Access Copyright's Post-Secondary School Tariff Filing

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Technology and Intellectual Property Bulletin
June 2010

On Saturday, June 12, 2010 the Copyright Board published Access Copyright's most recent tariff proposal in the Canada Gazette. This tariff proposal is entitled Access Copyright Post-Secondary Educational Institution Tariff, 2011-2013 and relates to the royalties that should be paid on an annual basis during the 2011 to 2013 tariff period by post-secondary educational institutions in Canada (except in Quebec) for the right to make reproductions of the literary, dramatic and artistic works falling within Access Copyright's repertoire. Access Copyright is a copyright collective that represents the interests of authors, publishers and other rights holders in such copyrighted works.

The Objection Period

Now that Access Copyright's proposed tariff has been published in the Canada Gazette, in accordance with section 70.14 of the Copyright Act, prospective users or their representatives have 60 days in which to file written objections with the Board. This means that any objections to the proposed tariff must be received by the Board by no later than Wednesday, August 11, 2010.

Access Copyright's Other Tariff Proposals

This post-secondary tariff is the fourth tariff filing made by Access Copyright. The first tariff related to the royalties that should be paid each year by Canadian elementary and secondary schools (except in Quebec) for the right to make photocopies of books, newspapers and magazines in Access Copyright's repertoire. The Boards' decision with respect to this tariff was issued on June 29, 2009. The second tariff, as yet uncertified, relates to the royalties that should be paid each year by Canadian elementary and secondary schools (except in Quebec) for the years 2010 to 2012. Access Copyright's third tariff proposal related to the royalties that should be paid by provincial and territorial governments for the reproduction of protected works. This tariff proposal, which will cover the 2005 to 2014 tariff period, is scheduled to be heard by the Board at a public hearing beginning on September 13, 2011.

The Proposed Post-Secondary Tariff

Access Copyright's post-secondary tariff proposal would authorize students and staff of universities, colleges and other post-secondary institutions in Canada ? such as continuing, professional or vocational education or training institutions ? to reproduce a broad range of published works that are commonly used in educational institutions. The tariff also makes specific provisions for copies made in any digital form, including optical and electronic formats.

a)  The Proposed Rate

For the right of authorization to make these copies, the tariff proposes an annual rate that is multiplied by the number of full-time equivalent students attending the institution. This proposed rate is $45 in the case of universities, and $35 for other institutions.

b) Who the Tariff Applies to

Pursuant to the proposed tariff, students and staff members are each subject to the tariff's limitations and reporting requirements. "Staff members" includes people in the following positions: instructors, lecturers, sessional lecturers, assistants to full professors, teaching and research assistants, invigilators and markers, librarians and library assistants, lab monitors and clinicians, counsellors, academic administrators and so on. Moreover, an educational institution may subcontract the reproduction of published works if appropriate records are kept and Access Copyright is notified of the subcontracting agreements.

c) What may be Copied

The proposed tariff relates to the making of compensable copies of published literary, dramatic and artistic works in Access Copyright's repertoire. Copies include reproductions made in any material form, such as copying by a reprographic process such as photocopying and xerography. The proposed tariff also covers a broad range of digital copying including scanning, printing, transmitting by email, storing a digital copy on a local storage device, posting or uploading to a secure network, and posting a link or hyperlink to a digital copy.

d) The Scope of Copying

The proposed tariff entitles an authorized person, such as a student or staff member, to copy for all purposes within or in support of the mandate of an educational institution. This copying is, however, subject to certain quantity restrictions. In this regard, authorized persons could only copy the following:

  • up to 10% of a published work in Access Copyright's repertoire;
  • up to 20% of a published work in Access Copyright's repertoire as part of a Course Collection (which is defined as assembled paper copies, and digital copies of published works that are emailed, linked, posted, uploaded or stored on a secure network that are required or recommended in the course of study); and
  • a copy of a published work that is an entire newspaper or periodical article or page, a single short story, play, poem, essay or article, an entire entry from an encyclopaedia, annotated bibliography, dictionary or similar reference work, and one chapter of a work (provided it is no more than 20% of the work).

e) Conditions Applicable to All Copying

The proposed tariff specifies that no copies of any published works covered by the tariff can be made available, distributed or transmitted to any person who is neither a student or a staff member of the educational institution. There may also be no repeated, systematic or cumulative copying of the same published work. These copies cannot be stored or indexed with either the intention or result of creating a library of published works. Finally, any copiers made must be faithful and accurate reproductions of these works.

f) Conditions Applicable to Digital Copying

The proposed tariff precludes post-secondary educational institutions from transmitting, making available, posting, uploading, and storing digital copies on any computer network other than a secure network. Secure networks are those that the school operates. If copies are stored on a secured network, they must be accessible only to authorized persons. As such, there can be no storing, transferring, posting and equivalent actions in a manner that makes the works publicly available over the Internet or other networks.

Lists of digital links, or stores of digital copy uploads are considered part of a Course Collection and are therefore compensable. This would likely catch services commonly used in an educational environment such as free public email services or Google and Yahoo groups to share materials.

Once an educational institution is no longer subject to the tariff, the institution must take measures to delete the published works from their digital storage capacities. Finally, the proposed tariff explicitly states that it does not authorize the circumvention of Digital Rights Management technologies in order to access works.

g) Enforcement

Pursuant to the proposed tariff, Access Copyright is entitled to conduct an annual bibliographic and volume survey of the uses made of its works by an educational institution. Each educational institution is required to ensure that all authorized persons cooperate in such a survey. During this survey, an educational institution must give Access Copyright right of access to its premises, including full access to its secure networks and Course Collections. If an educational institution refuses to participate in such a survey, the reprography licence obtained under the tariff will cease to have effect.
Finally, educational institutions would be required to keep records from which the royalties due to Access Copyright can be ascertained for six years. Reports on the number of full-time equivalent students for the previous academic year must be provided to Access Copyright by no later than October 15 of each year. The royalties paid annually to Access Copyright are payable in three equal instalments made by no later than February 28, June 30 and October 31 of each year.

*  Aidan O'Neill is a partner in Fasken Martineau's Ottawa office specializing in litigation before the Copyright Board on behalf of copyright "users". Working with Wanda Noel, an Ottawa-based expert in copyright policy and reform issues, he was co-counsel representing the coalition of provincial Ministries of Education opposed to Access Copyright's proposed elementary and secondary school tariff which was heard by the Board in 2007. Together, he and Ms. Noel are also acting for a consortium of provincial and territorial governments opposed to Access Copyright's government tariff proposal which will be heard by the Board in September, 2011.