Communications Procurement
Government of Canada Photocopying Licence
This agreement (the "Licence") is made between:
The Canadian Copyright Licensing Agency
incorporated pursuant to the laws of Canada (referred to as "Access Copyright")
—and—
Société Québécoise de Gestion Collective des Droits de Reproduction
incorporated pursuant to the laws of Québec (referred to as "Copibec")
(jointly referred to as the "Collectives")
—and—
Her Majesty the Queen in Right of Canada
as represented by the Department of Public Works and Government Services
(referred to as the "Licensee").
Whereas the Collectives are reproduction rights organizations and collective societies for the purposes of section 70.1 of the Copyright Act R.S.C. 1985 c.C-42, as amended;
And whereas the Collectives and the Licensee are parties to a Licence For The Reprographic Reproduction Of Published Works Subject To Copyright (the "Initial Licence Agreement");
And whereas the term of the Initial Licence Agreement commenced on April 1, 1994 and ended on March 31, 2001;
And whereas the Initial Licence Agreement was amended by an Amending Agreement effective April 1, 1999 and which ended on March 31, 2001;
And whereas the term of the Initial Licence Agreement, as amended, was repeatedly extended by letter agreements between the parties and will end upon the date of signing of this Licence on behalf of Her Majesty the Queen in Right of Canada;
And whereas the Collectives and the Licensee jointly undertook a study of photocopying in the Government of Canada in 2003, which was designed and analyzed by a third party who was acceptable to the Collectives and the Licensee (the "Study"), in order to determine photocopying volumes by genre;
And whereas the Collectives and the Licensee previously agreed upon genre rates to be multiplied against the photocopying volumes by genre which were revealed by the Study;
And whereas the parties do not agree on the scope of fair dealing in relation to the conduct of government business and delivery of government programs and services and consequently the total photocopying volumes by genre against which the previously agreed upon genre rates should be multiplied;
And whereas the Collectives and the Licensee have agreed that nothing in this Licence shall be construed as an admission by either of them with respect to the applicability or extent of any defence or exemption which may be available under the Copyright Act or any revision thereto;
And whereas the Collectives and the Licensee are desirous of entering into a further licence agreement for the same purposes;
Therefore, in consideration of the covenants and agreements contained in this Licence, the Collectives and the Licensee agree as follows:
1.0 DEFINITIONS
For the purposes of this Licence and its Schedules:
Affiliate means any Rightsholder who has licensed reprographic and other reproduction rights in Published Works to either Collective.
Anthology means bound or otherwise packaged or assembled Hard Copies of Published Works from more than one publication.
Claim means a written statement or demand, including any document commencing legal proceedings, in which it is alleged that the Licensee or a person entitled to Copy under this Licence has infringed copyright in any Published Work, with the exception of any claim based on an alleged infringement of moral rights or any claim by either Collective.
Collectives means both Access Copyright and Copibec which are collective societies licensed by Affiliates to administer reprographic rights.
Copying means the creation of a Hard Copy by a reprographic process, including photocopying, xerography and analogous means, or by reproduction by a Copying machine that digitizes and temporarily stores documents in memory and prints, or by Ariel® technology or facsimile transmission incidentally requiring a transitory digital copy. Copied means reproduced by Copying. Copying under this Licence does not cover:
- inputting or storing all or part of a Published Work in digital form, with the potential for later retrieval or reproduction, except for a transitory digital copy that may be required to produce a Hard Copy in the manner described above;
- accessing all or part of a Published Work by display on a screen or other viewing method;
- altering the content or manipulating the format of all or part of a Published Work in any way; or
- reproducing any Published Work in digital or other electronic medium for purposes of storage or redistribution, except incidentally in connection with facsimile transmissions.
Copyright Act means the Copyright Act, R. S.C. 1985, c. C-42, as amended from time to time.
Copyright Board means the Copyright Board established pursuant to Section 66 of the Copyright Act.
Document Delivery Copying means the making and supplying of Hard Copies of Published Works for persons other than the Licensee, regardless of whether the Hard Copies are sold or supplied free of charge, in instances where a royalty is payable.
Government of Canada Institutions means any institution listed in Schedules I, I.1, and II of the Financial Administration Act, R.S., c. F-10, s.1, and, for the purposes of this Licence, includes the House of Commons, the Senate and the Library of Parliament.
Hard Copy means a facsimile reproduction, created by Copying, of all or part of a Published Work on paper or a paper equivalent (acetate or other material for an overhead or slide projection).
Published Work means a literary, dramatic, or artistic work, or a part of such a copyright work in print form, of which copies have been issued to the public with the consent or acquiescence of the copyright owner in a publication such as a book, folio, magazine, journal, newspaper or other periodical.
Repertoire means those Published Works published in Canada by Affiliates or published in or outside Canada by other Rightsholders in instances where an agreement between the Collectives and another reproduction rights organization authorizes the Collectives to represent such other Rightsholders.
Rightsholders means copyright owners, including authors and publishers, the estates of authors and publishers, organizations representing authors and publishers, and other persons entitled to control copyright in Published Works.
Unit means a Hard Copy of a single page or part of a page of a Published Work.
2. GRANT OF LICENCE
The Collectives, on behalf of their Affiliates, grant a non-exclusive licence to the Licensee to permit not-for-profit Copying in Canada of any Published Work in their Repertoire, subject to the terms and conditions of this Licence and its Schedules.
3. TERM OF LICENCE
This Licence is for a term to commence upon the date of signing on behalf of Her Majesty the Queen in Right of Canada and to expire on March 31, 2009, subject to renewal in accordance with the provisions of paragraph 4 of this Licence.
4. RENEWAL AND REVIEW
- Should any clause of this Licence be affected by any amendment to the Copyright Act, the parties agree to review the clause so affected.
- This Licence shall be automatically renewed for subsequent one-year terms on the same terms and conditions unless, at least six (6) months prior to the expiry of the initial or any subsequent term, one party notifies the other that it wishes to review the terms of this Licence. Following the giving of such notice, any renewal shall be on such terms and conditions as the parties may agree or, failing such agreement, the Copyright Board may establish.
5. ROYALTIES
In consideration for the rights granted by the Collectives to the Licensee under this Licence, the Licensee shall pay the following annual royalties to the Collectives for the periods following March 31, 2004 during which the Initial Licence Agreement was extended and during the term of this Licence, subject to the payment conditions described in Schedule B:
Year 1
April 1, 2004 to March 31, 2005
$2,500,000 less amounts paid in respect of the same period under extension letters of agreement between Licensee and the Collectives dated March 26, 2004, September 16, 2004, November 26, 2004, December 22, 2004, January 28, 2005, and February 28, 2005
Year 2
April 1, 2005 to March 31, 2006
$2,550,000 (royalty amount from Year 1 increased by 2%) less the amount paid in respect of the the same period under an extension letter of agreement between Licensee and Collectives dated April 26, 2005 or any subsequent extension letter
Year 3
April 1, 2006 to March 31, 2007
$2,601,000 (royalty amount from Year 2 increased by 2%)
Year 4
April 1, 2007 to March 31, 2008
$2,653,020 (royalty amount from Year 3 increased by 2%)
Year 5
April 1, 2008 to March 31, 2009
$2,706,080.40 (royalty amount from Year 4 increased by 2%)
6. SAMPLING
- The Collectives and the Licensee agree that additional sampling during any term of the Licence, and any renewals thereof or future licence agreements, will be necessary and will be paid for and carried out by the Collectives. The sampling protocols, and frequency and scheduling of sampling will be established by the Collectives, subject to the approval of the Licensee, acting reasonably. The Licensee will support and facilitate the execution of such samplings by taking whatever steps are reasonably required.
- None of the information obtained as a result of sampling under 6(a) may be used in or in relation to any action or claim for copyright infringement by the Collectives either during or after the term of this Licence.
7. INDEMNITY
- The Collectives shall indemnify and save harmless the Licensee and any person entitled to make Hard Copies under this Licence on behalf of the Licensee from any award of damages or agreed settlement relating to any Claim against the Licensee arising from the Copying of Published Works under this Licence, whether or not such Claim is with respect to Published Works in the Repertoire, provided that the Licensee is in good standing at the time of the Copying on which the Claim is based and provided that:
- the Licensee gives the Collectives notice of the Claim, where the claimant commences legal proceedings by way of the Claim, within five (5) business days of service, and otherwise, within ten (10) business days of the Licensee becoming aware of the Claim; and
- the Copying upon which the Claim is based is within the terms and conditions of this Licence.
- The Collectives shall take all reasonable steps to assist the Licensee to defend any Claim referred to in 7(a). If the Licensee makes any admission or offer of payment in regard to the Claim without the concurrence of the Collectives, the Collectives shall not be liable to indemnify or save harmless the Licensee, or any person entitled to make Hard Copies under this Agreement on behalf of the Licensee, as provided for in 7 (a).
8. RECORD KEEPING
The Licensee shall be exempted from keeping records in respect of Copies made under the Licence, except as may be required pursuant to paragraph 6 above.
9. NOTIFICATION OF THE TERMS AND CONDITIONS OF COPYING
- The Licensee will use reasonable efforts to ensure that persons entitled to make or use Copies under this Licence are informed of the terms and conditions of Copying authorized by this Licence.
- If requested by the Licensee, the Collectives will:
- provide the Licensee with written material which will assist the Licensee in preparing information to be distributed, disseminated, or posted for the information of such persons; and
- review and comment on any informational material concerning this Licence which the Licensee intends to post, disseminate or distribute for the use of such persons.
10. NOTICES
- All notices under this Licence shall be in writing and given by personal delivery, commercial courier, registered mail or facsimile transmission to the addresses of the parties set out in this Licence or such other address as may be specified by a party in writing. Any notice transmitted by facsimile shall be deemed to be received on the first business day following the date of transmission unless it is received during regular business hours, in which case it shall be deemed to be received on the same day. Transmittal over the Internet to the e-mail addresses in this paragraph below shall not constitute receipt of notice under this Licence.
- Notices to the Collectives shall be served on both Collectives as follows:
Executive Director
The Canadian Copyright Licensing Agency
One Yonge Street, Suite 1900
Toronto, Ontario, M5E 1E5
tel: (416) 868-1620
fax: (416) 868-1621
e-mail: admin@accesscopyright.ca
And
Direction générale
Société québécoise de gestion collective des droits de reproduction
1290, rue Saint Denis, 7e étage
Montréal, Québec, H2X 3J7
tel: (514) 288-1664
fax: (514) 288-1669
e-mail: info@copibec.qc.ca
- Notices to the Licensee shall be served as follows:
Manager
Operational Services and Planning
Communications Procurement Directorate
Public Works and Government Services Canada
360 Albert, 12th Floor
Ottawa, Ontario K1A 0S5
Tel: (613) 993-4355
Fax: (613) 991-5870
e-mail: jim.todd@pwgsc.gc.ca
- The parties will inform each other of any changes in the addresses, telephone and facsimile numbers, or e-mail addresses given above.
11. TERMINATION FOR DEFAULT
This Licence may be terminated by any party upon written notice for any breach of this Licence unless, within sixty (60) days after notice of the breach has been given, the party in breach cures or takes reasonable steps to cure such breach or, in case of a breach of the Terms and Conditions of Authorized Copying, to reduce the likelihood of repeated instances of such breach.
12. DISPUTES
The parties will use their best efforts to resolve any disputes between them regarding the interpretation of this Licence through discussion, and agree that neither party shall commence an application to the Copyright Board or commence any other legal proceeding until:
- the parties have discussed with each other whether they can agree to submit the dispute to arbitration by a third party; and
- one party has notified the other party in writing at least ten (10) business days prior to giving the notice required to initiate proceedings before the Copyright Board or to initiate any other legal proceeding, that it is unwilling to proceed by arbitration.
13. GOVERNING LAW AND JURISDICTION
This Licence shall be governed by and construed in accordance with the laws of Canada and the Province of Ontario.
14. NO BRIBE, ETC.
The Collectives represent and warrant that:
- no bribe, gift or other inducement has been paid, given or promised or offered to any person for, or with a view to the obtaining of the Licence by the Collectives; and
- they have not employed any person to solicit or secure the Licence upon any agreement for a commission, percentage, brokerage or contingent fee.
15. MEMBERS OF THE HOUSE OF COMMONS
No member of the House of Commons shall be admitted to any share or part of the Licence or to any benefit to arise therefrom.
16. CONFLICT OF INTEREST
No former public office holder who is not in compliance with the post-employment provisions of the Conflict of Interest and Post-Employment Code for Public Office Holders, shall derive a direct benefit from this Licence.
17. LANGUAGE
This Licence exists in both official languages (English and French). Neither version shall take precedence over the other in the interpretation of any clause.
18. ENTIRE AGREEMENT
- The following attached Schedules form part of this Licence:
- Schedule A—Terms and Conditions of Authorized Copying;
Schedule B—Royalty and Payment Conditions; and
Schedule C—Exclusions List.
- This Licence and its Schedules contain the entire agreement between the parties and, except as otherwise provided by this Licence, may only be amended by way of a written agreement between the parties. There are no representations, covenants, conditions, or warranties forming part of this Licence other than those included herein.
19. NO ASSIGNMENT
This Licence may not be assigned by the Collectives or by the Licensee without the prior written consent of the other party.
In witness whereof the parties have executed this Licence.
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
(as represented by the Department of Public Works and Government Services)
Original signed by:
Ian Bennett
Acting, Assistant Deputy Minister,
Acquisitions Branch, PWGSC
Date: December 22, 2005
THE CANADIAN COPYRIGHT LICENSING AGENCY
Original signed by:
Maureen Cavan
Executive Director
Date: December 14, 2005
SOCIETE QUEBECOISE DE GESTION COLLECTIVE DES DROITS DE REPRODUCTION
Original signed by:
Hélène Messier
Directrice générale
Date: December 15, 2005
Schedule A - Terms and Conditions Of Authorized Copying
Schedule B - Royalty and Payment Conditions
Schedule C - Exclusions List
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