Canadian Court: Access Copyright Tariffs Not Mandatory

Access Copyright suffered a major blow recently as a Canadian court ruled that tariffs are not mandatory for schools.

Access Copyrights war on the education sector has suffered from a major setback. Last year, Access Copyright sued the education sector, saying that no one can opt out of their “mandatory” tariffs on reading material. That escalation occurred after rates kept increasing, pushing some educational institutes past the budgetary breaking point. In response, some institutes simply decided that enough is enough and that they were no longer paying the tariffs.

Fearing this would start a trend, Access Copyright filed a $50 million lawsuit against the education sector. They then “randomly selected” various institutes, including Near North school district, to fork over all reading material going back years. This, unfortunately, occurred in late 2019 when exams were still in full swing. Schools had to bring in extra staff and teachers reported the high levels of stress the Access Copyright demand put on them.

After the rough ride Access Copyright forced the education sector to go through, there are signs that this may have been worth it for the teachers in the end. The Federal Court of Appeal has handed down a ruling saying that mandatory tariffs will be eliminated. From Michael Geist:

Access Copyright quickly claimed the decision was a “mixed outcome”, but losing on the mandatory tariff issue eliminates its ability to force the education community to enter into its licence. The copyright collective has spent much of the past decade lobbying the Canadian government to reverse the 2012 copyright reforms that added the education purpose to fair dealing. That approach was rejected by the Government’s copyright review, which opened the door to a further expansion with a “flexible fair dealing” model. But the real story of education and copyright in Canada for the past twenty years has been the string of appellate decisions that have largely unravelled the legal underpinnings of the Access Copyright model. The Supreme Court’s CCH decision brought user rights and an emphasis on fair dealing. The Access Copyright v. Alberta decision ended the claim that there was a meaningful distinction between student copying and teachers’ copying for students. This latest decision addresses the mandatory tariff issue, confirming that educational institutions can opt-out of the Access Copyright licence as appropriate and that any claims of infringement will be left to copyright owners to address, not Access Copyright.

To be clear, the decision does not mean that there is no compensation for authors and publishers nor that their copyrights are unenforceable. Copyright law still grants them exclusive rights over their works subject to users’ rights such as fair dealing. This right includes the ability to pursue infringement claims backed by statutory damages. Rather, users have choice in how they obtain the necessary rights for the works they use. Access Copyright has long claimed there was effectively no choice as its approach was mandatory once copying was captured by the licence. This decision canvasses decades of legislative history to conclusively demonstrate that this was never the case. Instead, the Access Copyright licence – even once certified by the Copyright Board – is an option available to users. However, educational users today have a wide range of alternative options including site licensing, open access materials, transactional licences, and fair dealing. Many institutions now use a combination of these paid and unpaid approach as a better approach.

Where does that leave Access Copyright? The copyright collective must compete in the market by offering a compelling value proposition to potential licensees, who will compare the Access Copyright licence to the other available licensing options. If authors or publishers believe that that licensing still leads to infringement, they – not Access Copyright – are entitled to pursue statutory damages in court.

The decision represents a major validation for University of Toronto professor Ariel Katz, whose 2015 Spectre article made the convincing case that “the spectre of a ‘mandatory tariff’ lacks any basis in law” and Howard Knopf, who has been emphasizing the importance of the mandatory tariff issue for many years. In fact, Katz’s article was directly acknowledged by the court.

In short, the court ruling signals that the Access Copyright monopoly might finally be over. It represents a major win for the education sector who have been suffering from ever increasing tariff rates with no obvious way of avoiding them when it comes time to budget for the year.

I’ve personally seen the effects of Access Copyright during my years in the education system. For instance, I personally remember going to the school book store and seeing the vain efforts of professors reducing the costs of learning material. A small packet of about 30 pages of reading material can run up a price of $25. I personally recall some professors expressing astonishment that the price is so high for such a simple packet of paper. It’s black and white and printed on basic paper, so it’s not as though there’s some sort of fancy gloss or special ink to run up the cost. Of course, while fellow students may not realize the real reason why, I knew why: Access Copyright tariffs. I know in the years since then, those prices will seem like an absolute bargain by today’s standards.

Additionally, I recall the coin operated printers should the need arise to photocopy a single page or two. That would set you back a quarter or two just for one or two pages of copied material. Printing prices are high, but not that high. Again, this is all about the tariffs and the result an organization Access Copyright has. While a quarter might not seem like much in the grand scheme of things, when you are the stereotypical starving student, it stings.

So, with this latest ruling, there might also be some reprieve for future students. Those sky high printing costs might not be so sky high if this ruling holds. Lowering the costs of education should be great news for all students as well. So, many ar no doubt hoping that this ruling holds at this point.

Drew Wilson on Twitter: @icecube85 and Facebook.

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