Canadian educational license decision challenged

In June 2009, the Copyright Board of Canada issued a long-awaited decision more than doubling the royalty rate to be paid by elementary and secondary educational institutions outside Quebec.  The ruling follows the filing of a tariff in 2004 by the Canadian RRO, Access Copyright, which had failed to reach an agreement with schools for an update to the old rate of $2.45 per full-time equivalent (FTE) student.

The new rate ($5.16 per FTE) will be back-dated to 2005.  It reflects the high volume of copying (10.3 billion pages in the 2005-2006 school year, of which about 250 million were of protected works) by educational establishments.  This has been established for the first time as a result of a collaborative study.  However, given the sharp increase in the rate, schools and colleges were given a 10% discount for their copying for the years 2005 to 2008.  The full rate does not apply until this year.

On July 27, 2009, the Canadian Ministries of Education (the Objectors to the tariff) filed an application for judicial review of the Board's decision.  The judicial review, which is similar to an appeal, maintains that the Copyright Board erred in its analysis of fair dealing and the tests and examinations exception in the Canadian Copyright Act, and requests that the Federal Court of Appeal send the case back to the Copyright Board to adjust the $5.16 tariff rate set by the Board in June 2009.   The judicial review means that a final decision may still be years away.