Copyright Board of Canada Sides with Government on Access Copyright’s Tariff Rates for Copying by Government Employees

On May 22, 2015, the Copyright Board of Canada (Board) issued its decision on tariffs proposed by Access Copyright for the reproduction of works in its repertoire by employees of Canadian provincial and territorial governments (together, Governments). The Board decided that the tariff rates should be 11.56 cents per employee per year for 2005-2009 and 49.71 cents per employee per year for 2010-2014. The rates apply to Governments other than Quebec, Ontario, and the Northwest Territories: the proposed tariff did not include Quebec, while Ontario and the Northwest Territories withdrew from the proceedings. Ontario withdrew from the proceedings in 2011 after reaching an agreement with Access Copyright to pay $7.50 per employee per year.

Access Copyright sought from Governments $15 per employee per year for the period of 2005-2009 and $24 per employee per year for 2010-2014. It later reduced its requests to $5.56 and $8.45, respectively. The Governments maintained that the rates should be lower, producing studies that supported rates between 1 cent and 73 cents per employee per year. Given the tariff certified by the Board, this decision is clearly a victory for the governments.

Despite Access Copyright’s arguments to the contrary, the Board found that that the fair dealing exception would apply in many instances of the types of Government copying events considered. The Board also rejected Access Copyright’s arguments that copying 1 to 2 pages of a work, where those pages do not constitute more than 2.5 percent of the entire work, constitutes reproduction of a substantial part of the work. Finally, the Board rejected Access Copyright’s argument that its repertoire includes works when no agreement with the rights holder is yet in place.

Access Copyright has published a response to the Board’s decision stating that the decision does not achieve the goals of copyright and that the Board incorrectly assessed the issues of substantial reproduction and fair dealing. Access Copyright also states that the facts assessed by the Board for the Government tariffs will differ from those requiring assessment in pending or subsequent proceedings relating to tariffs for other sectors, for example, education.

Follow these links for the Board’s decision, its fact sheet, and a news release that accompanied the decision.

For a more detailed review of the Board’s decision and how it impacts Access Copyright moving forward, see Michael Geist’s commentary.

Summary by: Adam Lis