On May 9, 2015, the Copyright Board published Access Copyright's most recent tariff proposal in the Canada Gazette. Access Copyright is the collective society that represents publishers and authors of books, magazines, journals and newspapers in Canada.[1] This new proposed tariff, the Access Copyright Elementary and Secondary School Tariff, 2016-2019, outlines the royalties Access Copyright would like to collect from the K-12 education sector for reproducing, communicating to the public by telecommunication and making available books, magazines and newspapers in 2016-2019.
Access Copyright has collected royalties for the reproduction of these works for many years, but this is the first time it has proposed a tariff for the K-12 educational sector that would cover the public performance right ‒"communication to the public by telecommunication" and "making available".
The Copyright Board held hearings to set the royalties for copying these literary works for the years 2005-2009 and 2010-2015. The Board is still considering its decision on the 2010-2015 royalty rates.
Who Can Object?
The prospective users of the tariff are K-12 schools, school boards, and Ministries of Education. Any of these organizations, or their representatives, may object to Access Copyright's proposed tariff.
When Must Objections Be Filed?
In accordance with section 70.14 of the Copyright Act, any objections to the proposed tariff must be received by the Copyright Board by no later than Wednesday, July 8, 2015.
The Proposed K-12 Tariff
This proposed tariff would entitle Access Copyright to obtain royalties from educational institutions for the reproduction, and communication, of the works forming part of its repertoire. The annual royalty proposed by Access Copyright is $13.32 for each full-time-equivalent student (or "FTE") in 2016, and adjusted according to the Consumer Price Index in each subsequent year. The royalties are to be paid in two equal semi-annual installments, which would be due by no later than April 30 and October 31 of each year.
Scope of the Proposed Tariff
Access Copyright's proposed K-12 tariff for the 2016-2019 period covers the reproduction and communication of published works for a not-for-profit purpose in support of the mandate of educational institutions. It permits educational institutions to distribute portions of works for educational activities, including tests and examinations, for communicating with, and providing, information to parents and guardians and other members of the community, and for on-site consultation in a library.
Pursuant to the proposed tariff, and subject to certain exceptions, educational institutions are generally permitted to copy up to 10% of a published work in Access Copyright's repertoire. This 10% limit may be exceeded in the case of an entire newspaper article or page, an entire single short story, essay or poem from a published work that contains other published works, one chapter of a book, and up to 100% of reproducibles such as blackline masters.
Musical works are subject to different copying limits relative to other published works. Moreover, educational institutions are permitted to copy musical works for students only if they have purchased a minimum number of copies of that work. An educational institution can make copies of a choral work, for example, only if the institution has purchased enough sheet music containing that choral work to supply at least 75% of the largest group of FTEs singing that work at any given time in any school year.
There are certain prohibitions set out in the proposed tariff requiring that no copies be made of certain works such as workcards, instruction manuals and teachers' guides, without prior written permission from the rights holders in these works. In addition, the proposed tariff prohibits any intentional cumulative copying from the same published work for one course of study in one school year or, over time, for retention in a library.
Access Copyright's tariff proposal also outlines specific requirements related to the retention and production of certain records and other information from which the royalties payable pursuant to the tariff can be ascertained. In this regard, Access Copyright has the ability, no more than once per school year, to audit these records. In the event such an audit discloses that the royalties due to Access Copyright have been understated by more than 10%, the reasonable costs of the audit shall be paid by the licensee.
Legal Questions
Access Copyright needs permission from copyright owners in order to collect royalties for the use of their works. In the past, Access Copyright has demonstrated to the Copyright Board that it has obtained from its affiliates the ability to license the reproduction of their works. However, this is the first time Access Copyright has proposed a tariff that covers the communication of works in the K-12 educational sector, and it has not previously proven to the Board that it has the rights it needs to do so. This is an important issue that would need to be raised in any Board proceeding, in order to make sure the K-12 educational system is not made to pay for a licence that Access Copyright is legally incapable of providing.
There will also be the perennial issue of fair dealing. How much copying can be considered fair dealing for the purpose of education, and therefore non-infringing? This is an issue that we expect will need to be addressed before the Board.
[1] Except in Quebec, where there is a different collective society, COPIBEC.
