To:

Presidents of Student Governments, Presidents of College & Faculty Student Societies, Student Members of the Governing Council. Jill Matus, Vice-Provost, Students January 30, 2012 University of Toronto and Western Sign Agreement with Access Copyright

From: Date: RE:

I am writing to inform you that the Provost has this evening advised the Business Board of the Governing Council on the following matter. The University of Toronto and Western have reached an agreement with Access Copyright for a new royalty License. It allows for cost-effective copying; includes previously excluded digital copying; minimizes risk; and simplifies the way royalties are collected. As will become clear below, these are major gains. 'Copyright' is a complex legal concept, but the word itself coveys its essence. Just as patents can be held by inventors, so also can copyrights be held by those who create content of various kinds, and who can claim compensation for the use of that content by others. The kind of creative content used most frequently by students in universities is that found in books, journal articles, etc. In our digital age, it has become very easy to copy and distribute creative content. Content creators, such as authors and artists, have raised many concerns about fair compensation for the copying of what they have produced. These claims have often been upheld by courts. It is, of course, relatively straightforward for someone to buy a book in a store, or to pay for digital access to an e-book. In those instances, each transaction leads to a royalty payable to the author. Matters become more complex, however, in an institutional setting such as a university, where access to information is the lifeblood of teaching and learning. Direct textbook sales obviously continue, and the library pays subscription fees for a vast number of journals and digital resources. However, many instructors also use coursepacks, with collections of printed material that has been copyrighted by multiple authors. The sale of course-packs in itself involves challenges in tracking and where possible paying authors for their work. And matters become more difficult from there, given all the different channels through which written material is photocopied or digitally distributed in a university setting. Different nations have taken different approaches to this situation. In Canada, the administration of copyright is overseen by the Copyright Board, which has which has

wide-ranging powers. One of the features of copyright law is the ability of authors to band together to be represented by "collectives" authorized by the Copyright Board. The collective that affects us most directly is Access Copyright. It represents authors and administers copyright entitlements on their behalf. The Copyright Act provides for such collectives to apply to the Copyright Board for a "Tariff" - a comprehensive set of rules which among other things establishes a standardized royalty rate that applies across an entire sector, such as the university and college sector. The idea behind these arrangements is that a collective approach offers advantages for both creators and users of content. Individual authors cannot afford to track and chase down every royalty payment and every infringement of their copyrights. Nor can individual users negotiate copyright permissions on an individualized basis for each item that they might use in an information-intensive environment such as a university. For many years Access Copyright had full-time Canadian university students paying a royalty of $3.38 for fall/winter terms, in addition to a 10 cents per page course-pack charge through Licenses with the universities. The $3.38 royalty covered the day-to-day copying of copyright material, while the per-page royalty covered specific published works for course-packs. Use of course-packs varies across programs. However, the average cost of the Access Copyright portion of a course-pack is estimated at $19.26. If a student's program requires him or her to purchase several course-packs, the Access Copyright royalties could be in excess of $60.00 in a given session. When the previous License expired in 2010, Access Copyright declined to enter into new Licenses with any university. They instead brought an application to the Copyright Board for a new Tariff - including a schedule of royalties - covering the entire university and college sector. The Tariff sought included a royalty rate of $45 per full-time equivalent (FTE) student. Part of the rationale for the severe rate hike was that significant amounts of copying now occur on a digital basis. The new tariff would include digital rights. This application by Access Copyright sparked opposition and debate on the University of Toronto campus as well as many others. Indeed, the University of Toronto has been participating in a sector-wide challenge to Access Copyright's application for a sharp increase to the Tariff. That challenge has been conducted under the auspices of the Association of Universities and Colleges of Canada. As that legal challenge has continued, the University has been examining its options. We looked for, and found, a comparator to assess the likelihood that Access Copyright might make major headway in its claims. Quebec operates its own copyright arrangements. The royalty charged by Copibec, the Quebec collective, varies in the range of $24.90 to $27.50 per FTE student. This includes only limited digital rights. A per-page course-pack charge may also be levied on top of the per FTE student charge, depending on the proportion of course-pack copying in relation to the entire work being copied.

These charges constituted a striking and pertinent Canadian precedent, and were clearly part of Access Copyright's case for a much higher tariff. The legal challenge itself has been complex. Legal costs, while not trivial, were being shared across all universities. The delay in reaching a resolution was superficially appealing, as it deferred any increased payments. However, Access Copyright had made it clear that it would be seeking payment retroactive to the expiry of the original License at the end of 2010, and there was concern that the Copyright Board would uphold that claim. The larger problem with the legal challenge was that the interests of the various institutions were far from aligned. Some institutions preferred to work with an overall Tariff but disputed the proposed terms, while others were convinced that an individualized approach was preferable and wanted to break away altogether from the Access Copyright regime and Tariff. Putting these groups together in a single legal settlement is far from straightforward. The University of Toronto is also not convinced that the 'opt-out' approach is costeffective in the present circumstances. Even should the actual level of payments to copyright holders appear at first to be lower with this approach, we believe that it carries substantial hidden costs. These include the additional administrative burdens on the institution and its members, only some of which can be readily measured. Among the ongoing risks was that the opted-out institution, in an audit or a legal claim, would be found to have failed to fully and fairly track and pay for the use of all copyrighted materials in Access Copyright's repertoire. In the province of Ontario, Western took a similar view to the University of Toronto. Western has already been collecting from its students a royalty of $30 per FTE, on a provisional basis, given the uncertainty of the Tariff outcome and the Quebec precedent. Two months ago, the University of Toronto and Western decided to enter into direct negotiations with Access Copyright for a new License. This License would apply to our community instead of the yet-to-be-defined Tariff. The upshot of these negotiations is that, for the period ending December 31, 2013 the FTE royalty will be $27.50, covering both print and digital Published Works. The royalty also eliminates a separate per page course-pack charge. And there will be no retroactive increases, which potentially could have gone back to the expiry of the previous License at the end of December 2010. The University community avoids dealing with and paying separately for digital rights - an area of growing traffic and substantial potential costs. The arrangement we have made with Access Copyright compares very favourably with the regime in Quebec, which does not include some course-pack royalties and includes only limited digital rights.

We are keenly aware that many in the University of Toronto community - graduate students and professors, especially - are themselves creators of copyrighted works. We operate in a climate where many authors have become more concerned about copyright issues and fair compensation for use of their work. At the same time copyright users need greater certainty about the scope of their rights. The University of Toronto views the new License as providing a fair and efficient balance between the rights of copyright users and the rights of creators. When one considers the existing course-pack royalty charges and the potential scale of charges for digital rights, we think that our agreement presents a very reasonable solution to the difficult set of problems posed by copyright. Students may ask why the University was wary of following the lead of sister institutions that opted out of the tariff. Our concerns relate not just to the hidden costs noted earlier. The problem with opting out is that the institution faces the risk of fines and other legal measures if violations occur. There is no question that Access Copyright will aggressively monitor opted-out institutions, looking for breaches of copyright law pertaining to the published works in Access Copyright's repertoire. Some have argued that such breaches could result in a University and its students being liable for the whole amount of any new Tariff. In contrast, in this agreement and new License, the University has successfully obtained an indemnity that covers the occasional breaches that are more or less inevitable unless one commits huge resources to training and policing these transactions. A final consideration is that copyright amendment legislation is still pending and the next few years will bring considerable uncertainty and riskThe new License, spanning this period of uncertainty, will provide our community with welcome certainty to go on about its business of teaching, learning and discovery. The License upholds the University's ability to use concepts such as fair dealing, which is likely to have expanded scope in new legislation, and which allow broader educational use. Student leaders will recall that when asked by students, at the December 2011 Governing Council meeting, about the status of the challenge to Access Copyright's Tariff Application, the Provost replied that Access Copyright had come forward with a steep increase to $45 and we were hoping to reach agreement on a much lower amount. That is exactly what the University has done. $27.50 is much more reasonable, and it includes an important expansion of coverage into digital copying, as well as eliminating the separate per page royalty for course-packs, which was having a significant impact on many students. As noted, the average royalty per course-pack at the University of Toronto was already around $19 and students were already paying an across-the-board $3.38 royalty. As students will understand, these challenging negotiations with Access Copyright could not occur in the public arena. Now that we have reached an agreement, we will turn our attention to an equitable means of apportioning the royalty among students. Issues that

may need consideration include differences in usage among students in courses heavily reliant on course-packs and those who rarely use course-packs; differences in graduate and undergraduate student usage; and so on. We will immediately engage in a wide and deep consultation process with our student leaders to hear the views of students on an equitable distribution of these charges. Any such arrangements need to be simple to administer and be practical for implementation on May 1st. You may have already received a meeting request from the Office of the Vice-Provost, Students. If not, we will be in contact shortly. In the meantime, if you have any questions, please contact Jim Delaney in my office (416-978-4027 / jim.delaney@utoronto.ca).

-Office of the Vice-Provost, Students Simcoe Hall, 27 King's College Circle, Room 221 University of Toronto Toronto, ON M5S 1A1 Ph: 416.978.3870 Fax: 416.946.0678 vp.students@utoronto.ca www.viceprovoststudents.utoronto.ca www.vpstudentsblog.utoronto.ca