December 6, 2019

Ms. Lara Taylor By e-mail only to:Registry-greffe@cb-cda.gc.ca

Secretary General
Copyright Board Canada
56 Sparks Street, Suite 800
Ottawa, Ontario
K1P 5A9

Dear Ms. Taylor,

RE: Access Copyright Post-Secondary Educational Institution Tariff, 2021-2023 – Objection

This letter is with reference to your notice of November 7, 2019, publishing the proposed 2021-2023
Access Copyright Post-Secondary Educational Institution Tariff (the Tariff hereafter), and calling for
affected parties to file any written objections they might have with respect to the proposed Tariff no
later than December 9, 2019. The Council of Prairie and Pacific University Libraries (COPPUL)
objects to the proposed Tariff, without agreeing that any such Tariff is binding on COPPUL or its
membership. In what follows, the grounds for COPPUL’s objections are outlined. COPPUL reserves
the right to add other grounds for objection and/or expand the grounds provided herein. Furthermore,
COPPUL notes that you are or will be in receipt of written objections from, among others,
Universities Canada, the Canadian Association of Research Libraries (CARL) and numerous
universities in the Province of Alberta. We are familiar with the objections being made by these
parties, and support the rationale for their objections.

COPPUL is a consortium comprised of twenty-two university libraries located in Manitoba,

Saskatchewan, Alberta and British Columbia, plus eighteen affiliate members that participate in e-
resource licensing. Each of the member institutions has made its own arrangements for compliance
with the provisions of the Copyright Act, including but not limited to copyright advisory offices,
copyright librarians, university offices of legal counsel, and in COPPUL members’ membership of a
range of other consortia across Canada, facilitating the licencing of access to copyrighted works.
COPPUL therefore objects to the Access Copyright proposed Tariff pursuant to section 68.3(1) of the
Copyright Act, on the following grounds.

Access Copyright is not the only agent through which the proposed Tariff could give licensed access
to the materials in Access Copyright’s repertoire. COPPUL’s members routinely licence vast arrays
of materials through a wide range of vendors, contracts, copyright holders and individualised
transactional licences. This activity is undertaken in an organized, systematic and cost-effective
manner which Access Copyright’s proposed Tariff seeks to undermine, through a perceived effort to
create a competitive advantage for itself, privileging itself over other licencing vehicles, to the
detriment of the post-secondary education sector, and the public more generally. The proposed Tariff

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is not in the public interest, nor are the Royalty Rates proposed therein fair or equitable.

The wide set of definitions in the proposed Tariff is also a vehicle designed to engineer an expansive
interpretation of what is encompassed within the scope of the Tariff, at the expense of rights accorded
to the post-secondary education sector under the Copyright Act, and through their individual and
consortial licencing efforts. In effect, the Tariff is purporting to create a monopoly for Access
Copyright over certain works that can be licenced through other means, while at the same time not
articulating in any detail the works that are actually included in Access Copyright’s repertoire, nor
when or how such works became a part of that repertoire.

Access Copyright is proposing a royalty rate that is excessive and out of all proportion to the
“blanket licence” coverage it is purporting to offer. COPPUL member universities have licenced
works in the Access Copyright repertoire through many other means. There is no recognition of these
alternate arrangements in the proposed royalty rate, nor in how this royalty rate relates to the
underlying value of the blanket licence Access Copyright is purporting to offer. Essentially, Access
Copyright is offering a “one-size-fits-all” licence to post-secondary educational institutions that have
vastly different collections, licencing arrangements and copyright compliance arrangements. If such a
Tariff were to be in any way useful, much greater flexibility is needed for institutions that would
choose to avail themselves of that Tariff, which would also reflect an appropriately configured
Royalty Rate structure.

The proposed Tariff is also problematic in that it includes numerous sections that do not belong in
such a Tariff. In particular, if what is being offered is truly a blanket licence, then there is no need for
the onerous record-keeping and reporting requirements articulated in Section 6 of the proposed
Tariff. Further, the proposed Tariff includes draconian and completely impractical audit provisions
under its Sections 13 (Surveys) and 14 (Royalty and Compliance Audits). These sections call for the
maintenance of and access to institutional facilities and records that constitute an unfounded invasion
of privacy, some of which would be precluded in any case, owing to protection of privacy legislation.
Finally in this context, the Compliance provisions in Section 15 call for the setting up of “policing”
systems within universities. Such systems are totally impractical, since universities are not in a
position to monitor students’ or others’ conduct in their use or copying of library collection materials.

To conclude, it is also to be noted that the publication of this Tariff is premature in light of the case
of Canadian Copyright Licensing Agency v. York University, which is currently before the Federal
Court of Appeal. A ruling in that case will deal with the mandatory or voluntary nature of such
tariffs, what such tariffs might include in their terms, and will balance the rights of copyright users
with respect to fair dealing under the Copyright Act.

Sincerely,

Christopher J. Nicol, Ph.D., Chair,

COPPUL Board of Directors.

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