C ANADIAN A LLIANCE OF S TUDENT A SSOCIATIONS

A LLIANCE CANADIENNE DES ASSOCIATIONS

ÉTUDIANTES
December 17, 2010

BY EMAIL

Gilles McDougall
Acting Secretary General
Copyright Board of Canada
56 Sparks Street, Suite 800
Ottawa, ON
K1A 0C9

Dear Mr. McDougall:

Re: Second Submission re: Access Copyright’s Application for an Interim Decision on
the Post-Secondary Educational Institutions Tariff (2011-2013)

On behalf of the Canadian Alliance of Student Associations, I am writing to voice our opinion on
the potential form that an interim decision could take if, regrettably, the Copyright Board
chooses to rule against the significant and substantial objections voiced by the respondents in
this application. CASA is an alliance of 26 student associations representing 320,000 Canadian
students from coast-to-coast, with a mandate to advocate on federal and interprovincial issues
concerning to students.

In our letter of December 10, 2010, CASA outlined the multitude of reasons that this application
for an interim decision should be rejected outright and while we will outline the form an interim
decision could take, we do so without prejudice to our overall objection. Furthermore, we find it
amusing that Access Copyright is receiving such a charitable evaluation of their application for
an interim decision - Access Copyright has not applied for a tariff, but the Copyright Board has
ruled that any decision would be in the form of a tariff, and it has utterly failed to provide
evidence backing up its claims, yet respondents are asked to rigorously evaluate Access
Copyright’s proposal on the assumption that those claims are correct. Access Copyright points
out in their reply of December 15, 2010, that the Board need not have evidence to make a
ruling, but permission to act without evidence is not the same as demonstrating need to act
without evidence. Access Copyright has demonstrated no need to have a ruling issued without
this evidence and they have provided no indication as to why this needs to be ruled in a speedy
manner, in either their original letter or in their reply.

Those objections aside, here are CASA’s responses to the questions raised by the Copyright
Board in its email to respondents on December 6, 2010:

If the Board decides to issue an interim decision, which form should that decision take?

If the Board decides to issue an interim decision, it should purely be a continuation of existing
rights, without additions or amendment.

If the Board decides to issue an interim decision, what should the substantive content of
the decision be? Access proposes maintaining what it refers to as the status quo, with
additional, potential uses being allowed at no additional cost. Does the proposal achieve

CASA Home Office, 130 Slater Street, Suite 410, Ottawa, ON, Canada K1P 6E2
Tel: 613 236 3457 x224 • Fax: 613 236 2386 • casacomm@casa.ca • www.casa-acae.com
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what it purports to achieve? Is that what the interim decision should indeed achieve? If
not, what else?

Recognizing that precedent of the Board is to extend existing agreements where there is
agreement, an interim decision that rejects all of the new uses claimed by Access Copyright and
authorizes it to enter into interim, voluntary agreements at existing levels would be appropriate.

In our letter of December 10, CASA noted that the precedent of the Board is that it will not
authorize interim decisions that cover new uses for activities that existed or were foreseeable
prior to the existing agreement.1 As we said then, “Digital copies of copyrighted work existed in
2003 and 2007 when agreements were renewed, as did hyperlinks, Powerpoint presentations,
emails, group servers, hard drives, printers, displays, and the litany of uses that Access
Copyright is claiming in this application for an interim decision; these were all foreseeable uses
and it was Access Copyright’s responsibility to negotiate its coverage under the agreements at
the time, rather than trying to have them covered through an interim decision.”2 Access
Copyright has provided no evidence that new uses should be covered in an interim decision and
the Board should reject its claim. It is worth noting that in its reply letter on December 15, 2010,
Access Copyright did not address this point at all, and continued to cite a reductive reading of
SODRAC Inc. 2003 v. CBC in support of its application.

Furthermore, Access Copyright has not made a convincing case that the tariff should be a
mandatory one. Yes, they stand to lose significant revenue but this was completely foreseeable
and should have been a component of their ongoing financial planning. And universities are
choosing to let existing agreements expire, not due to strategic purposes, but because they are
concerned by Access Copyright’s coercive approach. To quote University of Alberta Provost
Carl Amrhein, “It’s not just about the money. Access Copyright offered to extend the current
agreement only if universities agreed to be retroactively bound by a future Copyright Board
decision on not only the tariffs but also on proposed new license conditions. This is
unacceptable. We are genuinely concerned about some of the potential restrictions in the
proposed license that may threaten our ability to use copyrighted resources in the classroom
and may impinge other existing laws, practices or rights.”3 If Access Copyright were simply
offering a genuine extension of the status quo with no impact on future rights, these institutions
would have undoubtedly continued their licenses during the Gap Period. Finally, the value being
offered by Access Copyright through these licenses is highly questionable and rightfully
adjudicated not through the Copyright Board but through the marketplace. University libraries
already pay large sums of money for article databases that permit the downloading, printing and
sharing of works; open access articles are also a plentiful source of material for college and
university classrooms. Access Copyright’s business model is dying in a completely foreseeable
ways, and that is not the fault of the institutions but a management regime that has failed to
demonstrate value to the suppliers of copyrighted works – otherwise these institutions would not
have as many alternative options to legally use copyrighted works.

Access Copyright has failed to demonstrate that new uses should be covered and they have
failed to demonstrate why a mandatory interim tariff was the only option available to them.

Once the content or substance of the decision has been determined, does the proposed
text reflect that substance or content and if not, how should it be modified?

1
SODRAC 2003 Inc. v. CBC, File: 70.2-2008-01, para 13
2
Canadian Alliance of Student Associations, Re: Application for an Interim Decision on the Access Copyright Post-Secondary
Educational Institutions Tariff (2011-2013), pg. 2
3
http://www.folio.ualberta.ca/article.cfm?v=100462&i=101243&a=4

CASA Home Office, 130 Slater Street, Suite 410, Ottawa, ON, Canada K1P 6E2
Tel: 613 236 3457 x224 • Fax: 613 236 2386 • casacomm@casa.ca • www.casa-acae.com
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The proposed text does not reflect the substance of our position and cannot as we do not
believe the Board should be issuing an interim decision in this matter. Until the Board has
addressed the first three questions outlined in its Ruling of the Board on December 8, 2010,
CASA is unable to provide further guidance.

On behalf of the Canadian Alliance of Student Associations, I remain,

Respectfully Yours,

Zachary Dayler
National Director
Canadian Alliance of Student Associations

CASA Home Office, 130 Slater Street, Suite 410, Ottawa, ON, Canada K1P 6E2
Tel: 613 236 3457 x224 • Fax: 613 236 2386 • casacomm@casa.ca • www.casa-acae.com