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LEGAL REPORT/INTELLECTUAL PROPERTY ruling is a warning that some may regard as a threat or a 'shot across the bow,'" says Howard Knopf, counsel with Moffat & Co./Macera & Jarzyna LLP in Ottawa. "But this is uncharted territory; the board has never in its history actually issued a hostile subpoena." Secretary general of the Copyright Board Gilles McDougall's ruling says just because an institution has decided not to avail itself of the interim tariff, "doesn't mean it will bear no liability under the final tariff, that its liability will not be retroactive, or that it will not be com- pelled, pursuant to the final tariff, to pro- vide information about its copying habits during the period between Jan. 1, 2011 and the date on which the final tariff is certified, unless it is certain that neither the institution nor its agents make any We're pleased to announce Mark Eisen's appointment as President of the Intellectual Property Institute of Canada protected use of the relevant repertoire during the period to be set out in the final tariff." It also says the absence of evidence on the copying practices of opt-out institu- tions "can only make it more difficult for the Board to design the final tariff so as to respond to any legitimate concerns of these institutions." The increase in the tariff is being called a "cash grab" by the association represent- ing universities. For the University of Brit- ish Columbia, for instance, the proposed fee hike would potentially cost an extra $1.35 million a year. Paul Smith, a UBC vice provost, also takes issue with how professors and course materials would be monitored for copyright infringement. He says the process of monitoring what works a professor uses and how they use them poses a question of academic free- dom, as staff would have to be extremely vigilant about copyright issues especially with respect to digital works. "The idea of surveillance doesn't sit well in a university environment," says Smith. Finlay argues Access Copyright is trying to protect authors whose work is being used in a digital context but are not receiving proper compensation for it. "We believe uses in a digital world are greater and a significant amount of that is unli- censed, unauthorized use, but the copy- right board will determine that," she says. Finlay argues a bigger concern about A registered patent agent and trademark agent, Mark has focused exclusively on the protection of inventions and trademarks since his call to the Ontario Bar in 1985. He has more than 25 years experience securing patent rights in a wide range of technologies, with particular emphasis on electrical, electronic, networking and business method technologies, and protecting trademark rights around the world. Mark is certified by the Law Society of Upper Canada as a Specialist in Intellectual Property (Patent) Law, serves on numerous committees and is rated bv® Preeminent™ by Martindale-Hubbell. Congratulations Mark! Dimock Stratton llp experience. results. 20 Queen W. 32nd fl, Toronto | 416.971.7202 | dimock.com 46 OCTO BER 2011 www. CANADIAN Lawyermag.com ntitled-4 1 11-09-09 10:17 AM academic freedom is when an educational institution tells professors it has to clear every single work it wants to use before it uses it and if they can't clear it they can't use it. "You're suggesting professors use substi- tutes to what they want to use. That's what the Access Copyright tariff has always been about — so professors don't need to run around before class starts and make sure they have cleared the authorization." Finlay says many schools have also misinterpreted the proposed tariff. "We license works published in print. There is a provision in the tariff that speaks to link- ing. We don't know exactly how works are being used and if a professor scans a chap- ter of a textbook and then puts it on a web site and he or she is not entitled to do that and then links it to his course manage- ment site, that is an example of linking we think ought to be paid for," she explains.