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what it purports to achieve? Is that what the interim decision should indeed achieve? If not, what else?
Recognizing that precedent of the Board is to extend existing agreements where there isagreement, an interim decision that rejects all of the new uses claimed by Access Copyright andauthorizes it to enter into interim, voluntary agreements at existing levels would be appropriate.In our letter of December 10, CASA noted that the precedent of the Board is that it will notauthorize interim decisions that cover new uses for activities that existed or were foreseeableprior to the existing agreement.
As we said then, “Digital copies of copyrighted work existed in2003 and 2007 when agreements were renewed, as did hyperlinks, Powerpoint presentations,emails, group servers, hard drives, printers, displays, and the litany of uses that AccessCopyright is claiming in this application for an interim decision; these were all foreseeable usesand it was Access Copyright’s responsibility to negotiate its coverage under the agreements atthe time, rather than trying to have them covered through an interim decision.”
AccessCopyright has provided no evidence that new uses should be covered in an interim decision andthe Board should reject its claim. It is worth noting that in its reply letter on December 15, 2010,Access Copyright did not address this point at all, and continued to cite a reductive reading of
SODRAC Inc. 2003 v. CBC
in support of its application.Furthermore, Access Copyright has not made a convincing case that the tariff should be amandatory one. Yes, they stand to lose significant revenue but this was completely foreseeableand should have been a component of their ongoing financial planning. And universities arechoosing to let existing agreements expire, not due to strategic purposes, but because they areconcerned by Access Copyright’s coercive approach. To quote University of Alberta ProvostCarl Amrhein, “It’s not just about the money. Access Copyright offered to extend the currentagreement only if universities agreed to be retroactively bound by a future Copyright Boarddecision on not only the tariffs but also on proposed new license conditions. This isunacceptable. We are genuinely concerned about some of the potential restrictions in theproposed license that may threaten our ability to use copyrighted resources in the classroomand may impinge other existing laws, practices or rights.”
If Access Copyright were simplyoffering a genuine extension of the status quo with no impact on future rights, these institutionswould have undoubtedly continued their licenses during the Gap Period. Finally, the value beingoffered by Access Copyright through these licenses is highly questionable and rightfullyadjudicated not through the Copyright Board but through the marketplace. University librariesalready pay large sums of money for article databases that permit the downloading, printing andsharing of works; open access articles are also a plentiful source of material for college anduniversity classrooms. Access Copyright’s business model is dying in a completely foreseeableways, and that is not the fault of the institutions but a management regime that has failed todemonstrate value to the suppliers of copyrighted works – otherwise these institutions would nothave as many alternative options to legally use copyrighted works.Access Copyright has failed to demonstrate that new uses should be covered and they havefailed to demonstrate why a mandatory interim tariff was the only option available to them.
Once the content or substance of the decision has been determined, does the proposed text reflect that substance or content and if not, how should it be modified?
SODRAC 2003 Inc. v. CBC,
File: 70.2-2008-01, para 13
Canadian Alliance of Student Associations,
Re: Application for an Interim Decision on the Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013),