Access Copyright's Pressure Tactics Confirmed following AUCC Withdrawal

Here's the latest letter dated April 25 from Access Copyright counsel to the Board. It follows AUCC's abrupt withdrawal and apparent abandonment of dozens of universities that are unhappy with what’s been happening at the Copyright Board.

This letter confirms that AC – with the apparent blessing, no less, of AUCC – is willing to let those institutions that sign onto the model agreement off the hook for further interrogatory burdens and a Board-ordered survey that is bound to be truly invasive.  However, for those that don’t want to sign it, there is an explicit threat to impose further interrogatory pressure and an undoubtedly very invasive survey. It’s ridiculous to refer to the “negotiation” of a survey when there is nobody there to “negotiate” for the dissatisfied universities. This is what will apparently unfold without opposition – unless opposition coalesces quickly.  It is difficult to understand how AUCC could have let this come to happen in a manner that is not simply a “surrender”, as Techdirt calls it, but is actually very helpful to Access Copyright.

There may be options for stopping these kind of pressure tactics, but this is not the forum for that discussion.

HPK

The Three-Step Test Red Herring is Starting to Really Smell

I posted earlier about Efforts Escalate to Reverse CCH v. LSUC and Mislead Canada's Parliament in Bill C-11 on the Three-Step Test.

Wonders never cease. Here's a letter from  the International Publishers Association (possibly inspired by some Canadian sources?), suggesting that Canada may face a WTO challenge over the fair dealing provisions in Bill C-11. HT to Michael Geist.

This is simply absurd. The fair dealing provisions of Bill C-11 are less permissive than those of the USA, which explicitly allows for multiple copies for classroom use.

Once again, here's the USA provision - which has been there since 1976:

 17 USC § 107 - Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

(highlight added)

Michael also reminds us that Canada would be in good company in such a challenge with South Korea and Israel, and of course the USA.

Ariel Katz and I dealt with this point in para. 24 our Supreme Court factum in the K-12 case, now under reserve. We said then the issue is “nothing but a red herring” and provided ample authority. It’s still a red herring and the smell continues to get even worse...

And by the way, lobbyists should always be careful what they wish for. If they really want to reopen Bill C-11, there will be lots of folks in line ready to fix up lots of other issues too - and with really good reasons, not specious and smelly red herrings.

HPK

AUCC Abruptly Exits from Post-Secondary Copyright Board Case – What’s next for Canadian Universities and Colleges?

In an astonishing move, the Association of Universities and Colleges Canada (“AUCC”)  announced yesterday on April 24, 2012 that it has withdrawn from the controversial Copyright Board Post Secondary tariff hearing in which, among other things,  Access Copyright  sought a 1,300% increase over its previously negotiated basic rate, proposed to be licensed and paid for non-existing rights such as linking and display, and demanded powers for  intrusive surveillance, auditing and reporting of the digital and email activities of universities, students and staff.

After taking all but a handful of its members by surprise by agreeing on April 16, 2012 to virtually all of the above (except with the never realistically serious 1,300% figure reduced to a still enormous 800% increase, meaning $26.00 a year per student), AUCC stunned a lot of people yesterday by simply withdrawing from the hearing. Period.

Here’s the text of the letter from its outside counsel, Glen Bloom:

On April 16, 2012 AUCC and Access Copyright agreed upon the terms of a model licence agreement which AUCC is recommending that its members outside Quebec enter into with Access Copyright. I enclosed a copy of the model licence agreement.

The licence agreement that an AUCC member enters into with Access Copyright based on the model licence agreement (the “Member Agreement”) will licence that member to copy published works within Access Copyright’s repertoire. A Member Agreement will be for a term commencing January 1, 2011 and terminating December 31, 2015. In view of section 70.191 of the Copyright Act, the Interim Tariff that issued in the proceedings before the Board concerning the Proposed Tariff, and the Proposed Tariff when certified, will not apply to any AUCC member who enters into a Member Agreement.

Access Copyright has also agreed with AUCC to support the position, if taken by an AUCC member that has signed a Member Agreement, that the member should not be required to further participate in proceedings before the Board concerning the Proposed Tariff, including participating in surveys or providing further information as to its copying activities.

In view of AUCC’s agreement with Access Copyright, AUCC hereby withdraws its objection to the Proposed Tariff.

The whole letter can be seen here.  Note the surprising concession, as highlighted, that there will be a certified tariff. Many, if not most, observers and stakeholders in the academic community might have expected that, if it had decided to settle, AUCC would have at least insisted that AC’s application for this tariff be dropped, at least as far as AUCC’s members are concerned. That is what a settlement usually involves.

It appears that the withdrawal of AUCC moved in the last few days from being merely a possibility to a "done deal" and that yesterday’s announcement came as complete surprise to many if not most AUCC members. They are now evaluating their positions.

Immediate questions that come to mind are these:

1. What is the status of AUCC members that object to the model license negotiated by AUCC, and who presumably don’t want to see an even worse mandatory certified tariff forced upon them?
2. Why didn’t AC drop the tariff application, as least as far as AUCC members are concerned – in exchange for the very sweet agreement that presumably many AUCC members will sign – especially those who yield to the “limited time offer”, which Prof. Katz has called an “an offer that they can’t refuse.”?
3. What is the status of the AUCC members that AC and the Board regard as effectively delinquent regarding what they consider to be satisfactory responses to the interrogatories? AUCC was supposed to respond to that issue yesterday, April 24, 2012.
4. What will happen to the survey that was left up in the air by AUCC? Will those members that don’t cave in right away to the model license be subjected to some unilaterally imposed survey?
5. In any event, were the parties going to agree to the methodology of a survey even before the Supreme Court rules in the K-12 case?  A serious issue in the K-12 case  at the Board level was that, as CMEC itself eventually admitted, the basic underlying survey should have been done “differently” in light of the CCH v. LSUC decision, which was not fully take into account when the survey methodology was agreed to.
6. Is AUCC simply walking away from the Copyright Board hearing, and leaving its dissatisfied members to cope for themselves?
7. Would the Copyright Board recognize these members as ongoing objectors, and if so in what manner?
8. If those members who don’t like the model agreement can’t somehow continue the fight at the Board, will the Board simply proceed in their absence and give AC all, or most,  of what it asked for on a mandatory basis?
9. What effect will the withdrawal of the first fiddle objector (AUCC) have on ACCC, which represents community colleges and which has let AUCC take the lead up to now? What about university teachers and students who are on the record but who have not been particularly active to date?
10. If this development is a sour “lemon” to some institutions (e.g.  the three dozen or so “opt-outs” and others that may not be satisfied with result), what options are open to them to turn can it into lemonade – maybe even “spiked lemonade”? This may well be a possibility if the AUCC’s abrupt departure clears the deck for a fresh and very vigorous approach by institutions that don’t want to sign the model license and may therefore decide to fight to the finish.

I have to say that I have been watching, studying, writing about and/or participating as counsel in Copyright Board hearings and court proceedings arising from them for about 25 years and I have never seen anything comparable to this situation.

Ariel Katz was the first to write about yesterday's developments. There was also a major story on April 23, 2012 on the widely read and influential Techdirt site. This issue is not going to go gently into that good night…

HPK