*This is a guest blog post by Bobby Glushko, Head of the Scholarly Communications and Copyright Office for the University of Toronto Libraries*

On May 22, 2015, the Copyright Board of Canada certified a surprisingly low tariff for copying undertaken by the full time professional staff of provincial governments, such as legislators, aides, and other provincial employees. The tariff, 11.56¢ per employee, per year, for the 2005- 2009 period and 49.71¢ per employee, per year, for the 2010-2014 period, is vastly lower than the $15 tariff initially proposed by Access Copyright. In its decision, the Board supported several interesting copyright theories which may have long term significance for libraries in Canada.

It has long been the custom that Canadian institutions would hold licenses with one or many of the various rightsholder collectives to cover their uses of copyrighted content. These licenses were generally paid on a per employee basis, and were set by either negotiation or through the operation of the Copyright Board of Canada, an administrative body established by Parliament to, among other things, issue tariffs for the use of copyrighted content. One of the major collectives issuing these licenses is Access Copyright, a collective representing authors, publishers, and visual artists. Over the past decade, the costs of the Access Copyright license, a license which allows for institutions to copy significant portions of published works in their licensing repertoire, and the price of the tariff have risen dramatically, from a low of $3 per employee to as high as a proposed $45 per employee. With such uncertainty in the market, and a substantial realignment of the law, Canadian universities and colleges have been forced to re-examine the value of the Access Copyright license, and many of them have chosen to forgo purchasing a license or accepting the tariff, choosing instead to handle rights clearances in house, often in their libraries, and to license content on a transactional basis where necessary.

These changes have not gone unchallenged, however.   In April 2013, Access Copyright sued York University, claiming that by operating without an Access Copyright license or working under a tariff, York was “authorizing and encouraging copying that is not supported by the law.” In their claim, Access Copyright argued that due to the presence of copyright infringement at York, the University needed to be subject to the Board’s tariff, and could not operate outside a license arrangement. A similar suit was brought by Copibec, the comparable author’s collective from Quebec, against Université Laval as well.

While the litigations are still ongoing, this recent action by the Board calls into question their viability and even the continued existence of Access Copyright. Projected revenues from the proposed tariff were around twenty-five million dollars over the covered period; the issued tariff provides for approximately three hundred seventy thousand dollars over the same period, an amount that will likely not even cover the cost of Access Copyright’s action before the Board to obtain the tarriff. As devastating as the financial loss is, the loss on substantive legal arguments appears to be even worse. While the Board’s rationale is not binding on the courts, judges have tended to give deference to the Board as a finder of fact. In this current tariff proceeding, the Board ruled against Access Copyright on several legal arguments, two of which are expanded upon below.

First, the Board rejected the argument that Access Copyright had the capacity to license all published works from which it was not explicitly excluded from licensing, even in the absence of a formal arrangement with a rightsholder. While this may seem obvious in a non-extended licensing jurisdiction, that is, a jurisdiction where all types of published works are subject to a non-voluntary licensing regime, it was in fact a longstanding claim by Access Copyright that they had the capacity to do this. By rejecting this argument, the Board dealt a huge blow to any litigation involving Access Copyright’s repertoire, and essentially posed an existential threat to the organization.

Second, and equally as important, the Board flatly rejected Access Copyright’s interpretation of the scope of fair dealing in Canada. Since the Supreme Court of Canada’s series of rulings on copyright law in 2012, which have been termed the Copyright Pentalogy, the scope of fair dealing has been subject to a fairly fierce debate. Nearly all Canadian universities have adopted fair dealing guidelines which state that the copying of 10% or one chapter of a book, or one article from a journal issue, would generally tend to be fair for the purposes of education, teaching, or private study, given the assumption that the other fair dealing factors do tend towards fairness in the context of higher education. In this action before the Board, Access Copyright advanced a theory of the scope of fair dealing that was far more limited; a theory which the Board wholeheartedly rejected in favour of a scope of fair dealing closely aligned with the commonly adopted university guidelines. The implications of this for the ongoing litigation are tremendous, as a rejection of the fair dealing guidelines adopted across Canada is an essential element of Access Copyright’s legal strategy.

Given the current climate, where most Universities and Colleges are choosing to operate outside of a tariff or a license with Access Copyright, the Board’s decision comes as yet another huge setback in what has been a series of losses for the collective. Perhaps this decision, rather than being the next chapter for Access Copyright, may be an indication that its long story is coming to an end.

If you’re interested in these issues, come join us at the Copyright in Canada Conference on October 2nd 2015 in Toronto, Ontario.