Access...an e-newsletter for Publisher Affiliates

December 2011 

Access Copyright has changed its eligibility requirements for the Publisher Repertoire Payment so that affiliates can more quickly qualify for the payment.

Starting in 2012, affiliates are eligible for the Publisher Repertoire Payment as long as they affiliated with Access Copyright by the end of the previous year.

For example, those who affiliated with Access Copyright by December 31, 2011 will be eligible for the Publisher Repertoire Payment starting in 2012.

Read more information on the Publisher Repertoire Payment

On December 7, the Supreme Court of Canada heard the appeal of the K-12 tariff by the Council of Ministers of Education (excluding Quebec) and the Ontario school boards (the Objectors).

We believe that we put our best case forward and are cautiously optimistic as we await the decision of the Supreme Court, which is expected to be rendered sometime in the next 12 months.

Background

In June 2009 the Copyright Board of Canada certified a tariff of $5.16 per FTE for the photocopying of published works in K-12 schools. The Objectors appealed the Copyright Board decision to the Federal Court of Appeal which in turn rendered a decision largely in favour of Access Copyright. Dissatisfied with the Federal Court of Appeal decision, the Objectors sought leave to appeal to the Supreme Court of Canada.

The two issues under review by the Federal Court of Appeal were the Board's assessment of fair dealing and its interpretation of the tests and examinations exemption in section 29.4 of the Copyright Act. In its decision, the Federal Court of Appeal upheld the Copyright Board's assessment of fair dealing. The Objectors are appealing this part of the Federal Court of Appeal's decision to the Supreme Court of Canada. On the issue of tests and examination, the Court found that the Copyright Board had not considered all the requisite elements of the exemption and requested that the matter be remitted back to the Copyright Board for reconsideration.   

More information on the December 7 hearing

Access Copyright has released its latest distribution of royalties.

These royalties cover the following distribution categories:

• Publisher Repertoire (Non-Title Specific) for the period January 1 to December 31, 2010.
• Full Reporting (Title Specific) from post-secondary institutions, business and non-profit sector and other territories for the period January 1, 2006 to September 30, 2011.                  
• Pending payments including those under $25.
• Royalties from the UK (ALCS) and from Quebec (Copibec) for Canadian writers for the period 2010 and 2011.
• Transactional licensing (Title Specific) for the period May 1 to September 30, 2011.
• Digital Royalties from CAL (Australia) for 2009.

Get more information on Access Copyright's distribution guidelines

On December 14, 2011, Mr. Duc Tinh Nguyen of Quality Control Copy Centre in Toronto (currently operating under the name T&T Copy Centre) pled guilty to contempt of an order of the Federal Court of Canada.

Access Copyright has been investigating Mr. Nguyen's business located near the University of Toronto St. George campus for the past three years, and has already taken Mr. Nguyen to court on claims related to copyright infringement and breach of settlement. 

As part of its mandate, Access Copyright routinely monitors copy shops for evidence of illegal photocopying of coursepacks and textbooks, activities that are essentially robbing revenues from Canadian publishers and authors. Access Copyright helps businesses, academic institutions, copy shops, and other users of copyrighted materials comply with copyright through its range of licensing solutions.

"Despite a Federal Court order instructing Mr. Nguyen to stop making, distributing and selling unauthorized copies of copyright-protected works, Mr. Nguyen continued to illegally reproduce and sell full textbooks and coursepacks," said Maureen Cavan, Executive Director, Access Copyright, The Canadian Copyright Licensing Agency.

Access Copyright will be returning to the Federal Court on January 30, 2012 for the penalty phase of the contempt hearing, in which the nature and extent of the penalty to be laid against Mr. Nguyen will be determined.

Access Copyright is pleased to announce a©e Publisher; a cost-effective Canadian solution for secure content storage. It simplifies ONIX metadata creation and management, allowing digital file distribution and tracking. a©e Publisher was designed to be accessible to publishers of any size and registration is free for Access Copyright Publisher Affiliates (and self-publishing Creator Affiliates with a need for book industry supply-chain metadata).  

Key features include:

• ONIX based system that focuses on BNC/BISG recommendations, but manages the full spectrum of ONIX 2.1
• Metadata input in Excel, ONIX file, or manual creation
• State-of-the-art user interface and codes for easy ONIX creation
• Organization by project, with flexible tagging for sorting and retrieval
• Variety of outbound metadata formats
• Partner communications by email, invitation for secure retrieval, or scheduled FTP drop
• Full audit logs of metadata changes, archiving and content file distribution
• Customized user defaults for managing common data across projects
• Automated generation of marketing collateral (Tip Sheets)    
• Secure, web-based storage for any kind of file  

a©e Publisher is currently in BETA testing with an official launch scheduled for January 2012. For more info, or a sneak peak, please contact us at support@acepublisher.ca.

I wish to update you on a very positive decision by the Copyright Board regarding transactional licences (granting one-time, pay for use permission to use one of your works).

Given that tariffs take years to get certified by the Copyright Board, Access Copyright asked the Copyright Board to issue an Interim Tariff for post-secondary institutions that essentially extends the old photocopy licence to cover the period until the certification of the final tariff. In December 2010, the Copyright Board issued the Interim Tariff and added an optional digital uses licence. Unfortunately, a great number of post-secondary educational institutions have decided to operate without reliance on the Interim Tariff. But in order to do so, they needed to replace the Interim Tariff with transactional licences and in June 2011 asked the Copyright Board to force Access Copyright to clear works on a transactional basis.

On September 23, 2011, the Copyright Board issued its decision on transactionals. The Board refused to force Access Copyright to clear works on a one-off, transactional basis. The Copyright Board agreed with Access Copyright that transactional licences are not well suited to a digital environment. The Board stated that "based on the information available, in this market and for the time being, a digital transactional business model does not ensure that rights holders get paid for the uses of their works."

The Copyright Board also recognized the high-transaction costs of transactionals and highlighted the inconsistencies in the educational institutions' arguments with respect to the need for an Access Copyright licence.

This decision is currently under review by the Federal Court of Appeal.

What if you get a permission request from an educational institution?

Last summer, a number of universities and colleges across Canada made the decision to opt-out of the Access Copyright Interim Post-Secondary Educational Institution Tariff, 2011-2013 (Interim Tariff).

Replacing the Interim Tariff, which offers a simple and cost-effective way to use copyright protected materials in all post-secondary institutions, these opt-out institutions have produced copyright guidelines and procedures to guide their staff.

Among the universities and colleges that opted-out of the Interim Tariff as of August 31, 2011 were Carleton University and York University.  

Recently we spoke with two Access Copyright affiliates: Michael Dorland, a professor at the School of Communication and Journalism at Carleton, and Roberta Iannacito, an associate professor in the Department of Languages, Literatures and Linguistics at York, about their experiences getting content for their courses now that neither university uses the Interim Tariff.

Read our interview with Professors Dorland and Iannacito  

On Thursday, December 15, the House of Commons adjourned for the holidays. As of adjournment, Bill C-11, the Copyright Modernization Act, is in second reading and is expected to be referred to committee soon after the House resumes sitting on Monday, January 30, 2012.

Keep a look-out for a feature article in the February e-newsletter on the joint effort of writers' and publishers' groups across Canada to seek changes to the bill.

Access Copyright has recently signed two reciprocal agreements with reproduction rights organizations in the United Kingdom and South Africa.

The agreement with the UK's Newspaper Licensing Agency (NLA) means that when our affiliates' works are both photocopied and copied digitally (by the education sector only) in the UK, the royalties collected for this copying are passed along to us to distribute to the creators and publishers of the content. Similarly, royalties collected by us for works copied in Canada of content licensed by the NLA is sent back to the UK for distribution.

Our agreement with South Africa's DALRO covers both print and digital copying.

Both agreements replace previous agreements that covered photocopying only.