University of Toronto’s Announcement re Non-renewal of Access Copyright License

Here’s U of T’s Press Release re today’s announcement that it will not renew its current license with Access Copyright.  I have added some highlight and a brief comment below.
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Access Copyright Negotiations

PDAD&C#30, 2013-14

To:	PDAD&C
From:	Cheryl Regehr, Vice-President and Provost
Date:	December 11, 2013
Re:	Access Copyright Negotiations

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PLEASE CIRCULATE WIDELY TO FACULTY MEMBERS AND STAFF

The University of Toronto announces that, despite good faith efforts by both parties, we have been unable to reach an agreement with Access Copyright for a renewal of the current License at a price that we believe fairly values the service that Access Copyright provides.

The University sought to obtain a License that reflected the significant evolution in copyright regulation that has occurred over the term of the current License, including the amendments to the Copyright Act in 2012, and the Supreme Court’s expansive approach to the user right of fair dealing in its 2012 decisions.  We also tried to obtain a royalty rate that took into account changing technology, increased availability of Open Access material, changing publishing practices, and changing user expectations.  

This outcome means that, in the year ahead, the University will be operating for the first time in many years without a License with Access Copyright.  The University, therefore, will continue to be diligent about compliance with copyright law, making proper use of other licenses, of fair dealing, and of other permissions.  We will continue to educate our faculty regarding copyright compliance, and will intensify efforts to make expert resources available through our Libraries to faculty so that they can make the widest possible range of excellent teaching and study materials available to their students in a manner that fully respects the law.  The University will also continue to monitor carefully Access Copyright’s litigation against York University and its application to the Copyright Board for a Tariff.

The University has indicated to Access Copyright that we will require an up-to-date list of copy shops that are licensed by Access Copyright for coursepack copying that will occur in 2014 and beyond.  We hope that Access Copyright will provide this information in the next few days.

The University of Toronto’s community consists of both users and creators of copyrighted material. The University remains committed to diligent compliance with the laws that address the rights of both.  In addition, the University spends over $27 million annually on Library acquisitions, including licensed material and electronic resources, and also supports scholarly publishing through the University of Toronto Press. 

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Brief comment – again, my own personally:

·          U of T is, once again, showing leadership on this issue. The license that is about to expire was controversial at the time it was announced – but was brilliantly strategic in its short duration and its expiry on December 31, 2013 unless renewed – which it won’t be.

·          U of T has also clearly reminded everyone that that there are other pending fronts and fora involving AC and universities. One is at the Copyright Board, where U of T recently filed an important and notable comment supporting Prof. Prof. Katz’s request for a reference to the Federal Court of Appeal. Another is the York University litigation. The whole educational community should be watching these situations very closely.

HPK

Access Copyright's Press Release re: "Canada's Writers and Publishers Disappointed by U of T and Western's Non-Renewal of Licence"

I shall quote in its entirety Access Copyright's Press Release from just over an hour ago, with some highlighting:

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December 11, 2013 13:29 ET

Canada's Writers and Publishers Disappointed by U of T and Western's Non-Renewal of Licence

TORONTO, ONTARIO--(Marketwired - Dec. 11, 2013) - Thousands of Canadian creators and publishers learned today that despite efforts to negotiate new and reasonable rates, the University of Toronto and Western University will not renew their current licences with Access Copyright.

"We are extremely disappointed," said Roanie Levy, Executive Director of Access Copyright. "Access Copyright's licence has enabled faculty to create efficient resource packages in both paper and digital form that are tailored to both their needs and those of their students. Millions of pages are shared in this way every year. Roughly 80% of the content copied comes from books. It is unlikely that access to these titles is licensed by the university through library or institutional subscriptions."

Instead of paying royalties to creators and publishers it is expected that these institutions will now rely on fair dealing guidelines, which are untested by law and closely replicate the scope of coverage in the Access Copyright licence. These policies represent a self-interested interpretation of what some in the education sector would like the law to be. Clearly fair dealing requires clarification. Renewing licences is difficult without fair dealing guidelines that work for everybody - educators, students, creators and publishers.

A comprehensive licence from Access Copyright provides pre-authorized permission, freeing faculty to systematically select and share resources without concern for copyright infringement, while ensuring appropriate rewards for the creators and publishers whose works are used.

Despite the enormous volume of usage of content in the Access Copyright repertoire, today's news means that, as of January 1, 2014, University of Toronto and Western University will end more than 20 years of cooperation with Canada's writing and publishing community.

For faculty who are accustomed to operating under Access Copyright licences, the termination will be accompanied by disruption and uncertainty. Faculty may be asked to change the way they share materials, or to assume greater personal responsibility for copyright, or to select different types of materials.

"Nobody wins in this scenario," said Levy. "That's why Access Copyright will continue its work in pursuit of a sustainable interpretation of fair dealing that benefits all those who read, write, teach and learn. Copyright should work for everyone."

There is much at stake for the future of Canada's classrooms. Access Copyright believes in a strong and vibrant culture of writing, publishing, reading, teaching and learning in Canada and is exploring new ways to meet the needs of educators and students in this new digital learning environment.

Access Copyright is a collective voice of creators and publishers in Canada. A non-profit, national organization, we represent tens of thousands of Canadian creators and publishers, and their copyright-protected work. Through agreements with sister organizations around the world we also represent the works of hundreds of thousands of foreign creators and publishers.

CONTACT INFORMATION

·     For media inquiries please contact:
Robert Gilbert
416.868.1620 x283 or [email protected]

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Some quick and personal comments that, as always, don’t necessarily reflect the views of any of my clients:

·        Re: ”It is unlikely that access to these titles is licensed by the university through library or institutional subscriptions”. 

In my view, it’s also essential to ask whether AC has an adequately documented and legally solid chain of title to a sufficiently substantial amount of the repertoire needed by Canadian universities in connection with their teaching and research activities in order to justify AC’s alleged entitlement to collect tens of millions of dollars a year from Canadian universities, backed up with a “mandatory” tariff.

·        

E       Re: “Instead of paying royalties to creators and publishers it is expected that these institutions will now rely on fair dealing guidelines, which are untested by law and closely replicate the scope of coverage in the Access Copyright licence.”  

In my view, after an unprecedented three major and consistent decisions by the Supreme Court of Canada on fair dealing in the short span of eight years, and the inclusion of the word “education” in s. 29  of the Copyright Act as an explicitly allowed fair dealing purpose, it can hardly be said that the law on fair dealing needs more “clarification” at this time. Just because certain parties remain in denial about this, it doesn’t follow that the whole post-secondary sector needs to wait for AC and a certain few others to get up to speed.

HPK

Copyright Board Denies Prof. Ariel Katz's Request for Reference to Federal Court of Appeal re "Mandatory Tariff" Issue

The Copyright Board has denied Prof. Ariel Katz's request dated November 6, 2013 for a reference of the "mandatory tariff" issue to the Federal Court of Appeal. The hearing for Access Copyright’s proposed tariff for 2011 – 2013 is still scheduled to proceed as framed on February 11, 2014.

Comments will follow in due course.

HPK

Copyright Board Says No to Access Copyright's Attempt to Consolidate 2011-2013 and 2014-2017 Proposed Tariffs

This is fresh from the Copyright Board. Comments to follow in due course.

HPK

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From: "Gilles.McDougall at cb-cda.gc.ca" <Gilles.McDougall at cb-cda.gc.ca>
Date: Wednesday, 4 December, 2013 1:08 PM
To: Ariel Katz <ariel.katz at utoronto.ca>, "Randall.hofley at blakes.com" <Randall.hofley at blakes.com>, "Nancy.Brooks at blakes.com" <Nancy.Brooks at blakes.com>, David Fewer <dfewer at uottawa.ca>, "smagu039 at uottawa.ca" <smagu039 at uottawa.ca>
Subject: Access Copyright Post-Secondary Educational Institution Tariffs, 2011-2013 and 2014-2017

RULING OF THE BOARD

The November 18, 2013 application by Access Copyright to consolidate the examination of the above-referenced tariffs is denied. The examination of the proposed tariff for 2011-2013 will proceed as scheduled, subject to what the Board may decide when ruling on the November 7, 2013 application of professor Katz for a reference. The reasons for this ruling are as follows.

First, the proposed tariff for 2014-2017 purports to licence the so-called making available right. Notwithstanding the arguments of Access Copyright, the Board concludes that this raises significant new factual and legal issues. Both proposed tariffs suppose that posting a link or a hyperlink to a digital copy is a protected use. To support the conclusion, Access Copyright argues that such posting triggers both the making available right (mentioned in the 2014-2017 tariff) and the reproduction right (mentioned in the 2011-2013 tariff). Access Copyright does not comment on what may happen were the Board to conclude that such posting triggers the first right but not the second. The making available right, if it exists here, apparently is a form of the right to communicate a work “to the public”: see s. 2.4(1.1) of the Copyright Act. If so, presumably the Board would then have to decide a mixed question of fact and law, i.e. what constitutes a “public” in the context of post-secondary education, a task that was not made simpler by Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37: see para. 27.

Adding these to the issues already raised by the 2011-2013 proposal would disrupt the current proceedings, slated for a hearing set to begin a mere two months hence. This, of itself, would be sufficient to justify denying the application.

Second, if any of the assertions of the objectors concerning past and continuing changes in the copying practices of potentially targeted institutions are correct, then certifying now, for 2014-2017, a tariff structured as Access Copyright proposes supposes far too great an ability to predict future copying practices. In such a potentially unstable market as this one, certifying tariffs based on what occurred, to the extent that this is indeed ascertainable, is (at least for the time being) preferable to certifying tariffs on the basis of what may happen. The continuation of the 2013 tariff on an interim basis pursuant to section 70.18 of the Act will provide sufficient certainty in the relevant market from January 1, 2014, until a tariff for the years 2014 and beyond is certified (assuming that the Board has the jurisdiction to certify such a tariff).

We note that some of the parties' pleadings in this application as well as in the related application seeking a reference to the Federal Court of Appeal have adopted a tone and aggressive style that is not appropriate in matters before this Board and fail to deal with the issues in an objective manner. The parties are requested to show greater respect and equanimity.

Gilles McDougall
Secretary General | Secrétaire général

Copyright Board of Canada | Commission du droit d'auteur du Canada
56 Sparks, Suite| Bureau 800
Ottawa ON K1A 0C9
Telephone | Téléphone 613.952.8624
Gilles.mcdougall at cb-cda.gc.ca