‘Ottawa, Ontario, Canada KIR 76 s2laiee ha OSLER July 15,2010 ‘Seaton zers09 BY EMAIL Me. Gilles McDougall ‘Acting Secretary General Copyright Board of Canada Suite 800 - 56 Sparks Street Ottawa, Ontario KIA 0c9 Dear Mr, MeDougall: Access Copyright Post-Secondary Educational Institution Tariff, 2011-2013 We are writing to you on behalf of the Association of Universities and Colleges of Canada AUC), AUCC hereby objects to the provisions of the Access Copyright Post-Secondary Educational Institution Tariff, 2011-2013 (the “Post-Secondary Tariff”) on behalf of its ‘members located in Canada outside the Province of Quebec. AUCC is the voice of Canada’s Universities. AUCC represents 95 Canadian public and private not-for-profit universities and universty-degree level colleges. Of the 95 universities and colleges, 77 are located in Canada outside of Quebee. AUC develops relationships with governments, industry and the public to raise the profile of higher education and provides information and advocacy on the contributions of Canadian ‘universities to evonomic growth, social cohesion, cultural richness and vital communities in Canada and around the world, In 1994, after years of negotiation with Access Copyright, then known as CanCopy, AUC agreed with Access Copyright on the terms of a model university reprography licence agreement which AUCC recommended to its member institutions located in Canada outside of Quebec. The initial model lence agreement was for aterm which terminated August 31, 1996. Since that date the model licence agreement has been renewed through negotiation between AUCC and Access Copyright. ‘The current model licence agreement terminates August 31, 2010. Access Copyright determined thet it will not be renewed but it has offered universities @ four-month licence extension that will terminate on December 31, 2010 Over the years, AUCC’s members located outside Quebec have signed reprography licence agreements with Access Copyright which have been based upon the AUCC ‘model licence agreementOSLER Page 2 ‘The Post-Secondary Tariff departs ftom the structure of the AUCC model licence ‘agreement in many substantial ways. The current model licence agreement permits AUCC member institutions to make copies and restriets the institutions to only providing ppaper copies to end users. The Post-Secondary Tariff defines “Copy” to mean “any reproduction, in any material form whatever, including a Digital Copy". The term “Digital Copy” is broadly defined as “a reproduction in any digital form including optical for electronic form”. AUCC member institations currently make digital copies of ‘numerous academic journals available to students and faculty pursuant to licence agreements with the publishers negotited on their behalf by the Canadian Research Knowledge Network (*CRKN"). The availabilty of the right to make digital copies under the proposed tariff may be a litle, if any, benefit to AUCC member institutions having regard to the CRKN licence agreements. Another difference is that, Access Copyright now proposes thet tariff royalties will be calculated based upon an elevated dollar amount multiplied by the number of full-time-equivalent students (“FTEs”) and climinates a per page rate for course packs for the reproduction of works within its repertoire. ‘The proposed tariff royalties per FTE are excessive having regard to: (a) the practices of AUCC’s members located outside Quebec with respect to the copying of literary and other works other than copying permitted under existing licence agreements ‘with the copyright owners, including the CRKN licence agreements, or pursuant 10 explicit exceptions in the Copyright Act including the fair dealing exception; and (b) the very limited repertoire of Access Copyright particularly in relation to the making of digital copies. A thind substantive change isto provide Access Copyright with the right {fo conduct a bibliographic and volume survey of the uses ofits repertoire permitted by the Post-Secondary Tariff. Such a survey could significantly disrupt and inconvenience AUCC's members end vastly inerease the true cost to those members of operating under the proposed tariff In view of recent changes in reproduction technologies, the widespread availablity to Universities of publications in electronic format for which AUCC members have secured Ticences from the publishers, andthe extent of copying by universities on behalf oftheir faculty and staff to which the fair dealing exception applies, any tariff certified by the Board must be flexible and provide alternatives to enable each university to select tariff royalties applicable to its copying activities, if any, covered by the tariff. A. university should be able to avoid having to pay royalties for copying activities which the university oes not undertake, or to pay royalties for copying activities for which the university hholds an existing licence or which are covered by fair dealing or another statutory exception. ‘The Post-Secondary Tariff is proposed to tke effect January 1, 2011. AUCC’s member institutions are non-profit organizations which operate to budgets based upon anticipated revenue fom operations and funding. To enable the Board to render a decision on the proposed tariff ina timely fashion and to limit the need for payment of tariff royalties forOSLER Page 3 activities undertaken in a university's prior fiscal period, we respectfully request that the Board promptly initiate proceedings for the certification of the Post-Secondary Tariff ‘with such alteration to the royalties and tothe terms and conditions related thereto as the Board considers necessary having regard to the evidence to be adduced before it ‘Yours very truly, Yu ron, Glen A. Bloom GABiems