Tuesday, February 19, 2019

Access Copyright Post Secondary Tariffs - 2011-2013 & to 2014-2017 - Coming Soon to a Campus Near You?

On February 6, 2019 the Copyright Board issued the following Notice:

File / Dossier: Access Copyright    Post‐Secondary Educational Institutions (2011‐2013 and 2014‐2017) 
Access Copyright    Établissements d'enseignement postsecondaires (2011‐2013 et
February 6, 2019
[CB‐CDA 2019‐007]
The Board wishes to consult Parties on issues of tariff wording before proceeding to certification. 
More specifically, the Board seeks comments on the two attached draft tariffs, for the periods of 2011‐2014 and 2015‐2017. The text of these tariffs is based, respectively, on the 2012 AUCC Model Licence (Exhibit AC‐2V), and the University Three‐Year Premium Licence (Exhibit AC‐23N). 
Portions of the tariffs in respect of rates and interest factors have not been included in the attached versions. 
Parties shall comment on the feasibility and clarity of the terms of the tariff. 
Comments shall be filed by no later than Thursday, February 28, 2019.

The Board has kindly provided me with a copy of the two “draft tariffs” referred to in the Notice. The draft 2011-2014 tariff can be seen here. The draft 2015-2017 tariff can be seen here.

The only two “parties” still on the record at this point are Access Copyright and one Mr. Sean Maguire, a self-represented student who has objected to reprographic and private copying tariffs over the years. All of the parties (most notably AUCC – now Universities Canada and ACCC - now Colleges and Institutes Canada) that might have brought adequate resources and expertise to the table to make this an adequately contested hearing have long since withdrawn for whatever reasons. So, with all due respect to Mr. Maguire, this is effectively a default proceeding with potentially complex ramifications flowing from this fact, as I have discussed.

The timing is interesting. The Board’s Notice suggests that it is ready to issue a decision soon. It should be noted that this proceeding began on June 12, 2010 – almost nine years ago – when the proposed tariff was published in the Canada Gazette.

This notice comes just about a month ahead of the March 5, 2019 Federal Court of Appeal hearing of the appeal from the controversial 2017 ruling in Access Copyright v. York University case, in which the Federal Court found against York on virtually all aspects of fair dealing and York’s curiously limited argument that an interim tariff cannot be mandatory. Ariel Katz has brilliantly and frankly looked at “Why did York choose to rely only on the narrow issue of the Interim Tariff and failed to make any submission on whether final tariffs would be mandatory?” 

The “mandatory tariff” issue could – and indeed should in my view – be the main issue in this appeal. More about that, an issue, with which I’ve been very involved, in due course.


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