Focused on the future of learning.

Office of the Provost and Vice President Academic

December 9, 2019

DELIVERED BY EMAIL

PRIVATE AND CONFIDENTIAL

Copyright Board of Canada

56 Sparks Street, Suite 800
Ottawa, Ontario K1P 5A9
registry-greffe@cb-cda.gc.ca

Attention: Lara Taylor, Secretary General

Dear Ms. Taylor:

Re: Access Copyright Proposed Post-Secondary Educational Institution Tariff (2021-2023) (the
“Proposed Tariff”) - Objections by Athabasca University as a User

On behalf of Athabasca University (“AU”), I provide this letter which states AU’s objections to the Proposed
Tariff.

Known as Canada’s Open University, AU is dedicated to the removal of barriers that restrict access to, and
student success in, university-level study. AU’s mission is to promote equality of educational opportunity for
adult learners regardless of geographical location. At present, AU serves over 40,000 students worldwide,
employs over 1000 faculty and staff members and offers over 850 university-level courses.

AU’s Objections to the Proposed Tariff

1. Misalignment between AU’s Foundational Principles and Access Copyright’s Tariff Framework

AU is uniquely positioned as a post-secondary institution in Canada. Its foundational principles are distance
delivery and an open (student-driven) calendar, offerings which other post-secondary institutions have come
to through enhancement of their core services. In the result, tariff regimes based on fixed annual audit cycles
and reporting schemes that further assume normative (‘physical’) means of delivery as the primary mode of
educational delivery are instantly misaligned with AU’s reality.
1 University Drive, Athabasca, AB T9S 3A3 Canada
P: 780.675.6447 | Toll-free (CAN/U.S.) 1.800.788.9041
athabascau.ca
AU has long maintained these critical objections to Access Copyright’s framework which supports the
proposed post-secondary educational institution tariffs. With respect to the Proposed Tariff, AU emphatically
restates these critical objections and seeks full examination of Access Copyright’s assumptions underlying
the Proposed Tariff.

AU submits that Canada’s post-secondary educational sector is consistently underserved by Access

Copyright’s inflexible approach to tariff design - especially when this very same sector is subject to
unprecedented disruption and change pressures. Again, AU’s unique core model is based on distance delivery
and open enrollment, so its struggle with Access Copyright’s inflexible framework is longstanding. However,
AU appreciates that innovative offerings at traditional post-secondary institutions are causing increasing
misalignment with Access Copyright’s intractable framework based on fixed annual cycles and reporting
schemes as drivers of compliance.

As a corollary point, AU seeks clear guidance on the applicable methodology for determining ‘full time
equivalent’ (“FTE”) student count under the Proposed Tariff. Without such clarification, AU is further
challenged with respect to the Proposed Tariff’s annual audit cycles and reporting scheme.

2A. Technical Terminology - Departures and Need for Substantive Explanation

We have attached as Appendix A to this letter a comparison table featuring provisions from the Proposed
Tariff and the newly certified Statement of Royalties to be Collected by the Canadian Copyright Licensing
Agency (Access Copyright) for the Reproduction and Authorization to Reproduce in Canada in 2015, 2016
and 2017 (the “Newly Certified Tariff”), respectively. We seek clarification of two critical matters:

First, what is Access Copyright’s rationale for different technical terminology as between the Proposed Tariff
and the Newly Certified Tariff? Are there implications for how compliance shall be determined pursuant to the
Proposed Tariff, if certified, that are different from the Newly Certified Tariff? As of right, AU must object to all
departures in technical terminology featured in the Proposed Tariff compared with the Newly Certified Tariff
unless and until fulsome explanation of the rationale for same is provided by Access Copyright (including any
and all implications for required evidence of compliance with respect to the Proposed Tariff).

Second, what is the substantive meaning of new technical terms introduced in the Proposed Tariff? As of
right, AU must object to all new technical terminology featured in the Proposed Tariff unless and until fulsome
explanation of same is provided by Access Copyright.

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2B. Objection to Use of ‘Communicate’ as Technical Terminology

Without limiting the generality of either question stated above, it is incumbent on AU to object to Access
Copyright’s use of the word “Communicate” in the Proposed Tariff’s definitional term “Copy and/or
Communicate” (the “Technical Definition of Copy”).

It is important to note that, despite using the word “Communicate” in the Technical Definition of Copy, the
balance of this key definition expressly features the word “telecommunicate”. AU’s position is that Access
Copyright is unreasonably seeking to conflate the meaning of the term “telecommunicate” with the broader
term “Communicate”. In the result, AU objects to the Technical Definition of Copy as currently drafted in the
Proposed Tariff as well as to each instance throughout the Proposed Tariff where the word “Communicate”
appears.

When the Technical Definition of Copy is read in its entirety, it appears clear that Access Copyright is seeking
to capture means of reproduction and/or transmission of content. However, the meaning of the verb ‘to
communicate’ is fundamentally far broader than the meaning captured by the words ‘reproduction’ and/or
‘transmission’ (whether cast as nouns or the verbs ‘to reproduce’ and/or ‘to transmit’).

Within the context of copyright law in Canada, reproduction and/or transmission are concepts irrevocably
bound with mechanical (including digital) processes. The balance of the Technical Definition of Copy speaks
to the breadth of these mechanical processes in our current times. However, it is nevertheless a clear
overreach for Access Copyright to use the word “Communicate’ to collectively describe the processes
enumerated in the Technical Definition of Copy, all of which are achieved through mechanical (including
digital) means.

It is unhelpful in the extreme for Access Copyright to first depart (without explanation) from previous technical
terminology still under review as a proposed tariff, but then depart in such a way as to unreasonably conflate
the concepts of reproduction and/or transmission with the concept of communication.

Again, AU must reiterate its objection to the Proposed Tariff on the basis that Access Copyright has yet to
provide substantive explanation for its current technical terminology and the impacts of same when different
than that used in earlier proposed tariffs.

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3A. Unidentified Works in “Repertoire”

AU maintains that it is impossible for a user to properly consider the merits of the Proposed Tariff when the
works included in Access Copyright’s Repertoire are unidentified. In the result, AU must object to the Proposed
Tariff on the basis that information necessary for full understanding of the Proposed Tariff has not been made
available to users.

3B. Inability to Identify Extraneous Licenses

As a corollary point, without identification of the works included in Access Copyright’s Repertoire, AU is
exposed to undue financial risk for reason that it currently maintains a number of direct fee-bearing copyright
licenses in order to use works. Assuming that there is overlap between the works included in the Repertoire
and those that AU currently uses under direct fee-bearing copyright license(s), AU would incur both the
Proposed Tariff per FTE as well as the applicable license fee(s).

At this time, there is tremendous pressure on Alberta’s publicly funded institutions to reduce expenses. All
solutions to achieve financial restraint while maintaining service levels are being considered. However,
fulsome information is required in order to vet and settle on the best solutions possible. Therefore, in the
present context, AU requires detailed information on the works included in Access Copyright’s Repertoire in
order to determine its financial position and where it is exposed to undue risk. Put simply, it is not open to AU
to incur the risk of extraneous expenses or to justify why no net gain has accrued to AU or to its service levels
even though AU, under the proposed tariff, would incur additional expenses.

4. Unknown Impacts on Faculty, Staff and Students with Perceptual Impairments

It has long been AU’s position that Access Copyright’s approach to proposed post-secondary educational
tariffs in general have omitted clear guidance on compliance in the context of mandatory accommodation of
faculty, staff and students with perceptual impairments.

In the result, AU must object to the Proposed Tariff for this reason. It is impossible for a post-secondary
institution in AU’s position to navigate its legal responsibilities without meaningful advertence to the duty to
accommodate by copyright administrators such as Access Copyright.

AU reserves the right to submit further objections under this specific heading in the event that Access
Copyright issues position statement(s) on compliance in the context of substantive equality mandates
enforced by laws at both provincial and federal levels in Canada.

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5. Determination of Amount Payable Per FTE

AU maintains an objection to the Proposed Tariff based solely on the lack of information available to users
regarding how Access Copyright determined the amount payable per FTE. Without such information, AU must
conclude that the amount payable per FTE is a matter of Access Copyright’s discretion.

AU strenuously objects to any exercise (or perceived exercise) of discretionary power by Access Copyright
with respect to quantum. AU’s objection would be the same no matter the particular circumstances of Alberta’s
publicly funded sector. However, given the tremendous fiscal pressure on AU at this time, it is incumbent on
AU to object to any financial determination made by Access Copyright that cannot be reasonably supported
by relevant evidence.

6. Reservation of AU Rights with respect to Statements of Royalties to Be Collected for the

Reprographic Reproduction, in Canada, of Works in Access Copyright’s Repertoire for the
Years 2011 to 2014 and for the Years 2015 to 2017

AU acknowledges the Copyright Board’s certification decisions made public on December 7, 2019. Without
limitation whatsoever, AU reserves its unfettered right to opt out of any and all certified tariff schemes
̓̓̓̓̓̓
administered by Access Copyright. AU̓̓̓`s position as an ̏ opt out ̋ post-secondary educational institution is well-
established in law and remains independent of the recent certifications.

Thank you for your consideration of AU’s objections to the Proposed Tariff stated herein.

Sincerely,

Matthew Prineas, PhD

Provost and Vice President Academic

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 [APPENDIX A FOLLOWS]
Access Copyright Post-Secondary Educational
Institution Tariff, 2021 - 2023
“Copy and/or Communicate” means any
reproduction, communication to the public by
telecommunication or making available to the public
by telecommunication, in any form or by any
method or process whatsoever, or authorizing any
such act, including one that is made by, as a
consequence of, or for the purpose of the following
activities:
(a) photocopying, printing and xerography;
(b) reproducing onto microform (including
microfilm and microfiche);
(c) reproducing by
a. typing or word-processing without
adaptation,
b. hand transcription or drawing
(including tracing) onto acetate or
other media, and
c. duplicating from a stencil;
(d) reproducing by a machine, device or
computer that makes a Digital Copy,
including scanning;
(e) transmitting a Published Work by any means
or process including by SMS (short message
service), text, electronic mail or facsimile;
(f) copying onto or storing on a storage device
or medium, including onto a computer, USB
(universal serial bus), tablet or other mobile
device;
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Post-Secondary Educational Institutions 2014-
2017
“Copy” means any reproduction or making available
to the public by telecommunication in any material
form whatever, including a Digital Copy, that is
made by or as a consequence of any of the following
activities:
(a) reproducing by a reprographic process,
including reproduction by photocopying and
xerography;
(b) scanning a paper copy to make a Digital
Copy;
(c) printing a Digital Copy;
(d) transmission by electronic mail;
(e) transmission by facsimile;
(f) storage of a Digital Copy on a local storage
device or medium;
(g) posting or uploading a Digital Copy to a
Secure Network or storing a Digital Copy on
a Secure Network;
(h) transmitting a Digital Copy from a Secure
Network and storing it on a local storage
device or medium;
(i) projecting an image using a computer or
other device;
(j) displaying a Digital Copy on a computer or
other device; and
(k) posting a link or hyperlink to a Digital Copy.
 (g) providing access to a work including by
posting, uploading, copying onto or storing
on a Secure Network;

(h) transmitting or downloading from a Secure

Network and copying onto or storing on a
storage device or medium, including onto a
computer, USB, tablet or other mobile
device;

(i) projecting an image using a medium or

device, including a computer, tablet or other
mobile device; or

(j) displaying on a medium or device, including

a computer, tablet or other mobile device.

“Course Collection” means copies of Published
Works in the Repertoire assembled into paper
course packs or into digital course packs or
Published Works in the Repertoire posted,
uploaded, or stored on a Secure Network and made
available to Authorized Persons
“Course Collection” means, for use by an Authorized
Person as part of a Course of Study, and whether for
required or recommended reading for the Course of
Study or otherwise:
(a) assembled paper Copies of Published Works;
or

(b) Digital Copies of Published Works that are

i. emailed, linked or hyperlinked to, or

ii. posted, uploaded to, or stored, on a

Secure Network.

“Course of Study” means a course, unit or program
of academic, continuing, professional, or vocational
study administered or hosted by the Educational
Institution. Each section of the same course is a
separate Course of Study.
“Course of Study” means a course or unit of
academic, continuing, professional, or vocational
study administered or hosted by the Educational
Institution.

“Digital Copy” means a reproduction of a Published “Digital Copy” means a reproduction in any digital
Work in any digital form including on a medium or form including optical or electronic format.
device, tangible or not, using information
technologies be they electronic, magnetic, optical,
wireless or other, or a combination of technologies.

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“Repertoire Work” includes all Published Works by
any author or publisher, estate of an author or
publisher or other person with a copyright interest
in a given Published Work who, by assignment, grant
of licence or by appointment as an agent or
otherwise, has authorized Access Copyright to
collectively administer the reproduction right, the
communication to the public by telecommunication
or making available to the public by
telecommunication right in and to that Published
Work, and/or all Published Works authorized by
another collective management organization.
“Secure Network” means an electronic network,
Internet or other digital network, learning
management system or cloud-based storage service
that is operated by the Educational Institution, or for
and subject to the control of the Educational
Institution, and which is only accessible by an
Authorized Person authenticated by a user name
and password or other equally secure method.
“Staff Member” means, in respect of an Educational “Staff Member” means, in respect of an Educational
Institution, Institution,
(a) an instructor, lecturer or sessional lecturer;
(b) an assistant, associate, full, visiting, adjunct,
replacement or seconded professor;
(c) a teaching or research assistant, tutor, fellow
or post-graduate fellow;
(d) a demonstrator, proctor, invigilator or
marker;
(e) a librarian or library assistant;
(f) a lab monitor, clinical instructor or clinician;
(g) a counsellor;
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“Repertoire Work” means a Published Work for
which Access Copyright collectively administers the
rights as authorized by the copyright owner or by
another collective management organization, by
assignment, licence, agency or otherwise.
“Secure Network” means a network that is operated
by the Educational Institution, or for the Educational
Institution with Access Copyright’s consent, and
which is only accessible by an Authorized Person
who is approved by the Educational Institution by
means of a process of authentication which, at the
time of login, identifies the user as an Authorized
Person, whether by user name and password or by
some other equally secure method.
(a) an instructor, lecturer or sessional lecturer;
(b) an assistant, associate, full, visiting,
replacement or seconded professor;
(c) a teaching or research assistant, tutor, or
fellow;
(d) a demonstrator, proctor, invigilator, or
marker;
(e) a librarian or library assistant;
(f) a lab monitor, clinical instructor or clinician;
(g) a counsellor;
 (h) an academic administrator; (h) an academic administrator;

(i) a medical resident; (i) administrative support staff for any of the
above positions; or
(j) administrative support staff for any of the
above positions; (j) any other person in an essentially
comparable position to those listed above.
(k) any other person in an essentially
comparable position to those listed above;
and

(l) any employee, regardless of his or her

position;

in each case, whether the person in question is paid

or unpaid.

Application Application

3. Subject to compliance with each of the 3. Subject to compliance with each of the
conditions in sections 4 and 5, this tariff conditions in sections 4 and 5, this tariff
entitles an Authorized Person for Authorized entitles an Authorized Person for Authorized
Purposes only, including for use in a Course Purposes only, to
Collection, to
(a) make a Copy of up to ten per cent (10%)
(a) make a Copy and/or Communicate of up of a Repertoire Work;
to twenty per cent (20%) of a Repertoire
Work; or (b) make a Copy of up to twenty per cent
(20%) of a Repertoire Work only as part
(b) make a Copy and/or Communicate a of a Course Collection; or
Repertoire Work that is
(c) make a Copy of a Repertoire Work that is
(i) an entire newspaper or periodical
article or page, i. an entire newspaper or periodical
article or page,
(ii) a single short story, play, poem,
essay or article, ii. a single short story, play, poem,
essay or article,
(iii) an entire entry from an
encyclopaedia, annotated iii. an entire entry from an
bibliography, dictionary or similar encyclopaedia, annotated
reference work, bibliography, dictionary or similar
reference work,
(iv) an entire reproduction of an
artistic work (including a drawing,
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 painting, print, photograph and
reproduction of a work of
sculpture, an architectural work of
art and a work of artistic
craftsmanship), and
(v) one chapter, provided it is no
more than twenty-five per cent
(25%) of a book.
iv. an entire reproduction of an
artistic work (including a drawing,
painting, print, photograph and
reproduction of a work of
sculpture, an architectural work of
art and a work of artistic
craftsmanship), and
v. one chapter, provided it is no more
than twenty per cent (20%) of a
book.

General Conditions Applicable to all Repertoire

Works

4. (1) No Copies and/or Communications of

Repertoire Works shall be made available,
distributed, or transmitted to a person who
is not an Authorized Person.

(2) There shall be no repeated, systematic or

cumulative Copying and/or Communicating
of the same Repertoire Work beyond the
limits set out in section 3 for one Course of
Study in one Academic Year.

(3) Copies of Repertoire Works shall not be

stored or indexed with the intention or result
of creating a library of Published Works.

(4) Copies and/or Communications shall only

be made from Repertoire Works that are
lawfully obtained by the Authorized Person
making the Copies and/or Communications,
but without violating any licensing or other
contractual terms with any person which
prohibit such Copying and/or
Communicating under a collective licence.

(5) Copies and/or Communications of

Repertoire Works shall be faithful and
accurate reproductions of the Repertoire
Works.

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 (6) Copies and/or Communications of
Repertoire Works shall not be made or used
in a manner that would infringe the moral
rights of any author.

Additional Conditions Regarding Digital Copies of Additional Conditions Regarding Digital Copies of
Repertoire Works Repertoire Works

5. (1) Digital Copies of Repertoire Works shall
not be transmitted to, made available from,
posted or uploaded to, or stored on any
computer network other than a Secure
Network.
(2) Digital Copies of Repertoire Works stored
on Secure Networks shall be segregated by
individual Course of Study and made
available and accessible only to Authorized
Persons.
5. (4) Where the Educational Institution is no
longer covered by this tariff, the Educational
Institution and all Authorized Persons shall
immediately cease to use all Digital Copies of
Repertoire Works, delete from their hard
drives, servers and networks, and make
reasonable efforts to delete from any other
device or medium capable of storing Digital
Copies, those Digital Copies and upon
written request from Access Copyright shall
certify that it has done so.

(3) Digital Copies of Repertoire Works shall

not be transmitted to, made available from,
posted or uploaded to, or stored on any
device or medium, computer or computer
network in such a manner that makes them
publicly available or accessible including
available or accessible over the Internet or
other public network.

(4) Nothing in this tariff authorizes any

person to descramble a scrambled work or
decrypt an encrypted work or to otherwise
avoid, bypass, remove, deactivate, impair, or
otherwise circumvent a technological
measure that restricts or controls access to,
copying of, retention of, distribution of, or
transmission of a Repertoire Work.

(5) Nothing in this tariff prevents the

Educational Institution, or any Authorized
Person from using the Internet or another
public network to gain access to a Repertoire
Work for the purpose of using it in
accordance with this tariff, or from providing
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 a link or a hyperlink to a Repertoire Work
that is posted or stored on the Internet or
another public network.

(6) For clarity, the licences granted pursuant

to section 3 apply only to the Copying and/or
Communication of Repertoire Works,
irrespective of the source of those
Repertoire Works. No licence is granted to
the Educational Institution or any Authorized
Person to gain or secure access to Published
Works.

Reporting Reporting

6. (1) For each Course Collection Copied and/or
Communicated under this tariff, the
Educational Institution shall compile a
record in a form set out by Access Copyright
of
(a) Course of Study name;
(b) Course of Study code;
(c) Term start and end date;
(d) Number of Authorized Persons for the
Course of Study;
(e) ISBN/ISSN for each Published Work;
(f) Title of each Published Work, article and
chapter (if applicable);
(g) Publication year or volume number for
each Published Work (if applicable);
(h) Author(s) of book/chapter/article (as
applicable) for each Published Work;
(i) Publisher name;
6. (1) For each Course Collection made or made
available under this tariff, the Educational
Institution shall compile a record in a form
set out by Access Copyright of
(a) Course of Study name;
(b) Course of Study code;
(c) Term start and end date;
(d) Number of Authorized Persons for the
Course of Study;
(e) ISBN/ISSN for each Published Work;
(f) Title of each Published Work, article and
chapter (if applicable);
(g) Publication Year or Volume Number for
each Published Work (if applicable);
(h) Author(s) of Book/Chapter/Article (as
applicable) for each Published Work;
(i) Publisher name;
(j) Start and end page Copied from each
Published Work;

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 (j) Start and end page Copied and/or
Communicated from each Published
Work;
(k) Total number of pages Copied and/or
Communicated from each Published
Work;
(l) Total number of sets Copied and/or
Communicated of each Course
Collection;
(m) Subcontractor Copying and/or
Communicating a Course Collection (if
applicable);
(n) New Published Works added to the
Course Collection in the reporting
month.
(2) Within 30 days after the end of each
month, the Educational Institution shall
forward the record in section 6(1) to
Access Copyright.
Royalties
7. (1) The Educational Institution shall pay an
annual royalty to Access Copyright
calculated by multiplying the number of its
Full-time-equivalent Students by the royalty
rate of
(a) $26.00 CAD for Universities; or
(b) $10.00 CAD for all other Educational
Institutions.
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(k) Total number of pages Copied from each
Published Work;
(l) Electronic address where a Published
Work is being stored or can be accessed
(if applicable);
(m) Direct licence from
[publisher/aggregator name] (if
applicable);
(n) Subcontractor making a Course
Collection or making a Course Collection
available (if applicable); and
(o) New Published Works added to the
Course Collection in the reporting
month.
(2) With respect to emails, the Educational
Institution shall only be required to compile
the above records for Digital Copies emailed
by or on behalf of a Staff Member.
(3) Within 30 days after the end of each
month, the Educational Institution shall
forward the record in section 6(1) to Access
Copyright.
Royalties
7. (1) The Educational Institution shall pay an
annual royalty to Access Copyright calculated
by multiplying the number of its Full-time-
equivalent Students by the royalty rate of
(a) $35.00 CAD for Universities; or
(b) $25.00 CAD for all other Educational
Institutions.
Payment
8. (1) Royalties shall be due on or before
January 31 for each year of this tariff.
(2) No later than January 31 of each year of
this tariff, the Educational Institution shall
deliver to Access Copyright a written report
specifying the number of Full-time-
equivalent Students as of the FTE
Determination Date for the current
Academic Year.
(3) The annual royalty payable under this
tariff is exclusive of any federal or provincial
taxes.
Attribution
11. Copies and/or Communications made
pursuant to this tariff shall include, on at
least one page,
(a) A credit to the author, artist or
illustrator, and to the source; and
(b) A notice stating, “Copied and/or
Communicated under the Access
Copyright Post-Secondary Educational
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Payment
8. (1) The Educational Institution shall deliver
to Access Copyright a written report
specifying the number of Full-time-
equivalent Students as of the FTE
Determination Date in the prior Academic
Year by no later than October 15 of each
Year.
(2) Access Copyright shall issue to the
Educational Institution an invoice setting out
the amount payable by the Educational
Institution.
(3) Royalties shall be payable in three equal
instalments as follows:
(a) the first instalment shall be paid on
or before February 28 of each Year;
(b) the second instalment shall be paid
on or before June 30 of each Year;
and
(c) the third instalment shall be paid on
or before October 31 of each Year.
(4) The annual royalty payable under this
tariff is exclusive of any federal or provincial
taxes.
Attribution
11. Copies made pursuant to this tariff shall
include, on at least one page,
(a) A credit to the author, artist or
illustrator, and to the source; and
(b) A notice stating “Copied under the
Access Copyright Post-Secondary
Educational Institution Tariff, 2014-2017.
Further reproduction, distribution or
Institutional Tariff, 2021-2023. Further transmission is prohibited, except as
reproduction, distribution or otherwise permitted by law.”
transmission is prohibited, except as
otherwise permitted by law.”

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