Law Times

Page 9 Law Times • January 27, 2014 FOcUs ON Intellectual Property/Trademark law Universities versus Access Copyright Critics worry about 'flawed' Copyright Board case BY CHARlOTTE SAnTRY Law Times A n important copyright hearing with implications for tens of millions of dollars of public funding could be a one-sided affair after a number of parties opted not to take part. Intellectual property lawyers worry the lack of objectors due to appear at the Feb. 12 Copyright Board of Canada hearing to assess Access Copyright's 2011-13 post-secondary tariff will render it a "default proceeding." The hearing will address an interim tariff that Access Copyright, a collective of rights holders, wants to charge universities and colleges for handling their copyright issues over that time period. Under the tariff, universities would pay a royalty fee of $26 per full-time student. The charge to other institutions would be $10 per full-time student. Some universities are arguing they shouldn't have to pay anything to Access Copyright. As a result, the hearing may also deal with the question of whether the tariff is mandatory. It's a moot legal point argued fiercely by both sides. A group of universities across Canada has opted out of Access Copyright arrangements after the collective changed its terms of service and fees. Credit: Quang Ho/Sh utterstock Last April, Access Copyright launched a lawsuit against York University for reproducing works without paying an interim tariff imposed by the Copyright Board. The University of Toronto and Western University also announced in December 2013 that they wouldn't be renewing their licences with Access Copyright. The universities argue Supreme Court of Canada decisions such as Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) allow for a more liberal approach to fair dealing than the Access Copyright deals suggest. Some universities also say they deal with publishers directly and don't need to go through a third party, especially where they have to pay twice. However, Access Copyright argues the institutions are applying an overly broad interpretation to the rulings on fair dealing. In a statement on Dec. 11, 2013, the collective said: "These policies represent a self-interested interpretation of what some in the education sector would like the law to be." The York University case may focus on the terms of the interim tariff rather than the broader principle of whether Access Copyright can impose any tariff. However, that bigger issue may arise at the upcoming Copyright Board hearing. "It's tens of millions at stake. By Copyright Board standards, that's big. It's taxpayers' money and it's students' money," says Macera & Jarzyna LLP counsel Howard Knopf. Despite the potentially huge financial significance of the decision for the post- secondary sector, institutions won't have representation at the hearing. On Dec. 20, 2013, the Canadian Association of University Teachers and the Canadian Federation of Students opted out due to resource issues. The Association of Canadian Community Colleges also pulled out last October since most of its members don't need a Copyright Board tariff for their copying requirements. The Association of Universities and Colleges of Canada withdrew from the proceedings in April 2012 after agreeing on a model licence covering the period from 2011-15. University of Toronto law Prof. Ariel Katz has also pulled out, leaving a graduate student, Sean Maguire, as the remaining objector. "I thought I could be helpful because I have expertise in this area and can offer my own unique perspective but I didn't intend to take the cause on behalf of the entire educational [sector]," says Katz. "I don't have access to the kind of evidence that the universities have. . . . I don't have the resources and it's not my job," he adds. Providing an expert voice might also have lent credibility to the hearing, something he was eager to avoid given the lack of other objectors. "The proceeding has become fundamentally flawed," he says. "It's almost a de facto proceeding," he adds. Katz had asked the board to refer the question of whether the tariff should be mandatory to the Federal Court of Appeal and to delay the hearing pending a decision. The board declined to do so. Knopf says that was a mistake as it leaves an important decision in the hands of a board that won't be hearing both sides equally. "It's absolutely unprecedented that a Copyright Board hearing will be unopposed when so much money will be at stake," he says. "It's effectively a default proceeding. An adversarial process calls for an adversary." Access Copyright's general counsel Erin Finlay also has concerns about the postsecondary sector's lack of representation. This is the first Copyright Board proceeding that considers fair dealing in the context of education since the Copyright Modernization Act came into force in November 2012, she notes. "The withdrawal of the AUCC, ACCC, and other objectors really means that they made it difficult for the Copyright Board to look behind what they claim is fair dealing," she says. It has also deprived the hearing of some of the evidence, she notes. But Finlay doesn't feel it will be a "default proceeding" as the board "has responsibilities to make sure that the tariff is fair and equitable." "I expect the Copyright Board will ask hard questions to step into the shoes of the parties that have withdrawn," she adds. Whatever the board decides, it may be some time before institutions know where they stand. The Copyright Board can take two years to release decisions and there's the possibility of judicial review afterwards. LT ' Ontario Lawyer's Phone Book More detail and a wider scope of legal contact information for Ontario than any other source: 27,000 lawyers listed 9,000 law firms and corporate offices listed Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation Untitled-1 1 www.lawtimesnews.com 14-01-16 3:48 PM

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