From: Christine Tausig-Ford <ctausig@aucc.ca> To: [Presidents, etc. email addresses omitted] <XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.

> Sent: Mon Apr 16 15:07:50 2012 Subject: AUCC agreement with Access Copyright

The following is a message from Paul Davidson This message is currently available only in English; la version franaise suivra Dear members, AUCCs Board of Directors today approved an agreement reached with Access Copyright on a new model license that will allow universities to reproduce copyright protected materials in both print and digital formats. The Board believes that the agreement negotiated between AUCC and Access Copyright provides the best possible outcome for universities, their students and faculty in the current context. The model license provides long-term certainty on price, and access to a new range of digital materials. Most importantly, it respects the principles of academic freedom and privacy and ensures that the administrative burden on institutions is minimized. I am attaching a copy of:

the model license that was negotiated, a side letter agreement regarding retroactivity and protecting to the extent possible institutions that sign the model license from Copyright Board proceedings an informational one-pager from Access Copyright describing retroactivity discounts that are being offered for institutions that sign the model license at an early date a copy of the news release that will be issued by AUCC today.

We urge you to review these documents carefully to determine whether signing the model license is appropriate and beneficial for your institution. Members may also choose to continue to remain opted out, or may choose to operate under the tariff once it is set. There will be an opportunity to discuss the model license further at the business meeting of the membership, scheduled for Monday, April 23 in Guelph. In addition, I am available to respond to any questions you may have, as is our vice-president, Christine Tausig Ford. We are scheduling a teleconference between our legal counsel and your counsels later this week to respond to questions and go over the details of the model licence. Context As we reported to members following the January 2012 Board of Directors meeting, the Board approved creation of a negotiating team to try to reach an agreement with Access Copyright. The team included David Barnard (University of Manitoba), Elizabeth Cannon (University of Calgary), Patrick Deane (McMaster University), Tim McTiernan (University of Ontario Institute of Technology) and Christine Tausig Ford (AUCC).

There were a number of pressure points leading to a determination that a negotiated settlement was the preferable route at this time. Shortly after the Board appointed the AUCC team, and before a meeting could be held with Access, the University of Toronto and Western University reached a separate agreement with Access, with a cost of $27.50 per full-time equivalent student and a one-year renewable term. It was apparent that Access Copyright was open to future one-on-one agreements, which would diminish AUCC's negotiating position. The Federal Court had also heard a judicial appeal brought by AUCC of a previous Copyright Board decision. The Copyright Board had found that institutions that had opted out of the tariff would nonetheless be required to answer interrogatories as part of the Copyright Board process. Despite AUCC's best efforts during the judicial review, the appeal was dismissed quickly. Given that decision, a number of institutions that have opted out of the tariff would now be required to respond to the intrusive and time-consuming interrogatory process. Should these institutions instead choose to sign a licence with Access, they will not be required to submit to the interrogatory process. Moreover, there remained a number of onerous interrogatories which the Copyright Board was still considering applying to member institutions; if directed by the Copyright Board to reply to these, the administrative burden on AUCC members was anticipated to be high. Finally, during one of the negotiating sessions, Access informed the AUCC team that it would be filing a request with the Copyright Board that the Board order the freezing of all material held in course management systems at AUCC member institutions in the 2011-12 academic year. It would have been extremely costly, if not impossible, for institutions to comply with such an order. Access agreed to withhold its application to the Copyright Board for such an order while negotiations were ongoing. In addition, costs for pursuing the case for AUCC were mounting quickly. Access, too, was facing a pressure to agree to a negotiated settlement. They appeared more eager to reach consensus than they had previously, and acknowledged that they were feeling the financial impact of the institutions that had opted out of the tariff. Access was facing high legal costs, and continues to be involved in three other tariff cases, including two at the K-12 level. Benefits/advantages of the model licence The team held several meetings with members of Access Copyright Board of Directors and staff. The meetings were productive, and while some difficult issues were tackled, the discussions were held in a spirit of good faith on both sides. The AUCC team was looking for a number of outcomes that it believed would serve the university community well. The following are included in the agreement:

a five-year term, which is a longer term than that of the Western/U of T agreement, providing greater certainty of price for a longer period;

a term that would take universities beyond both the Copyright Board decision on the current tariff and the potential effective date of the next tariff on January 1, 2014; a better price per FTE student -- $26 -- than had been achieved by the two individual universities, given that AUCC represented a larger group of members; enhanced acknowledgement of the purpose of the reporting requirements, including a recognition of the importance of respecting privacy, academic freedom, and university collective agreements; a mechanism for negotiation of future agreements that would, to the extent possible, avoid another Copyright Board hearing; a guarantee that the model licence "trumps" the tariff; and an enhanced retroactivity agreement with respect to institutions that had opted out and may now choose to sign an agreement, and those who had remained within the tariff.

Access Copyright has agreed that the best retroactivity discounts available to universities will be available those that indicate in writing to Access before May 1, 2012 that they expects to sign the licence, and then actually sign before June 30, 2102. While you need to indicate your intent to sign the licence by May 1, you may still reconsider your options after that date, and you could choose to delay signing (in which case the discount will be lower), or not sign at all. In terms of the price per FTE, the negotiating team found itself with little room to manoeuvre. Our Quebec members currently have an agreement with Copibec, under which they pay $25.50 per FTE, for less material than covered under the model licence. Meanwhile, the University of Toronto and Western University had settled their agreement at $27.50 per FTE. AUCC members and students currently pay an average price to Access of about $17 per FTE. In its discussions, the Board noted that, for many members, the indemnity and the certainty of price provided for under the agreement are beneficial for institutions that will choose in future to continue to remain under the tariff as well as those that may choose to sign the model license at this point, but continue to position themselves to opt out in future. Potential risks of operating without a licence Board members also discussed potential risks to members who choose not to sign a licence with Access Copyright, and want to ensure that members are fully aware of these before making their own institutional decisions on whether or not to sign the licence endorsed by the AUCC Board. Risks to institutions include legal, reputational and financial. It is anticipated that Access Copyright will be vigilant in seeking examples of copyright infringement among institutions that choose to remain opted-out. An author or publisher, potentially with the support of Access Copyright, would be entitled to claim damages for each unauthorized use of a copyright work found to have been used on a university campus. As an alternative to claiming damages, a copyright owner could claim statutory damages under the Copyright Act of between $500 to $20,000 for each work copied. Bill C-11, the Copyright Modernization Act, will reduce the statutory damages for non-commercial infringements to between $100 to $5,000 in total damages. Bill C-11 is expected to become law this summer. Commercial infringements, however, will still be liable for the higher statutory amounts.

In addition, once the Access Copyright tariff is certified by the Copyright Board, Access will be entitled to collect the royalties specified in the tariff from each institution, unless the institution secures authorization from copyright owners for all of the copying activities. Copying that falls within fair dealing or another statutory exception will be exempted. Given that Copyright Board has already ruled against a per-page or transactional licence within the tariff, universities operating without a licence that are found to have made infringing copies would have no alternative but to pay the annual rate per FTE student set by the Copyright Board. The amount payable to Access Copyright would not be dependent upon either the number of different works copied or the number of copies made. Use of even one work within Access Copyrights repertoire without permission would be enough to trigger payment of the full tariff fee. In addition, it is likely the Copyright Board-ordered survey would be more onerous and have a greater administrative burden than the reporting requirements under the model licence. Thanks to negotiating team In closing, I would like to extend my deep appreciation to the members of the AUCC negotiating team, who have devoted considerable time and effort to reach this agreement on behalf of the entire membership. Should you have any questions about this agreement, please do not hesitate to contact me or AUCC vice-president Christine Tausig Ford at 613-563-3961 ext. 232 and ext. 290 respectively. Paul Davidson President
Christine Tausig Ford Vice-President and Chief Operating Officer / Vice-prsidente et administratrice en chef Association of Universities and Colleges of Canada/Association des universits et collges du Canada 350 rue Albert St., bureau/suite 600 OttawaON CanadaK1R 1B1 Tel/tl (613) 563-3961 #290 Fax (613) 563-2416 E-mail/courriel: ctausig@aucc.ca