COPYRIGHT BOARD OF CANADA

IN THE MATTER OF the Proposed Tariff filed by The Canadian Copyright

Licensing Agency (Access Copyright) for the reproduction, communication to
the public by telecommunication or making available to the public by
telecommunication, in any form or by any method or process whatsoever, or
the authorization of any such act, in Canada, in 2021 to 2023, of works in the
repertoire of Access Copyright for the purposes of post-secondary education

OBJECTION

filed by

UNIVERSITIES CANADA

Access Copyright Post-Secondary Educational Institution Tariff, 2021-2023

OSLER, HOSKIN & HARCOURT LLP

100 King Street West
1 First Canadian Place
Suite 6200, P.O. Box 50
Toronto, Ontario M5X 1B8

John C. Cotter
Tel: 416.862.5662
Fax: 416.862.6666
jcotter@osler.com

Barry Fong
Tel: 613.787.1097
Fax: 613.235.2867
bfong@osler.com

Counsel for the Objector, Universities Canada

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Access Copyright Post-Secondary Educational Institution Tariff, 2021-2023

1. Universities Canada hereby objects to the Access Copyright Post-Secondary Educational

Institution Tariff, 2021-2023 (the “Proposed Tariff”) and does so without admitting that there is

any liability on institutions for the payment of royalties, and without admitting that any final tariff

that may be approved by the Copyright Board is binding on institutions (unless they elect to operate

under it) or that it is mandatory for institutions that do not wish to operate under it.

Introduction

2. Universities Canada (formerly the Association of Universities and Colleges of Canada)

was created in 1965 through special act of Parliament. It is a not-for-profit membership

organization that represents the interests of 95 Canadian public and private universities and

university-degree level colleges (77 of which are located in Canada outside of Québec).

Objections to the Proposed Tariff

3. Without limiting its right to raise other issues or grounds of objection or to rely on

objections made by any other party in this proceeding, Universities Canada objects to the following

aspects of the Proposed Tariff:

(i) General

4. In addition to the issues or grounds of objection set out in paragraph 11 and later,

Universities Canada relies on general grounds of objection set out below in paragraphs 5 to 10.

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5. Access Copyright is not the only source of the rights it seeks to license under the Proposed

Tariff. The Proposed Tariff, if approved, would create a competitive advantage for Access

Copyright, and disincentives for institutions to pursue alternate licensing arrangements or other

means to address copyright matters. As a result, the provisions of the Proposed Tariff are not fair

and equitable, and are not in the public interest. Tariff provisions should encourage and facilitate

choice by institutions in how they manage copyright, not restrict it.

6. By means of overly broad definitions in the Proposed Tariff, Access Copyright seeks to

expand the ambit of the Proposed Tariff to activities that are not properly the subject matter of

such a tariff.

7. Access Copyright is attempting through the provisions of the Proposed Tariff to:

(a) deal with enforcement matters; and

(b) obtain information and records for future tariff or periods,

neither of which are proper subject matter for a tariff.

8. The Proposed Tariff seeks to impose liability and obligations on institutions for conduct

and activities that is beyond their control, or over which they should not be required to attempt to

exercise control.

9. Many of the provisions in the Proposed Tariff are linked to whether a “Published Work” is

a “Repertoire Work”. As Access Copyright does not provide, or make readily available, a

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definitive up-to-date list of the “Published Works” it claims are in its repertoire, including the date

it claims each “Published Work” came into its repertoire:

(a) The Proposed Tariff would be administratively difficult or impossible to operate

under, in part because of the uncertainty as to whether any particular “Published

Work” is claimed by Access Copyright to be a “Repertoire Work” at all, or at any

particular point in time.

(b) It would create uncertainty as to whether the “Copying” of any particular

“Published Work” falls within the scope of the Proposed Tariff. Such uncertainty

provides an unfair advantage to Access Copyright, and is an example of a

disincentive to institutions pursuing alternate licensing arrangements or other

means to manage copyright.

10. The provisions of the Proposed Tariff are not practical for institutions, nor are they

reflective of the environments in which institutions operate.

(ii) Proposed Royalty Rate (Section 7)

11. Under subsection 7(1) of the Proposed Tariff, Access Copyright has proposed an annual

royalty rate of CAD$26.00 per full-time-equivalent student (“FTE”) for universities (and

CAD$10.00 per FTE for all other educational institutions).

12. Universities Canada objects to the proposed royalty rate on the basis that it is neither fair

nor equitable, and further, bears no relationship whatsoever to the value derived by an institution

that operates under the Final Tariff.

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13. In addition, the proposed tariff royalties per FTE are excessive having regard to all of the

circumstances, including the scope of Access Copyright’s repertoire and the practices of Canadian

universities and university-degree level colleges with respect to the copying of literary and other

works, and does not adequately reflect such things as:

(a) copying permitted under other license agreements with, or permissions obtained

from, copyright owners, their agents or other content providers (including, by way of

example, licenses negotiated with publishers or content providers by institutions or

consortia, such as the Canadian Research Knowledge Network);

(b) copying permitted under open access licenses for content which is commonly and

increasingly used in higher education and research; and

(c) copying pursuant to exceptions in the Copyright Act, including the fair dealing

exception and other explicit exceptions for educational institutions.

(iii) Structure of the Proposed Tariff

14. The Proposed Tariff has absolutely no flexibility. It is limited to a blanket license only, at

an annual per-FTE royalty rate, which is a tariff structure that is completely unbalanced in favour

of Access Copyright and does not reflect, adequately or at all, that Access Copyright is not the

only source of the rights it seeks to license. The structure of any Final Tariff should complement

the other options available to institutions for managing their copyright obligations and should not

be structured so as to create disincentives for institutions to pursue alternatives. Rather, it should

be structured in a way that provides institutions with choices and facilitates alternatives such as

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other licensing arrangements. Notably, the Proposed Tariff does not include options in addition to

a blanket license, such as the option for transactional (i.e., pay-per-use) licenses as tools that

institutions can opt to use to comply with their copyright obligations.

15. The licensing model proposed by Access Copyright hinders the ability of each institution

to select the licensing arrangement(s) best suited to its practices for copyright compliance and the

fulfillment of its educational and research mandates.

(iv) Payment (Section 8)

16. The Proposed Tariff seeks royalties paid on a calendar year basis rather than an “Academic

Year” basis. This is inconsistent with the way institutions operate and would create operational

and other issues for institutions.

(v) General and Additional Provisions (Sections 4 and 5)

17. Universities Canada objects to the prohibitions set out in sections 4 and 5 as being

unreasonable, overly broad and not appropriate subject matter for a tariff. Moreover, these

prohibitions, like other provisions of the Proposed Tariff, do not reflect, adequately or at all, that

institutions may otherwise have the right or authorization (e.g., license agreements with, or

permissions obtained from, copyright owners, their agents or other content providers; exceptions

under the Copyright Act, including fair dealing) to engage in the conduct Access Copyright seeks

to prohibit.

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(vi) Reporting Requirements (Section 6)

18. Universities Canada objects to the reporting requirements listed in section 6 of the

Proposed Tariff which would impose overly onerous record keeping and reporting obligations on

institutions.

19. The onerous nature of the reporting obligations is compounded by the overly broad

definitions of “Copy” (which includes activities that are not within the exclusive rights of

copyright owners or do not otherwise engage the exclusive rights of copyright owners by reason

of exceptions or limitations on copyright in the Copyright Act) and “Course Collection” as set out

in section 2 of the Proposed Tariff.

20. Further, the reporting requirements in the Proposed Tariff go well beyond the amount of

information reasonably required by Access Copyright to properly distribute royalties collected

under the tariff to the copyright owners that it represents.

21. Also, the Proposed Tariff improperly seeks this information regardless of whether the

“Copying” of the particular “Published Works in the Repertoire” is otherwise licensed or covered

by an exception under the Copyright Act such as fair dealing.

22. In addition, the onerous nature of the reporting obligations is completely inconsistent with

the blanket license sought by Access Copyright in the Proposed Tariff.

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(vii) Provisions on Surveys, Royalty and Compliance Audits (Sections 13 and 14)

23. In addition to the onerous reporting requirements, Universities Canada objects to the survey

and audit provisions set out the Proposed Tariff. Under section 13, Access Copyright seeks the

right to conduct a bibliographic and volume survey of individual institutions once a year. There is

no justification for any survey requirements. To the extent that Access Copyright seeks this

information for the purposes of future tariffs, it is not appropriate to provide for the collection of

such information in the Proposed Tariff. Under section 14, Access Copyright’s proposed audit

provisions mandate the retention of an institution’s records for a period of six (6) years from the

end of the applicable academic year to which they relate. Both the survey and audit requirements

propose to grant Access Copyright right of access throughout an institution’s premises and full

access to its “Secure Network” and all “Course Collections” (as those terms are very broadly

defined in section 2).

24. As with the reporting requirements sought by Access Copyright and discussed above,

sections 13 and 14 of the Proposed Tariff are completely inconsistent with the blanket license

sought by Access Copyright for which only the number of FTEs is required to calculate royalties.

As a result, seeking any other information by means of surveys or audits is unwarranted,

inappropriate and overreaching.

25. These provisions are unduly invasive, impractical, burdensome and costly for institutions.

By way of example, the retention of the complete contents of an institution’s “Secure Network”

and all “Course Collections” for even a single academic year would require the storage and

archiving of a massive amount of data, most of which would be completely unrelated to and

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unnecessary for Access Copyright’s purpose of administering the approved tariff. Further, the

proposed provisions impose an impractical burden on institutions by requiring that they ensure all

“Authorized Persons” (which includes students and staff members) will cooperate fully with

surveys and audits conducted under the unreasonably broad survey and audit provisions of the

Proposed Tariff, which do not specify any parameters.

26. In addition to the practical difficulties of institutions complying with and ensuring the

compliance of others with the proposed survey and audit provisions, the access sought by Access

Copyright to conduct the surveys and audits has the potential to contravene provincial and federal

privacy laws, breach faculty collective agreements, and violate principles of academic freedom.

These concerns exist irrespective of subsections 13(4) and 14(9) of the Proposed Tariff.

27. The problematic nature of sections 13 and 14 of the Proposed Tariff are compounded by

the draconian penalty provisions in subsections 13(3) and 14(7). Access Copyright should not

have the right to terminate the license granted under the Final Tariff based on non-compliance with

either the survey or audit provisions, including that it should not be able to unilaterally decide

whether an institution has “unreasonably refused” to participate in a survey or that it has

misreported its records.

28. Further, Access Copyright is attempting through the provisions of the Proposed Tariff to

address enforcement issues, which is not proper subject matter for a tariff.

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(viii) Attribution and Notification Provisions (Sections 11 and 12)

29. The Proposed Tariff imposes an attribution requirement under section 11 for all copies

made pursuant to it and a notification requirement under section 12 requiring institutions to affix

notice of the terms of the tariff, among other things, within the immediate vicinity of every

“machine or device used for making, viewing or transmitting Published Works” located on its

premises.

30. Universities Canada objects on the basis that these provisions would impose an impractical

– if not impossible – burden on institutions, particularly in the case of “Digital Copies” and

machines or devices that can be used to make, view or transmit “Digital Copies”.

31. As with other requirements imposed by the Proposed Tariff, the unreasonably burdensome

nature of the attribution and notification provisions are compounded by overly broad definitions

of “Copy”, “Course Collection” and other terms defined in the Proposed Tariff.

(ix) Compliance Provisions (Section 15)

32. Section 15 of the Proposed Tariff requires institutions to ensure compliance with the

unreasonable and overly broad conditions in section 4 and 5 by “Authorized Persons”, which

includes all students and staff members.

33. Universities Canada objects on the basis that institutions cannot and should not be required

to “police” or monitor all copying activities. Without limiting the generality of the foregoing,

institutions should not be required to police or monitor student conduct, and cannot and should not

be required to act in a manner that potentially adversely impacts the academic freedom of faculty.

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ALL OF WHICH IS RESPECTFULLY SUBMITTED this 9 th day of December, 2019.

King Street West

1 irst Canadian Place
uite 6200, P.O. Box 50
Toronto, Ontario M5X 1B8

John C. Cotter
Tel: 416.862.5662
Fax: 416.862.6666
jcotter@osler.com

Barry Fong
Tel: 613.787.1097
Fax: 613.235.2867
bfong@osler.com

Counsel for the Objector, Universities Canada