PYRIGHT BOARD OF IN THE MATTER OF the Proposed Statement of Royalties to be Collected by Access Copyright for the Reproduction, Communication to the Public by Telecommunication, Making Available to the Public, in Canada, of Works in its Repertoire for Post-Secondary Educational Institutions (2018-2020) OBJECTION TO STATEMENT OF PROPOSED ROYALTIES filed by UNIVERSITIES CANADA. Access Copyright Post-Secondary Educational Institution Tariff, 2018-2020 OSLER, HOSKIN & HARCOURT LLP 100 King Street West 1 First Canadian Place Suite 6200, P.O. Box 50 Toronto, Ontario MSX 1B8 John C. Cotter Tel: 416.862.5662 Fax: 416.862.6666 jeotter@osler.com Barry Fong Tel: 613.787.1097 Fax: 613.235.2867 bfong@osler.com Counsel for the Objector, Universities CanadaUniversities Canada’s Objection to Access Copyright Post-Secondary Educational Institution Tarif, 2018-2020 Page 2 of 8 1. Universities Canada (formerly the Association of Universities and Colleges of Canada) hereby objects to the provisions of the Access Copyright Post-Secondary Educational Institution Tariff, 2018-2020 (the “Proposed Tariff”) and does so without admitting that that there is any liability on institutions for the payment of royalties, and without admitting that the final tariff (‘Final Tariff") to be approved by the Copyright Board (the “Board”) is binding on institutions (unless they elect to operate under it) or that it is mandatory for institutions that do not wish to operate under the Final Tariff. Introdu 2. Universities Canada was created in 1965 through special act of Parliament. It is a not-for- profit membership organization that represents the interests of 96 Canadian public and private universities and university-degree level colleges (77 of which are located in Canada outside of Québec). Objections to the Proposed Tariff 3. Without limiting its right to raise other issues or grounds of objection or to rely on objections made by any other party in this proceeding, Universities Canada objects to the following aspects of the Proposed TariUniversities Canada’s Objection to Access Copyright Post-Secondary Educational Institution Tariff, 2018-2020 Page 3 of 8 () Proposed Royalty Rate (Section 7) 4. Under subsection 7(1) of the Proposed Tariff, Access Copyright has proposed an annual royalty rate of CAD$26.00 per full-time-equivalent student (“FTE”) for universities (and CADS$10.00 per FTE for all other educational institutions), 5. Universities Canada objects to the proposed royalty rate on the basis that it is neither fair nor reasonable, and further, bears no relationship whatsoever to the value derived by an institution that operates under the Final Tariff. 6. Inaddition, the proposed tariff royalties per FTE are excessive having regard to all of the circumstances, including the scope of Access Copyright’s repertoire and the practices of Canadian universities and university-degree level colleges with respect to the copying of literary and other works, and does not adequately reflect such things as: (@) copying permitted under other license agreements with, or permissions obtained from, copyright owners, their agents or other content providers (including, by way of example, licenses negotiated with publishers or content providers by institutions or consortia, such as the Canadian Research Knowledge Network); (>) copying permitted under open access licenses for content which is commonly and increasingly used in higher education and research; and (©) copying pursuant to exceptions in the Copyright Act, including the fair dealing exception and other explicit exceptions for educational institutions.Universities Canada’s Objection to Access Copyright Post-Secondary Educational Institution Tariff, 2018-2020 Page 4 of 8 ‘Structure of the Proposed Tariff 7. The Proposed Tariff has absolutely no flexibility. Access Copyright’s tariff proposal is limited to a blanket license only, at an annual per-FTE royalty rate, which is a tariff structure that is completely unbalanced in favour of Access Copyright and does not reflect, adequately or at all, that Access Copyright is not the only source of the rights it seeks to license, The structure of the Final Tariff should complement the other options available to institutions for complying with their copyright obligations and should not be structured so as to create disincentives for institutions to pursue altemate licensing arrangements, Rather, it should be structured in a way that provides institutions with choices and also facilitates alternate licensing arrangements. Notably, the Proposed Tariff does not include options in addition to a blanket license, such as the option for transactional (i-e., pay-per-use) licenses as tools that institutions can opt to use to comply with their copyright obligations. 8. The licensing model proposed by Access Copyright hinders the ability of each institution to select the licensing arrangement(s) best suited to its practices for copyright compliance and the fulfillment of its educational and research mandates. (iii) General and Additional Provisions (Sections 4 and 5) 9. Universities Canada objects to the prohibitions set out in sections 4 and 5 as being unreasonable, overly broad and not appropriate subject matter for a tariff. Moreover, these prohibitions, like other provisions of the Proposed Tariff, do not reflect, adequately or at all, that institutions may otherwise have the right or authorization (e.g., license agreements with, orUniversities Canada’s Objection to Access Copyright Post-Secondary Educational Institution Tariff, 2018-2020 Page 5 of 8 permissions obtained from, copyright owners, their agents or other content providers; exceptions under the Copyright Act, including fair dealing) to engage in the conduct Access Copyright seeks to prohibit. (iv) Reporting Requirements (Section 6) 10. Universities Canada objects to the reporting requirements listed in section 6 of the Proposed Tariff which — if accepted by the Board — will impose overly onerous record keeping and reporting obligations on institutions, 11, The onerous nature of the reporting obligations is compounded by the overly broad definitions of “Copy” (which includes activities that are not within the exclusive rights of copyright owners or do not otherwise engage the exclusive rights of copyright owners by reason of exceptions or limitations on copyright in the Copyright Act) and “Course Collection” (which ‘Access Copyright has proposed to include, among other things, all digital copies “emailed, linked or hyperlinked to” by all students and staff members), as set out in section 2 of the Proposed Tariff. 12, Further, the reporting requirements in the Proposed Tariff go well beyond the amount of information reasonably required by Access Copyright to properly distribute royalties collected under the tariff to the copyright owners that it represents. 13. Inaddition, the onerous nature of the reporting obligations is inconsistent with the blanket license sought by Access Copyright in the Proposed Tariff.Universities Canada’s Objection to Access Copyright Post-Secondary Educational Institution Tariff, 2018-2020 Page 6 of 8 (v) Provisions on Surveys, Royalty and Compliance Audits (Sections 13 and 14) 14, Inaddition to the onerous reporting requirements, Universities Canada objects to the survey and audit provisions set out the Proposed Tariff. Under section 13, Access Copyright seeks the right to conduct a bibliographic and volume survey of individual institutions once a year. Under section 14, Access Copyright’s proposed audit provisions mandate the retention of an institution’s records for a period of six (6) years from the end of the applicable academic year to which they relate. Both the survey and audit requirements propose to grant Access Copyright right of access ‘throughout an institution's premises and full access to its Secure Network and all Course Collections (as those terms are very broadly defined in section 2). 15. These provisions are unduly invasive, impractical, burdensome and costly for institutions. By way of example, the retention of the complete contents of an institution's Secure Network and all Course Collections for even a single academic year would require the storage and archiving of a massive amount of data, most of which would be completely unrelated to and unnecessary for Access Copyright’s purpose of administering the approved tariff. Further, the proposed provisions impose an impractical burden on institutions by requiring that they ensure all “Authorized Persons” (which includes students and staff members) will cooperate fully with surveys and audits conducted under the unreasonably broad survey and audit provisions of the Proposed Tariff, which do not specify any parameters. 16. In addition to the practical difficulties of institutions complying with and ensuring the compliance of others with the proposed survey and audit provisions, the access sought by Access Copyright to conduct the surveys and audits has the potential to contravene provincial and federalUniversities Canada’s Objection to Access Copyright Post-Secondary Educational Institution Tariff, 2018-2020 Page 7 of 8 privacy laws, breach faculty collective agreements, and violate principles of academic freedom. These concems exist irrespective of subsections 13(4) and 14(9) of the Proposed Tariff. 17, The problematic nature of sections 13 and 14 of the Proposed Tariff are compounded by the draconian penalty provisions in subsections 13(3) and 14(7). Access Copyright should not have the right to terminate the license granted under the Final Tariff based on non-compliance with either the survey or audit provisions, including that it should not be able to unilaterally decide whether an institution has “unreasonably refused” to participate in a survey or that it has misreported its records. Further, Access Copyright is attempting through the provisions of the Proposed Tariff to address enforcement issues, which is not proper subject matter for a tariff. (vi) Attribution and Notification Provisions (Sections 11 and 12) 18, The Proposed Tariff imposes an attribution requirement under section 11 for all copies ‘made pursuant to it and a notification requirement under section 12 requiring institutions to affix notice of the terms of the tariff, among other things, within the immediate vicinity of every “machine or device used for making, viewing or transmitting copies” located on its premises. 19, Universities Canada objects on the basis that these provisions would impose an impractical ~ if not impossible — burden on institutions, particularly in the case of digital copies and machines or devices that can be used to make, view or transmit digital copies. 20. As with other requirements imposed by the Proposed Tariff, the unreasonably burdensome nature of the attribution and notification provisions are compounded by overly broad definitions of “Copy”, “Course Collection” and other terms defined in the Proposed Tariff.Universities Canada's Objection to Access Copyright Post-Secondary Educational Institution Tariff, 2018-2020 Page 8 of 8 (vil) Compliance Provisions (Section 15) 21. — Section 15 of the Proposed Tariff requires institutions to ensure compliance with the unreasonable and overly broad conditions in section 4 and 5 by “Authorized Persons”, which includes all students and staff members. 22. Universities Canada objects on the basis that institutions cannot and should not be required to “police” or monitor all copying activities. Without limiting the generality of the foregoing, institutions should not be required to police or monitor student conduct, and cannot and should not be required to act in a manner that potentially adversely impacts the academic freedom of faculty. ALL OF WHICH IS RESPECTFULLY SUBMITTED this 19th day of July, 2017. AE ae ER, HOSKIN & HARCOURT LLP King Street West 1 First Canadian Place Suite 6200, P.O. Box 50 Toronto, Ontario M5X 1B8 John C. Cotter Tel: 416.862.5662 Fax: 416.862.6666 jootter@osler.com Barry Fong Tel: 613.787.1097 Fax: 613.235.2867 bfong@osler.com Counsel for the Objector, Universities Canada