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Universities to pay Access Copyright the same rates, for now

Copyright Board ends confusion over rates with an interim tariff, but digital environment and a new copyright bill could change the rules again

BY JOHN LORINC | MAR 07 2011

After months of sniping over Access Copyright’s bid to jack up photocopy licensing fees charged to Canadian universities and colleges, the Copyright Board issued an interim ruling that imposes a truce, in the guise of operating guidelines until the final terms are certified by the board. The process could take more than two years.

Last  year, the collective that represents authors applied to the board for permission to increase its annual fees to a blanket rate of $45 per fulltime student, which works out to about two-and-a-half times the current regime of $3.83 per student plus 10 cents per page for course packs. The university sector pushed back, saying the magnitude of the hike was not justified.

In its decision, the board decided that the existing licensing structure should remain in effect as an interim tariff until a rate-setting exercise is completed. The rationale for the decision, it said, was to provide postsecondary institutions with certainty and guidance “on what they may or may not do with the repertoire.”

Access Copyright, which administers photocopying royalties on behalf of writers and publishers, says it is pleased with the ruling. “We’re happy that the confusion is over,” said the organization’s counsel Erin Finlay, noting that the collective proposed the compromise to the board.

But the board’s interim ruling is hardly the end of the story. Ms. Finlay says that once the board does establish a new tariff, it could be applied retroactively to Jan. 1, 2011, when the interim tariff took effect.

Access Copyright no longer offers the blanket licences to universities that had been in place until the end of 2010, proposing its tariff instead. A few universities have decided to operate without paying the interim tariff. That means that their students, faculty and staff can electronically share materials for which the university pays a fee directly to publishers, often through a site licence. But if members of the university community want to photocopy parts of books or articles that are beyond the scope of fair dealing, they would have to obtain permission from the rights holder.

Ryerson University let its licence lapse in December, and in early January the University of Manitoba announced that it, too, wouldn’t sign onto the interim tariff, citing the latest attempts to update Canada’s copyright laws that might change the landscape for copying.

Ms. Finlay maintains that the collective rights administration system remains a far more convenient way for instructors to use copyright materials. Without institution-wide licences, professors will have to seek permission for everything they want to scan, she says. “We are the collective solution to that problem.”

However, Steve Wills, manager of government relations and legal affairs for the Association of Universities and Colleges of Canada, points out that these institutions may choose to rely solely on works that are already in digital format. Universities have negotiated licensing agreements directly with publishers that provide broad rights of access to the electronic versions of journals and some electronic books. Access Copyright’s website states that it represents over 20 million works in print format but only about 220,000 works in digital format – barely more than one percent of its print repertoire. “Many publishers are bypassing the collective in the digital environment,” says Mr. Wills.

The reason for the hedging may have to do with one of the provisions in the new copyright legislation, Bill C-32, which is currently being examined by a House of Commons standing committee. The legislation proposes that the so-called “fair dealing” exemption – a longstanding user’s right that allows individuals to make copies for private or research purposes – be expanded to include educational uses.

“All of this is coming together in a perfect storm of issues that seem to be focused on the copyright tariff right now,” observes University of Western Ontario legal counsel Stephen Jarrett, who describes the board’s ruling as a reasonable compromise.

The question is whether multiple paper or digital copies made by a professor for his or her students would qualify as fair dealing. “That’s something we still have to come to grips with,” he adds.

Critics of the bill say the fair dealing exemption for education represents an “unfair expropriation” of creator revenues, and could also inflict a body blow on Access Copyright’s licensing arrangements with postsecondary institutions. “In exempting some of these uses,” says a policy brief prepared by a coalition of 80 creator groups, “C-32 arbitrarily wipes out the associated revenue, seriously compromising primary or secondary markets for educational materials.”

Describing such claims as “grossly exaggerated,” Mr. Wills observes that the Copyright Board in 2009 handed down precedent-setting rulings about education-related copying. He also points out that Canada’s fair dealing laws have been traditionally more restrictive than the “fair use” provisions in U.S. copyright law, which he describes as more “open ended.” Mr. Jarrett expects that even if Parliament manages to pass the legislation, there will be subsequent legal challenges over the fair dealing language.

The expanded fair dealing exemption isn’t the only provision in C-32 that could affect the higher education sector. The proposed bill includes measures that would facilitate distance and online learning by allowing lectures and associated copyright materials to be transmitted over digital networks.

But AUCC is concerned about provisions in the bill that require students and staff to destroy these digital lecture files after the course has ended. Institutions often reuse recordings of lessons in distance education. The provision means university staff would have to destroy recordings of lessons and then record and save the same lessons again, wasting resources. If a student copied recordings of a lesson from a course website, then the student would have to destroy digital copies after the course ended.

AUCC also worries about proposed restrictions on inter-library loans that would allow a borrower to see a digital copy of an article, but only for five days, and to make just a single print copy. AUCC recommends that the recipient should be able to save the digital copy indefinitely.

All of these issues have surfaced in previous attempts to update Canada’s copyright laws, which were last amended in 1997.

While AUCC says that C-32 achieves a “fair balance” and needs no more than a bit of tweaking, the Commons committee vetting the bill has scheduled lengthy hearings with hundreds of deputations. But if the opposition parties defeat the government and trigger an election, the legislation will die on the order paper. Says Mr. Wills, “It’s fair to say it’s up in the air as to how this is going to play out.”

More info on Bill C-32 and copyright:

More on Copyright from AUCC

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