus quite well. Either Ketzel or Norah would clearly qualify as a “Magnificat”.

I don't know whether Norah belongs to ASCAP, BMI, or SOCAN (Canada's version of ASCAP + BMI). She has been viewed tens of millions of times on Youtube, as you can see from the above.

SOCAN is vigorously purrsuing a tariff at Canada's Copyright Board on behalf of Norah and many much less successful and less well-known composers for just such activities on YouTube.  So Norah should join up soon, and cash in on doubtless substantial kopyright royalties in the Canadian tradition in addition to her already thriving merchandising business (beware of counterfeit imitations and parallel imports).  Norah, also being a purrformer of some note, surely should join Re:Sound, Canada's neighbouring rights collective - which is rapidly CATtching up with SOCAN in terms of earnings.

I am pawsitive that my esteemed friend, fellow cat fancier, and the reigning Tom Cat of intellectual property law bloggers, the redoubtable Jeremy Phillips,  and his partner Merpel, master and mistress of the IPKat,  could give these creative and highly successful kats more learned and better documented kudos than I can, But I must try, however impurrfectly, to give them some measure of feline fame in the meantime.

So, let us paws at this time to remember Ketzel, the Komposing Kat, whose royalties may eclipse those of many other less successful members of various collectives. Sadly, she is probably now decomposing. 

However, may she not suffer the ravages of those savages who advocate for large and liberal notions of fur dealing and fur use. For the respect of copyright, may  her estate always be asked for all purrmissons, whether required or not. May her royalties live on for at least another 70 years, or nine lives, whichever is longer. And maybe even, as the late Jack Valenti might have said, “furrever less a day.”

HK

PS - The IPKat's tribute to Ketztel replete with links to recent IP Monkey business can be found here. 

Ariel Katz's Reply to Access Copyright's Submission re Transactional Licensing Issue

Here is Prof. Ariel Katz's reply to Access Copyright's submission on the alleged refusal by Access Copyright ("AC") to issue transactional licenses to post-secondary institutions that prefer to operate outside the supposedly optional interim tariff.

He goes into competition law at length by way of response to AC’s lengthy submission on competition law. However, he urges the Board to refrain from making any ruling that is broader than necessary.

He states:

43. I am mindful of the Board's rather unusual admonition in its order of June 17, 2011 (with respect to my “encouragement” that the Commissioner of Competition be requested, pursuant to s. 125 of the Competition Act to participate in the consideration of the issue of transactional licenses) that “parties will refrain from commenting in any way on the above referenced encouragement”, and I will refrain from pursuing this encouragement at this
point. [footnote omitted]

44. Nevertheless, the competition law issues arising from this application alone are clearly very substantial and controversial. Indeed, the great length, detail and intensity of AC’s protest concerning the applicability of competition law to the issues currently at hand confirm the essential importance of such issues and belie the validity of AC's blatantly defensive posture with respect thereto. Therefore, in order to avoid all manner of potential controversy and delay, I respectfully suggest that the Board issue the most narrow possible ruling in this instance that would avoid any reliance on the Competition Act and which could possibly be construed as a precedent in competition law or as a regulated conduct defence.

45. I respectfully believe that my suggested remedy at the end of this submission, which is intended purely and simply to give effect to what the Board considered to be essential features of the Interim Tariff in this matter, would be just such a narrow result. This proposed remedy would achieve a limited but essential purpose without raising enormous, unnecessary and premature competition law concerns and without implying a regulated conduct exception.

He proceeds to suggest a specific remedy as follows:

2.4 Upon request of an Institution, every rightholder whose works
are part of Access Copyright’s repertoire, shall grant to the

Institution a license to make a Copy or Copies of a specific work

or works of that rightholder:

(a) the license fees and relate terms and condition for

such a license will be negotiated in good faith between the

Institution and the rightholder or an agent for the

rightholder. For the purpose of this section, Access

Copyright shall not be regarded as an agent or a

rightholder;

(b) a rightholder shall not unreasonably deny such

request by an Institution; and

(c) Access Copyright shall not prevent, discourage or

otherwise interfere with the grant of such licenses, and shall

not attempt, directly or indirectly, to influence the license

fees negotiated or the related terms and conditions.

2.5 Without prejudice to any other remedy available to it, an

Institution believing that a request pursuant to section 2.4 has beenunreasonably denied, or that the rightholder has not negotiated in

good faith (for example, by not responding or delaying responses,

or offering, having regard to industry practices and the

rightholder’s licensing practices in other contexts, unreasonable

license fees and related terms and conditions), or that Access

Copyright acted contrary to subsection 2.4(c), shall notify the

Board that it was unable to obtain a license under section 2.4.

(a) Upon such notification, the Institution will be deemed to

have been granted a royalty free license to copy the

requested work or works;

(b) the license referred to in subsection (a) shall stay in

force until the Board rules otherwise, upon an application

by the rightholder, and after being convinced that the

rightholder negotiated in good faith, that the license had not

been unreasonably denied, and that Access Copyright did

not act contrary to subsection 2.4(c).

2.6 For greater clarity, for the purposes of sections 2.4 to 2.6, a

rightholder with respect to a work means any person who has

authorized Access Copyright to act on his behalf for the purpose of

licensing his work or works, irrespective of whether that person is

the owner of the copyright or any other interest in it.

He then points out why the Board has jurisdiction to issue such an order in order to give effect to its interim tariff, which he earlier points out was very much predicated on the assumption – based on AC’s own submissions – that transactional licenses would continue to be available as required.

58. I would note that the Board clearly has jurisdiction to issue such a ruling as suggested because AC is nothing more, for present purposes at least, than the voice and arm of its members and affiliates. If these entities and persons have presumably authorized AC to collectively administer their copyrights, and to take the position it is now does, they have placed themselves clearly and squarely under the Board's jurisdiction, and voluntarily acquiesced to be bound, (with respect to the works they empowered AC to administer) by whatever licensing terms and conditions the Board determines necessary.

Once again, this is an important submission that should be read by all copyright law and competition lawyers and particularly by anyone interested in how these two areas of the law interact. Other potentially interesting submissions will no doubt be filed later today.

HK

Access Copyright Responds to Motion and Submissions re Alleged Refusal to Provide Transactional Licenses

Access Copyright ("AC") has filed a lengthy submissions regarding AUCC's motion concerning the alleged refusal to provide transactional licenses.

Here's the public version of the submission and the public Appendix.

The existence of confidential material here certainly whets the appetite and makes one wonder why this material can be regarded as confidential. 

In a nutshell, AC denies that it ever issued transactional licenses before that would fall within the scope of  the post secondary licenses (i.e. one chapter, 10% of a work, etc.). That comes as a surprise to me - but let's see what the Board considers to be sufficient evidence on this point. Actual evidence of recent refusals was filed. AUCC and ACCC presumably have a chance tomorrow to file more evidence by way of reply, if they wish to do so. 

AC also denies all legal arguments and is apparently particularly  sensitive to the competition law points raised by Prof. Katz, which include refusal to deal, abuse of dominant position, and s. 45, which deals with potentially very serious offences.

One interesting aspect of AC’s argument involves the "refusal to deal" issue. AC relies on the arguably overly broad ruling in the 1997 decision Canada v. Warner Music, which held that Warner Records was not required to license its rival BMG to make records for inclusion in the catalogue of Warner’s mail order business that would then compete with the then very well known Columbia House record club, of which Warner was an equal partner with SONY. Indeed, BMG could obtain the Warner records it needed to fill out its catalogue at wholesale cost, but that was not good enough for BMG.

In that decision, the Competition Tribunal ruled that copyright licenses were not a “product” for purposes of the refusal to deal provisions in the Competition Act. That decision resulted from the Bureau's surprising decision take that case forward at all, and in turn to pursue the arguments that it did. Naturally, the Tribunal refused to let the case proceed - but arguably went farther than it needed to based upon unnecessary and frankly unfortunate arguments by the Bureau. Arguably, the Competition Tribunal reached the right decision but for the wrong reasons, which flowed from the then Director’s arguments. Naturally, nobody would argue that Ford should be forced to sell certain types of its car engines at its manufacturing cost to General Motors to make up for gaps in the latter’s engineering expertise or production facilities, or vice versa - assuming that these were the facts. However, that, in effect, was what the Director seemed to be arguing.

In any case, it would seem that the Warner decision is completely inapposite on the facts in this case.

AC's submission is lengthy - but its is a must read for both copyright and competition lawyers and especially for interested officials in the Competition Bureau, who may wonder whether the current proceeding is the right forum with the right evidence to deal with some rather important issues at the intersection of copyright and competition law. 

The other parties have until tomorrow - July 19, 2011 to respond to AC.

AC's submission is very heavy on competition law, which is interesting because AC submits that there are no competition law issues.

The Board has clearly indicated that it does not want to hear from the Commissioner of Competition until a much later time "such as once the evidence and arguments of the parties have been filed" at the least, in this case. It it will be interesting to see if the Commissioner should wish to become involved earlier. This may depend on how the Board rules on the current motion.

S. 125 of the Competition Act gives the Commissioner the power to "make representations to and call evidence before the board, commission or other tribunal in respect of competition, whenever such representations are, or evidence is, relevant to a matter before the board". This can be at the Commissioner's own initiative or at the direction of the Minister.

HK

$45 per student in Canada v. $3.75 per student in the USA? Why?

While the controversy over Access Copyright’s quest for a $45 per university student tariff  - a 1,300%  increase over the current basic rate  - marches on in Canada, another important case is unfolding in the USA.

The US Copyright Clearance Centre (“CCC”) has started a test case against Georgia State University. Here’s an article about that case pointing out the blanket license rate in the USA for a university such as Georgia State would be $3.75 per student per year. There are no additional per page costs for course packs, etc.  The only additional cost would be a one-time, first-year-only administrative charge of 20% of the total annual amount for the institution. The per student rate varies depending on the nature of the institution. However, my understanding is that the GSU rate is more or less in the middle of the range.

And yes - CCC does do transactional licenses, if the university prefers that route and does not need or want a blanket license. And many don't. More info is here.

Here’s the relevant portion of a recent article about all this by Tom Allen, who is President and CEO of the Association of American Publishers:

At trial, Tracey Armstrong, president and CEO of the Copyright Clearance Center, testified that anyone seeking to use copyrighted materials could obtain permissions on a case-by-case basis through CCC's Web site or subscribe to a "blanket license." [Editor's note: CCC is underwriting half of the publishers' legal costs in this suit.] When a university adopts CCC's blanket license, called the Annual Academic Copyright License Service, it covers all faculty, students, and others attached to the institution, including distance learners. It provides access to approximately 2.5 million titles, including books and periodicals. Prices are based on the number of students attending the institution and the proportion of those in graduate study. In combination, these two licensing services and parallel efforts by publishers are making the process of obtaining permission quite efficient.

What would be the annual cost to Georgia State University if it subscribed to a blanket Annual Academic Copyright License? The answer is $114,000 in rights-holder royalties per year plus a one-time, first-year-only administrative charge of 20% of that amount.

With an estimated 30,400 students at GSU, $114,000 works out to about $3.75 per student. About the cost of one medium-sized Starbucks drink.

So - why is AC asking for $45 per student in Canada for a license that costs about $3.75 more or less in the USA? And why will millions be spent to cut that amount more or less in half - with AUCC presumably declaring “victory”? Even if the tariff comes in at $20 per head, that’s more than five times the apparent rate in the USA.

While the details of the AC blanket license and the CCC license may differ, the overall bottom line is that a university license in the USA costs only as a small fraction of what AC is demanding. And the entire Canadian post secondary system in Canada is being put to the enormous cost and inconvenience of opposing this overreaching demand at the Copyright Board.

There are many questions that arise out of this apparently enormous overall discrepancy - but for the moment, one will suffice.

Why does such a discrepancy exist?

HK

The ABC Copyright Conference - Access Copyright, Fair Dealing, the Interim Tariff, and Beyond

fThe University of Northern British Columbia (“UNBC”) hosted an excellent two day  conference on June 23 and 24, 2011  of the “ABC” copyright group (Alberta + BC), an informal coalition which comprises various professionals in post secondary institutions  whose jobs involve advising on copyright issues. I was honoured to be the keynote speaker.  An audio recording of my talk will be posted in due course.

Virtually all of the conference was devoted to Access Copyright (“AC”), and its currently  pending post secondary tariff at the Copyright Board that would impose a 1,300% increase over the current basic rate for the licensing of rights that don’t even exist in some instances under the Copyright Act, such as linking and displaying.

I am  glad that I was able to stay for the whole two days. It was informative - though rather sad - to hear from so many copyright professionals how difficult things have become for them in universities and colleges. Prof. Sam Trosow was also there and very active and constructive throughout. The following are some views that were presented and discussed by various participants both on the faculty and in the audience:

•    There is an unsatisfied need for more knowledge and information in the post secondary community about copyright generally and AC and the proposed post secondary tariff and the interim tariff in particular.
•    The AUCC/ACCC suggested fair dealing guidelines are seen by many as being unnecessarily far too conservative, restrictive and even harmful to faculty and students. There is concern that these guidelines, whatever the strategy behind them may have been, could seriously backfire at the Copyright Board and in the Courts by setting new, unnecessarily and unrealistically low and arbitrary thresholds that don’t reflect  actual post CCH norms and practices or any established legal basis, thereby rendering any uses outside of their narrow confines potentially compensable and/or even infringing. The CAUT guidelines are seen as only somewhat better, if only because they are phrased more positively rather than negatively - but reflect similar arbitrary percentage based premises. Here are the AUCC guidelines, and the virtually identical ACCC version.   
•    Many institutions may not adopt these guidelines.
•    Many institutions have not adopted the interim  tariff or will opt out as soon as they can this August.
•    There is a pervasive, unnecessary and frequently excessive concern with risk aversion - invariably based upon lack of information and even misinformation. The fact is that AC has never actually sued any person or institution in the academic community for anything. Moreover, it simply lacks any legal standing to do so on its own. Its test case litigation efforts have all failed - most notably CCH v. LSUC in the Supreme Court of Canada and the Laurier Office Mart case, in both of which it played a significant role. The more recent Staples/Business Depot case was launched with much fanfare, but soon afterwards was quietly dismissed on consent without costs. When the suit was started in 2007, it was described by the Toronto Star as “claiming $10 million in damages over unauthorized photocopying by store customers. The publishing organization said today that its lawsuit contains the largest claim to arise from copyright infringement of published works in Canada.”
•    Even if there were to be litigation - which can’t come from AC directly and would have to come from the copyright owner (i.e. the publisher and/or author) - a Court has the power and discretion to reduce statutory minimum damage awards to whatever amount it “considers just” - presumably down to nominal or even zero - where “there is more than one work or other subject-matter in a single medium”. Moreover, the refusal to issue a transactional license in situations where such licenses have been routinely issued for years could arguably result in any otherwise available remedies being denied.   
•    The near paranoia in some cases is not just coming from AC. It is coming, whether unintentionally or not, from AUCC and ACCC, for example via their suggested guidelines. An example of how such guidelines can be implemented in a manner that could predictably put an unnecessary chill into the minds of reasonable people can be found here in the Academic Policies and Guidelines of a prominent Canadian college updated March 30, 2011 which states:

        Faculty who see students using infringing copies of copyright protected works in class should advise students that:
        a) [s]he should not have made the copy,
        b) [s]he should refrain from making any future copies,
        c) materials protected by copyright cannot be copied unless permission has been obtained, and
        d) [s]he should purchase the book in future.
        Similarly, staff observing students making infringing copies of copyright protected works on public access photocopiers should similarly draw these facts to the attention of the student.
(Emphasis added)

•    If two panels of the Federal Court of Appeal ruling within weeks of each other in 2010 can reach apparently inconsistent conclusions on fair dealing, how is a community college teacher, no matter how well intentioned, supposed to judge on the spot what is “infringing”?  More to the point, since when is that part of his or her job? It goes without saying that item (c), if read literally,  is simply inaccurate because it disregards the doctrines of substantiality and fair dealing. Moreover, is a student required to buy every book he or she needs to copy from to undertake legitimate research and private study?   Obviously not.
•    This risk aversion is clearly having negative consequences. For example, there was a question about whether it is legal to put an actual book (not a copy of it or any part of it) on reserve when that book is  required reading. The answer, of course, is that it is perfectly legal. However, this is actually not such a surprising question, given the Copyright Board’s CMEC K-12 decision, and the current climate and interim tariff relating to AC’s pending post secondary tariff. However, it is disconcerting that a question such as this should even need to be asked on a Canadian campus. One wonders what users’ rights are being denied to faculty and students due to such misunderstandings on such basic points.
•    Moreover, some wondered to what extent they should monitor and police whether students are making photocopies of required reading material on reserve or keep an eye on other student copying activities. The view was voiced that university and college faculty and staff should not become “copyright cops”.
•    There was insufficient awareness that the Supreme Court of Canada has said quite clearly that an institution with an appropriate copyright policy in place is entitled to presume that its facilities will be used legally and is not required to prove that every person in every instance always refrained from  infringement. Arguably, too much control and supervision could make an institution more rather than less liable.
•    The Copyright Board’s K-12 decision as upheld by the Federal Court of Appeal was seen as unfortunate and there is considerable hope that it will be reversed in the Supreme Court of Canada. While this decision could be very harmful to the post-secondary educational sector if not reversed, it is arguable that its holdings about prescribed reading and multiple copies need not apply literally in the post secondary realm where the factual circumstances involving fair dealing are quite different overall and vary widely in different situations. This is especially so with respect to any attempt to impose any arbitrary distinction between required and supplementary reading material and any arbitrary exclusion of any multiple copies.
•    The interrogatory process in the current hearing has been incredibly onerous and there is consternation that the considerable efforts of most institutions have turned out to be unnecessary, since the Board recently ruled that “The associations should provide a reasonable amount of relevant information, from a reasonable number of institutions, preferably identified with the concurrence of Access.” The way things work at the Board, that would presumably have meant a representative sample of small, medium and large institutions. Ironically, it seems that most if not all members of AUCC and ACCC  first learned about this ruling here on this blog over a month ago on June 8, 2011.
•    The institutions still didn’t know how this ruling will impact on the need to do the considerable unfinished interrogatory work over the summer.
•    Those many institutions not relying on the interim tariff trust that the normal practice of providing of transactional licenses will be promptly restored.
•    There is considerable frustration by AC’s inability and/or unwillingness to adequately identify its repertoire and the Board’s apparent tolerance to date for this position - which has direct and daily implications for those who conscientiously try to secure necessary rights on a transactional basis, even when such licenses are available - which is allegedly generally not the case at present.
•    There was widespread belief that any tariff that is finally imposed by the Board must clearly allow an institution to operate outside of any tariff if it so chooses, because it should have other options for clearing the repertoire that it actually needs outside of a prohibitively expensive and restrictive blanket license.

My own observations:

It was apparent that many in the post secondary community want simple answers and bright lines. This is understandable. However, fair dealing by definition does not admit of such certainty.

The purpose of copyright law is not to prevent the normal operations of universities and colleges but rather to encourage such activity. The outer limits of fair dealing need to explored in good faith and courageously for the sake of Canada’ academic community; they should not be gratuitously conceded in an unnecessarily restrictive manner as a result of highly exaggerated and often unfounded concerns about risk aversion.

The duty of post secondary institutions is to serve the needs of their students and faculty. The Supreme Court of Canada has given this community a “large and liberal” conceptions of “users’ rights”. This should not be undone by AC or others who take positions that cut back on what the Supreme Court has said.

All in all, this as a very well organized conference with a very enthusiastic crowd of professionals who really want to respect both owners’ and users’ copyright rights. Contrary to AC’s overstated submissions at the Parliamentary hearings and elsewhere, all of these people and their institutions are quite happy to pay authors and copyright owners whatever amount is fair and reasonable.  However, they do not wish to pay too much and to pay too often for too little - and especially don’t want to pay for repertoire or rights that AC doesn’t have or don’t even exist - such as posting a link or displaying a work on a computer screen.

The enormous cost inflicted on the system by AC is reflected not only in tariffs that could soon exceed $80 million a year in the educational sector but in the enormous number of skilled people in these institutions whose jobs it is to provide answers that may be unknowable to faculty and administrators who are often misinformed in their belief that there is serious risk involved in normal activity and that there are bright line answers in all cases. The enormous direct and indirect costs of catering to AC could be better be used to provide more rather than less access to books, licenses, etc. and to hire more professors and staff to better serve the post secondary community.

There was growing interest and concern that AUCC and ACCC are taking positions, e.g. with their suggested fair dealing guidelines, that seem to be more favourable to AC than to the educational community.

Subsequent Developments:
   
The concern about how the AUCC/ACCC  guidelines, etc. could be harmful was nothing if not ironic in retrospect, given Prof. Trosow’s subsequent post on his blog after the conference. He points out that CRIA, the trade association that represents the world’s four largest record companies, is arguing in one of the forthcoming Supreme Court hearings for a very restrictive interpretation of fair dealing that could have “a profound impact on the direction and outcome of the Access Copyright Tariff proceedings” and that CRIA’s argument in the Supreme Court case is being made by the same counsel, namely Glen Bloom, who is currently representing AUCC in the Copyright Board post secondary tariff proceedings.
   
Michael Geist provides more detail on how CRIA’s position is an attack not only on fair dealing but the CCH case itself. Indeed, Michael states:

    CRIA proceeds to use its test ("if the framework for the construction of exceptions developed above is applied") on several occasions in the factum, displaying remarkable hubris of telling the Supreme Court of Canada that it is wrong and its manufactured test for fair dealing is right. CRIA's legal arguments are weak - they rely almost entirely on non-Canadian law since Canadian law clearly does not support its position - but in doing so, it is taking aim at fair dealing in an effort to revert back to a time when there was little pretense of trying to strike a balance in Canadian copyright law.
    (Emphasis added)

Indeed, it’s very hard to see how CRIA’s argument against fair dealing could succeed in the Supreme Court of Canada without seriously harming the universities’ position in the current Copyright Board proceeding.

Some Concluding Thoughts:       

Canada is completely out of step with the USA in most respects on these issues. I’m told reliably that American profs visiting in Canada can’t believe what they see on our campuses. They simply don’t need to think this way in the USA and they enjoy far greater academic freedom and access to educational material at far less cost than in Canada.

Above all, there is very little benefit in all this enormous expenditure of time, resources and money for actual authors, who all the fuss is presumably about.

Many, if not most, of the authors who do a get a cheque from AC will receive much less per year from AC than any of the lawyers working on these matters either for or against AC bill per hour. The legal bills for the post secondary tariff will presumably be several millions dollars this year alone. For a very large proportion of AC writer members, actual royalty receipts have fallen by 50% or more in the last year. A reliable attendee at AC’s recent AGM indicates that the median writer’s payment for last year was only $267.72 and the average royalty for AC authors was $438.36. Even the latter number is a fraction of the average hourly rate of the lawyers who are working on the current AC Copyright Board cases.

For 2011, AC has budgeted $2.2 million for “Copyright Board applications”, $1.3 for “professional fees”, and $6.3 million for “general and administrative” expenses. Expected licensing revenue is $27.2 million.

Whoever all of this is benefiting, it is certainly not the academic community or the cause of research, education and innovation in Canada.          

HK

CBC CRTC Licence Renewal Hearings Postponed - Curiouser and Curiouser

There has been another Friday afternoon summertime Ottawa stunning announcement. This is from CRTC and it postpones the CBC licence renewal hearings:

This decision was made for two reasons. First, it was made further to a request by the Quebec English-language Production Committee (QEPC) for the same data that had been available for the group-based licence renewals for private English-language television, held in April 2011. The Canadian Media Production Association and the Documentary Organization of Canada supported the request.

Second, today the CBC/SRC advised that the federal government has not yet established its future operating budget. The CRTC believes it would be inappropriate to impose licence conditions given this uncertainty.

Consequently, the CRTC has decided to postpone the renewal hearing until June 2012. A revised notice of consultation will be issued shortly with new procedural dates.

This provides few answers and raises many questions. The original announcement of  the September, 2011 hearing and the schedule was also a Friday afternoon summer announcement not even a month ago on June 17, 2011 with a requirement for submissions to be filed by July 18, 2011. Those submissions are presumably almost finished under a very difficult timeline in mid summer - and may now have to be substantially reworked. Those in the arts community, who are major stakeholders here,  have very little resources to spare and hopefully the work now done won’t be wasted.

One clearly interesting aspect of all of this is that Konrad von Finckentstein, the current Chairman of the CRTC, may not even be there in June of 2012. His term is due to expire on January 24, 2012 and it is not known if he will be reappointed. His departure, if this happens, and the choice of his successor could have a profound influence on the work and even the role of the CRTC. This is a crucial time for the CRTC.

It is also a crucial and possibly even existential moment the CBC. The latter has some important critics in the private broadcasting realm with an openly declared agenda. Even its long loyal listeners and viewers are in many cases disposed these days to a “tough love” approach. The Government is in a cut back mode and the $1.1 billion annunal subsidy is a juicy target in the eyes of many. The term of its current President, Hubert Lacroix, is due to expire at the end of 2012. Under his watch, there has been no apparent change in direction from the controversial changes that have been and continue to be implemented on CBC TV and Radio.

The CBC has not had a full license hearing at the CRTC  for more than a decade. Here’s the WireReport report.

This is a classic Ottawa moment. Things seems to be getting curiouser and curiouser.

HK

PS - curiouser and curiouser indeed. Just tweeted about two new Postmedia stories re Konrad & CRTC:

Two @sarah_schmidt_ stories: "Outgoing CRTC head’s tenure ‘a mixed bag’: former commissioner" http://bit.ly/oCXcW3 & http://natpo.st/pljW5j

PS - I think that the headline writer's reference to "outgoing" must have been to KvF's personality... 

CMPDA rebrands to Motion Picture Association - Canada (MPAC)

A vigilant reader has pointed out that I missed another major name change in my post yesterday about CRIA’s change to MUSIC CANADA.

The Canadian Motion Picture Distributors Association (CMPDA) has changed its name, effective May 31, 2011, to Motion Picture Association - Canada. 

CMPDA has long been a powerful force in Canadian copyright policy. It was successful in convincing the Federal government to enact stronger anti-camcording legislation.

At its redesigned website, the Motion Picture Association - Canada describes itself as follows:

The Motion Picture Association – Canada serves as the voice and advocate of the major international producers and distributors of movies, home entertainment and television programming in Canada. The motion picture studios served by the Motion Picture Association – Canada are:

    Walt Disney Studios Motion Pictures
    Paramount Pictures Corporation
    Sony Pictures Entertainment Inc.
    Twentieth Century Fox Film Corporation
    Universal City Studios LLLP
    Warner Bros. Entertainment Inc.

(Emphasis added)

To its credit, The Motion Picture Association – Canada is not seeking to convey the impression that its mission is to protect the interests of Canadian producers and distributors. In fact, its new website states that it is “The Voice and Advocate for the Major International Producers and Distributors of Movies, Home Entertainment and TV Programming in Canada”.

A short article dated May 31, 2011 about this name change states that:

This should clear everything up: The Canadian Motion Picture Distributors Association, which has long lobbied north of the border on behalf of the major Hollywood studios, has changed its name to Motion Picture Association - Canada (MPAC).

The rebranding aligns the association more closely with its parent, the Motion Pictures Association of America.

As this article indicates, the acronym of the Motion Picture Association - Canada is MPAC. This acronym may also be familiar to Ontario real property owners who believe that their municipal tax assessment is too high and who have had the pleasure of appealing to the Municipal Property Assessment Corporation (MPAC), the URL of which is www.mpac.ca.

The URL for the Motion Picture Association - Canada (MPAC) is www.mpa-canada.org.

HK

CRIA Renames and Rebrands Itself as MUSIC CANADA: What's in a Name?

The Canadian Recording Industry Association (“CRIA”) has renamed and rebranded itself MUSIC CANADA. According to CRIA’s President, Graham Henderson, in a Billboard article:

"CRIA has been very focussed on copyright reform for many years and we fully expect that our efforts will be rewarded with a modern copyright framework in Canada," Henderson told Billboard. "But our role is also evolving and it was felt that in order to best support our members as they rebuild the marketplace, we needed an invigorated brand and direction.”

CRIA now has a newly redesigned website called www.musiccanada.com (with a dot-com and not dot-ca URL as Michael Geist was quick to tweet). The website is now very similar in key respects to that the RIAA, CRIA’s American counterpart. MUSIC CANADA says:

Music Canada is a non-profit trade organization that promotes the interests of its members as well as their partners, the artists.  Those members are:

EMI Music Canada
Sony Music Entertainment Canada Inc.
Universal Music Canada Inc. 
Warner Music Canada Co.

These are, of course, the Canadian subsidiaries of the worlds’ four largest multinational record companies. Few would regard these companies as “Canadian”, other than in name and for certain legal purposes. Their ultimate ownership and control lie elsewhere. 

MUSIC CANADA also says that “In addition to the members listed above, we also provide certain membership benefits to some of Canada's leading independent record labels and distributors which include....” a dozen far less well known companies. Nettwerk, the currently most prominent Canadian indie, is notably not on the list. Also absent are other important and even legendary Canadian indies, such as Anthem, Aquarius, and True North.

Some readers may recall that, in 2006, CRIA had to be told, under protest, to notify its “B Class” members that it would not be representing their interests in a certain Copyright Board proceeding. As the Federal Court of Appeal succinctly wrote: 

Following CRIA’s decision that it would no longer represent certain of its members (“the B Class members”) before the Board in this proceeding, the Board ordered CRIA to send a notice to its members saying that it had been instructed by the Board to advise them that it would not be representing the B Class members in the proceeding before the Board and that this was CRIA’s decision, not the Board’s. CRIA challenges the validity of this order on three grounds...

Third, CRIA submits that if, contrary to its submission, the Board has the power to make the kind of order that it made in this case, it exercised its power unreasonably. We do not agree. It was, in our view, perfectly reasonable for the Board to seek to assure itself that the B Class members were made aware that CRIA had decided not to represent them and that their interests could therefore not be taken into consideration when the Board rendered its decision on the proposed tariff.

It is extremely rare for the Board to get involved in the internal affairs of collectives - but it did so in this case. CRIA unsuccessfully sought reconsideration of the Board’s order and then judicial review, i.e. “appeal” in the Federal Court of Appeal. However, the Court upheld the Board and forced CRIA to appropriately notify its indie “B Class” members. Here is a much more detailed background to this decision from my blog in 2006.

CRIA’s rebranding efforts are hardly new.  Last year, I noted that:

It’s kind of interesting, though hardly surprising, that the so-called “Balanced Copyright for Canada” coalition has finally admitted that “thelead funding source is the Canadian Recording Industry Association” (i.e. CRIA).  

A few years ago at the Fordham conference, a prominent international content industry lobbyist, in a funny Freudian slip, referred to CRIA as the “Canadian Recording Industry of America.”

I wonder if the so-called “Balanced Copyright for Canada” coalition will admit that it is, at the very least, ironic that its name is arguably confusingly similar to that of the Balanced Copyright Coalition (“BCC”) (which I started in 2007) which morphed into the Business Coalition for Balanced Copyright (“BCBC”).

All in all, it will be interesting to see if CRIA’s new name, new website, and new dot-com domain name result in CRIA now being regarded as taking a greater interest in Canadian artists, Canadian labels, and Canadian public policy issues - particularly copyright law - from a significantly more Canadian perspective.

Other recent notable “rebranding” efforts in the collective and trade association world include:

• The NRCC (Neighbouring Rights Collective of Canada) rebranding itself as “Re:Sound”. Interestingly, the colon punctuation mark in the name prevents it from being used “as is” in any URL or filename.

• Then, of course, there’s CANCOPY, which became increasingly referred to as CAN’T COPY. Perhaps that was part of the reason why it changed its name to ACCESS COPYRIGHT, which some have possibly assumed to be an inspiration for the name for this blog.

What’s next?

HK

PS - CMPDA is now MPAC. See here.