Osler, Hoskin & Harcourt LLP Suite 1900, 340 Albert Street Ottawa, Ontario, Canada K1R 7Y6

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Ottawa

June 8, 2011

Toronto

Glen A. Bloom Direct Dial: 613.787.1073 gbloom@osler.com Our Matter Number: 1059568

Montral

SENT BY ELECTRONIC MAIL Mr. Gilles McDougall Secretary General Copyright Board of Canada Suite 800 56 Sparks Street Ottawa, Ontario K1A 0C9 Dear Mr. McDougall: Re: Access Copyright Interim Post-Secondary Educational Institutions Tariff, 2011-2013 (the Interim Tariff): Application to Amend the Interim Tariff

Calgary

New York

We are writing to you on behalf of the Association of Universities and Colleges of Canada (AUCC) to apply to amend the Interim Tariff granted by the Copyright Board (the Board) as an interim decision in these proceedings on December 23, 2010 (the Boards Decision) and amended by the Board on April 7, 2011. AUCC requests that the Interim Tariff be amended to require Access Copyright to grant transactional licences to post-secondary educational institutions on a per copy basis consistent with the practice of Access Copyright prior to the grant of the Interim Tariff and consistent with Access Copyrights practice and procedures for other industry sectors including, but for royalty rate, for-profit corporations. The need for AUCC to seek Board intervention at this time has arisen in light of the recent refusal of Access Copyright to grant transactional licenses to post-secondary educational institutions in a blatant effort to force those institutions to operate under the Interim Tariff. AUCC submits that this tactic is a gross abuse of the collective administration of copyright and an improper use of collective monopoly power.

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Page 2 Background In their various submissions to the Board in response to Access Copyrights application for an interim decision, many of the Objectors raised concerns about the potential serious adverse consequences of the mandatory nature of an interim tariff. The submissions spoke of the requirement of post-secondary institutions to pursue their right to either operate under a tariff regime or otherwise secure copyright permissions as required through individual transactional licences. AUCC was very troubled by the prospect that the tariff proceedings and the monopoly power wielded by Access Copyright over an unknown, yet potentially vast, repertoire would inhibit a law abiding non-profit postsecondary educational institution from pursuing a usage based alternative of paying for uses that require payment. AUCC was concerned that Access Copyright could exert its collective monopoly power to force its members to paying exorbitant rates to be able to supply a limited number of copies of works within Access Copyrights repertoire for the education of students. AUCC does not advocate that users should have free access to published works. AUCCs members and their faculty are among the most prolific creators of published works which benefit Canadians and others globally. AUCC only advocates that post-secondary educational institutions be required to pay for only what the law would require them to pay for. AUCCs submissions to the Board dated December 10, 2010 described the evolution of copyright practices at post-secondary educational institutions and that there now exists a real, practical and more efficient alternative to Access Copyright securing copyright permissions for the copying activities of AUCC member universities. (AUCC, December 10, 2010, page 7) Today, Access Copyright competes with its affiliates, and in view of the Boards decision in the K-12 proceedings, those publishers or authors who happen to cash cheques

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Page 3 forwarded to them by Access Copyright, in granting licenses to post-secondary educational institutions. The Board has stated that the post-secondary educational institutions have a choice. They do not have to accept the product that Access Copyright has on offer. They can pursue the lawful reproduction of published works in reliance on license agreements with publishers, many of which may, or may not, be affiliates of Access Copyright, and exceptions under the Copyright Act which the Supreme Court of Canada has enshrined as users rights in the CCH case. Importantly, technology has revolutionized society, including those who rely on reprographic reproduction. Post-secondary educational institutions want digital access and associated rights to ensure that Canadians are able to take advantage of the reality of today. Virtual libraries and global electronic instruction and research are the reality today. Many affiliates of Access Copyright understand this reality. They provide the access to their publications electronically and enable activities for which Access Copyright seeks a double payment under its proposed tariff. They do not do this out of an altruistic attitude. These publishers enter into agreements with post-secondary institutions, to their financial benefit, but not to that of Access Copyright, to facilitate what publishers and postsecondary educational institutions need today. The record in these proceedings already show the limited relevance of the Access Copyright proposed tariff. AUCC has stated that: [A] number of AUCC member universities have concluded that they no longer require a licence from Access Copyright. They are able to conduct their copying practices in accordance with the terms of the Digital Licences, and in reliance on fair dealing for the purpose of research, private studying, criticism, review or news summary, and other exceptions in the Copyright Act supplemented by individual transactional licences. AUCC, December 10, 2010, page 7

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Page 4 On this point, the submissions of the Association of Canadian Community Colleges (ACCC) to the Board dated December 10, 2010 echoed those of AUCCs, describing a similar evolution of copyright practices at ACCC member colleges. Accordingly, both AUCC and ACCC, in response to the second question in the Ruling of the Board dated December 8, 2010, proposed that, should the Board decide to issue an interim decision, that decision should take the form of an interim tariff. AUCC submitted that an interim tariff would provide AUCC member universities the flexibility to elect either to conduct their copying practices under the tariff and thereby with Access Copyrights permission, or outside the provisions of the tariff with permissions, where required, obtained from sources other than from Access Copyright. (AUCC, December 16, 2010, page 6) In ACCCs submissions, it stated that an interim tariff that reflects the content of existing licences would provide ACCCs member institutions with the option of continuing their current arrangements with Access Copyright. It would also provide ACCCs member institutions with the second option of copying with permission (where it is required) obtained directly from the copyright owner as some may wish to do. (ACCC, December 17, 2010, page 3) Similar submissions were advanced by other Objectors in these proceedings. Ariel Katz, in his submissions to the Board dated December 10, 2010, argued strongly against the establishment of an interim tariff and described how:

[M]ore competitive and vibrant models for lawfully accessing works are thriving and growing, to the benefit of authors, publishers, readers, students, scholars and Canadians as a whole. [...] The status quo consists of a series of voluntary contractual arrangements. Imposing an interim tariff on users against their will would be a radical departure from this status quo, whose voluntariness is its salient feature.

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Page 5 Katz, December 10, 2010, page 11 In their submissions to the Board dated December 17, 2010, the Canadian Association of University Teachers (CAUT) and the Canadian Federation of Students (CFS) cautioned the Board that [t]he imposition of an interim tariff amounts to an intervention in the marketplace. This again counsels the Board to employ a light hand. It always remains open to Access Copyright to enter into direct license agreements with willing institutions. Access Copyright already employs some such licenses. That speaks to a functional marketplace. (CAUT/CFS, December 17, 2010, page 2) Athabasca University (an AUCC member university) expressly sought the inclusion of a transactional licence provision should the Board decide to issue an interim decision. In its submissions to the Board dated December 10, 2010, Athabasca University argued that Access Copyrights application for an interim decision raises serious anti-competitive concerns and would prevent the development and operation of an efficient clearance market, in which universities can deal directly with rights owners, develop new e-reserve and other copyright compliant models, use open access material, and otherwise explore more innovative models of education. (Athabasca University, December 10, 2010, paragraph 12) In Athabasca Universitys response to the third question in the Ruling of the Board dated December 8, 2010, it proposed the following: Additionally, the Board may wish to require that [Access Copyright] be obliged to issue transactional licenses for any specific work in its repertoire at a reasonable cost, on reasonable terms, and in a reasonable length of time to any post-secondary institution that does not require an overall license with [Access Copyright]. This may be useful to all concerned when copyright owners, within the [Access Copyright] repertoire, are difficult to contact or when they would prefer that [Access Copyright] handle such requests. Athabasca University, December 17, 2010, page 3

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Page 6 This point was raised again in Athabasca Universitys submissions to the Board dated January 21, 2011 responding to the Boards request for input into amendments to the Interim Tariff. Athabasca University emphasized, among others, the following point: 3. Access Copyright should allow for transactional licenses for pieces of its repertoire, so that post-secondary institutions do not have to pay for a full license when thry [sic] may use only a very small percentage of the repertoire. Athabasca University, January 21, 2011, page 1 Finally, it is important to note that even Access Copyrights own submissions to the Board have addressed this issue and the concerns raised by the Objectors. Access Copyright repeatedly stressed the voluntary nature of any interim tariff that the Board may decide to issue. We provide, by way of example, the following excerpts from Access Copyrights submissions to the Board: ...any post-secondary institution can ensure that it is not subject to the draft Interim Tariff in one of two ways: it can decide not to use any works in Access Copyrights repertoire or it can enter into a negotiated licence agreement with Access Copyright. [emphasis added] Access Copyright, December 15, 2010, page 22 ...a concern is expressed that an interim tariff will be mandatory. Any institution can avoid application of the tariff by: (1) purchasing the work; (2) negotiating a licence with the rightsholder to copy the work; (3) not using any work in Access Copyrights repertoire; (4) by engaging in conduct exempt from liability, e.g. fair dealing; or (5) negotiating a licence with Access Copyright. At any time an institution can contact Access Copyright to determine whether a particular work is in its repertoire: if it is, the institution can take steps to enter into an agreement with the rightsholder or can decide not to use that work. The interim tariff (indeed any tariff) is not mandatory in this sense. [footnotes omitted, emphasis added] Access Copyright, December 22, 2010, page 6 Access Copyright notes that any institution is free to purchase the work, enter into a voluntary licence with Access Copyright, negotiate a licence
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Page 7 agreement for any work in the Access Copyright repertoire with the rightsholder of that work, not use the works in Access Copyrights repertoire, and/or rely on exemptions to liability in the Act, e.g., fair dealing. The tariff is not mandatory, i.e., it is not the only option open to institutions, and is for the duration to be determined by the Board. [emphasis added] Access Copyright, December 22, 2010, page 12 Ultimately, on December 23, 2010 the Board granted Access Copyrights application for an interim decision and established the Interim Tariff. The Boards Reasons for the Decision of the Board establishing the Interim Tariff were issued on March 16, 2011 (the Boards Reasons). The Boards Reasons made it clear that the Board had considered the Objectors arguments and concerns over the potentially mandatory nature of any interim tariff. The Board addressed those concerns by stating the following: An interim tariff does not force Institutions to pay royalties absent any evidence that they require a licence. A tariff applies only to those who need the licence; those who do not, need not pay. Under the general regime, which applies in this instance, users whose consumption patterns justify different rates remain free to secure, from Access or from others, transactional or other licences that will trump the tariff. The fact that the interim tariff can be modified at any time ensures that Access will display good faith in such negotiations. Any misconduct on its part would necessarily be reported to the Board, which would take it into account in any further consideration of this matter. [footnotes omitted, emphasis added] Boards Reasons, March 16, 2011, paragraph 45 AUCC submits that, for the reasons that follow, Access Copyright has not approached negotiations of transactional licenses with AUCC and ACCC members in good faith and instead has engaged in misconduct. Therefore, AUCC hereby applies to the Board to amend the Interim Tariff to require Access Copyright to grant transactional licences to post-secondary educational institutions.

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Page 8 Access Copyrights Refusal to Grant Transactional Licences to Post-Secondary Educational Institutions Since the Interim Tariff was established by the Board on December 23, 2011, Access Copyright began the practice of systematically denying transactional licence requests made by AUCC member universities and other post-secondary educational institutions. This is not the "status quo" that the Board sought to maintain when it granted Access Copyright's application for an interim decision. Shortly after the Boards Decision was issued and the Interim Tariff was established, Access Copyright posted a notice on its website informing post-secondary educational institutions that it was no longer offering transactional licences for digital copying and that institutions were to operate under the terms of the Interim Tariff. This is an obvious attempt by Access Copyright to force post-secondary educational institutions to operate under a tariff regime that the Board clearly held was not to be mandatory. Attached as Appendix A is a document entitled Frequently Asked Questions for the Digital Copies Option Under the Interim Tariff (Schedule G) issued by Access Copyright. The Frequently Asked Questions document is available on its website at <www.accesscopyright.ca/media/6095/digitaloptionfaqs.pdf> (the Access Copyright FAQ). In the Access Copyright FAQ, Access Copyright poses the following question and answer: If my institution does not elect the Digital Copies option, will we be able to obtain permission for digital uses using the Access Copyright transactional licence service? No. As digital copying is covered by Schedule G in the Interim Tariff, Access Copyright is no longer offering transactional licences to make digital copies of published works when the amount copied falls under the terms of the Interim Tariff. Access Copyright FAQ, page 2

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Page 9 Attached as Appendix B are printouts of archived web pages from Access Copyrights website relating to Access Copyrights licences with universities and community colleges that were accessible prior to the Boards Decision (the Archived Web Pages). These printouts have been obtained from the database of the Internet Archive (<www.archive.org>) and show how these web pages appeared on June 7, 2008 and September 2, 2007, the last available archive dates for these particular web pages captured by the Internet Archive. The Archived Web Pages clearly provide links and instructions to post-secondary educational institutions on the process by which the institution may obtain a Digital Pay-Per-Use (Transactional) Licence. Prior to the Boards Decision, Access Copyright provided the following instructions to postsecondary educational institutions: To determine whether the work you want to use is available for these digital uses, go to our Rights Management System (RMS), where you may purchase a digital pay-per-use licence using our Licence Wizard. You may also email us for more information. If you are from a postsecondary school and would like to purchase a digital pay-per-use licence, you might find our RMS Users Guide useful. Archived Web Pages, Digital Pay-Per-Use Licences: Using Digital Content, page 1 Attached as Appendix C are printouts of current web pages from Access Copyrights website relating to post-secondary educational institutions and the Interim Tariff (the Current Web Pages). On the Current Web Pages, Access Copyright has removed all references to transactional licences (except for the reference provided in Appendix A above). In addition, AUCC member universities have reported that Access Copyrights Rights Management System and Licence Wizard service are currently unavailable to post-secondary educational institutions. In contrast, digital transactional licences are still being made available to K-12 schools (see Access Copyrights website at <www.accesscopyright.ca/educators/digitial-pay-per-use-licences-using-digitalcontent>).
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Page 10 While AUCC member institutions have had some success in negotiating transactional licences directly with the rightsholders, some Canadian publishers have now begun to direct transactional license requests to Access Copyright. Access Copyright, in turn, has denied such requests and has directed the requesting institution to use the Interim Tariff. AUCC member universities have advised AUCC that at least one major publisher, Cengage Learning/Nelson Education Ltd. (Cengage), has begun to direct all permission requests from Canadian post-secondary educational institutions to Access Copyright. The following notice was recently posted to the Cengage website: To all Canadian Post-Secondary Institutions All photocopy and electronic permission requests for use by Canadian PostSecondary Schools (excluding Quebec) should be forwarded to Access Copyright for processing. These request types include photocopying for coursepacks, handouts for classroom distribution, electronic coursepacks, and library reserve requests. When making such requests, please contact Access Copyright via email permissions@accesscopyright.ca. A printout of the current Rights & Permissions web page from the Cengage website is attached as Appendix D. A printout of the archived Rights & Permissions web page from the Cengage website, obtained from the database of the Internet Archive captured on February 20, 2009, is attached as Appendix E. The archived Cengage Rights & Permissions web page does not direct Canadian institutions to Access Copyright for transactional licence requests. In addition, AUCC member universities have reported to AUCC numerous instances where either: (i) Access Copyright has denied a request for a transactional licence and directed institutions to the Interim Tariff, or (ii) a rightsholder/publisher has refused to grant permissions directly and/or has directed a transactional licence request to Access Copyright. We enclose, by way of example, extracts of correspondence received from the following AUCC member universities: University of Manitoba (attached as Appendix F)

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Page 11 University of Calgary (attached as Appendix G) Memorial University of Newfoundland (attached as Appendix H) University of Waterloo (attached as Appendix I) University of Regina (attached as Appendix J)

Conclusion It has come to our attention that Access Copyright may have recently redesigned its Internet home page. The home page has a button labelled Get Permission to Copy. If a user clicks on this button the user is directed to a webpage entitled Serving Your Copyright Permission Needs. The page then describes a procedure for securing transactional (pay-per-use) permissions to make paper or digital copies. The transactional permissions include an online permission service that Access Copyright describes as its Rights Management System. Copies of the home page and Serving Your Copyright Permission Needs pages are attached as Appendix K. These copies were printed out from the website on May 27, 2011. On May 27, 2011, Alex McCulloch of the University of Waterloo received a voice mail message from Jennifer Lamantia of Access Copyright. In the message, Ms. Lamantia informed Mr. McCulloch that Access Copyright would not issue a transactional license for a work if the use of the work would fall under the Interim Tariff. Attached as Appendix L is a transcript of the voice mail message. AUCC submits that Access Copyright is engaging in a pattern of conduct of denying transactional licenses. This pattern of conduct is intended to force AUCC and ACCC members to opt into the Interim Tariff or to elect the optional digital license under Schedule G to the Interim Tariff. Access Copyrights conduct displays bad faith in refusing to negotiate transactional licenses. This bad faith amounts to misconduct. As the

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Page 12 Board anticipated in the Boards Reasons, AUCC is reporting this misconduct to the Board. AUCC requests that the Interim Tariff be modified to add the following sections to the Tariff. 2.4 Upon request of an Institution Access Copyright shall grant to the Institution a transactional license to make a Copy of a specific Published Work in its Repertoire provided that: (a) the copy requested complies with the terms and conditions set forth in Schedule C to this Tariff; (b) the use of the Copy would comply with the use of a Copy made under the provisions of any other Section or Schedule to this Tariff; and (c) the institution offers to pay a royalty rate of $0.10 per page. 2.5 Upon request of an Institution, Access Copyright shall grant to the Institution a transactional license to make a Digital Copy of a specific Published Work in its Repertoire provided that: (a) the Copy requested complies with the terms and conditions set out in Schedule C to this Tariff, with such modifications as necessary for Digital Copies: (b) the use of the Digital Copy would comply with the use of a Digital Copy made pursuant to Schedule G of this Tariff; and (c) the Institution offers to pay a royalty rate of $0.10 per page. 2.6 Except as specifically provided in sections 2.4 and 2.5 of this Tariff, none of the provisions of the Tariff apply to any Copy or Digital Copy made pursuant to either sections 2.4 or 2.5 of this Tariff. Yours very truly,

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Page 13

Glen A. Bloom GAB:BF:cms Enclosure c: aoneill@fasken.com and wanda.noel@bell.net ariel.katz@utoronto.ca gov@casa.ca dfewer@uottawa.ca smagu039@uottawa.ca jason.fung@gov.ab.ca nair@sfu.ca nancy.brooks@blakes.ca and randall.hofley@blakes.ca jayrahn@yorku.ca

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