Vol. 151, No. 20 — May 20, 2017
FILE: Post-Secondary Educational Institutions 2018-2020
Proposed Statement of Royalties to Be Collected by Access Copyright for the Reproduction, Communication to the Public by Telecommunication, Making Available to the Public, and Authorization of Such Acts in Canada, of Works in its Repertoire
In accordance with section 70.14 of the Copyright Act, the Copyright Board hereby publishes the proposed statement of royalties filed by the Canadian Copyright Licensing Agency (Access Copyright) on March 29, 2017, with respect to royalties it proposes to collect, effective on January 1, 2018, for the reproduction, communication to the public by telecommunication, making available to the public, and authorization of such acts, in Canada, of works in its repertoire by post-secondary educational institutions and persons acting under their authority.
In accordance with the provisions of the same section, the Board hereby gives notice that prospective users or their representatives who wish to object to the statement may file written objections with the Board, at the address indicated below, within 60 days of the publication hereof, that is no later than July 19, 2017.
Ottawa, May 20, 2017
56 Sparks Street, Suite 800
PROPOSED STATEMENT OF ROYALTIES TO BE COLLECTED BY THE CANADIAN COPYRIGHT LICENSING AGENCY (ACCESS COPYRIGHT)
For the reproduction, communication to the public by telecommunication, making available to the public, and authorization of such acts in Canada, in 2018, 2019 and 2020, of the works in Access Copyright’s repertoire by post-secondary educational institutions and persons acting under their authority.
1. Short Title
This tariff may be cited as the Access Copyright Post-Secondary Educational Institution Tariff, 2018-2020.
In this tariff,
“Academic Year” means the 12-month period from September 1 to August 31. (« Année scolaire »)
“Authorized Person” means
- (a) a Student; or
- (b) a Staff Member. (« Personne autorisée »)
“Authorized Purposes” means all purposes within or in support of the mandate of the Educational Institution. (« Fins autorisées »)
“Copy” means any reproduction, communication to the public by telecommunication or making available to the public by telecommunication in any material form whatsoever, or authorizing any such act, 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. (« Copie »)
“Copying” means making a Copy. (« Copier »)
“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. (« Recueil de cours »)
“Course of Study” means a course or unit of academic, continuing, professional, or vocational study administered or hosted by the Educational Institution. (« cours »)
“Digital Copy” means a reproduction in any digital form including optical or electronic format. (« Copie numérique »)
“Educational Institution” means an institution located in Canada (except in the Province of Quebec) that provides post-secondary, continuing, professional, or vocational education or training. (« Établissement d’enseignement »)
“Full-time-equivalent Student” means a full-time Student or the equivalent of one full-time Student of the Educational Institution. (« Étudiant équivalent à temps plein »)
“FTE Determination Date” means the date as of which the number of Full-time-equivalent Students is calculated for any given Academic Year. (« Date de détermination de l’ETP »)
“Musical Work” means any work of music or musical composition, with or without words, and includes any compilation thereof. (« Œuvre musicale »)
“Published Work” means a literary, dramatic or artistic work protected by copyright in Canada, of which copies have been made available to the public with the consent or acquiescence of the copyright owner, but excludes a Musical Work. (« Œuvre publiée »)
“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. (« Œuvre du répertoire »)
“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. (« Réseau sécurisé »)
“Staff Member” means, in respect of an Educational Institution,
- (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;
- (i) administrative support staff for any of the above positions; or
- (j) any other person in an essentially comparable position to those listed above. (« Membre du personnel »)
“Student” means a person engaged in a Course of Study. (« Étudiant »)
“Subcontractor” has the meaning set out in section 10. (« Sous-traitant »)
“University” means an Educational Institution that
- (a) is specifically recognized as a “university” under Canadian law;
- (b) is accepted as a member institution of the Association of Universities and Colleges of Canada;
- (c) is accredited as a university by a recognized accreditation body; or
- (d) has 50 per cent or more of its Students enrolled in degree programs requiring three or more years of full-time study. (« Université »)
“Year” means a calendar year. (« Année »)
3. Subject to compliance with each of the conditions in sections 4 and 5, this tariff entitles an Authorized Person, for Authorized Purposes only, to
- (a) make a Copy, including for use in a Course Collection, of up to twenty per cent (20%) of a Repertoire Work; or
- (b) make a Copy of a Repertoire Work that is
- (i) an entire newspaper or periodical article or page,
- (ii) a single short story, play, poem, essay or article,
- (iii) an entire entry from an encyclopaedia, annotated bibliography, dictionary or similar reference work,
- (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-five per cent (25%) of a book.
General Conditions Applicable to all Repertoire Works
4. (1) No Copies 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 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 shall only be made from Repertoire Works that are lawfully obtained by the Authorized Person making the Copies, but without violating any licensing or other contractual terms with any person that prohibit such Copying under a collective licence.
(5) Copies of Repertoire Works shall be faithful and accurate reproductions of the Repertoire Works.
(6) Copies 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 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.
(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 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 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.
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 the following:
- (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;
- (k) Total number of pages Copied from each Published Work;
- (l) Subcontractor making a Course Collection or making a Course Collection available (if applicable); and
- (m) 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.
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) CAD$26.00 for Universities; or
- (b) CAD$10.00 for all other Educational Institutions.
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.
9. Any payment not received by Access Copyright by its due date shall bear interest from such due date until the date the amount is received. Interest shall be calculated daily at a rate equal to one per cent above the Bank Rate effective on the last day of the previous month (as published by the Bank of Canada). Interest shall not compound.
Subcontracting of Uses
10. The Educational Institution may authorize by written agreement a person other than an Authorized Person (a “Subcontractor”) to perform the acts set out in section 3, subject to the conditions set out in sections 2, 3, 4 and 5, provided that
- (a) a record is kept of all such written agreements;
- (b) the Educational Institution provides that record and each written agreement to Access Copyright within 30 days after such agreement is entered into;
- (c) the Subcontractor permits all surveying under this tariff and complies with all conditions, restrictions, and limitations set out in this tariff; and
- (d) the Subcontractor may not further subcontract any rights or obligations granted or imposed under this tariff.
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, 2018-2020. Further reproduction, distribution or transmission is prohibited, except as otherwise permitted by law.”
Notification of the Terms and Conditions of Copying
12. The Educational Institution shall ensure there is affixed, within the immediate vicinity of each machine or device used for making, viewing or transmitting copies in a place and manner that is readily visible and legible to persons using such machine or device, a notice of the terms of this tariff and of the tools available to the Educational Institution to confirm a Published Work’s status as a Repertoire Work.
13. (1) Once every Academic Year, Access Copyright may advise the Educational Institution of Access Copyright’s intention to conduct a bibliographic and volume survey of the uses permitted hereunder. Upon request by Access Copyright, the Educational Institution will participate in the survey and will ensure that all Authorized Persons cooperate fully with the requirements of Access Copyright.
(2) The Educational Institution shall give Access Copyright, on reasonable notice, right of access throughout the Educational Institution’s premises, including full access to the Secure Network and all Course Collections, at any reasonable times, to administer the survey. Such access may be subject to reasonable arrangements for supervision as required by the Educational Institution to ensure the security of its premises, including its computer systems and networks, and to maintain the confidentiality of personal or other confidential data.
(3) If an Educational Institution unreasonably refuses to participate in the survey or otherwise does not comply with this section, the licences in sections 3 and 10 will cease to be in effect on written notice from Access Copyright until Access Copyright provides further notice that the deficiency has been remedied.
(4) Any survey shall respect all applicable privacy laws and principles of academic freedom.
Royalty and Compliance Audits
14. (1) The Educational Institution shall keep and preserve, for a period of six (6) Years after the end of the Academic Year to which they relate, records from which the royalties and reports due to Access Copyright under this tariff can be readily ascertained.
(2) No more than once per Academic Year, Access Copyright may audit these records during normal business hours on seven days’ written notice to the Educational Institution.
(3) If selected for an audit, the Educational Institution shall ensure that it and all Authorized Persons cooperate fully with Access Copyright.
(4) The Educational Institution shall give Access Copyright, on reasonable notice, right of access throughout the Educational Institution’s premises in order to organize and carry out an audit, including full access to the Secure Network and all Course Collections. Such access may be subject to reasonable arrangements for supervision as required by the Educational Institution to ensure the security of its premises, including its computer systems and networks, and to maintain the confidentiality of personal or other confidential data.
(5) Access Copyright shall, upon receipt, supply a copy of the report of the audit to the Educational Institution that was the subject of the audit.
(6) Adjustments in the amount of royalties owed (including overpayments) as a result of the discovery of an error or otherwise, shall be applied to the next invoice issued by Access Copyright to the Educational Institution or, if the tariff has expired, paid or refunded within 60 days.
(7) If an audit discloses that the Educational Institution has misreported its records, the licences in sections 3 and 10 will cease to be in effect on written notice from Access Copyright until Access Copyright provides further notice that the deficiency has been remedied.
(8) If an audit discloses that royalties due have been understated in respect of any instalment payable pursuant to section 8 by more than 10 per cent, the Educational Institution shall pay the reasonable costs of the audit.
(9) Any audit shall respect all applicable privacy laws and principles of academic freedom.
15. The Educational Institution shall take steps to ensure that the conditions in sections 4 and 5 are complied with and that no Copying by Authorized Persons or Subcontractors takes place in contravention of the conditions set out in section 4 or 5.
Addresses for Notices and Payment
16. (1) Anything that the Educational Institution sends to Access Copyright shall be sent to
The Canadian Copyright Licensing Agency
56 Wellesley Street West, Suite 320
(2) Anything that Access Copyright sends to an Educational Institution shall be sent to the last address of which Access Copyright has been notified in writing.
Delivery of Notices and Payment
17. (1) A notice may be delivered by hand, by postage-paid mail, by fax or by email. A payment may be delivered by hand, by postage-paid mail or by electronic bank transfer.
(2) Anything mailed in Canada shall be presumed to have been received three (3) business days after the day it was mailed.
(3) A notice or payment sent by fax, by email or by electronic bank transfer shall be presumed to have been received on the first business day following the day it is transmitted.
Transitional Provision: Interest Accrued before the Publication of the Tariff
18. (1) Any amount payable before [insert date of publication of the tariff] shall be due [insert date immediately following the publication of the tariff] and shall be increased by using the multiplying factor (based on the Bank Rate) set out in the following table [insert table with applicable Bank Rate].