MAGUIRE EXHIBIT 1

SEAN MAGUIRE

Submission to the Copyright Board of Canada Access Copyright Post-Secondary Educational Institutions Tariff (2011 2013)

December 14, 2013

____________________________________________________ Statement of Case ____________________________________________________

27 Carola Street Nepean, Ontario K2G 0X9 Tel: 613.842.0913

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STATEMENT OF CASE Introduction

1. This is the statement of case by Sean Maguire concerning a proposal by Access Copyright to create a Post-Secondary Institutional Tariff (including both fees and terms and conditions) for the years 2011 through 2013. It is submitted in preparation for an oral hearing which is scheduled to begin February 14, 2014. 2. The Post-Secondary Institutional Tariff 2011-2013 (the Proposed Tariff) proposes to establish the royalties to be paid for the making of Copies (as is to be defined the Proposed Tariff) as well as other terms and condition which outline the proscribed uses of those Copies by authorized Users (as is to be defined in the Proposed Tariff). 3. I was a student at a post-secondary institution which would be subject to the Tariff during the 2011-2013 period. Specifically, I was a graduate student in the Graduate Certificate Program in Public Ethics at Saint Paul University in Ottawa, from which I graduated in June 2013. I hold degrees from Concordia University (1989), McMaster University (1990), and Carleton University (1996, 2000, and 2005), as well as a diploma from Algonquin College (2002). As of January 2014, I shall be starting a new part-time program at Algonquin College, and as such, will be covered by the Proposed Tariff for the 2014-2017 period. 4. As a post-secondary student, I have made and will continue to make and use Copies as defined in the Proposed Tariff. I have paid obligatory ancillary fees to my academic institution, explicitly as an Access Copyright incidental fee. I have made photocopies of journal articles and books and retained them for my personal use in the preparation of class presentations and as background materials used and cited in papers submitted in my individual courses. In recent years, I have been asked by professors to submit papers electronically, and to include links to cited articles in my bibliography. 5. This reality is replicated thousands of times on campuses across Canada by postsecondary students in education programs at the college, baccalaureate and graduate levels. While the degree of research intensity varies greatly across these programs, there seems little doubt that one commonality across students is that they are in programs of an educational nature and that the vast majority will use or make Copies. It is in their name and based on the common experience of being a student that I filed my Objection to this Proposed Tariff. 6. My case and presentation to the Board will be centred around three main points the fact that students (and not institutions) will be the main source of funds for the Proposed Tariff, a statement on the appropriate rate for the Proposed Tariff, and a request for an amendment to the Proposed Tariff regarding the definition of a library of published works in section 4(3).

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Source of Funds of the Proposed Tariff

7. Under the previous regime whereby a small per student fee was paid and additional amounts were paid on a per-copy basis, most institutions paid the per-student component out of their general revenues, while students had most of the per-copy costs passed on to them through higher costs for course packs and photocopies. The Proposed Tariff will have the effect of transferring the source of funds for payments to Access Copyright from the institutions to the students more directly. This important shift in source of funds could go some way to explaining why the AUCC and ACCC chose to withdraw their Objections to the Proposed Tariff in the end, it will be the students directly through an ancillary fee (and not the institutions) that will pay these fees. 8. The vast majority of those institutions which have chosen to operate under the Interim Tariff have chosen to simply pass along the now exclusively per-student fee directly onto students, usually in its entirety. While the institutions are still paying for the administrative costs associated with the Interim Tariff (i.e., collecting and remitting the fees, other administrative requirements) students are now generally paying the entirety of the costs of the Tariff and institutions are now covering none of the costs. Nonetheless, the institutions are receiving benefits from the Tariff, in that they gain protection from civil liability cases which might be commenced by Access Copyright. 9. While the per-student system of charging students directly is undoubtedly much more efficient to administer from the perspective of both Access Copyright and the institutions, the Board should be cognisant of who would pay the Proposed Tariff should it be approved in its current form by the Board students. In a sense, it is somewhat appropriate that it is students and professors who remain as Objectors to the Proposed Tariff, rather than the institutions who will be receiving some benefit from the Proposed Tariff while paying minimal (if any) amounts for those benefits.
Rate of the Proposed Tariff

10. In this section, I will express my concern regarding the appropriate rate for any Proposed Tariff approved by the Board. While I expect the other Objectors and the Board to consider this issue in its own deliberations, I would be remiss not to point out that the requested rate is too high to be appropriate. For an individual student such as myself, the question really comes down to the following: What I am receiving when I pay my Access Copyright ancillary fee (as it was termed at Saint Paul University)? 11. According to the Proposed Tariff, what I will receive is the legal right to make a copy of up to 10% of a Repertoire Work (20% if part of a Course Collection or a chapter in a book) or a copy of a work as defined in 3c) of the Tariff. If I were to make Copies outside these bounds, I would be outside of the Proposed Tariff and could be breaking the Copyright Act. I am also obliged to remain in compliance with each of the elements of (4) and (5) in the Tariff. 12. However, we also know that after this Tariff was submitted to the Board, the term education was added to the Copyright Act as an area where uses of works consistent
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with fair dealing will not infringe copyright. Furthermore, we also know that the Supreme Court, in Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012, SCC 37, [2012] 2 SCR 345, clarified the parameters around the test to establish whether a given copy would qualify as fair dealing under the criteria laid out in the earlier CCH decision. These clarifications would appear to make many of the Copies described under the Proposed Tariff covered under fair dealing, and exempt from requiring payment to copyright owners. 13. We now know that two of the largest institutional users of the Interim Tariff, the University of Toronto and the University of Western Ontario, have decided to not renew their licence after December 31, 2013. This would suggest that the market value of the licence/Proposed Tariff has dropped significantly since these institutions entered into their short-term licence early in 2012. The main events to occur since they entered into those licences were the change to the Copyright Act and the Supreme Court decisions which occurred within weeks of each other in 2012. The Board needs to recognize these events and incorporate them into the price that students will (generally) be expected to pay, as established by an approved Tariff.
The Concept of a library of published works

14. As I noted above, in addition to paying an access Copyright ancillary fee, I as an Authorized User will have certain restrictions placed on my actions as they pertain to the copies made under the Tariff. In this section, I would like the Board to consider one clause in particular for further study and amendment if thought appropriate. 15. The current wording of the Proposed Tariff includes Section 4(3), which reads as follows: (3) Copies of Repertoire Works shall not be stored or indexed with the intention or result of creating a library of published works. 16. This phrase is at the very least unclear and at the most is designed to ensure noncompliance with the Tariff by any diligent post-secondary student who is asked to write an academic paper or (even more obviously) a thesis. When one is performing secondary research (i.e., researching other academic sources), it is automatic to take copies of the more relevant and interesting articles in the area of study. Eventually, before a student begins to write a paper or a thesis, those articles are organized into those which provide background and those which may form the focal point of the paper or thesis. 17. It would be trivial to produce a doctoral level thesis that lists hundreds of such sources in the bibliography. I can assure the Board that a diligent doctoral student will have each of those papers (plus many more that were not used in the thesis) in their possession or nearby as they enter the writing stage of their thesis. 18. My concern is that the accumulation and organization of these sources (which would also be Copies under the Proposed Tariff) could be construed to constitute a library of published works, depending on how one chooses to define library. My trusted copy of
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the Websters Encycolpedic Dictionary of the English Language (1988 version) defines library as: a room or building housing a collection of books, usually arranged according to some plan; such a collection of books; a number of books on related topics issued by a publisher, or a number of books similar in format 19. My point is that it is easily conceivable to interpret library of published works as being the collection of published works pulled together in an organized way to aid in the preparation of an academic paper or a masters or doctoral thesis. This accumulation of published works is one of the few similarities across all disciplines of academia, and it is inconceivable that graduate students in particular would change their behaviour so as to not create such personal collections of published works. These document collections are expected of diligent researchers, both Students and Staff Members (as defined in the Proposed Tariff). 20. There are a number of ways to deal with the issue. The Board, in approving the Proposed Tariff, could make Library a defined term in the Definitions section of the Proposed Tariff, to explicitly exempt the act of collecting and organizing Repertoire Works for purposes directly related to being a Student (or Staff Member). Alternatively, one could qualify the term directly in 4(3) of the Proposed Tariff by adding public before library. Conclusion 21. My thanks in advance to the Board for giving me the opportunity to express my views on the Proposed Tariff, and I wish it well in its deliberations. 22. I anticipate taking not more than 30 minutes to complete my presentation before the Board. I will not be calling witnesses.

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