Friday, September 23, 2011

Copyright Board Refuses to Require Transactional Licenses from Access Copyright or its Rights Holders

The Copyright Board today released a decision denying AUCC’s request to amend the interim Access Copyright post-secondary tariff to force Access Copyright to issue transactional licenses.

Prof. Katz, who is participating personally in this tariff proceeding, had proposed an arguably more subtle and effective remedy that would have seen the Board order any rights holder whose works are part of Access Copyright’s repertoire, rather than AC itself, to issue transactional licenses on reasonable terms.

Prof. Katz had also tried to suggest that the Board request the Commissioner of Competition to participate in consideration of the issue of transactional licenses pursuant to s. 125 of the Competition Act, but was ordered by the Board not to pursue this aspect further.

In any event, the Board denied both AUCC’s and Prof. Katz’s proposals. 

This decision is of potentially of great importance to institutions that have opted out of the interim tariff, but who may wish to seek an occasional “transactional license”, either from the rights owner of from Access Copyright, assuming that the work is in AC’s repertoire. The non-availability of such licenses would arguably tend to force institutions to stay within the framework of the supposedly optional interim tariff.

In any event, even without resolution of this particular issue and despite the alleged non-availability of these licenses any longer from either AC or certain of its publisher affiliates, about three dozen post secondary institutions have opted out of the interim tariff. These include most of Canada’s major research universities.
There is a great deal more of interest in this decision. The Board declined to address competition issues at this time.

If “anyone directly affected” by this decision wishes to seek judicial review, the deadline for making the application is October 24, 2011.


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