Objections to the Proposed Access Copyright Post-Secondary Tariff and its Progeny Licenses: A Working Paper

By Samuel Trosow, Scott Armstrong and Brent Harasym. August 14, 2012.

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).1 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 licenses2 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 Act3 and would not have survived scrutiny had they been fully litigated.

For the full working paper, click here.

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