ACCESS COPYRIGHT’S Provincial Tariff – Less Than 1% Of What Was Asked For And Apparently Not Enough To Pay The Bill

Eleven years ago, Access Copyright filed a tariff seeking $15 for each full time equivalent employee from provincial and territorial governments. 

Its ship has now come home.  But spoiler alert: the ending was not a happy one for Access Copyright. The ship was not full of riches as expected. Instead, the Copyright Board has awarded only 11.56¢ - that's indeed ¢ and not $ and not a typo - per employee per year or 0.0077, i.e. less than 1%, of what Access Copyright asked for. That is for the period of 2005-2009. The rate goes up to 49.71¢ per employee for 2010-2014. But that is in turn only about 2% of the $24 per employee that Access Copyright asked for.

In the Board’s words:

·         The Board took several factors into consideration in determining those rates. First, the evidence shows that a significant proportion of government employees (about 60 per cent) do not engage in any form of copying.

·         Second, among the works that are copied by employees of provincial and territorial governments, some are not part of Access Copyright’s repertoire. Thus, such copies are not compensable under the tariff.

·         Third, a large portion of copying by government employees does not generate remuneration because the Board found that this copying was permitted under the fair-dealing provisions of the Copyright Act. The Board reached this decision by giving fair dealing, a user’s right, a large and liberal interpretation, in accordance with the Supreme Court of Canada’s decisions.

(highlight and emphasis added)

According to the Board:

Mr. Gilles McDougall, Secretary General of the Board, said that “The amounts of royalties that are likely to be generated by the Tariff are approximately $14,000 per year for the 2005-2009 period and $60,000 per year for 2010-2014.” These amounts do not account for the Governments of Ontario and the Northwest Territories who withdrew from the proceeding.

Assuming that this is accurate, the tariff will – over its life of ten years – generate only about $370,000 (five years @ $14,000 p.a. and 5 years @ $60,000 p.a.).  This is likely only a small fraction of the legal costs and disbursements incurred by Access Copyright in pursuing this tariff. 

Another number that is bound to loom large in this proceeding is the amount which the Government of Ontario agreed to when it settled with Access Copyright.  According to the Board:

On March 1, 2011, after it concluded a licence with Access, the Government of Ontario withdrew from the proceedings. (para 4)

The Board states regarding Ontario that:

The licence provided for a rate of $7.50 per FTE for 2010. For subsequent years, the rates increase yearly according to the Consumer Price Index. (para 33)

Questions may now be asked in Ontario and other governments at every level.

This is the second time in less than a year that the Board has issued a tariff in favour of a major collective that clearly will not cover the costs of obtaining it. The other instance was the Re:Sound “Pandora” Tariff 8 from last June that I have written about.

There can be little doubt that there will be collective consternation on this lovely May weekend and much cacophonous kvetching to come. It’s frankly rather difficult to see how Access Copyright can spin this event into a victory. 

I and no doubt others will have much more to say about this decision and its possible impact – which could be immense. 

Meanwhile, read all about it from the Board itself, including the 179 page decision, here.

I have other interesting material about the Board in the works, and all eyes now eagerly await a puff of white smoke announcing the appointment of a new Chair of the Copyright Board, since the post has been vacant for more than a year.  But meanwhile, have a nice weekend and curl up with the decision, as I hope to do.

HPK