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CMEC seeks review of K-12 Copyright Board tariff

By Howard Knopf, Esq.

Just over a month ago, the Copyright Board awarded Access Copyright (?AC?) a tariff of $5.16 for every kid in school in Canada from Kindergarten to Grade 12 - except in Quebec, where there is a similar organization to AC. As I pointed out on June 26, 2009 - the day the Board's decision was released:

The amount per FTE paid for on behalf of K-12 students will more than double to $5.16 from the amount previously paid. With almost 4 million FTEs, and an increase of almost $3 per FTE over the previous negotiated rate, Access Copyright will reap a windfall of about $12 million a year from Canadian taxpayers - not counting those in Quebec.

With all of that money coming from taxpayers, it's not surprising that CMEC is seeking judicial review ("JR") (i.e. "appeal" for non-lawyers). Here's what it wants:

An Order setting aside those parts of the Decision in which the Board concluded that:
(a) the Applicants were required to establish a practice or system aimed at "restricting photocopying only to fair dealing or at separately documenting dealings that are fair from those that trigger remuneration" that is equivalent to the access policy used by the Great Library at Osgoode Hall in Toronto;
(b) the making of photocopies by a teacher for the purpose of distributing them to all the students attending a course constituted "instruction" and could not constitute "private. study";
(c) photocopies made by a "teacher with instructions to read the material, whether or not it was made at a student's request, and a copy made at the teacher's initiative fora group of students" could not constitute fair dealing; .and
(d) the exception set out in subsection 29.4(2) of the Copyright Act does not apply in the case of photocopies made for tests and examinations to the extent that the tariff approved by the Board's Decision makes a work commercially available by providing a I.icence that is available "within a reasonable time and for a reasonable price and may be located with reasonable effort".

Notably absent from what CMEC wants is an order setting aside the Board's acceptance of AC's argument, without supporting evidence, that more than 99 per cent of works reproduced by educational institutions are currently part of its repertoire. Without repertoire, there is nothing to license. This has been the Achilles Heel of Access Copyright since day one. There is solid case law that making a finding on the basis of no evidence is a jurisdictional error. It is quite disappointing and surprising that CMEC is not going for the jugular - or the Achilles Heel - on this issue.

My understanding is that AC did not file a JR application, which shows some restraint. After all, what can it complain about with such a generous and even windfall tariff and whopping four year retroactive windfall of $40 million is additional to what was already presumably being paid at the old rate, allowing for a token discount of 10% to soften this blow?

One of the main issues in this JR exercise is bound to be whether the evidence on the record supports CMEC's arguments. As I said in my earlier posting:

But the main problem with the fair dealing issue may have been that the Educators had agreed at an early stage of these proceedings to a survey methodology that resulted in evidence that by their later admission ?needs to be collected differently? in light of the CCH v. LSUC case, even though it was obvious at the outset that the landmark CCH decision could and should affect what happens in Canadian schools. The Educators then tried to use a law professor's opinion to show that ?most, if not all, photocopying in schools is fair dealing?, an approach that the Board naturally rejected, since it is for the Board to make this determination, not a professor. (If only the Board were so hard nosed on some of the other opinion evidence it accepts without question or even qualification of the witness!)

The Board's decision, if upheld by the Federal Court of Appeal, could - depending on the reasoning - set a very costly precedent for future educational expenditures in Canada both at K-12 and the post secondary levels - resulting in tens of millions of dollars spent each year that simply are not spent in the USA. AC already wants to triple this rate for K-12.

Given the verified problems that AC has with distribution as shown in the Friedland Report and its unproven repertoire claims, and given the fact that no successful challenge has been made to date at the Board, the Government may wish to look at why Canada is so overly generous to collectives at the expense of tax payers who fund the educational system.

Unfortunately, AUCC, CARL, and CMEC don't seem to want to play hardball on this issue. As a taxpayer, I hope that others will do so - or that the Government will figure this out itself.

HK

Full post as published by Excess Copyright on July 27, 2009 (boomark / email).