Access Copyright Wins in Federal Court

According to a press release issued by Access Copyright, “Canadian creators and educational publishers have won a six-year legal battle to receive reasonable compensation for the reproduction of copyright-protected teaching materials used in the classroom”. Access Copyright is the organization that collects and distributes revenue to authors and publishers from photocopy licenses negotiated with ministries of education, corporations and the like.

In 2009, the Copyright Board of Canada certified a tariff to compensate creators and publishers for the photocopying of their works in K – 12 Schools. The provincial Ministers of Education then asked the Federal Court to review the decision. Today we learned that the Federal Court of Appeal found that the Copyright Board’s decision was reasonable in light of the evidence before it.

In preparing for the Copyright Board hearing, Access Copyright had invested substantial time and resources in order to determine exactly what is being photocopied today by the primary, secondary and post-secondary education sector. The number of pages was staggering – as many as 250 million pages of text books and other materials are being copied every year. As a result, the Copyright Board doubled the amount previously charged ($2.57 vs $5.16 per student), and added a $40 million retroactive payment.

The game has just begun

While Access Copyright appears to have scored big time, it is still early in the game. The tariff is potentially a short term gain. Access Copyright is facing serious challenges on two fronts, one domestic and one international.

In Canada, the federal government has proposed changes to the Copyright Act that expand the scope of fair dealing to provide free access to much of the content that is covered by the new licensing tariff for education purposes. The gain just made could be wiped out when the agreement is up for renewal – Access Copyright cannot charge licensing fees to content that educational institutions have a right to access for free. Based on an amended Copyright Act, the Ministers of Education might ask for a review the new tariff before it is fully implemented.

In the U.S. and elsewhere, there is a growing belief that electronic rights should be administered directly by the rights-holder, without using third party intermediaries like Access Copyright. The future is in electronic delivery, something that Access Copyright has yet to master. Much, if not most, of the material that is being photocopied is American. At the moment, Access Copyright licenses this content in Canada through a combination of agreements with other rights licensing agencies and the Canadian divisions of global publishing companies.

Both of these challenges represent a major threat to Access Copyright which in the near future can expect to be hit hard on two fronts. Not a good sign for its future. For the moment, however, Access Copyright can enjoy the win.

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Comments

  1. Nicholas McCabe

    Such is the ever rising cost of education in our beloved country. I will not broach the subject of college and university book prices at this time….but I sure would like a good grumble about it.

    Flat fee as is being used now, is a more viable option in my humble opinion. The text book writers need to be paid for their work, but cutting out the multitude of intermediaries can obviously reduce end user costs as well as increase profits for the producers. With free access who pays?

  2. The item on the Canadian Copyright Licensing Agency website is here.

    The decision itself doesn’t seem to be on the Federal Court website yet. The docket number in the Federal Court of Appeal is A-302-09, however, so at least the docket information can be viewed.

    Links to the 2009 news release, reasons and tariff are available on the Copyright Board of Canada website under the name Access Copyright (Educational Institutions) 2005-2009.

  3. Was there evidence as well that all those many pages copied were actually works subject to copyright in Access Copyright’s stable, rather than work by the teachers and students themselves, public domain works, copying for fair dealing, and the like? Or was the total discounted on some reasonable ground for such copying?

  4. The decision is now available: Alberta (Education) v. Access Copyright, 2010 FCA 198: fca-caf, canlii.