Thursday, December 12, 2019

Objections Filed re Access Copyright Proposed Post-Secondary Tariff for 2021-2023 and Update re 2011-2017

Some objections have been filed to the Access Copyright (“AC”) proposed Post-Secondary tariff for 2021-2023. These were due December 9, 2019.

Interestingly, by remarkable coincidence, the Board finally issued its decision in the more than nine-year-old AC Post-Secondary proposed tariff file for 2011-2017 only on Friday December 6, 2019 at the end of the day – the eve of the due date for objecting to the 2021-2023 proposed tariff. For the moment, suffice it so say that the decision is extremely expensive, extremely retroactive and, among many other things, it sidesteps any determination about fair dealing or whether tariffs are mandatory.
Access Copyright – Post-Secondary Educational Institution Tariffs (2011-2014 and 2015-2017)
Reasons (December 6, 2019)
Tariffs (December 7, 2019)
Fact Sheet (December 6, 2019)
The AUCC (now Universities Canada) withdrew from the proceedings and indeed withdrew its objections in 2012. I wrote about the AUCC model licence and its withdrawal at the time. The ACCC (now Colleges and Institutes Canada)  withdrew from the proceedings and withdrew its objections in 2013.  

After all of this time, and more than six years after this became an effectively default proceeding, the Board basically relies on the 2012 AUCC model licence and the 2015 Three- Year Premium licence. In the Board’s own words from its Fact Sheet:
The royalty rates in the tariffs are primarily based on two model licences negotiated with the Association of Universities and Colleges Canada (AUCC, now Universities Canada), which formed the basis for agreements that Access Copyright signed with universities – the 2012 AUCC Model Licence, and the 2015 Three-Year AUCC Premium Licence. The Board is satisfied that both agreements are reflective of a functioning market and market price.

I will have more to say about this recent decision in due course.

Meanwhile, back to the future proposed tariff. It would, of course, be useful if the Copyright Board were to post the new round of objections. As I have noted, the Copyright Board has spent $757,548.50 on website stuff since April 1, 2018 with no noticeable improvement to it. Publishing objections would be a very simple, useful and cost-free way to start the improvement process.

However, since this is unlikely to happen any time soon, I will do so here. These are, by their nature, public documents. I have thus far been provided with the following objections:

Athabasca University
Colleges and Institutes Canada
Mount Royal University 
Ryerson University
Simon Fraser University
University of Alberta, University of Calgary and University of Lethbridge
Universities Canada Objection
Universities Canada Letter
There may be others, which I’ll be happy to post if and when provided.


PS - I've just added Ryerson University on December 12, 2019 and Mount Royal University on December 13, 2019

PS - I've added Athabasca and COPPUL on December 18, 2019 and SFU in December 24, 2019

Wednesday, December 04, 2019

Some Thoughts While the Suspense Builds re Court & Copyright Board’s Rulings re Access Copyright + December 9, 2019 Deadline, My Big Fat Canadian Royalty Cheque and an Alternative Collective Of The Creators, By The Creators, and For The Creators

The deadline of December 9, 2019 is approaching in a few days for filing objections to Access Copyright’s proposed post-secondary tariff for 2021-2023.

Meanwhile, we wait with baited breath for a decision from the Copyright Board on the 9 year + old proposed original post- secondary tariff and a decision from the Federal Court of Appeal in the Access Copyright v. York University case that was heard nine months ago. Whichever side loses that court case is almost certainly going to seek leave to appeal to the Supreme Court of Canada. And if leave is granted, as would likely be the case, there will be potential interveners lined up to ensure that all the necessary arguments are fully, forcefully, and finally addressed on high.

A heads up on the release of Copyright Board decisions has traditionally been announced by email distribution to parties shortly in advance of a late Friday email to interested parties and posting on the Board’s website as a prelude to a Canada Gazette official publication the next day. Another Friday is about to unfold, just before the December 9, 2019 deadline for objecting to the next proposed tariff. Could this be the big moment we have all been awaiting for so many years?

Federal Court of Appeal decisions are usually announced shortly after 9 AM to an email distribution list to which anyone can subscribe (here’s how and a hint to the Copyright Board on how to do this without spending much if anything) and can come any day of the week. There is usually no advance warning, as there is with the Supreme Court of Canada and, very rarely, in the Federal Court. Interestingly, the Access Copyright v. York University case is the only exception I know of in the Federal Court where extraordinary advance warning was given of that extremely controversial decision.  Some aspects of the current situation recall the expectation in 2017 of a key court decision at about the same time as a deadline objection at the Copyright Board – and in the current situation the long overdue decision of the Board itself of a 9 year old proposed tariff. Is this going be in some respects like déjà vu all over again from 2017?

Speaking of Access Copyright and the holiday season, the annual cheques for members recently arrived, as they normally do in time for the holiday.  I am proud to say that I have been a fly on the wall member for several years as a member of Access Copyright and this year my big fat Canadian royalty cheque this year was enough for a nice lunch or so-so dinner for two with so-so wine at a so-so restaurant. I have some anecdotal basis to believe that my “Payback” royalty might even be a bit more than the average or median. But I’m sure not about to quit my day job in the hope of relying on my writing royalties.

The leads to the very serious point that collectives and Copyright Board tariffs are a very poor and inefficient way of rewarding actual creators. They are terrific at rewarding executives of the collectives and some of the lawyers who deal with these collectives’ cases at the Copyright Board and sometimes in the courts and too often do too little or nothing to prevent these cases from going on for many years. Very few individual creator members of any Canadian copyright collective make more in a year from their collective in royalties than even the most junior lawyer on a collective’s outside legal team bills for one hour.

In this context, I was reminded recently about an article I published 20 years ago , which raised some eyebrows and generated some legal opinions, proposing an alternative to Access Copyright – or CanCopy as it was then called, until use by myself and others of the rather irreverent nickname “Can’t Copy” likely helped to prompt a rebranding.

Here’s the Title and Abstract:
Copyright Collectivity in the Canadian Academic Community: An Alternative to the Status Quo?
In this article, the author makes a number of pointed criticisms of the activities and operations of CanCopy, which is the sole copyright collective to represent English-language publishers and authors in Canada. The author notes that professors, graduate students and others, who create large numbers of the publications used in colleges and universities, receive little in the way of compensation from CanCopy. To remedy the situation, it is suggested that academics in English Canada should take steps toward establishing a second reprography collective to compete with CanCopy.

Here's the article – which in many respects is still interesting and potentially applicable today or in the future. At some point, an alternative collective to Access Copyright and other existing collectives may be worthy of consideration. With today’s technology, such a development might be more obvious and practical to implement than it seemed 20 years ago.

Further and in the alternative, as lawyers sometimes say, the possible drama and disruption that hopefully won’t but very well may unfold as the result of the Copyright Board’s and the Federal Court of Appeal’s forthcoming decisions may call for legislation to finally fix some of the existential issues that Access Copyright has brought into focus and may even have created