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LEGAL REPORT/INTELLECTUAL PROPERTY Is this Access Copyright's last stand? Universities and colleges are bailing on a long-standing copyright agreement with the non-profit creators' collective. Has the digital world rendered it a dinosaur? BY JENNIFER BROWN were pondering how to handle a proposed spike in fees charged for the material used by professors and students on campuses. Over the summer, legal counsel at the A schools had been preparing to do battle with the non-profit creators' collective Access Copyright, The Canadian Copy- right Licensing Agency, following the issue of the proposed "Post-Secondary Educa- tional Institution Tariff 2011-2013," which seeks to replace a previous licensing agree- ment with the Association of Universities and Colleges of Canada that goes back to 1994. The schools are upset over what they view as a proposed tenfold increase in fees for the use of published works. Many Canadian universities, represent- ed by the AUCC, are mounting a challenge to the application before the Copyright Board brought by Access Copyright to set a tariff that they view as "excessive and not reasonable." About 35 of 75 AUCC mem- bers outside Quebec (which has a separate agreement) have said they would be out from under the Access Copyright regime by the end of August. Last year, Access Copyright, first estab- lished in 1988 to collect royalties from institutional photocopying on behalf of Canadian writers and publishers, announced it was replacing its old licens- ing system with a new system that would place a flat-fee tariff on copies of printed and digital works used in course packs, as s students were heading back to class this fall, worrying about the high cost of tuition and books, many of their schools active payment of the difference between what they have been paying and what the final annual rate is set by the Copyright Board. "That's a significant liability that some institutions have opted to back away from," says Wills. About 34 post-secondary schools in Canada have indicated they are opting out of the interim tariff (the existing fee). Among them are the University of Alber- ta, University of British Columbia, Queens University, and Carleton University. Adding fuel to the fire was a Copyright class handouts, or other purposes. Under the previous agreement, institu- tions paid $3.38 per full-time equivalent student as well as 10 cents per page for course-pack copying. Access Copyright's proposed new tariff, which will ultimately be set by the Copyright Board likely in 2014, is an all-in-one fee of $45 per full- time student. Part of the new tariff's struc- ture would also include licensing the use of digital materials. Access Copyright says the $45 is a proposed amount based on what it sees as fair since published work is being used digitally without perhaps proper compensation being made to the authors of the works being used. The Copyright Board has, for the time being, maintained the previous rates that existed under the old photocopying rates, but Steve Wills, manager, government rela- tions and legal affairs for the AUCC, says the schools will likely be subject to retro- Board of Canada ruling in mid-August that stipulated unless certain universities and colleges that have opted out of the Access Copyright tariff produce informa- tion about their use of protected works, they could be subpoenaed to do so. That message was being sent to 27 schools that had yet to answer requests from Access Copyright regarding how they use materi- als. "The interrogatories include questions about copying practices," explains Erin Finlay, legal counsel for Access Copyright. The schools were cautioned in the board's Aug. 18 ruling that just because they have opted out of the agreement with Access Copyright doesn't mean they won't be liable to pay the newly established tariff down the road when the board makes its ruling. The ruling includes several warn- ings and is considered uncharted terri- tory according to one copyright lawyer. It notes that any institution that does not respond to the request for information as required by Access Copyright may be compelled by way of subpoena issued by the Copyright Board, to do so. "The www.CANADIAN Lawyermag.com OCTO BER 2011 45 Alexi vellA