On March 31, 2010, Access Copyright applied to the Copyright Board to certify a tariff that would govern the relationship between the organization and the members of the Association of Universities and Colleges of Canada (AUCC) and the Association of Community Colleges of Canada (ACCC). Previously, the relationship had been governed by a series of license agreements between the organizations which had been periodically renewed. But Access Copyright chose not to seek renewal of the licenses, and applied to the Board to certify a general tariff that would cover all post-secondary institutions for the period of 2011 through 2013.
Access Copyright was not merely trying to carry forward the terms of previous licensing agreements in the form of a Board certified tariff. Rather, they were seeking a tariff with a much higher rate, wider scope and broader application; one which would place new burdens on the institutions, their staff and students, and which would also jeopardize many of the rights of academic staff and students. This working paper reviews the terms of the Proposed Tariff and its progeny licenses and discusses several of the arguments that have been raised against them. The first general grouping is that many of the provisions are ambiguous, counterintuitive and are based on problematic definitions which attempt to extend the reach of the compensable activities beyond what is authorized by Canadian law. The second broad issue is the lack of value in the Proposed Tariff itself. The third general grouping deals with the audit, reporting, monitoring and survey (ARMS) provisions in the Proposed Tariff and the progeny licenses. With respect to the Proposed Tariff, we argue that several of its terms are also ultra vires the Copyright Act and would not have survived scrutiny had they been fully litigated.
While recent developments have cast a new light on these issues, many of the concerns raised in this report about the Proposed Tariff remain unresolved. Despite strong arguments to the contrary, and their previous opposition to the Proposed Tariff at the Board; AUCC, ACCC and several institutions still felt that a license with Access Copyright was needed. In January 2012, Access Copyright announced they had reached licensing agreements with the University of Toronto and the University of Western Ontario, the terms of which were substantially similar to the proposed tariff. Following the “lead” of UWO and the University of Toronto, AUCC and ACCC have since announced a similar agreement with Access Copyright, resulting in a “Model License,” and they have since dropped their opposition to the Proposed Tariff at the Copyright Board. In this report, we refer to the UWO and University of Toronto agreements and the AUCC/ACCC model licenses as the “progeny” of the Proposed Tariff because despite some differences, they are substantially similar in many respects.
To date, some institutions have accepted the Model License, others have rejected it, and many others had not yet announced their intentions as of the end of July 2012.
This paper is divided into five sections. Following this introduction, section 2 will address some of the definitional problems in the Proposed Tariff and progeny licenses in more detail. First and foremost are the definitions of “copy” and “course collection” which increase the scope of the statutory reproduction right and create other burdens. These overbroad definitions are foundational problems with the tariff/licenses which not only exceed the scope of owners' statutory rights, but will have the potential to substantially impede the delivery of course materials, adversely impact faculty and student privacy rights, and ultimately threaten academic freedom. The other problematic definition involves the “Secure Network,” along with various limitations that flow from this definition.
The third part of this report will ask the question: What value would institutions obtain under the Proposed Tariff and its progeny licences? A review of section 3 of the Proposed Tariff and its progeny indicates that the scope of the permissions does not add very much to what is already permitted under fair dealing and other limitations and exceptions in the Copyright Act. In addition, the scope of Access Copyright's repertoire is ambiguous, and the value of the indemnification clause in the progeny licenses is very limited.
The fourth section will turn to the audit, reporting, monitoring, and survey (ARMS) provisions in the Proposed Tariff. We argue that these measures are overbroad and ultra vires the Copyright Act. They should be substantially scaled back if not entirely eliminated from any eventual tariff order. And while these ARMS provisions have been cast in modified terms in the progeny licenses, these corresponding provisions remain highly problematic.
The last section will look at the implications of more recent developments (including the UWO and UofT licenses of January 30th, the AUCC and ACCC Model License, and the withdraw of AUCC from objector status at the Board) for the tariff proceedings which are still pending at the Board. It will close with a summary of the recommendations made throughout this report. And while a full treatment of the implications of the passage of Bill C-11 in June and the Supreme Court's historic July pentalogy is beyond the scope of this report, they will also be considered throughout this report.
Therefore, the overall purpose of this report is to identify and address some of the key issues that have been raised from the outset about the Proposed Tariff dispute, as they remain largely unresolved. In addition to highlighting flaws with the Proposed Tariff and its progeny licenses, we will offer some suggestions for how an effective and fair tariff or license could be crafted. We are calling this report a Working Paper as it is very much still a work in progress given the fast pace of current developments and the still unsettled state of the issues. Many institutions have yet to announce whether they will accept or reject the model license agreement and the status of the tariff proceedings before the Copyright Board still needs to be addressed.