A recent ruling from the Copyright Board of Canada suggests that unless certain universities and colleges that have opted out of the Access Copyright tariff produce information about their use of protected works, they could be subpoenaed to do so.
Issued Aug. 18, the decision is just another chapter in the ongoing battle between the non-profit creators’ collective Access Copyright, The Canadian Copyright Licensing Agency, and Canadian post-secondary institutions following the proposed Post-Secondary Educational Institution Tariff 2011-2013 issued last year. It seeks to replace a previous licensing agreement with the Association of Universities and Colleges of Canada (AUCC) that goes back to 1994. The schools are upset over what they view as a proposed tenfold increase in fees for the use of published works.
Under the previous agreement with Access Copyright, institutions paid $3.38 per full-time equivalent student as well as 10 cents per page for course-pack copying. Access Copyright’s proposed new tariff, which will ultimately be set by the copyright board, is an all-in-one fee of $45 per full-time student. Part of the new tariff’s structure would include licensing of the use of digital material, not just printed works.
About 34 post-secondary schools in Canada have indicated they are opting out of the interim tariff (the existing fee) and 27 of those schools have yet to answer interrogatory requests from Access Copyright regarding how they currently use materials.
“Interrogatories are really more like written discovery. All parties exchange written questions and answers. The interrogatories include questions about copying practices,” explains Erin Finlay, legal counsel for Access Copyright.
The schools have been warned by the copyright board that just because they have opted out of the agreement with Access Copyright, doesn’t mean they won’t be liable to pay the newly established tariff down the road when the board makes its ruling, expected sometime in 2013-14.
The copyright board decision includes several warnings and is considered uncharted territory according to one expert in copyright law. It notes that any institution that does not respond to the request for information as required by Access Copyright may be compelled, by way of subpoena issued by the copyright board, to do so.
“The ruling is a warning that some may regard as a threat or a ‘shot across the bow,’” says Howard Knopf, counsel with Ottawa’s Moffat & Co./Macera & Jarzyna LLP. “But this is uncharted territory; the board has never in its history actually issued a hostile subpoena.”
In the ruling, Gilles McDougall, secretary general of the Copyright Board of Canada in Ottawa, states that just because an institution has decided not to avail itself of the interim tariff, “doesn’t mean it will bear no liability under the final tariff, that its liability will not be retroactive, or that it will not be compelled, pursuant to the final tariff, to provide information about its copying habits during the period between Jan. 1, 2011 and the date on which the final tariff is certified, unless it is certain that neither the institution nor its agents make any protected use of the relevant repertoire during the period to be set out in the final tariff.”
He goes on to say that in fact, the absence of evidence on the copying practices of opt-out institutions “can only make it more difficult for the board to design the final tariff so as to respond to any legitimate concerns of these institutions.”
By Aug. 26, the AUCC, ACCC, and Access Copyright shall agree on a final list of opt-out institutions that will be required to answer interrogatories and a timetable for responses from those institutions that elect to opt out, notes the ruling.
Several universities contacted about the decision said they did not wish to comment on what is an ongoing litigation issue. The University of Manitoba is not on the list of schools yet to provide information, but it has opted out of the agreement.
“We are unable to respond to the recent ruling of the copyright board, except to say that we will be consulting with and coordinating with AUCC on an appropriate response,” said Gregory Juliano, director and general counsel of the University of Manitoba’s office of fair practices and legal affairs.
If Access Copyright’s proposed tariff were approved without modification, it would cost the University of Manitoba almost $1.2 million annually. “By contrast, and in rough numbers, we had paid approximately $300,000 per year to Access Copyright under our [now expired] licence agreement,” he says.
Juliano says the University of Manitoba elected to opt out primarily due to the “decreasing value and relevancy of our relationship with Access Copyright.” He says the school has become less reliant on the type of paper copies and course pack production, which were permitted through its Access Copyright licence.
Access Copyright’s Finlay says the proposed tariff is just that, and it is likely the copyright board will settle on a different rate.
“The $45 is the high-water mark and more likely it will be lower, but it depends on what the copyright board decides,” says Finlay.