Near North School District “Randomly Selected” in $50 Million Copyright Suit Drew Wilson | December 17, 2019 The Near North School District was “randomly selected” in a $50 million copyright infringement lawsuit. The suit was brought by Access Copyright. The war between Access Copyright and Canada’s educational system is continuing. It’s a battle that has been brewing for some time now. Some institutes are beginning to opt out of the Access Copyright tariff system in favour of open access material. Some school districts are also arguing that such use is actually fair dealing as it qualifies under the educational purposes exception. Those moves have been brought on in part because of the spiralling costs of copyright which seems to be constantly going up. Earlier this month, Access Copyright successfully convinced the copyright board to retroactively increase copyright fees. From Michael Geist: In March 2010, Access Copyright filed a tariff proposal with the Copyright Board to cover copying at post-secondary institutions in Canada. The proposed rate was $45 per year per university student and $35 per year per college student. The proposal represented a dramatic increase in the fees paid under the Access Copyright licence, which, when combined with Supreme Court of Canada jurisprudence on fair dealing in the 2004 CCH decision and the growing investment in digital materials, sparked concern among the Canadian education community. In 2012, the Supreme Court of Canada re-emphasized the broad and liberal approach to fair dealing as user’s right and the government would expand the fair dealing purposes to explicitly include education. The Access Copyright tariff proposal progressed slowly before the Copyright Board, but on Friday, more than nine years after it was first filed, the Board issued its ruling. It established a retroactive tariff for the years from 2011-2014 of $24.80 per university student ($9.54 for college students) and $14.31 per university student ($5.50 for college students) for the years 2015 to 2017. Access Copyright welcomed the decision, arguing that it outlined a reasonable framework for copying in post-secondary institutions. Over the years, the debate over educational copying in Canada has continued to play out in several venues. There is outstanding litigation before the courts (the Federal Court of Appeal has yet to release its decision in the Access Copyright – York University case, a decision that is likely to go to the Supreme Court no matter what the ruling) and the recently concluded copyright review heard extensive arguments from all stakeholders, before rejecting calls to limit educational fair dealing and recommending that the issue be revisited in three years. Many Canadian institutions have dropped the Access Copyright licence altogether and – in a decision that has an enormous effect on the latest Copyright Board ruling – withdrew from the proceeding at the Copyright Board, presumably on the grounds that if they did not need the licence, they did not need to participate in an expensive proceeding. In doing so, the Canadian universities left the field to Access Copyright. Naturally, seeing all those dollars slip through their fingers, Access Copyright wasn’t going to sit back and watch educational institutes say that they’ve had enough. Instead, they are continuing to push the agenda that the tariff is mandatory. In one of the ongoing lawsuits, they apparently “randomly selected” a school district to be part of the court discovery process. From The North Bay Nugget: The Near North District School Board has been ordered to provide the teaching materials it has used over the past seven years as a result of a copyright lawsuit between provinces and publishers. Mairghread Knought, the board’s information officer, confirmed Near North has been “randomly selected to participate in the discovery process and provide the records and documents specified in the associated Federal Court Order to Access Copyright. “As this pertains to ongoing federal litigation, which is currently before the courts, we are unable to provide any further details, comments and/or information.” Education departments across Canada are claiming the school system, kindergarten to Grade 12, is paying too much in fees to copy published material. And therefore are suing for $25 million. Access Copyright has counter-sued for $50 million arguing that every year 150 million pages of copyright-protected works, such as books, newspapers and magazines, are copied for use in classrooms without fair compensation to the creators and publishers of those works. The article goes on to argue that educational districts are depriving creators of their money since 2013 which is partly why they are suing the education system. Of course, a big part of the problem isn’t that institutes aren’t willing to pay creators. The problem is that the tariff costs are continually going up. Arguably, some educational institutes are reaching a breaking point. As a result, they have decided to go down this road in the first place. Additionally, what does it say about the negotiation process if Access Copyright is saying that either the education sector agrees to their terms or they will sue them into oblivion? Is it really negotiating in good faith when there is the threat of litigation if one side doesn’t get what they want? Knowing this, it’s actually makes it tougher to side with Access Copyright on this one. For long term readers, who could forget Access Copyright’s Captain Copyright debacle of 2007? It’ll be interesting to see how far this copyright battle will go, though. Who do you think might come out on top? Drew Wilson on Twitter: @icecube85 and Facebook.