Access Copyright Responds To York Pleading: Why Concerned Canadian Educators Will Be Considering Their Options

Here is Access Copyright’s Reply and Defence to York’s Counterclaim.  All I will say at this point publicly, now that the pleadings are complete, is more or less what I said in a recent interview for the Law Times (September 23, 2013 – not available online).

• York apparently has no intention of attacking AC’s pleadings and has, instead, “pleaded over” to a number of issues that might have called for a motion to strike.
•  York is apparently going to allow this lawsuit to morph into a de facto infringement action, even though AC has no legal status to bring an infringement action.
• York appears to have effectively conceded that the inevitable final tariff, when certified by the Copyright Board, will be “mandatory”. Its main defence in this litigation seems focussed on the notion that the tariff is merely “interim”. It does not confront the “elephant in the room” question as to whether any final tariff for reproduction of literary works – and a fortiori (even more so) an interim tariff – can be “mandatory” in the “one copy of one work” sense espoused by AC and endorsed by the Copyright Board. 
• York appears to be willing to let its fair dealing guidelines, which are arguably irrelevant to the “mandatory” tariff issue, be put on trial. If this happens, there is a danger that AC will ask for “findings of fact” that could, as such, be bullet-proof on appeal. 
• York appears to be willing to engage in prolonged, extensive, and expensive discovery that could be disruptive to a large community at York. Among other consequences of this strategy, the York University Faculty Association has posted that “On June 28, 2013, all YUFA members received a memo entitled “Document Preservation Notice” from Harriet Lewis, University Counsel. YUFA believes that this memo fear mongers in its lack of contextualization. Further, in several respects the memo overreaches in what it requires or potentially requires of our members. In response the YUFA Executive unanimously passed a motion to file a policy grievance.”

This lawsuit may go on for years, not counting possible appeals. Even if York wins the battle on the relatively narrow point of an “interim” tariff not being mandatory, the Canadian educational community’s war will be lost if the Copyright Board imposes a final “mandatory” tariff to which there has been no effective opposition.  It should be recalled that  AUCC abruptly withdrew its objections and withdrew from that hearing in April of 2012, leaving its member universities unrepresented and after having spent about $1.7 million.

While some institutions may be willing to leave their fate in York’s hands and support York’s strategy, other Canadian educational institutions ranging from K-12 to elite research universities may be very concerned about the way this litigation is unfolding and how they could be adversely affected by its potentially negative outcome. They will also want to consider whether they wish to operate under a Sword of Damocles while York proceeds in the manner it has apparently chosen. Thus, they will be considering their options.

HPK

The AUCC Finally Provides Fair Dealing Policy “Application Documents” for Canadian Universities – But Is More Homework Needed?

The Association of Universities and Colleges of Canada (“AUCC”) has recently circulated nine (9) “Fair Dealing Policy Application Documents” (see below) for recommended adoption by its members. According to Prof. Michael Geist, it is believed that “…consistent application of the guidelines will reduce the likelihood of infringement and enhance York’s defence against the Access Copyright lawsuit, suggesting that near-identical guidelines will be used across the country”.

However, in the true spirit of academia and more immediately regarding the inevitable concerns of various university counsel, librarians, copyright officers, etc., there are good reasons to question these guideline documents. This is especially so if they are intended to “enhance York’s defence against the Access Copyright lawsuit”. The stakes are very high. If York suffers a significant and irreversible setback in that litigation, many if not most of all the victories achieved in the Supreme Court of Canada and Parliament in the past decade by those who favour a “large and liberal” view fair dealing and “user’s rights” could effectively be lost.

Back in 2010, which was well before the 2012 Supreme Court of Canada (“SCC”)  “Pentalogy” cases and the enactment of Bill C-11, I pointed out that there were serious questions that needed to be asked about AUCC’s then very restrictive fair dealing policy. 

AUCC’s recent fair dealing policy documents come more than a year after C-11 got Royal Assent and the Supreme Court  delivered five landmark copyright case, two of which focused on fair dealing. These documents come long after many other universities have developed their own fair dealing policies, as is documented in a very useful study by Lisa di Valentino on various fair dealing policies across Canada shows with lots of links.

Prof. Sam Trosow has also recently referred to the importance of fair dealing guidelines and the new AUCC documents. These documents are not confidential and have been recently circulated to the university community in Canada. I have posted them and provided links below.

It will be interesting to see if these documents will be widely adopted in their current form. These nine documents taken together are very much more complicated than those of  U of T, or UBC  or Athabasca just to take some examples. Moreover, the U of T fair dealing guidelines, released last November 5, provides a useful “Step-by-Step Approach to Determining if the Copying or other Dealing is Permitted” and permits a degree of flexibility as to what constitutes a “short excerpt”. The UBC document includes a useful flow chart.  No such clear and helpful guidance is found in these AUCC documents, despite their great overall length.

Since discussion of these AUCC documents is inevitable and essential in the public interest, given AUCC’s position in the university community, here are some of the many questions that have already begun or are likely to arise: 

• Is the AUCC approach once again excessively cautious? If so, will wide acceptance and adoption by universities of these documents lead the Courts to conclude that the community’s own view of “fairness” is narrower than that of the Supreme Court of Canada and Parliament, with the result that these guidelines could become a ceiling rather than the foundation or ground floor of fair dealing?
•  Are these documents excessively complicated? Is it really necessary to have nine (9) documents for various groups and issues within the university community when the SCC made it quite clear by using words such as “symbiotic” and “tautological” that teachers and students are normally engaged in the same ultimate purpose – be it research or private study – and now, of course, the even wider purpose of “education”? Support staff and librarians are clearly part of the university community, just as the librarians who helped the lawyers do their research in the CCH case. Why do we need nine (9) documents? 
•  Why do these documents make concessions on fundamental legal issues that are far from being clearly resolved? For example, the AUCC documents state that “Any copying and/or distribution restrictions contained in a licence that permits access to a copyright-protected work will take precedence over the Fair Dealing Policy.” That is arguably far from clear under Canadian law, especially vis à vis students and professors who have not signed onto and may not be bound by the terms of these licenses. In fact, there is a 1986 Supreme Court of Canada decision, applied several times since then and in recent jurisprudence involving education, that affirms that when a statutory provision has been enacted “in the public interest”, then the “long standing rule against contracting out or waiver should apply to it”.  Given the Chief Justice’s resounding affirmation in the CCH decision of “users’ rights” and their importance, and Parliament’s decision to include “education” as one of the cornerstone fair dealing purposes, there would seem to be no doubt that fair dealing “user’s rights” were enacted “in the public interest”. 
•  Why would AUCC concede that “The Fair Dealing Policy does not permit the circumvention of digital locks to obtain access to copyright-protected works? In order to circumvent a digital lock it is necessary to obtain the permission of the copyright holder.”?  Unlike other exceptions in the Act that are expressly made unavailable where there is a TPM in place, s. 29 is conspicuously and eloquently silent on this point.
• Why would these apparently gratuitous concessions be made before these issues have been tested in the Courts?  Since Access Copyright seems determined to use its dwindling revenues to litigate in any event, there is no assurance that any concession on such issues will serve as effective appeasement – and such concessions could indeed backfire in subsequent or maybe even current litigation. 
• Why do these guidelines send those who may wish transactional licensing permission to an American collective? It should be noted that AUCC did attempt to address the AC’s position on transactional licenses in a costly, problematic  and not surprisingly unsuccessful bid for a remedy on this issue in the Federal Court of Appeal. 
•  Do these documents fully account for the SCC’s important ruling in the ESAC v. SOCAN decision last year that severely restricted the importance of the “communication right”, when it ruled that:

  Therefore, the term “communicate” in s. 3(1)(f), which has historically been linked to the right to perform, should not be transformed by the use of the word “telecommunication” in a way that would capture activities akin to reproduction.  Such transformation would result in abandoning the traditional distinction in the Act between performance-based rights and rights of reproduction.  There is no evidence either in 1988 or in subsequent amendments to the Act that Parliament intended such abandonment. [39]                    

• Do these guidelines fully account for the very empowering language from the Supreme Court of Canada over the past decade – language the resulted from some hard fought battles, all based on the law before Parliament added the word “education” in s. 29 of the Copyright Act?

  There are other questions that readily come to mind. For example:

• Do the documents adequately explain the hierarchy of “users’ rights” that the Supreme Court has so generously confirmed, and the explicit confirmation by the Court that one need look no further than the “large and liberal” s. 29 “fair dealing” provisions, which are “always available”, if these are sufficient?  In the few instances that educational institutions are provided with some additional rights via special exceptions, the additional conditions may create more problems than the exceptions would solve, e.g. the need for “book burning” of “lessons” at the end of each term. 
•  Do these documents adequately reflect the very significant inclusion in Bill C-11 of the word “education” in s. 29 – and without any definition, qualification or limitation as urged upon Parliament by Access Copyright and others but rejected?  The SCC rendered its landmark judgments last year based upon the old law – without the addition of the word “education” to s. 29. And Parliament added that word before it knew what the SCC was going to say. So – it is very clear that the addition of the word “education” can only be empowering and enabling and may even add substantially to the “users’ rights” now confirmed by the SCC to exist in Canada. 
• Also, why is there no discussion of the potential importance of the new “user generated content” (“UGC”) provisions in the Act, which almost certainly will empower students and quite possibly teachers to have much more scope to creatively copy in some respects than even the “large and liberal” fair dealing provisions? These provisions have far more potential than simply enabling the making of mash-up “dancing baby” and “cute cat” videos for YouTube, not that such activity is unimportant in its own right.

One of these “applications”, namely #8 concerning musical works and sound recordings, particularly caught my eye, given my previous incarnation as a clarinetist and musicologist. It’s hard to see how a “short excerpt” (i.e. 10%) of a typically three or four minute popular song will suffice for most of the necessary purposes in post-secondary music courses. The SCC has ruled that “It may be possible to deal fairly with a whole work.”  The popular song form would seem to be a prime example of where “a whole work” may need to be reproduced for one or more of the fair dealing purposes, as will often be the case even for much longer “serious” musical works.  10% of a three minute Beatles song doesn’t get one very far – i.e. 18 seconds. This simply doesn’t reflect the way that music needs to be taught – and students cannot possibly be expected to purchase copies of everything that they need to study. The SCC has made it perfectly clear that this is not necessary.  In fact, “sheet music” is generally now very difficult to obtain at any price. And, by the way, the explanation of the term of copyright in musical works that involve both words and music is simply wrong when the work is a “work of joint authorship”, e.g. Lerner and Lowe, Lennon and McCartney, George and Ira Gershwin, etc. In such cases, the term is the life of the survivor of the joint authors plus 50 years for the whole composition. 

The problem with any guidelines that set categorical bright line quantitative guidelines is that these can become ceilings rather than floors or foundations upon which to build.  And the problem with excessively restrictive guidelines is that courts may assume that, if these are what the community thinks is “fair” and acceptable, then maybe these are the outer limit of fair.

As I wrote on January 16, 2012:

It is also regrettable that, rather than educating its members about their rights and encouraging them to exercise their freedoms to their fullest extent, the AUCC imposes restrictions that could arguably result in a gratuitous concession of key users’ rights confirmed in the 2004 CCH v. LSUC decision. Above all, there is serious concern that these guidelines could become the new “normal” in Canada and thereby be adopted by the Copyright Board and even the courts as indicative of what constitutes “fair” dealing.

I have similar concerns today, only more so. This is because the question of “guidelines” and “best practices” and what is considered “fair” in the relevant community did not arise in the cases that led to the 2012 SCC decisions. But Access Copyright clearly wants such issues to arise in the York University litigation. When Parliament and the Supreme Court of Canada have spoken so clearly, eloquently and consistently, there is no reason to concede an iota of these victories in order to appease an aggressive collective that clearly has chosen to engage in denial and to litigate rather than to search for ways to be helpful and to innovate. So, hopefully, AUCC will not – however benign its intentions may be – play into AC’s hands on these all important issues.

And speaking of litigation, York has finally filed its long awaited Statement of Defence and Counterclaim, available here. The late filing, almost four months after the normal prescribed time limit, was done with the consent of Access Copyright. I and others will no doubt have some comments on this document in due course. York is being represented by the same firm that drafted the AUCC guidelines discussed above and that represented the AUCC at the ongoing Copyright Board hearing on the post-secondary tariff. The AUCC abruptly withdrew its objections and withdrew from that hearing in April of 2012, leaving its member universities unrepresented and after having spent about $1.7 million.

 

Ironically, the current litigation against York would not be happening as it now stands if AUCC had sought and succeeded in a timely judicial review application on the elephant in the room, namely the supposedly “mandatory” interim tariff that the Copyright Board imposed on December 23, 2010.  I wrote  in January of 2011 about the advisability of such an application. I believed then and still do now that such an application might have had a very good chance of success at that time.

So – it’s timely and, indeed, essential for the university community to look carefully at these AUCC guidelines and determine whether they raise more questions than answers and whether they may need more homework.

I should disclose that I have advised a range of educational institutions, including some universities, on closely related issues, including fair dealing guidelines, but my comments above are purely my own.

HPK

AUCC Fair Dealing Policy Application Documents

1_Application of the Fair Dealing Policy For Universities_General Application

2_Application of the Fair Dealing Policy for Universities To Teaching and Research by University Faculty

3_Fair Dealing Guidance for Students

4_Application of the Fair Dealing Policy for Universities To Library Copying

5_Application of the Fair Dealing Policy for Universities To Learning Management Systems

6_Application of the Fair Dealing Policy for Universities To the Production and Sale of Course Packs

7_Application of the Fair Dealing Policy for Universities To Administrative Copying July 14_2013

8_Application of the Fair Dealing Policy for Universities To Musical Works and Sound Recordings_July 24_2013

9_Application of the Fair Dealing Policy for Universities To Audiovisual Works

Access Copyright v. York University - York's Statement of Defence Delayed

All eyes are on still on York University to see how it responds to Access Copyright's controversial lawsuit
 
However, behind the scenes discussions between lawyers and other procedural steps may result in a lengthy wait before we see what York will actually do, and in particular how it will respond to AC's apparent "mandatory tariff" theory, to which many copyright experts do not subscribe. It is important to note that this is not a copyright infringement action as such. It is also worth remembering that AUCC did not seek judicial review (in layman's terms an "appeal") of the Copyright Board's controversial interim tariff upon which the York lawsuit is based. Had such review been sought and had it succeeded, which was a good possibility when it was still  timely in early 2011, this lawsuit as such would not have happened.

Further delays in filing York's statement of defence will require a court order, although such orders are routine if based upon consent.

HPK

Access Copyright v. York University - Next Step Due on Thursday, May 23, 2013

All eyes are on York University to see how it responds to Access Copyright's controversial lawsuit. 

York was given a routine 15 day consent extension of time to file its Statement of Defence.

By my calculation, we should see something filed on or before May 23, 2013.

If this case somehow does not go well for York, there could be an enormous negative potential for the entire educational establishment in Canada.

Therefore, given the public importance of this matter, I will likely have something to say about York's response in due course.

HPK

Copyright Board Refuses SOCAN Interim Tariff Application filed June 13, 2011

The Board has on February 17, 2012 issued its ruling in SOCAN’s application from more than 8 months ago for an “interim” tariff pursuant to s. 66.15 [sic] of the regarding, among other things, User Generated Content (UGC”) online.  Not surprisingly, it rejected the application for an interim tariff for predictable reasons that include the fact that the proposed tariff departs far from the status quo, that it is quite unclear who will be liable to pay in the case of UGC, and that “SOCAN has provided no economic rationale for the rates that it has proposed.”

On June 14, 2011,I blogged about SOCAN's application. I said at the time that:

SOCAN's proposed interim application appears at first blush to be even less reasoned and substantiated than Access Copyright's controversial interim tariff application that was approved on December 23, 2010 - just 18 hours before Christmas - on the basis of no actual “evidence”, such as an affidavit not based on hearsay that would pass muster in a court. That said, the absence of evidence and other major gaps in its case did not hurt Access Copyright - and no judicial review was sought, as I keep saying. See my blog around that time for numerous comments.

In this case, there could also be substantial legal issues involving jurisdiction and extraterritoriality, not to mention liability. And the expected legislation that will likely receive fast passage in this majority Government in the next year could profoundly affect this tariff - at least re UGC. This potentially and explicitly targets such entities as Netflix, Apple TV, Sony, Facebook, and last - but hardly least - YouTube - which is owned by Google. These are potentially fierce foes that may not be amenable to the vicissitudes of the Copyright Board process, which often include notoriously unnecessary and intrusive but still mandatory interrogatories and time frames that unpredictably range from delays of several years to extremely tight deadlines of a few days. They may not welcome an interim tariff on the basis that it “would give businesses some assessment of the royalty payments necessary to run their operations” as SOCAN’s press release suggests.

… Why would any rationale entity pay potentially millions of dollars in legal fees and disbursements to be required years from now to pay large tariffs retroactively for rights that that don't even exist in the USA - and now maybe have to pay an “interim tariff’ in the meantime that may not ever be effectively refundable?

What is most interesting, however, is the last paragraph of the Board's decision which I quote in whole, with emphasis added:

[19] Finally, largely for the reasons advanced by the Objectors, we conclude that there are no  deleterious effects that cannot be remedied through the issuance of the final tariff. For one thing, the delay at issue runs from 2007 to 2012 and the matter will proceed in a few months. In the event that SOCAN makes its case and that a tariff is certified in accordance with the terms it proposed, SOCAN will receive the quantum of royalties to which its members are entitled on a retroactive basis.

It is frankly very surprising that the Board has apparently already decided in advance that this tariff, with all of it uncertainties as acknowledged by the Board,  is going to be retroactive if it is eventually certified “in accordance with the terms it [SOCAN] has proposed.” In many cases, and particularly in this case where so much is uncertain, there might be good arguments against such a conclusion – or at least arguments that the retroactivity should be significantly nuanced. The fact that there has been no significant challenge to the Board’s position on its ability to impose retroactive tariffs reaching back several years does not mean that such as challenge is not possible and even viable.

There is a cite in footnote 10 to the controversial interim tariff in the Access Copyright Post-Secondary matter imposed by the Board on December 23, 2010, which was arguably quite vulnerable to judicial review, even though none was sought. The Board mentions this decision for the proposition that “the best way to achieve the purposes of an interim decision is to maintain the status quo while preventing a legal vacuum”.  In that instance there had been no tariff in place and the previous agreements had expired.

Nor is the there any discussion of whether or not the Board even has the jurisdiction to issue interim tariffs other than on terms identical with a previous about-to-expire tariff. Either nobody raised the issue – for which there are good arguments – or the Board considered that it was unnecessary to discuss it, given their decision to reject the application.


The hearing will begin on June 19, 2012. In the normal course of events, a decision will be announced 18 months or even more from then, based upon the current and recent pendency patterns. The Board currently has two important cases under advisement from April/May and June/July of 2010.

HPK

The ABC Copyright Conference - Access Copyright, Fair Dealing, the Interim Tariff, and Beyond

fThe University of Northern British Columbia (“UNBC”) hosted an excellent two day  conference on June 23 and 24, 2011  of the “ABC” copyright group (Alberta + BC), an informal coalition which comprises various professionals in post secondary institutions  whose jobs involve advising on copyright issues. I was honoured to be the keynote speaker.  An audio recording of my talk will be posted in due course.

Virtually all of the conference was devoted to Access Copyright (“AC”), and its currently  pending post secondary tariff at the Copyright Board that would impose a 1,300% increase over the current basic rate for the licensing of rights that don’t even exist in some instances under the Copyright Act, such as linking and displaying.

I am  glad that I was able to stay for the whole two days. It was informative - though rather sad - to hear from so many copyright professionals how difficult things have become for them in universities and colleges. Prof. Sam Trosow was also there and very active and constructive throughout. The following are some views that were presented and discussed by various participants both on the faculty and in the audience:

•    There is an unsatisfied need for more knowledge and information in the post secondary community about copyright generally and AC and the proposed post secondary tariff and the interim tariff in particular.
•    The AUCC/ACCC suggested fair dealing guidelines are seen by many as being unnecessarily far too conservative, restrictive and even harmful to faculty and students. There is concern that these guidelines, whatever the strategy behind them may have been, could seriously backfire at the Copyright Board and in the Courts by setting new, unnecessarily and unrealistically low and arbitrary thresholds that don’t reflect  actual post CCH norms and practices or any established legal basis, thereby rendering any uses outside of their narrow confines potentially compensable and/or even infringing. The CAUT guidelines are seen as only somewhat better, if only because they are phrased more positively rather than negatively - but reflect similar arbitrary percentage based premises. Here are the AUCC guidelines, and the virtually identical ACCC version.   
•    Many institutions may not adopt these guidelines.
•    Many institutions have not adopted the interim  tariff or will opt out as soon as they can this August.
•    There is a pervasive, unnecessary and frequently excessive concern with risk aversion - invariably based upon lack of information and even misinformation. The fact is that AC has never actually sued any person or institution in the academic community for anything. Moreover, it simply lacks any legal standing to do so on its own. Its test case litigation efforts have all failed - most notably CCH v. LSUC in the Supreme Court of Canada and the Laurier Office Mart case, in both of which it played a significant role. The more recent Staples/Business Depot case was launched with much fanfare, but soon afterwards was quietly dismissed on consent without costs. When the suit was started in 2007, it was described by the Toronto Star as “claiming $10 million in damages over unauthorized photocopying by store customers. The publishing organization said today that its lawsuit contains the largest claim to arise from copyright infringement of published works in Canada.”
•    Even if there were to be litigation - which can’t come from AC directly and would have to come from the copyright owner (i.e. the publisher and/or author) - a Court has the power and discretion to reduce statutory minimum damage awards to whatever amount it “considers just” - presumably down to nominal or even zero - where “there is more than one work or other subject-matter in a single medium”. Moreover, the refusal to issue a transactional license in situations where such licenses have been routinely issued for years could arguably result in any otherwise available remedies being denied.   
•    The near paranoia in some cases is not just coming from AC. It is coming, whether unintentionally or not, from AUCC and ACCC, for example via their suggested guidelines. An example of how such guidelines can be implemented in a manner that could predictably put an unnecessary chill into the minds of reasonable people can be found here in the Academic Policies and Guidelines of a prominent Canadian college updated March 30, 2011 which states:

        Faculty who see students using infringing copies of copyright protected works in class should advise students that:
        a) [s]he should not have made the copy,
        b) [s]he should refrain from making any future copies,
        c) materials protected by copyright cannot be copied unless permission has been obtained, and
        d) [s]he should purchase the book in future.
        Similarly, staff observing students making infringing copies of copyright protected works on public access photocopiers should similarly draw these facts to the attention of the student.
(Emphasis added)

•    If two panels of the Federal Court of Appeal ruling within weeks of each other in 2010 can reach apparently inconsistent conclusions on fair dealing, how is a community college teacher, no matter how well intentioned, supposed to judge on the spot what is “infringing”?  More to the point, since when is that part of his or her job? It goes without saying that item (c), if read literally,  is simply inaccurate because it disregards the doctrines of substantiality and fair dealing. Moreover, is a student required to buy every book he or she needs to copy from to undertake legitimate research and private study?   Obviously not.
•    This risk aversion is clearly having negative consequences. For example, there was a question about whether it is legal to put an actual book (not a copy of it or any part of it) on reserve when that book is  required reading. The answer, of course, is that it is perfectly legal. However, this is actually not such a surprising question, given the Copyright Board’s CMEC K-12 decision, and the current climate and interim tariff relating to AC’s pending post secondary tariff. However, it is disconcerting that a question such as this should even need to be asked on a Canadian campus. One wonders what users’ rights are being denied to faculty and students due to such misunderstandings on such basic points.
•    Moreover, some wondered to what extent they should monitor and police whether students are making photocopies of required reading material on reserve or keep an eye on other student copying activities. The view was voiced that university and college faculty and staff should not become “copyright cops”.
•    There was insufficient awareness that the Supreme Court of Canada has said quite clearly that an institution with an appropriate copyright policy in place is entitled to presume that its facilities will be used legally and is not required to prove that every person in every instance always refrained from  infringement. Arguably, too much control and supervision could make an institution more rather than less liable.
•    The Copyright Board’s K-12 decision as upheld by the Federal Court of Appeal was seen as unfortunate and there is considerable hope that it will be reversed in the Supreme Court of Canada. While this decision could be very harmful to the post-secondary educational sector if not reversed, it is arguable that its holdings about prescribed reading and multiple copies need not apply literally in the post secondary realm where the factual circumstances involving fair dealing are quite different overall and vary widely in different situations. This is especially so with respect to any attempt to impose any arbitrary distinction between required and supplementary reading material and any arbitrary exclusion of any multiple copies.
•    The interrogatory process in the current hearing has been incredibly onerous and there is consternation that the considerable efforts of most institutions have turned out to be unnecessary, since the Board recently ruled that “The associations should provide a reasonable amount of relevant information, from a reasonable number of institutions, preferably identified with the concurrence of Access.” The way things work at the Board, that would presumably have meant a representative sample of small, medium and large institutions. Ironically, it seems that most if not all members of AUCC and ACCC  first learned about this ruling here on this blog over a month ago on June 8, 2011.
•    The institutions still didn’t know how this ruling will impact on the need to do the considerable unfinished interrogatory work over the summer.
•    Those many institutions not relying on the interim tariff trust that the normal practice of providing of transactional licenses will be promptly restored.
•    There is considerable frustration by AC’s inability and/or unwillingness to adequately identify its repertoire and the Board’s apparent tolerance to date for this position - which has direct and daily implications for those who conscientiously try to secure necessary rights on a transactional basis, even when such licenses are available - which is allegedly generally not the case at present.
•    There was widespread belief that any tariff that is finally imposed by the Board must clearly allow an institution to operate outside of any tariff if it so chooses, because it should have other options for clearing the repertoire that it actually needs outside of a prohibitively expensive and restrictive blanket license.

My own observations:

It was apparent that many in the post secondary community want simple answers and bright lines. This is understandable. However, fair dealing by definition does not admit of such certainty.

The purpose of copyright law is not to prevent the normal operations of universities and colleges but rather to encourage such activity. The outer limits of fair dealing need to explored in good faith and courageously for the sake of Canada’ academic community; they should not be gratuitously conceded in an unnecessarily restrictive manner as a result of highly exaggerated and often unfounded concerns about risk aversion.

The duty of post secondary institutions is to serve the needs of their students and faculty. The Supreme Court of Canada has given this community a “large and liberal” conceptions of “users’ rights”. This should not be undone by AC or others who take positions that cut back on what the Supreme Court has said.

All in all, this as a very well organized conference with a very enthusiastic crowd of professionals who really want to respect both owners’ and users’ copyright rights. Contrary to AC’s overstated submissions at the Parliamentary hearings and elsewhere, all of these people and their institutions are quite happy to pay authors and copyright owners whatever amount is fair and reasonable.  However, they do not wish to pay too much and to pay too often for too little - and especially don’t want to pay for repertoire or rights that AC doesn’t have or don’t even exist - such as posting a link or displaying a work on a computer screen.

The enormous cost inflicted on the system by AC is reflected not only in tariffs that could soon exceed $80 million a year in the educational sector but in the enormous number of skilled people in these institutions whose jobs it is to provide answers that may be unknowable to faculty and administrators who are often misinformed in their belief that there is serious risk involved in normal activity and that there are bright line answers in all cases. The enormous direct and indirect costs of catering to AC could be better be used to provide more rather than less access to books, licenses, etc. and to hire more professors and staff to better serve the post secondary community.

There was growing interest and concern that AUCC and ACCC are taking positions, e.g. with their suggested fair dealing guidelines, that seem to be more favourable to AC than to the educational community.

Subsequent Developments:
   
The concern about how the AUCC/ACCC  guidelines, etc. could be harmful was nothing if not ironic in retrospect, given Prof. Trosow’s subsequent post on his blog after the conference. He points out that CRIA, the trade association that represents the world’s four largest record companies, is arguing in one of the forthcoming Supreme Court hearings for a very restrictive interpretation of fair dealing that could have “a profound impact on the direction and outcome of the Access Copyright Tariff proceedings” and that CRIA’s argument in the Supreme Court case is being made by the same counsel, namely Glen Bloom, who is currently representing AUCC in the Copyright Board post secondary tariff proceedings.
   
Michael Geist provides more detail on how CRIA’s position is an attack not only on fair dealing but the CCH case itself. Indeed, Michael states:

    CRIA proceeds to use its test ("if the framework for the construction of exceptions developed above is applied") on several occasions in the factum, displaying remarkable hubris of telling the Supreme Court of Canada that it is wrong and its manufactured test for fair dealing is right. CRIA's legal arguments are weak - they rely almost entirely on non-Canadian law since Canadian law clearly does not support its position - but in doing so, it is taking aim at fair dealing in an effort to revert back to a time when there was little pretense of trying to strike a balance in Canadian copyright law.
    (Emphasis added)

Indeed, it’s very hard to see how CRIA’s argument against fair dealing could succeed in the Supreme Court of Canada without seriously harming the universities’ position in the current Copyright Board proceeding.

Some Concluding Thoughts:       

Canada is completely out of step with the USA in most respects on these issues. I’m told reliably that American profs visiting in Canada can’t believe what they see on our campuses. They simply don’t need to think this way in the USA and they enjoy far greater academic freedom and access to educational material at far less cost than in Canada.

Above all, there is very little benefit in all this enormous expenditure of time, resources and money for actual authors, who all the fuss is presumably about.

Many, if not most, of the authors who do a get a cheque from AC will receive much less per year from AC than any of the lawyers working on these matters either for or against AC bill per hour. The legal bills for the post secondary tariff will presumably be several millions dollars this year alone. For a very large proportion of AC writer members, actual royalty receipts have fallen by 50% or more in the last year. A reliable attendee at AC’s recent AGM indicates that the median writer’s payment for last year was only $267.72 and the average royalty for AC authors was $438.36. Even the latter number is a fraction of the average hourly rate of the lawyers who are working on the current AC Copyright Board cases.

For 2011, AC has budgeted $2.2 million for “Copyright Board applications”, $1.3 for “professional fees”, and $6.3 million for “general and administrative” expenses. Expected licensing revenue is $27.2 million.

Whoever all of this is benefiting, it is certainly not the academic community or the cause of research, education and innovation in Canada.          

HK