Page 2on a no fee basis. Access Copyright is entitled to rely on the regime for digital implemented through theInterim Tariff without being subject to a charge that it is not maintaining the status quo.Moreover, the status quo
did not involve any requirement or obligation that Access Copyright issuetransactional licences on demand. Prior to issuance of the Interim Tariff, Access Copyright had attempted tonegotiate a blanket licence for digital with the AUCC. The AUCC refused and, as a result, thecomprehensive licences with the Institutions did not cover digital uses. The only feasible means for AccessCopyright to obtain some compensation for its rightsholders for digital copying was through a transactionallicence. That changed with the filing of the Proposed Tariff and the issuance of the Interim Tariff. AccessCopyright is not attempting to change the status quo. Instead, it is the AUCC that is attempting to changethe status quo
by: (i) asking the Board to impose a compulsory licensing scheme on Access Copyright;and (ii) demanding that transactional licences for paper and/or digital be made available to Institutions,including those that have not paid the FTE rate. It is important to note that, prior to issuance of the InterimTariff, Access Copyright never issued a transactional licence for digital to an Institution that had not enteredinto the comprehensive licence for paper copying, and was thus paying the FTE rate called for under thecomprehensive licence.In essence, what the AUCC is seeking to accomplish is inclusion under the Interim Tariff of compulsorylicences governing one time use licences outside the Interim Tariff (or the Proposed Tariff). AccessCopyright submits that the amendment sought by the AUCC would completely change the regime in placeprior to issuance of the Interim Tariff. Further, what the AUCC is seeking is inconsistent with the ProposedTariff and is outside the Board’s jurisdiction. For these reasons, Access Copyright respectfully submits thatthe AUCC’s application should be dismissed.The AUCC also accuses Access Copyright of misconduct. As the Board noted in its March 16, 2011reasons, “[t]he transparent exercise of a clear right is not a sign of bad faith”.
It cannot constitutemisconduct for Access Copyright to rely on the Interim Tariff and choose to conduct its business incompliance with the Interim Tariff. If an institution does not have a licence with the rightsholder, AccessCopyright is entitled to rely on and operate under the comprehensive, blanket licence for paper and digitalcopies established by the Interim Tariff and to require any Institution that wishes to make copies of works inAccess Copyright’s repertoire to take up the tariff or seek a transactional licence from the relevant individualrightsholder.Access Copyright has been consistent and transparent throughout these proceedings.In its application for an Interim Tariff, Access Copyright never asked for the status quo
for digital. Rather, it asked thatdigital copying be included under the Interim Tariff for no additional cost (Access Copyright, Letter to theBoard, December 15, 2010, p. 17). Since it filed the Proposed Tariff on March 31, 2010, Access Copyrighthas made it clear that it is asking the Board for a comprehensive tariff covering paper and digital uses. If theBoard were inclined to make any change with respect to digital in response to the AUCC’s application, it issubmitted that the Board should take a principled approach and simply remove the digital option altogether from the Interim Tariff. The Proposed Tariff includes digital, and Institutions can govern themselvesaccordingly.
Board’s reasons, March 16, 2011, para. 92.