Simon Fraser University

8888 University Drive Tel: 778 782 5596

Burnaby BC V5A 1S6 Email: copy@sfu.ca
Canada sfu.ca

December 6, 2019

Ms. Lara Taylor

Secretary General
Copyright Board of Canada
56 Sparks St., Suite 800
Ottawa, ON K1A 0C9

Dear Ms. Taylor,

Thank you for the opportunity to provide comments regarding the Access Copyright Post-
Secondary Institutional Tariff, 2021-2023 (the Proposed Tariff). Please find below comments
from Simon Fraser University (SFU) regarding this tariff. These comments are provided from
SFU's premise that the Access Copyright Post-Secondary Institutional Tariffs are voluntary for
users and that we may choose to clear our copyright obligations through direct licensing,
transactional licences, and reliance on fair dealing and other exceptions in the Act, rather than be
required to utilize a blanket tariff.

Definitions
The Proposed Tariff utilizes overly broad definitions. Specifically, it includes in the definition of
Copy and/or Communicate the act of “projecting an image” (definition i) which is clearly
allowed under section 29.4 of the Copyright Act. Copy and/or Communicate also includes in its
definition the “displaying on a medium or device…” (definition j). This definition means that
showing a pdf on your laptop to a student is making a copy, or that every time a specific pdf is
accessed on a student’s laptop the student is making a copy. Such a definition turns the act of
reading into the act of making a copy. The Proposed Tariff regards these acts as compensable
copying, which is an expansion of the Proposed Tariff to activities that are not properly the
subject matter of a tariff. The definition of Copy and/or Communicate also fails to leave any
room for uses covered by numerous exceptions in the Copyright Act, including fair dealing.

Defining all Repertoire works “stored on a Secure Network and made available to Authorized
Persons” as being part of a Course Collection is overly broad. All Secure Networks at SFU are
accessible to multiple Authorized Users - thus the storing of an InterLibrary Loan article in a
professor’s folder on the departmental network would be considered part of a Course Collection
and have to be included in the Reporting requirements. Such a definition is over reach for the
purposes of the Proposed Tariff and would contribute to onerous record keeping obligations on
the part of SFU. The definition of Course Collections should be confined to Repertoire works in
course packs and digital course packs.

The definition of Repertoire Work ignores the fact that many rights holders whose work is in the
Access Copyright Repertoire also directly licence those same works to post-secondary
institutions through library licensed resources. Most journal literature at SFU is made available
to the SFU community as a result of direct or consortial digital resource licences with the rights
holder. As written the Proposed Tariff would include the use of those separately licensed
resources, resulting in a double payment by post-secondaries. The definition of Repertoire Works
should be adjusted to reflect that it does not include works licensed through alternative means
between a rights holder and a post-secondary institution.

The definition of Secure Network excludes secure commercial networks such as Google Drive or
DropBox which are used by faculty on occasion when working remotely and are perfectly
legitimate methods of handling electronic documents. These services are regularly used by
faculty when preparing course materials. Temporarily storing Repertoire materials in secure
commercial networks should be allowed.

General Conditions Applicable to all Repertoire Works

Section 4(1) is an unreasonable and overly broad restriction. A literal interpretation implies that
the InterLibrary Loan of copies of Repertoire Works (e.g. a journal article) to other post-
secondaries, or the scholarly sharing of research articles between instructors at different post-
secondary institutions, is prohibited. These are long established practices and clause 4(1) appears
to be an attempt to undermine these accepted practices. As well, these General Conditions do not
reflect that institutions may otherwise have the right or authorization directly from the rights
holder to do the very things Access Copyright seeks to prohibit in Section 4(1).

Reporting
SFU objects to the reporting requirements listed in section 6 of the Proposed Tariff which
impose overly onerous record keeping and reporting obligations. While understanding that
Access Copyright needs to have accurate data in order to remunerate rights holders under the
Proposed Tariff, the requirement to report every single Copy made for a Course Collection
(which itself is too broadly defined) is inconsistent with the blanket license sought by Access
Copyright in the Proposed Tariff. The reporting obligations are suited to a “pay-per-use” royalty
system and not a blanket FTE based tariff. The reporting requirements mimic the SOCAN tariff
reporting requirement for commercial radio stations1. The difference is that a radio station plays
one song at a time in a sequence which is easily recorded for data purposes. An educational
institution is a widely distributed organization, yet Access Copyright is requesting the same level
of centralized, detailed, and onerous record keeping. Surely a sampling methodology would be
more appropriate.
The Proposed Tariff improperly seeks this information regardless of whether the Copying of the
particular Published Works in the Repertoire is otherwise licensed or covered by an exception
under the Copyright Act such as fair dealing.
Additionally, Access Copyright does not provide, or make readily available, a comprehensive up
to date list of the Published Works it claims are in its Repertoire, including the date it claims
each Published Work came into its repertoire. This makes it impossible for SFU to know what
works are in Access Copyright’s Repertoire, particularly those works which Access Copyright

1
Commercial Radio Tariff (SOCAN: 2011-2013; Re:Sound: 2012-2014; CSI: 2012-2013; Connect/SOPROQ: 2012-
2017; Artisti: 2012-2014).

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claims to licence by virtue of those works being authorized by another collective management
organization.

Royalties
A royalty rate of $26 per FTE is too high for the limited use of the Repertoire made by SFU,
since most of SFU’s use of material in the Repertoire is accounted for through direct licences
with rights holders, use under fair dealing and other Copyright Act exceptions, or use of openly-
licensed works.

Payment
SFU is unable to meet the requirement to remit to Access Copyright by January 31 a report
specifying the number of Full-time-equivalent Students for the current Academic Year. SFU is a
three semester school and the definition of Academic Year is September 1 to August 31. It is
impossible to know our summer enrolment by Jan 31 as enrollment has not opened yet for the
summer semester.
The definition of FTE Students also includes Continuing Studies students. Due to the short
length of Continuing Studies courses and the fact they are offered throughout the entire
Academic Year it is impossible for SFU to report the number of students in Continuing Studies
courses for the entire Academic Year when only 4 months of the Academic Year have elapsed. It
would be more appropriate if the payment was based on the FTE count for the previous year, as
SFU, and many other universities, do not know the correct FTE count for an academic year until
August of that year.

Attribution
The attribution notice requirement in section 11(b) is reminiscent of the era of paper course
packs and is unsuitable to digital learning environments. It is extremely cumbersome to expect a
faculty member to scan a chapter, open it in specific software and add the required notice, for
every work utilized. It would be more appropriate for digital works to provide the option of
displaying the Access Copyright notice in a prominent place within the learning management
system or e-reserves system.

Notification of the Terms and Conditions of Copying and/or Communicating

The section 12 notice requirement should be restricted to public machines. Every computer,
laptop, and tablet device used at SFU is capable of “making, viewing and transmitting Published
Works”. As currently worded, the Proposed Tariff would require having a notice at or near
thousands of staff workstation computers and portable devices located all over SFU’s campus
and in remote work locations. We doubt this is the intent of this section.
Section 12 also requires notice of “the tools available to the Educational Institution to confirm a
Published Work’s status as a Repertoire Work.” Access Copyright does not currently provide the
ability to confirm that a Published Work is a Repertoire Work, and has never been able to clearly
provide Educational Institutions with such data. The Proposed Tariff cannot require SFU to
provide notice of a tool that is not available.

Surveys

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Under Section 13 Access Copyright seeks the right to conduct an annual bibliographic and
volume survey of an educational institution’s use of Repertoire works under the uses permitted
under the Proposed Tariff. The Survey requirements propose in Section 13(2) that Access
Copyright be granted full access to SFU’s Secure Network and access throughout our premises.
Very few individuals at SFU have such access due to valid security concerns. Granting such
access is not feasible as doing so would violate British Columbia’s FIPPA legislation, SFU’s
own IT policies, and SFU’s contracts with its various employee groups. Section 13(4) should be
amended to also include that the survey shall respect all employee contracts and institutional
policies. Finally, as addressed under Reporting above, the proposed survey is inconsistent with a
blanket licence based on FTE count.

Royalty and Compliance Audits

The Proposed Tariff requires educational institutions to keep “records from which the royalties
and reports due to Access Copyright under this tariff can be readily ascertained” for a period of
six years after the Academic Year to which they relate. This is an overly long records retention
schedule, and for comparison purposes the SOCAN commercial radio tariff only requires the
keeping of such records for a period of six months.2
SFU has the same concerns about Section 14(4) and 14(9) as those addressed above regarding
Sections 13(2) and 13(4).

Sincerely,

Donald Taylor and Jennifer Zerkee

Simon Fraser University Copyright Office

cc: Li-Jeen Broshko, General Counsel

2
Commercial Radio Tariff (SOCAN: 2011-2013; Re:Sound: 2012-2014; CSI: 2012-2013; Connect/SOPROQ: 2012-
2017; Artisti: 2012-2014. Sections 11(1) and 11(3).

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