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Davidson Email to Presidents April 16 2012 With Addresses Blacked Out

Davidson Email to Presidents April 16 2012 With Addresses Blacked Out

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Published by: hknopf on Apr 19, 2012
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: Christine Tausig-Ford <ctausig@aucc.ca>
: [Presidents, etc. email addresses omitted] <
: Mon Apr 16 15:07:50 2012
: AUCC agreement with Access Copyright
The following is a message from Paul Davidson
 This message is currently available only in English; la version française suivraDear members,
AUCC’s Board of Directors today approved an agreem
ent reached with Access Copyright on anew model license that will allow universities to reproduce copyright protected materials in bothprint and digital formats.The Board believes that the agreement negotiated between AUCC and Access Copyrightprovides the best possible outcome for universities, their students and faculty in the currentcontext. The model license provides long-term certainty on price, and access to a new range of digital materials. Most importantly, it respects the principles of academic freedom and privacyand ensures that the administrative burden on institutions is minimized.I am attaching a copy of:
the model license that was negotiated,
a side letter agreement regarding retroactivity and protecting to the extent possibleinstitutions that sign the model license from Copyright Board proceedings
an informational one-pager from Access Copyright describing retroactivity discounts thatare being offered for institutions that sign the model license at an early date
a copy of the news release that will be issued by AUCC today.
We urge you to review these documents carefully to determine whether signing the modellicense is appropriate and beneficial for your institution. Members may also choose tocontinue to remain opted out, or may choose to operate under the tariff once it is set.
There will be an opportunity to discuss the model license further at the business meeting of themembership, scheduled for Monday, April 23 in Guelph. In addition, I am available to respondto any questions you may have, as is our vice-president, Christine Tausig Ford. We arescheduling a teleconference between our legal counsel and your counsels later this week torespond to questions and go over the details of the model licence.
 As we reported to members following the January 2012 Board of Directors meeting, the Boardapproved creation of a negotiating team to try to reach an agreement with Access Copyright. Theteam included David Barnard (University of Manitoba), Elizabeth Cannon (University of Calgary), Patrick Deane (McMaster University), Tim McTiernan (University of Ontario Instituteof Technology) and Christine Tausig Ford (AUCC).
There were a number of pressure points leading to a determination that a negotiated settlementwas the preferable route at this time.Shortly after the Board appointed the AUCC team, and before a meeting could be held withAccess, the University of Toronto and Western University reached a separate agreement withAccess, with a cost of $27.50 per full-time equivalent student and a one-year renewable term. Itwas apparent that Access Copyright was open to future one-on-one agreements, which woulddiminish AUCC's negotiating position.The Federal Court had also heard a judicial appeal brought by AUCC of a previous CopyrightBoard decision. The Copyright Board had found that institutions that had opted out of the tariff would nonetheless be required to answer interrogatories as part of the Copyright Board process.Despite AUCC's best efforts during the judicial review, the appeal was dismissed quickly. Giventhat decision, a number of institutions that have opted out of the tariff would now be required torespond to the intrusive and time-consuming interrogatory process. Should these institutionsinstead choose to sign a licence with Access, they will not be required to submit to theinterrogatory process.Moreover, there remained a number of onerous interrogatories which the Copyright Board wasstill considering applying to member institutions; if directed by the Copyright Board to reply tothese, the administrative burden on AUCC members was anticipated to be high.Finally, during one of the negotiating sessions, Access informed the AUCC team that it would befiling a request with the Copyright Board that the Board order the freezing of all material held incourse management systems at AUCC member institutions in the 2011-12 academic year. Itwould have been extremely costly, if not impossible, for institutions to comply with such anorder. Access agreed to withhold its application to the Copyright Board for such an order whilenegotiations were ongoing.In addition, costs for pursuing the case for AUCC were mounting quickly.Access, too, was facing a pressure to agree to a negotiated settlement. They appeared more eagerto reach consensus than they had previously, and acknowledged that they were feeling thefinancial impact of the institutions that had opted out of the tariff. Access was facing high legalcosts, and continues to be involved in three other tariff cases, including two at the K-12 level.
Benefits/advantages of the model licence
 The team held several meetings with members of Access Copyright Board of Directors and staff.The meetings were productive, and while some difficult issues were tackled, the discussionswere held in a spirit of good faith on both sides. The AUCC team was looking for a number of outcomes that it believed would serve the university community well. The following are includedin the agreement:
a five-year term, which is a longer term than that of the Western/U of T agreement,providing greater certainty of price for a longer period;
a term that would take universities beyond both the Copyright Board decision on thecurrent tariff and the potential effective date of the next tariff on January 1, 2014;
a better price per FTE student -- $26 -- than had been achieved by the two individualuniversities, given that AUCC represented a larger group of members;
enhanced acknowledgement of the purpose of the reporting requirements, including arecognition of the importance of respecting privacy, academic freedom, and universitycollective agreements;
a mechanism for negotiation of future agreements that would, to the extent possible,avoid another Copyright Board hearing;
a guarantee that the model licence "trumps" the tariff;
and an enhanced retroactivity agreement with respect to institutions that had opted outand may now choose to sign an agreement, and those who had remained within the tariff.Access Copyright has agreed that the best retroactivity discounts available to universities will beavailable those that indicate in writing to Access before May 1, 2012 that they expects to sign thelicence, and then actually sign before June 30, 2102. While you need to indicate your intent tosign the licence by May 1, you may still reconsider your options after that date, and you couldchoose to delay signing (in which case the discount will be lower), or not sign at all.In terms of the price per FTE, the negotiating team found itself with little room to manoeuvre.Our Quebec members currently have an agreement with Copibec, under which they pay $25.50per FTE, for less material than covered under the model licence. Meanwhile, the University of Toronto and Western University had settled their agreement at $27.50 per FTE.AUCC members and students currently pay an average price to Access of about $17 per FTE. Inits discussions, the Board noted that, for many members, the indemnity and the certainty of priceprovided for under the agreement are beneficial for institutions that will choose in future tocontinue to remain under the tariff as well as those that may choose to sign the model license atthis point, but continue to position themselves to opt out in future.
Potential risks of operating without a licence
 Board members also discussed potential risks to members who choose not to sign a licence withAccess Copyright, and want to ensure that members are fully aware of these before making theirown institutional decisions on whether or not to sign the licence endorsed by the AUCC Board.Risks to institutions include legal, reputational and financial.It is anticipated that Access Copyright will be vigilant in seeking examples of copyrightinfringement among institutions that choose to remain opted-out. An author or publisher,potentially with the support of Access Copyright, would be entitled to claim damages for eachunauthorized use of a copyright work found to have been used on a university campus. As analternative to claiming damages, a copyright owner could claim statutory damages under the
Copyright Act 
of between $500 to $20,000 for
work copied. Bill C-11, the
Copyright  Modernization Act 
, will reduce the statutory damages for non-commercial infringements tobetween $100 to $5,000 in total damages. Bill C-11 is expected to become law this summer.Commercial infringements, however, will still be liable for the higher statutory amounts.

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