09 December 2019

Ms Lara Taylor
Secretary General
Copyright Board of Canada
56 Sparks Street, Suite 800
Ottawa, ON K1A 0C9

Dear Ms Taylor:

RE: Access Copyright Post-Secondary Education Institution Tariff, 2021-23 - Objection

This objection to the proposed tariff is made under s. 68.3(1) of the Copyright Act (R.S.C., 1985,
c. C-42). This objection is being submitted jointly by the University of Alberta, the University of
Calgary, and the University of Lethbridge, and each of these universities reserves the right to
further participate in this objection process on either an individual or joint basis. We are
familiar with the objection submitted by Universities Canada on behalf if its member
institutions, and we agree with and support the content of that objection.
The underlying purpose of the proposed tariff is presumably to provide a practical avenue
through which post-secondary institutions can ensure that rights-holders of copyright-
protected works are appropriately compensated for the reproduction and distribution of their
works, in whole or in part, on behalf of an institution.
More and more digital resources, including scholarly journals and ebooks, are now being
licensed directly from publishers by post-secondary institutions. In many cases, those licenses
include reproduction rights to cover the use of those resources as course materials, etc.
Decisions regarding licensing and acquisitions of third-party content is user driven, with post-
secondary institutions catering directly to course requirements and research needs of their
specific institution. Some courses of study rely on content licensed directly by their institution,
others on open educational resources, and still others purchase required textbooks.
Based on the extent to which post-secondary institutions are acquiring reproductions rights in
the works they are using directly from publishers, the benefit and value of a blanket
institutional license such as the one described in the proposed tariff will vary widely across
institutions. In light of this, we have the following objections regarding the proposed post-
secondary tariff for 2021-23:

1. Mandatory vs Voluntary. We object to the lack of clarity around whether the proposed
tariff is intended to have mandatory application for Access Copyright only, or whether it is
also intended to have mandatory application for post-secondary institutions. We contend
that any post-secondary tariff should be explicitly voluntary in its application to post-
secondary institutions.

2. Licensed Content. We object to any post-secondary tariff that does not acknowledge and
account for content that the institution has licensed directly where those licenses cover
 the same rights and content that are covered under the tariff. Any such tariff that
effectively has a “one-size-fits-all” fee structure demonstrates a significant lack of
appreciation for the differences among post-secondary institutions in the scope of the
content and the rights to use such content that are being directly licensed by those
institutions.

3. Transactional Licenses. We object to any post-secondary tariff that does not explicitly
allow for and encourage the use of transactional licences by post-secondary institutions
for content within the Access Copyright repertoire, regardless of whether those
institutions are party to an institutional licence with Access Copyright.

4. Public Domain. We object to any post-secondary tariff that does not acknowledge and
account for content that is in the public domain.

5. Fair Dealing. We object to any post-secondary tariff that does not acknowledge and
account for content that the institution is properly using under fair dealing.

6. Copying. We object to any post-secondary tariff that defines “copying” and

“communicating” in a more expansive way than those terms are defined in the Copyright
Act, or that might reduce or eliminate an institution’s right to apply educational
provisions in the Copyright Act (such as, the inclusion of “projection” and “display” of
content).

7. Repertoire. We object to any post-secondary tariff that does not provide clarity and
transparency of the collection of works to which the proposed tariff applies. Given the
preference for digital content, confirmation that any such tariff covers digital and born-
digital works is critical.

8. Reporting. We object to any post-secondary tariff that has monthly reporting

requirements. Any such reporting should be no more frequent than once per academic
term. Furthermore, we object to any post-secondary tariff that purports to operate as a
blanket licence and yet also requires itemized reporting of actual use of specific
repertoire content as if it were a transactional licence.

9. Auditing. We object to any post-secondary tariff that includes auditing provisions that
could place an institution in potential breach of privacy laws and collective agreements,
and which may create a conflict of interest. Any reasonable audit under such a tariff
should be conducted by a qualified, independent third-party.

10. Current Uncertainties (Timing). We object to being asked to review and comment on a
proposed post-secondary tariff for 2021-23 while (a) there has been no certified post-
secondary tariff for 2018-2020, (b) the tariffs for 2011-2014 and 2015-2017 were only
published on 07 December 2019, and (c) the Federal Court of Appeal has not ruled in the
Access Copyright v. York University case on the applicability of such a tariff.
 11. Retroactive Effect. We object to any post-secondary tariff that does not explicitly have
very limited, if any, retroactive effect and which does not explicitly limit the impact of any
significant retroactivity.

These are our objections to the proposed Access Copyright Post-Secondary Education
Institution Tariff, 2021-23, although we reserve the right to add to or expand upon these
objections in accordance with Copyright Board procedures.

Sincerely,

Dr. Steven Dew

Provost and Vice-President (Academic)
University of Alberta
11. Retroactive Effect. We object to any post-secondary tariff that does not explicitly have
very limited, if any, retroactive effect and which does not explicitly limit the impact of any
significant retroactivity.

These are our objections to the proposed Access Copyright Post-Secondary Education Institution
Tariff, 2021-23, although we reserve the right to add to or expand upon these objections in
accordance with Copyright Board procedures.

Sincerely,

Dr. Andrew W. Hakin

Provost and Vice-President (Academic)
University of Lethbridge