AUCC Settlement with Access Copyright – Questions and Answers

Questions and Answers
1.Q A What are the advantages of the AUCC settlement with Access Copyright? 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 privacy and ensures that the administrative burden on institutions is minimized. 2.Q A Is the fee of $26 per FTE a reasonable rate? The fee reflects current market rates under other copying agreements between universities and copyright collectives. For example, the current photocopying licence between the Quebec 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 also cover 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 is significantly lower than the market rate negotiated by AUCC. 3.Q With the apparent decline of the use of course packs, should the fees have gone down from the amounts paid under the photocopying licence with Access Copyright? A There has been a significant migration of copying for course packs to digital copying for use on course websites. The AUCC model licence allows digital copying to fill gaps in the coverage of the digital site licences that universities have signed. The photocopying licence with Access Copyright did not cover digital copying. 4.Q A Who will pay the fee of $26 per FTE? In certain provinces, institutions must absorb the fee because of provincial restrictions on increases in student fees. In other jurisdictions, either the institution or the students, or a combination of the two, will pay the fee depending on local arrangements.


-25.Q Does the definition of “Copy” in the AUCC model licence mean that AUCC accepts that posting a hyperlink to a digital copy is the same as authorizing the making of a copy 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 a person liable for authorizing the copying of the digital work. The definition of “Copy” in the model 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. The preamble 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 payment cover 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-12
schools before AUCC settled with Access Copyright? A Bill C-11 and the upcoming Supreme Court decision on fair dealing are unlikely to affect the need to secure a licence for copying required readings for students for inclusion either in course 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 to monitor the electronic correspondence of students and faculty? A The proposed survey under the AUCC model licence will respect the principles of academic freedom and privacy. The agreement explicitly states that the survey will not provide access to chat rooms or e-mails of the AUCC member, or of its students or academic staff. The

-3Copyright Board tariff proceedings would likely have required more onerous and invasive disclosures 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 to copy 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 licence agreement will allow the digital copying of works for which they were unable to obtain transactional (pay-per-use) permission from the copyright owner. 10.Q Is there an advantage to having the AUCC model licence continue until December 31, 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 a longer period than the term of the tariff. It also provides AUCC members with a longer period in which to establish appropriate copying policies and procedures, and to ensure that faculty, staff and students comply with those policies and procedures. 11.Q Why was AUCC unable to consult with its members during the negotiation of the model 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 their respective members. 12.Q A Why has AUCC dropped its opposition to the tariff? 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 has already ruled against AUCC’s request that it amend the Interim Tariff to add a transactional licence, and the courts refused to intervene on the basis that the decision of the Copyright Board is an interim decision.


-413.Q A Why was it important for AUCC to negotiate an agreement now? The recent decision of the Federal Court of Appeal not to intervene in interim proceedings of the Copyright Board meant that the Board's previous orders for AUCC members to provide information relevant to the proceedings became binding. Had AUCC not reached agreement with Access Copyright on a model licence, AUCC members would have been required to embark on an invasive, time-consuming and expensive work to respond to interrogatories and likely participate in an onerous survey. 14.Q A What is the purpose of the retroactive payment provisions under the model licence? AUCC negotiated a fair retroactivity formula in the agreement with Access Copyright that provides for very deep discounts to payments for the use of digital works that was not covered by the Interim Tariff and to cover the value of the indemnity, which is retroactive back to January 1, 2011. This indemnity provides an additional degree of retroactive protection for inadvertent infringement involving works within Access Copyright’s repertoire. 15.Q Can the Copyright Board order institutions that do not sign licences with Access Copyright to respond to interrogatories or participate in a survey of copying? A Because AUCC has withdrawn from the Copyright Board proceedings, the Board no longer has any jurisdiction to order AUCC to secure responses from its member institutions to interrogatories or their participation in a survey. AUCC members are not parties to the proceedings. In previous proceedings the Copyright Board has ruled that its powers are not unlimited, and that it probably does not have the power to order non-parties to the proceedings to answer questions or to participate in a survey, otherwise than by ordering them to appear at the hearing as a witness under a subpoena. The Copyright Board has never exercised its power to issue a subpoena.


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