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Access Copyright Updates – March 28, 2018

Here is the latest update from Access Copyright, in a release sent out March 28, 2018:


K-12 Legal Action Update
On February 16, 2018, all the school boards in Ontario and the Ministries of Education for all the provinces and territories (except Ontario, British Columbia and Quebec) filed an action against Access Copyright. The claim states that the K-12 educational sector overpaid fees for the copying of published works and seeks the return of those fees. The Ministry of Education of British Columbia also filed an action, but to date, it has not served its Statement of Claim on Access Copyright.
Read the rest of our statement released on February 22 as well as statements put out bythe Writers’ Union of Canadathe Association of Canadian Publishersthe Book Publishers Association of Alberta and UNEQ (Union des écrivaines et des écrivains Québécois).
Provincial and Territorial Governments Tariff Update

In a decision issued on March 22, 2018, the Federal Court of Appeal dismissed Access Copyright’s application for judicial review of the Access Copyright Provincial and Territorial Governments Tariff (2005-2009 and 2010-2014).

The Federal Court of Appeal determined that the findings of the Copyright Board of Canada, which issued its tariff decision in May 2015, were reasonable and within its mandate. Access Copyright applied for judicial review of the decision due to concerns regarding the Copyright Board’s exclusion of digital copying from the tariff and errors allegedly made in its assessment of fair dealing. A hearing was conducted by the Federal Court in June 2016.

The royalty rates certified by the Board for the Tariff were 11.56 cents per employee per year for 2005-2009 and 49.71 cents per employee per year for 2010-2014. With the Federal Court’s decision, these rates remain unchanged.

Although disappointing, this decision is in line with a trend in recent Federal Court of Appeal decisions concerning judicial review of Copyright Board decisions, which have shown a high level of deference to Board decisions. This highlights the importance of the Federal Government’s consultation on reforming the Copyright Board that is currently being conducted to increase the efficiency and predictability of tariff proceedings.

 York Litigation Update
The Federal Court of Canada decision in the action between Access Copyright and York University was a huge victory for Canadian creators and publishers. The Court was unequivocal in its conclusion that York’s copyright practices and policies were arbitrary, unfair and did not meet the test for fair dealing established by the Supreme Court of Canada. It was also equally clear that tariffs are mandatory.

The decision is currently under appeal. We have not yet been advised of a hearing date but will keep you updated.

Update on Copyright Act Review

Indications are that the Standing Committee on Industry, Science and Technology will begin public consultations in mid-April. Access Copyright is committed to encouraging creators and publishers to participate fully in the process, as well as taking part as an organization. We believe the review is a critical opportunity to re-examine the role that copyright plays for both creators and users and to address the Value Gap caused by 2012 amendments to the Act to ensure continued access to outstanding Canadian content for our classrooms.

 Copyright Board of Canada Consultation

Access Copyright was among the 59 organizations and individuals that took part in last summer’s consultation on reforming the operations of the Copyright Board of Canada to propose solutions to improve the Board’s operations and ensure fair compensation to creators and publishers.

Access Copyright’s submission recommended:

  • Appointing case manager(s) to manage procedural issues and codification of case management rules and timelines so that proceedings before the Board can be more efficient.
  • Harmonizing the statutory damages available to collectives to encourage compliance with certified tariffs.

The Government of Canada has given the indication that it is committed to introducing legislative and regulatory changes to reform the Copyright Board as soon as is practical.

Make your voice heard through I Value Canadian Stories

With the Copyright Act review now underway, the I Value Canadian Stories coalition will soon be launching new ways to take action to support Canadian creators and publishers.

While we on work on updates to I Value Canadian Stories, there are still many things you can do to make your voice heard.
The site makes it easy to take action, including sending a letter to your MP, inviting friends to get involved and sharing targeted messages through social media.
If you’ve already sent your letter, please encourage your friends and social-media followers to take part as well.
If you happen to live in any of these ridings, your MP is directly involved with the Copyright Act review so it’s especially important that they hear from you!

Every action makes a difference.

I Value Canadian Stories is an initiative driven by a coalition of associations across the creative industries.

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