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AUCC April 30 2012 Q and a Fact Sheet

AUCC April 30 2012 Q and a Fact Sheet

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Published by: hknopf on May 02, 2012
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12/13/2013

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LEGAL_1:23386823.1
 AUCC Settlement with Access Copyright – Questions and Answers
Questions and Answers 
1.Q
 
What are the advantages of the AUCC settlement with Access Copyright?
 A The model license provides long-term certainty on price, and access to a new range of digitalmaterials. Most importantly, it respects the principles of academic freedom and privacy andensures that the administrative burden on institutions is minimized.
2.Q
 
Is the fee of $26 per FTE a reasonable rate?
 A The fee reflects current market rates under other copying agreements between universitiesand copyright collectives. For example, the current photocopying licence between theQuebec collective Copibec and Quebec universities requires payment of an annual fee of $25.50 per Full-Time Equivalent (FTE) Student. In addition, the agreements signed recently  with Access Copyright by the University of Toronto and Western University, which alsocover paper and digital copies, require annual payments of $27.50 per FTE. It is very unlikely that the Copyright Board will certify a final tariff fee for universities that issignificantly lower than the market rate negotiated by AUCC.
3.Q
 
With the apparent decline of the use of course packs, should the fees have gonedown from the amounts paid under the photocopying licence with AccessCopyright?
 A
 
 There has been a significant migration of copying for course packs to digital copying for useon course websites. The AUCC model licence allows digital copying to fill gaps in thecoverage of the digital site licences that universities have signed. The photocopying licence with Access Copyright did not cover digital copying.
4.Q
 
Who will pay the fee of $26 per FTE?
 A
 
In certain provinces, institutions must absorb the fee because of provincial restrictions onincreases in student fees. In other jurisdictions, either the institution or the students, or acombination of the two, will pay the fee depending on local arrangements.
 
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LEGAL_1:23386823.1
5.Q
 
Does the definition of “Copy” in the AUCC model licence mean that AUCC acceptsthat posting a hyperlink to a digital copy is the same as authorizing the making of acopy and requires a licence?
 A
 
Despite the ruling of the Supreme Court of Canada in a recent defamation case,
Crookes v. Newton 
, it is still an open issue in Canadian law whether posting a hyperlink could make aperson liable for authorizing the copying of the digital work. The definition of “Copy” in themodel licence makes the licence and the indemnity very broad in scope. Another provision in the model licence clarifies that AUCC has accepted this definition on a“without prejudice” basis and reserves the right to take a different position on the meaning of the term in any other proceeding.
6.Q
 
Does the model licence require that royalties be paid for copying that may be done without permission, e.g. fair dealing?
 A
 
 The payment under the licence is not for copying that may by done without permission. Thepreamble on the first page of the model licence states clearly that the licence does not apply to copying under fair dealing or any other statutory exception. Nor does the licence paymentcover uses that are licenced directly from publishers or other copyright collectives.
7.Q
 
Would it have been better to wait until after Bill C-11, the
Copyright Modernization  Act 
, becomes law and the Supreme Court of Canada rules on fair dealing in K-12schools before AUCC settled with Access Copyright?
 A
 
Bill C-11 and the upcoming Supreme Court decision on fair dealing are unlikely to affect theneed to secure a licence for copying required readings for students for inclusion either incourse packs or on course websites. Required readings is the principal category of copying covered by the model blanket licence agreement.
8.Q
 
Will the proposed survey under the AUCC model licence permit Access Copyright tomonitor the electronic correspondence of students and faculty?
 A
 
 The proposed survey under the AUCC model licence will respect the principles of academicfreedom and privacy. The agreement explicitly states that the survey will not provide accessto chat rooms or e-mails of the AUCC member, or of its students or academic staff. The
 
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LEGAL_1:23386823.1
Copyright Board tariff proceedings would likely have required more onerous and invasivedisclosures of information.
9.Q
 
Will the AUCC model licence restrict access to educational material?
 A The AUCC model licence increases access to educational material by providing the right tocopy a new range of digital materials that were unavailable under the previous photocopying licences. For AUCC members that had opted out of the Interim Tariff, the model licenceagreement will allow the digital copying of works for which they were unable to obtaintransactional (pay-per-use) permission from the copyright owner.
10.Q
 
Is there an advantage to having the AUCC model licence continue until December31, 2015, two years after the first Access Copyright tariff ends?
 A
 
 The longer term gives AUCC members and their students certainty in the royalty rate for alonger period than the term of the tariff. It also provides AUCC members with a longerperiod in which to establish appropriate copying policies and procedures, and to ensure thatfaculty, staff and students comply with those policies and procedures.
11.Q
 
Why was AUCC unable to consult with its members during the negotiation of themodel licence?
 A
 
 The AUCC negotiating team members were under strict confidentiality in a framework agreed to by both the AUCC and Access Copyright Boards of Directors. Neither AUCC nor Access Copyright was permitted to share information about the negotiations with theirrespective members.
12.Q
 
Why has AUCC dropped its opposition to the tariff?
 A It is unlikely the Copyright Board will approve a tariff fee for universities that is significantly lower than the market rate fee negotiated by AUCC. In addition, the Copyright Board hasalready ruled against AUCC’s request that it amend the Interim Tariff to add a transactionallicence, and the courts refused to intervene on the basis that the decision of the CopyrightBoard is an interim decision.

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