Fast-Track Trade Authority and the Free Trade Agreements: Implications for Copyright Law

In 2002, Congress passed the Bipartisan Trade Promotion Authority Act, which restored the presidential fast-track trade-promotion authority that had lapsed in 1994. Fast-track trade promotion authority is a means by which Congress delegates to the president a portion of its constitutional authority over international trade policy. This paper reviews the development, scope, and application of fast-track trade-promotion authority, evaluates some of the copyright provisions in key Free Trade Agreements, and concludes that the process has been effectively captured by the information and entertainment industries. There are numerous negative consequences that flow from the resulting policy environment. Not only is an expansionary copyright policy imposed on the trading partners of the U.S., but the domestic legislative process with respect to copyright legislation in the U.S. is itself short-circuited. This paper concludes that intellectual property issues should not come within the scope of the fast-track negotiating authority, that Congress should discontinue, or effectively limit, fast-track authority at the earliest opportunity; and in the short term, should reject the flawed agreements that will be submitted for its approval. Following a general overview of the fast track provisions, the Free Trade Area of the Americas (FTAA), the U.S.–Central America Free Trade Agreement, and key bilateral agreements will be discussed. Two specific digital copyright provisions contained in these agreements, the issue of temporary copying as a reproduction, and the anti-circumvention rules will then be considered

Another Look at Bill C-32 and the Access Copyright Tariff: Still Double Trouble for Higher Education

Earlier this year, the government tabled Bill C-32, proposed amendments to the Copyright Act. Following a consultation process, the Bill is widely recognized as more reasonable than its predecessor, Bill C-61. On the positive side, the bill would expand fair dealing to explicitly include education . On the other hand, the digital locks provisions of the Bill are fundamentally flawed and override many existing and proposed users rights. Also this year, Access Copyright filed a proposed tariff for the post-secondary education sector with the Copyright Board. The proposal, which includes a drastic increase in costs as well as numerous new reporting and auditing requirements has met with stiff opposition from the educational sector. Following up on his July presentation (http://ir.lib.uwo.ca/fimspres/4/), Dr. Samuel Trosow discusses the interrelated provisions of these measures and reviews the various responses from the educational community

Objections to the Proposed Access Copyright Post-Secondary Tariff and its Progeny Licenses: A Working Paper

On March 31, 2010, Access Copyright applied to the Copyright Board to certify a tariff that would govern the relationship between the organization and the members of the Association of Universities and Colleges of Canada (AUCC) and the Association of Community Colleges of Canada (ACCC). Previously, the relationship had been governed by a series of license agreements between the organizations which had been periodically renewed. But Access Copyright chose not to seek renewal of the licenses, and applied to the Board to certify a general tariff that would cover all post-secondary institutions for the period of 2011 through 2013. Access Copyright was not merely trying to carry forward the terms of previous licensing agreements in the form of a Board certified tariff. Rather, they were seeking a tariff with a much higher rate, wider scope and broader application; one which would place new burdens on the institutions, their staff and students, and which would also jeopardize many of the rights of academic staff and students. This working paper reviews the terms of the Proposed Tariff and its progeny licenses and discusses several of the arguments that have been raised against them. The first general grouping is that many of the provisions are ambiguous, counterintuitive and are based on problematic definitions which attempt to extend the reach of the compensable activities beyond what is authorized by Canadian law. The second broad issue is the lack of value in the Proposed Tariff itself. The third general grouping deals with the audit, reporting, monitoring and survey (ARMS) provisions in the Proposed Tariff and the progeny licenses. With respect to the Proposed Tariff, we argue that several of its terms are also ultra vires the Copyright Act and would not have survived scrutiny had they been fully litigated. While recent developments have cast a new light on these issues, many of the concerns raised in this report about the Proposed Tariff remain unresolved. Despite strong arguments to the contrary, and their previous opposition to the Proposed Tariff at the Board; AUCC, ACCC and several institutions still felt that a license with Access Copyright was needed. In January 2012, Access Copyright announced they had reached licensing agreements with the University of Toronto and the University of Western Ontario, the terms of which were substantially similar to the proposed tariff. Following the “lead” of UWO and the University of Toronto, AUCC and ACCC have since announced a similar agreement with Access Copyright, resulting in a “Model License,” and they have since dropped their opposition to the Proposed Tariff at the Copyright Board. In this report, we refer to the UWO and University of Toronto agreements and the AUCC/ACCC model licenses as the “progeny” of the Proposed Tariff because despite some differences, they are substantially similar in many respects. To date, some institutions have accepted the Model License, others have rejected it, and many others had not yet announced their intentions as of the end of July 2012. This paper is divided into five sections. Following this introduction, section 2 will address some of the definitional problems in the Proposed Tariff and progeny licenses in more detail. First and foremost are the definitions of “copy” and “course collection” which increase the scope of the statutory reproduction right and create other burdens. These overbroad definitions are foundational problems with the tariff/licenses which not only exceed the scope of owners\u27 statutory rights, but will have the potential to substantially impede the delivery of course materials, adversely impact faculty and student privacy rights, and ultimately threaten academic freedom. The other problematic definition involves the “Secure Network,” along with various limitations that flow from this definition. The third part of this report will ask the question: What value would institutions obtain under the Proposed Tariff and its progeny licences? A review of section 3 of the Proposed Tariff and its progeny indicates that the scope of the permissions does not add very much to what is already permitted under fair dealing and other limitations and exceptions in the Copyright Act. In addition, the scope of Access Copyright\u27s repertoire is ambiguous, and the value of the indemnification clause in the progeny licenses is very limited. The fourth section will turn to the audit, reporting, monitoring, and survey (ARMS) provisions in the Proposed Tariff. We argue that these measures are overbroad and ultra vires the Copyright Act. They should be substantially scaled back if not entirely eliminated from any eventual tariff order. And while these ARMS provisions have been cast in modified terms in the progeny licenses, these corresponding provisions remain highly problematic. The last section will look at the implications of more recent developments (including the UWO and UofT licenses of January 30th, the AUCC and ACCC Model License, and the withdraw of AUCC from objector status at the Board) for the tariff proceedings which are still pending at the Board. It will close with a summary of the recommendations made throughout this report. And while a full treatment of the implications of the passage of Bill C-11 in June and the Supreme Court\u27s historic July pentalogy is beyond the scope of this report, they will also be considered throughout this report. Therefore, the overall purpose of this report is to identify and address some of the key issues that have been raised from the outset about the Proposed Tariff dispute, as they remain largely unresolved. In addition to highlighting flaws with the Proposed Tariff and its progeny licenses, we will offer some suggestions for how an effective and fair tariff or license could be crafted. We are calling this report a Working Paper as it is very much still a work in progress given the fast pace of current developments and the still unsettled state of the issues. Many institutions have yet to announce whether they will accept or reject the model license agreement and the status of the tariff proceedings before the Copyright Board still needs to be addressed

Technology Transfer and Innovation Policy at Canadian Universities: Opportunities and Social Costs

This project examines the role of universities in transmitting knowledge in the forms of technology transfer mechanisms, intellectual property (IP) agreements and other knowledge diffusion policies

Open Access: Historical Highlights, Issues and Policies

Print publishing relies on enclosure of information in a physical object (book). The digital environment potentially increases access (online journals). Publishers, however, can implement control beyond that which is possible in a print world; for example, license agreements that try to restrict user rights such as fair dealing. Open access is an increasingly popular publishing option, and represents a progressive application of technology and alternatives to traditional intellectual property. This moderated panel discussion with University of Western Ontario scholars, is an introduction to the origins of problems in scholarly publishing, current open access initiatives, and educational policies

Technology Transfer and Innovation Policy at Canadian Universities: Opportunities and Social Costs

This report, supported by a Social Sciences and Humanities Research Council (SSHRC) Knowledge Synthesis Grant, critically examines the role of universities in transmitting knowledge in the forms of technology transfer mechanisms, intellectual property agreements and other knowledge diffusion policies. In reviewing and synthesizing the recent literature on the topic, we seek to provide some initial evidence-based policy recommendations in order to generally strengthen Canada‘s innovation ecosystem and more specifically to maximize the return on the nation‘s investment in higher education research and development