December 9, 2019

Ms. Lara Taylor

Secretary General
Copyright Board Canada
56 Sparks Street, Suite 800
Ottawa, Ontario K1P 5A9
registry-greffe@cb-cda.gc.ca

Dear Ms. Taylor:

Re: Response to Post-Secondary Educational Institutions 2021-2023 - Statement of
Royalties to Be Collected by the Canadian Copyright Licensing Agency (Access
Copyright)

Ryerson University objects to Access Copyright’s Proposed Tariff for Post-Secondary

Institutions for the years 2021 to 2023 in accordance with section 68.3(1) of the
Copyright Act (the “Act”).
Ryerson University further affirms support of both the Universities Canada “Access
Copyright Tariff (2021-2023) - Objection by Universities Canada” and the Canadian
Association of Research Libraries (“CARL”) response to the Tariff Re: Post-Secondary
Educational Institutions 2021-2023 - Statement of Royalties to Be Collected by the
Canadian Copyright Licensing Agency (Access Copyright).
The following summary highlights some of the issues of most concern to Ryerson
University regarding Access Copyright’s Proposed Tariff (2021-2023).

1. Copyright Board Tariffs are not Seen as Mandatory for Users

In alignment with many post-secondary institutions, Ryerson University maintains that

nothing in this objection letter indicates that this proposed tariff could be mandatory for
institutions, and in no way should our objection letter be construed as an indication that
this tariff is mandatory in its application.

2. Lack of Recognition of Copyright Exceptions for Education

Access Copyright’s Proposed Tariff for Post-Secondary Institutions for the years 2021 to
2023 continues to not recognize copyright exceptions supporting education included
and affirmed in the current Copyright Act. These exceptions for educational use, often
called user rights, were added in the Copyright Modernization Act in 2012.

350 Victoria Street, Toronto, Ontario, Canada M5B 2K3 Tel: 416-979-5055 Fax: 416-979-5215 www.library.ryerson.ca
These exceptions include fair dealing for education, and Section 30.04: Work available
through Internet for example, and works used under these exceptions can be used
without further permission, licence, or payment of any kind. Works made available
through fair dealing and other copyright exceptions should not be seen as compensable
under the proposed Tariff. Clear language and definitions should be included in the
Tariff that recognizes user’s rights and existing copyright exceptions supporting
education.

3. Expansion of the Definition of a Copy

The definition of “copy” in the Proposed Tariff attempts to include activities that are not
covered by section 3(1) of the Act or otherwise. While we appreciate that Access
Copyright has removed language surrounding “linking or hyperlinking to a digital copy”
we are concerned about other additions and changes in the language surrounding the
definition of a “copy” in the Proposed Tariff. For example, the definition has been
significantly expanded to include projecting and displaying and suggests that emailing,
texting, posting, uploading, copying onto or storing on a Secure Network and activity
included in s. 2.4(1)(b) of the Act. This expanded definition is very concerning both in its
undermining of the principle of technological neutrality, but also in its inflation of the
number of “copies” of Access Copyright repertoire works made available to a student.
Production of copies of materials made for student use may result in several versions of
a copy being made, yet still will have the same number of student end users.
4. Royalty Rates and Limited Repertoire
The high tariff rate per FTE proposed in the Access Copyright is of questionable value
for post-secondary institutions. The continuing trend in higher education is to enter into
agreements with publishers and vendors for the use of, and access to, textual materials,
including journals and books. These agreements, along with transactional licences
when necessary, and applicable copyright exceptions meet the needs of students and
instructors. Paying both a tariff and contractual licencing fees would in fact result in
duplicate payments for the use of the same material. While Access Copyright’s rights
in print works seems more clearly defined, it is unclear the exact scope of Access
Copyright’s claim when it comes to digital works. It is also questionable whether the
repertoire of Access Copyright contains content in demand within post-secondary
institutions. And it should be noted that Open Educational Resources (OER), also an
emerging trend in the Canadian educational landscape, do not require a tariff.
The question of the scope of Access Copyright’s rights, the degree to which digital
content is licenced through other means, and the limited and unclear repertoire of
Access Copyright all speak directly to the value and applicability of such a proposed
tariff. For students who make little or no use of the Access Copyright repertoire, the
Proposed Tariff may represent an unfair levy.

350 Victoria Street, Toronto, Ontario, Canada M5B 2K3 Tel: 416-979-5055 Fax: 416-979-5215 www.library.ryerson.ca
5. Onerous and Intrusive Reporting Requirements
The draft Post-Secondary Educational Institution Tariffs (2011-2014 and 2015-2017),
released by the Copyright Board on February 6th, 2019, limited reporting requirements
to print course collections only. This reporting scope unfortunately has been expanded
to include the reporting of digital materials in the new Proposed Tariff. The type of
required reporting outlined in the tariff that includes all digital copies posted to a secure
network, fails to understand what a costly and extremely resource-intensive task this
kind of tracking would be for institutions, especially with the evolving nature of scholarly
publishing as noted above, and the expanded definition of “copy” in the latest Proposed
Tariff.
There also is no clear purpose to this reporting, as the payment of the tariff is based on
University FTE not on detailed copy tracking. Providing an annual updated figure for
institutional FTE is already included in the Proposed Tariff. The FTE enrolment number
is, therefore, the only number that should be open to auditing requirements by Access
Copyright. As well, we have serious concerns about the proposed requirements for
record keeping, reporting, attribution, and intrusive surveying, auditing and other
administrative requirements in the Proposed Tariff. These are onerous, unequal in
accountability expectations, and are questionable in terms of current federal PIPEDA
legislation and other privacy legislation in Canada. This reporting may also conflict with
our collective agreements with faculty. As well the expansion of the definition of “copy”
to include “SMS (short message service), text, electronic mail or facsimile” which leaves
open the possibility of even more intrusive and unnecessary auditing methods and
reporting requirements in the future.

6. Retroactivity Issue

We concur that any tariff that is certified should be approved before the date it is to
come into effect; and the Copyright Board may not have jurisdiction to impose
retroactive tariffs.

Sincerely yours,

Carol Shepstone
Chief Librarian

350 Victoria Street, Toronto, Ontario, Canada M5B 2K3 Tel: 416-979-5055 Fax: 416-979-5215 www.library.ryerson.ca