Katz Respose to AUCC Application Re Transactional Licenses

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5 Tel: 416-978-8892 Fax: 416-978-2648 [email protected] www.law.utoronto.ca/faculty/katz

ARIEL KATZ ASSOCIATE PROFESSOR INNOVATION CHAIR, ELECTRONIC COMMERCE

June 27, 2011 - BY EMAIL -

Mr. Gilles McDougall Secretary General The Copyright Board of Canada 56 Sparks Street, Suite 800 Ottawa, Ontario K1A 0C9

Dear Mr. McDougall,

Re: Response to the AUCC’s Application regarding Transactional Licenses

Pursuant to the Board’s notice from June 16, 2011, I wish to respond to the AUCC’s application

from June 8, 2011. The AUCC’s application, including the supporting documents as well as

those submitted by the ACCC, suggest that many of the concerns that I raised in my objections to

the Interim Tariff have indeed materialized despite the Board’s efforts to mitigate them.

Naturally, I take these issues very seriously.

Nevertheless, I am not persuaded that amending the Interim Tariff to require Access Copyright

to grant transactional licenses on a per copy basis—as the AUCC requests—is the optimal

remedy for these issues. In fact, I am concerned that ordering Access Copyright to grant

transactional licenses might actually—under some circumstances—aggravate the problem.

While I am confident that this was not the AUCC’s intention, I believe that the remedy that it

proposes could inadvertently backfire and serve the interests of Access Copyright to the

detriment of Canadian academic institutions.

In this submission, I wish to address three main issues: (a) what a non-mandatory tariff entails;

(b) the abusive and anti-competitive nature of Access Copyright’s (and some of its members’)

alleged conduct; and (c) the appropriate remedy.

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I reserve the right to make further and more specific submissions, including proposing a more

specific remedy in reply to Access Copyright’s submission and in accordance with the Board’s

notice.

I. What does a Non-Mandatory Tariff Entail

1. The concern that if approved, the Interim Tariff would be mandatory has been fundamental

to most objectors’ opposition to its approval, including mine. I wish to reiterate my position

that the Copyright Board does not have the power to approve a mandatory interim tariff and

should not approve a mandatory interim tariff even if it had the power to do so. As I wrote in

my objection to the Interim Tariff, an approved tariff is law. Not only de jure,1 but also de

facto,2 because upon its approval, the collecting society is entitled, according to s. 68.2(1)

and s. 70.15(2) of the Act, to collect the royalties specified in the tariff and, in default of their

payment, to recover them in a court of competent jurisdiction. When a tariff is approved, it

becomes mandatory upon any person to which the tariff pertains. It is binding even on

parties that took no part in the proceeding for its approval.

2. The Board responded to this concern by noting that

the interim tariff we adopt in this matter is not mandatory. An Institution can avoid its application by purchasing the work, negotiating a licence to copy the work with Access or its affiliates, not using any work in the repertoire of Access or engaging only in conduct exempt from liability.3

3. Moreover, the Board clearly indicated, in paragraph 45, that its ruling on this issue may not

necessarily be final, and that should the need arise, the issue would be further considered.

1 A tariff is a “regulation” under the Interpretation Act, R.S.C. 1985, c. I-21, s.2. 2 I am setting aside for the moment the likelihood that a tariff that specifically targets educational institutions is a

law in relation to education, and therefore falls under the exclusive jurisdiction of the provinces, according to s. 93

of the Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3, s. 93, as well as the possibility that a mandatory tariff is

in effect a tax, whose constitutional validity depends on compliance with sections 53 and 54 of the same act. I will

return to this issue in due course.

3 Board’s Reasons, March 16, 2011, paragraph 50.

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The current Application indicates that such further consideration is apt, and I would

respectfully submit that further considerations should be given not only to the terms of the

Interim Tariff but also some aspects of the Board’s reasons.

4. In my opinion, to be non-mandatory the Interim Tariff must not interfere with Institutions’

ability to secure licenses on competitive terms if they wish so. Since there is no guarantee

that this is the case, measures necessary to secure this option should be put in place.

5. With respect, only the first part of the Board’s above-mentioned reasoning satisfies

conditions under which the Interim Tariff could be considered to be non-mandatory.

Moreover, to be truly non-mandatory these conditions must imply that an Institution has a

genuine option fully to obtain licenses covering all its needs on competitive terms. I would

submit that the options of not using any work in the repertoire of Access or engaging only in

conduct exempt from liability do not render the Interim Tariff non-mandatory, because

according to s. 68.2(1) of the Copyright Act, an Institution making even a single

unauthorized and non-exempt copy of a Repertoire Work becomes liable for paying the entire

fee specified in the Tariff and complying with all its terms (in addition to any other remedies

available to Access Copyright or the copyright owner). The fact that an Institution can avoid

being subject to the tariff by refraining from using any Repertoire Work or engaging only in

exempt conduct does not change the mandatory nature of a tariff, in the same way that the

options of not working or not earning any taxable income do not change the mandatory

nature of one’s obligation to pay income tax on her taxable earnings, or in the same way that

the options of walking, cycling or using public transit do not change the mandatory nature of

obtaining a driver’s license for driving.

6. Liability to the collective society for paying the entire fee for the entire repertoire and the

ability of the collective society to collect this payment in summary proceedings (and not by

bringing an action for copyright infringement) distinguishes the case from ordinary liability

for copyright infringement, whereby the unauthorized user is liable only to the copyright

owner, the remedy is subject to wide discretion of the court, and in any event will be

commensurate with the actual use, the actual damage done, profit earned, etc.

7. These points need not be pursued further because the Board clearly intended that the Interim

Tariff would not be mandatory, in the sense of securing the Institutions’ ability to obtain

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licenses from alternative sources on competitive terms. It is clear that while the Board did

not explicitly incorporate terms requiring this option, it chose not to do that only because it

assumed that the option has always existed and will continue to exist. However, the AUCC’s

Application and the documents it and the ACCC submitted to the Board demonstrate that

there is no guarantee that this has been the case or that it will continue to be.

8. Therefore, to remain legally valid, the Interim Tariff must not be mandatory in the sense that

it must not interfere with Institutions’ ability to secure licenses on competitive terms if they

wish so. Since there is no guarantee that this is the case and there is, indeed, ample evidence

that the contrary is the case, measures necessary to secure this option should be put in place.

II. The Abusive and Anti-Competitive Nature of Access Copyright’s (and some of its

Members) Alleged Conduct

9. I have not requested any transactional license from Access Copyright or any of its members

and therefore I do not have any personal knowledge regarding the alleged change in the

licensing practices of Access Copyright and member publishers. Assuming the AUCC’s

factual allegations, endorsed by the ACCC, are correct, I fully support its position that

eliminating the ability of Institutions to obtain transactional licenses, and offering them the

choice between availing themselves to the Interim Tariff or foregoing use of any work under

Access Copyright’s repertoire constitutes an anti-competitive behavior, and abuse of

monopoly power. I also agree that these practices contradict the clear representations that

Access Copyright made before the Board in the course of its application for an Interim Tariff.

As such, this behaviour also constitutes abuse of process and inequitable conduct, and

certainly does not exhibit the type of good faith conduct that the Board explicitly demanded.

I wish, however, to highlight, a few additional points emphasizing these conclusions.

10. While the point that making a “take it or leave it” offer could leave Institutions with no

option but to “take it” seems obvious enough, and the fact that eliminating the option of

obtaining transactional licenses stands in stark contradiction to the conditions underlying the

Interim Tariff needs no further elaboration, it is worth noting that the magnitude of this

adverse effect on Institutions depends on the scope of Access Copyright’s repertoire. The

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larger the repertoire is, the more dependent an Institution on it will be, and the more severe

will be the fact that copying works within it is available only on a blanket basis.

11. Technically, a collective society can set up a licensing scheme subject to Part VII of the

Copyright Act with a repertoire consisting of as little as the works of only two authors, which

could be the most obscure two authors. Obviously, if such a collective society refused to

issue transactional licenses and offered only a blanket license, this would not cause much of a

concern, because if the price of such blanket license was deemed excessive by an Institution

(assuming that some readers from the Institution would actually be interested in reading these

obscure works), the Institution would still be able to operate reasonably well without it. This

of course, will discipline the ability of that collective to request excessive prices in the first

place. In contrast, if the collective society’s repertoire consists of every published work and

no transactional licenses are available, no Institution would be able realistically to function

without it, and the Institution will be forced to sign onto such license.

12. Even though the scope of Access Copyright’s repertoire falls short of including all published

works (and probably by large measure) Access Copyright has so far systematically avoided

providing any meaningful information about its scope, and it keeps making false and

misleading representations that its repertoire is indeed vast and comprehensive and includes

every Published Work that is not mentioned in the Exclusions List. By misrepresenting the

true scope of its repertoire and offering a “take it or leave it” deal, Access Copyright

ostensibly causes Institutions to believe that they cannot really “leave it” and therefore must

“take it”. Under these conditions, being offered only with the option of obtaining a blanket

license under the Interim Tariff, a rational Institution would opt into signing onto the Tariff.

Therefore, obfuscating the true scope of its repertoire, and misrepresenting it to be larger than

it truly is, adds another layer of misconduct and abuse.

13. The elimination of transactional licenses might lead to yet another related, but more

pernicious, effect in the case of digital copies. There is no doubt that however wide or

narrow Access Copyright’s repertoire is in the case of reproduction rights in print,

photocopying and other non-digital formats, its digital rights repertoire is significantly

smaller. Indeed, it is known that Access Copyright lacks any chain of title or agency

authority in respect of digital rights in most, if not all, of the limited number of works that are

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actually in its repertoire. I have raised this issue before in my objection to the Interim Tariff,

and Access Copyright did not even bother to deny it, because this conclusion was based on

Access Copyright’s own admission, behaviour, and simple logic.4 Nevertheless, I suspect

that Access Copyright has calculated that by directing Institutions to avail themselves to the

Interim Tariff, it could license works and uses that it has never been duly authorized to

license, and in effect misappropriate others’ copyrights to set up a monopolistic stronghold

on the emerging market for digital licensing. This point requires elaboration.

14. Although the definitions of the Interim Tariff recognize a difference between the terms

“Published Works” and “Repertoire Works”, the operational provisions of the Interim Tariff

were not limited to Repertoire Works and indeed cover all Published Works. Arguably, then,

it would be lawful for an Institution who chooses to sign onto the Interim Tariff and complies

with its terms to make copies of every Published Work whether or not it is a Repertoire

Work, because, the Interim Tariff, which is law, has authorized that. Even if the Interim

Tariff could not provide such immunity to the Institution, the Interim Tariff triggers section

38.2 of the Copyright Act and the cap on damages that it provides. Because for the time

being the Board set the royalty payable to Access Copyright for many digital uses at a rate of

zero, the Interim Tariff provides a de facto immunity. In the same vein, the Interim Tariff

has arguably made it lawful for Access Copyright to authorize the reproduction of works that

are not part of its repertoire, and shields it from what otherwise would be a gross act of

copyright infringement. As a result, even if Access Copyright’s digital repertoire is

miniscule, it can practically license every Published Work, whether or not it has been duly

authorized to do so by its owners.

15. While I continue to believe that such a scheme cannot be valid and cannot be relied on as a

matter of law, it is possible that Access Copyright believes that, practically, it suffices.

Nevertheless, I do not believe that the Board had this outcome in mind when it granted the

Interim Tariff. After all, the Interim Tariff is subject to the general regime, which does not

contemplate an Extended Collective Licensing regime, and therefore it must be the case that

4 Ariel Katz, Submission re Access Copyright’s Application for an Interim Tariff, Dec. 10, 2010, p. 14.

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extending the scope of the Interim Tariff to cover all Published Works rather than Repertoire

Works is a result of an inadvertent error. If so, then the Board should not aid Access

Copyright to take advantage of this drafting error, to misappropriate others’ copyrights and

establish itself as the de facto monopoly for licensing digital rights to academic institutions,

rights that it clearly does not have. To prevent this aspect of Access’ excesses, the Board

should amend the Interim Tariff and clarify that it covers only Repertoire Works, and not

Published Works.

16. Furthermore, Access Copyright's conduct amounts not only to “bad faith”, “misconduct” and

“gross abuse of the collective administration of copyrights” as AUCC counsel writes, and

constitutes not only an “improper use of collective monopoly power” in some general sense.

Indeed, the conduct complained of may as well constitute an “abuse of dominant position”,

“tied selling”, as well as other types of deceptive or restrictive trade practices within the

meaning of the Competition Act. Moreover, to the extent that Access Copyright and its

member/affiliate copyright owners or some of them have agreed or otherwise arranged that

they would refrain from licensing their works independently, such conduct may amount to an

offence under section 45 of the Competition Act, to which the immunity under section

70.5(3) of the Copyright Act will not apply. Alternatively, such conduct could at least be

subject to an order under section 90.1 of the Competition Act.

17. I am confident that the Board can address some of the abovementioned concerns by

amending the Interim Tariff without delving into a thorough analysis of the Competition Act

and I do not propose that the Board conduct such an analysis at this stage. However, the

Competition Act can and should guide the Board in its resolution of these matters because it

reflects what Parliament deems to be an acceptable business behavior in Canada and provides

an analytical framework for determining its legal contours. Therefore, while the Board does

not need to decide whether Access Copyright has violated the Competition Act, it must not—

unless absolutely necessary for fulfilling its own statutory mandate—issue rulings that

mandate or endorse practices that contradict or disrupt the objectives and application of the

Competition Act, lest that might be interpreted to give rise to immunity from the reach of the

Competition Act that would not otherwise exist.

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18. Moreover, the values and principles enshrined in the Competition Act can inform the

determination of the proper remedies in this case, the subject to which I now turn.

III. Remedies

19. While I support the AUCC’s diagnosis of the problem, I disagree with the remedies it asks

the Board to prescribe. I believe that ordering Access Copyright to grant transactional

licenses on a per-copy basis will not be the optimal solution to the problems or the needs and

the interests of Institutions so aptly described by AUCC counsel, and might, over the longer

run, aggravate the problem. While I am confident that this was not the AUCC’s intention, I

believe that the remedy that it proposes could inadvertently backfire and serve the interests of

Access Copyright to the detriment of Canadian academic institutions.

20. A subtle but critical distinction should be made between transactional licenses granted by

Access Copyright and transactional licenses granted by its members, either on their own or

on their behalf by other market intermediaries.

21. AUCC talks at length about how technology enables its members to negotiate directly with

publishers (e.g., at page 3 of its Application), it emphasizes Institutions’ desire to be able to

obtain licenses from sources other than Access Copyright (at p. 4), and explicitly notes

Institutions’ expectation that they would be able to negotiate licenses directly with publishers

when the terms of the Interim Tariff are deemed unacceptable (page 6-7). In sum, the

AUCC’s submission makes it clear that what Institutions need are competitive alternatives to

Access Copyright, not only alternatives to Access Copyright’s blanket license. This can only

happen when Access Copyright’s members offer transactional licenses in competition with

Access Copyright, not when Access Copyright itself grants them, because Access Copyright

cannot be trusted effectively to compete with itself.

22. True, the option of obtaining a transactional license from Access Copyright is an

improvement over a situation whereby it offers only a blanket license, but as should already

be clear, Access Copyright does not face strong incentives to offer them or to offer them on

competitive terms. In fact, as the current record indicates, Access Copyright has

demonstrated that it has strong strategic reasons not to offer transactional licenses, or to offer

them only when it finds it to be strategically beneficial. Of course, the Board could compel it

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to do so, but this would require overseeing the fees that it would charge (as indeed the AUCC

proposes), and even then, Access Copyright could use all the tricks of the trade to effectively

deny or discourage such option. To prevent it, the Board would need to maintain constant

oversight, which may not be totally effective, and in any event would be costly and time

consuming for all parties concerned.

23. Only if it turns out that Institutions and publishers are not capable of transacting directly (or

with the aid of other market intermediaries) should Access Copyright be compelled to grant

transactional licenses as an alternative to the blanket license. But there is no evidence that

this is the case. In fact, the documents submitted by the AUCC and the ACCC indicate that

Institutions and publishers are fully capable of entering into such transactions, and that, but

for what seems to be a recent concerted collective refusal to deal, they would be perfectly

able to continue doing so, as they have done for many years.

24. Another problem with the AUCC’s proposed remedy is that rather than fostering a

competitive licensing market, competitive licensing practices and competitive prices, it will

enshrine Access Copyright as the source for all licenses, the terms of which will be

determined by regulation instead of through competitive processes.

25. The AUCC’s Application aptly describes the benefits that a competitive marketplace in

licensing has bestowed on Institutions and publishers. Its words are worth repeating:

[T]echnology has revolutionized society, including those who rely on reprographic reproduction. Post-secondary educational institutions want digital access and associated rights to ensure that Canadians are able to take advantage of the reality of today. Virtual libraries and global electronic instruction and research are the reality today. Many “affiliates” of Access Copyright understand this reality. They provide the access to their publications electronically and enable activities for which Access Copyright seeks a double payment under its proposed tariff. They do not do this out of an altruistic attitude. These publishers enter into agreements with post-secondary institutions, to their financial benefit, but not to that of Access Copyright, to facilitate what publishers and post-secondary educational institutions need today.5

5 AUCC Application, June 8, 2011, p. 3.

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26. As a direct beneficiary of these developments I could not agree more. I would add, however,

that while the terms of such negotiated licenses vary, many of them, if not most of them, are

much more favourable than those of the Interim Tariff. For example, they do not have the

same restriction on allowable uses, they do not impose arbitrary restrictions on the amount of

permissible copying and the number of copies made, they do not require burdensome

reporting and record-keeping requirements, they do not impose intrusive monitoring, they do

not contain “book burning” clauses, and they often cost significantly less than $0.10 per

page.

27. As the AUCC points out, the publishers granting such licenses do not do this out of an

altruistic attitude. They do this because competition forces them to be much more user-

friendly than they otherwise would be. If they are given the chance to eliminate competition

between them, there is no guarantee that they will maintain this friendliness. In fact, there

are ample grounds to predict that they won’t. The interest of Institutions is to maintain this

competition and its benefits. For this purpose, Access Copyright should be granted fewer

roles in the realm of licensing, not more.

28. Indeed, an important reason why digital licensing has emerged to bestow the benefits that the

AUCC extols is that so far Access Copyright has not played any meaningful role in this

emerging digital realm. Unfortunately, rather than keeping Access Copyright out, the remedy

that the AUCC seeks invites it to make a grand entry. The results can be tragic. It can be

highly predictable that if the Interim Tariff is amended as the AUCC requests, some

publishers will decide not to renew the existing licenses under similarly friendly terms, and

instead direct Institutions to obtain licenses from Access Copyright. We have already seen

that some publishers have changed their licensing practices to the detriment of their academic

licensees, and there are no reasons to assume that others will not follow suit. Compelling

Access Copyright to grant transactional licenses for the works of such publishers will not

guarantee that the terms will be competitive.6

6 In fact, the terms that the AUCC proposes fall short in significant respects from the terms that exist when

transactional licenses are negotiated in the market place. But the point is not only or mainly that the proposed terms

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29. To make this concern more concrete, consider the recent voluntary licensing agreement

between the Canadian Research Knowledge Network (CRKN), on behalf of its 73 member

academic institutions and Elsevier, one of the world’s largest academic publishers. The

agreement provides “university researchers and students across Canada with the broadest

access to a vast collection of high-impact electronic journals in multiple disciplines.”7 The

agreement “maintains generous access, usage and content repurposing provisions for bona

fide academic uses (e.g. printing, sharing electronically, use in coursepacks, course

management systems, and electronic reserves, etc.) – provisions that are important to

students and researchers, and do not subject Canada’s universities to additional copyright

tariffs.”8 Suppose that when this agreement will be up for renewal, Elsevier informs

Canadian universities that from now on, Elsevier will only license access to its electronic

journals, whereas all other uses, to the extent they involve copying, will be licensed by

Access Copyright on transactional basis, under the terms proposed by the AUCC. Being one

of the largest publishers, Elsevier would still be able to charge a hefty price for the mere right

to access its repertoire, because no serious university can afford omitting this repertoire from

its holding for long. As a result, Elsevier might find it much more profitable to grant

universities only the access rights, and then charge $0.10 per page for every copy made if the

Interim Tariff is amended as the AUCC proposes. This can be immensely profitable because,

according to the definitions of Schedule G, this “regulated” price can easily lead to

astronomical charges.

30. Consider, hypothetically, a 50 pages article that is being downloaded, stored on a hard disk,

printed once and displayed once on a monitor. Since each of these activities constitutes a

set a price too high or conditions too onerous. The crucial point is that the current state of technology is sufficient to

allow the competitive market to set sufficiently efficient license prices and terms without the Board’s intervention.

7 See CRKN News Release, “CRKN National Agreement for Elsevier SciVerse ScienceDirect Assures Broadest

Access to Critical Research Content”, March 4, 2011, at http://www.crkn.ca/communications/crkn-national-

agreement-for-elsevier-sciverse-sciencedirect-assures-broadest-access-t.

8 Ibid.

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“copy” under Schedule G, and since the fee for each copy would be $5 (50 x $0.10) the

AUCC’s proposal means that an Institution would have to pay $20. Add to this a realistic

possibility that the article will be opened (hence displayed) more than once, emailed to a

colleague, stored on a central server for backup, etc. and the bill can easily reach heights that

will make Elsevier’s shareholders extremely happy.

31. To find the proper remedy for the problem that the AUCC describes, it is important to

recognize that the situation that prompted the current Application is not solely a result of

Access Copyright’s decision not to grant transactional licenses. It is predominantly a result

of the publishers’ choice to cooperate with that decision and to stop granting transactional

licenses on their own. Absent the publishers’ apparent collusive refusal to license

independently, Access’ own refusal to grant transactional licenses would be less significant.

32. Setting aside the question of whether Access Copyright should play any role in the future and

what this role should be, the optimal solution at this interim stage would be to let Access

Copyright continue doing what it does best, namely administering a collective blanket license

for the works under its repertoire, while ensuring that Institutions who do not wish to operate

under the Interim Tariff have a genuine option to secure transactional or other licenses

directly from publishers or other market intermediaries.

33. To achieve this goal, the Interim Tariff should be amended to explicitly enjoin Access

Copyright from acting as an exclusive agent of its members, whether de jure or de facto. In

addition, to ensure that the alternative of securing licenses through the market remains as

competitive as possible, the Interim Tariff should enjoin Access Copyright from granting any

transactional license, and require that Access Copyright members and affiliates would license

their own works on reasonable terms.9

9 Of course, normally, an owner of an intellectual property right does not have any duty to license her works. But

normally, owners of intellectual property rights are expected to compete with each other and are not allowed to

license their respective rights collectively. Therefore, when copyright owners are allowed to administer their rights

collectively, a duty to license their works independently is a reasonable quid quo pro.

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34. If, despite the above, there are concerns that, absent Access Copyright’s intermediation,

Institutions will not be able to transact with publisher or through other market intermediaries,

Access Copyright’s role should be limited to that of a broker or mere agent, facilitating

transactions between users and owners, but under terms and conditions that are set

independently by the copyright owner and not by Access Copyright, not even on a default

basis.10 This requirement is necessary in order to ensure that the alternative of securing

licenses through the market remains as competitive as possible, and that Access Copyright

does not become a tool for facilitating collusion or coordination among those copyright

owners who choose to use it as their licensing agent.

35. There still remain, however, potential problems in securing compliance with such conditions.

First, orders of the Board may only bind Access Copyright but not its members who are not

named parties in these proceedings. Second, unlike other regulatory frameworks, such as the

one established by the Competition Act, contravening an order of the Board does not

constitute an offence, nor does the Board possess investigative powers like those which are

granted to the Commissioner of Competition. At the same time, when the Board regulates a

conduct before it, the regulated entities might argue that the regulated conduct defence

shields them from the liability under other laws. Therefore, because the conduct that the

current Application seeks to regulate may also be subject to concurrent jurisdiction of the

Competition Act, it is important that any ruling by the Board concerning this Application

should not preclude any remedy pursuant to the Competition Act.

36. To prevent this from happening, the Board should explicitly state that its order is not

intended to replace or preclude any remedy available under the Competition Act or otherwise

and should not be taken as the basis for any regulated conduct defence by Access Copyright

or any of its members in any concurrent or subsequent proceeding in the Competition

Tribunal or the courts on whatever basis and however arising.

10 This means that Access Copyright should not be permitted to set default terms that apply unless the copyright

owner specifies other terms.

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IV. Conclusion

The AUCC’s Application draws a dim picture of monopolistic excess, abuse, and inequitable

conduct. It confirms that many of the concerns raised in the course of Access Copyright’s

Application to grant the Interim Tariff have materialized. The Board should intervene to rectify

this problem.

Unfortunately, while the AUCC correctly diagnosed some of the problems, it asks to Board to

prescribe the wrong remedy. Canada’s academic institutions need competitive alternatives to

Access Copyright, not to enlarge its mandate. They deserve to have the benefits of a competitive

licensing marketplace, with competitive licensing practices, and competitive prices. This

marketplace is emerging and the Board should make sure that it continues to evolve despite

occasional difficulties. Extending the mandate of Access Copyright and installing it as the place

to go for all licensing needs will not guarantee successful evolution of this emerging

marketplace; it will ensure its stagnation.

Academic institutions need competitive alternatives to Access Copyright, not alternative offers

from Access Copyright and ongoing expensive proceedings at the Copyright Board.

Yours respectfully,

Ariel Katz

Documents

Katz Respose to AUCC Application Re Transactional Licenses