Friday, November 21, 2014

The Copyright Board of Canada is Reversed Again by the Federal Court of Appeal: the CAFDE Decision

The Copyright Board has been reversed once again by the Federal Court of Appeal (“FCA”), which is the Court responsible for reviewing its decisions when a party believes that there has been a reviewable error. This ruling is styled Canadian Association of Film Distributors and Exporters  v. Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc  (hereinafter the “CAFDE” decision) and dated  October 20, 2014. It is particularly notable in terms of its nature and it comes at an interesting time in the Board’s history. In terms of subject matter, the tariff under consideration in this decision concerned “the reproduction, in Canada, of musical works embedded into cinematographic works for the purpose of distributing copies of these cinematographic works for private use or for theatrical exhibition for the years 2009 to 2012.”

The FCA decision was penned by Justice Marc Noël, who was appointed Chief Justice of the Federal Court of Appeal on October 17, 2014. The reasons are replete with recondite Latin terminology but also some very clear and concise basic English. It deals with such arcane issues with Latin names such as functus officio, res judicata, ultra petita, audi alteram partem and other doctrines with English names such as “standard of review” and “manifest intention” and “palpable error” that will whet the appetite of the most learned of scholars of Copyright Board and administrative law jurisprudence.

In basic English, the FCA has essentially reversed a November 2, 2012 decision by the Board because of the Board had erroneously reversed itself based upon what the Board itself characterized as its own “palpable” error due to “inadvertence or distraction” in awarding a tariff that was even higher than the applicant collective asked for and which was inconsistent with the Board’s own reasoning, whatever that reasoning may have been, which was unclear in the end to the FCA. The tariff resulted in a time based cents per minute, per copy formula for synchronization rights for DVDs when it seemed form the reasoning that Board had intended to agree with the Objectors proposal of a straight cents per copy rate.

The Board tried to correct its own "palpable error" and justified its methodology for so doing in an interim decision dated April 26, 2013 as follows:

[27] The Board erred. It believed it was using one
tariff structure while it was actually certifying
another. The decision is not appealable. The error
is of the type that Munger, Fortin and Jacques
make it possible to correct. Its source was
inadvertence or distraction. It was also palpable:
without doubt, what the Board thought CAFDE
sought was not what CAFDE proposed. It follows
that the Board has the authority to reopen its
decision and to correct its error. This pragmatic
conclusion is made all the more necessary by the
fact that on judicial review, the Federal Court of
Appeal would have no choice but to allow the
application. Waiting for that to happen will result
in a sub-optimal use of the time and resources of
that jurisdiction.
(highlight added)

Here are a just a few notable paragraphs from the FCA’s ruling:

[67] Lastly, given the conduct of the proceedings before the Board, I cannot see how this Court could review the Redetermination Decision without considering the Decision to Reopen. In fact, the Decision to Reopen must be seen as part of a continuum that started with the Original Decision and concluded with the Redetermination Decision. The respondents’ preclusion argument must therefore be rejected.

[69] In my opinion, the Board erred in assuming the authority to reopen the matter on this ground. The correction of a palpable error is not one of the recognized exceptions to the functus officio rule, nor is it a ground for redetermination under section 66.52 of the Copyright Act, which authorizes the Board to vary its decision to take into consideration a change in circumstances postdating the decision.

[72] In my opinion, it is the role of the Federal Court of Appeal, seized with an application for judicial review, to determine the validity of the Original Decision. In acting as it did, the Board seems to have performed a judicial review of its own decision, using moreover the standard of review applicable on appeal.

[73] As acknowledged by the Board, the error it committed was not a simple clerical error, and, contrary to its assertion, its source was not “inadvertence” or “distraction” (Decision to Reopen at para. 27). Only the Board’s misunderstanding of the core issue (i.e., the tariff structure proposed by one of the parties) can explain its error. This type of error, however palpable it may be, is not one that permits an exception to be made to the functus officio rule.

[75] It follows that the Board did not have the authority to review its Original Decision to correct the error which it identified.

[77] There is no doubt that the intentional or inadvertent addition of the words “per minute” if that be the case could allow us to make the correction proposed by the applicant. However, it would have to be established that the Board’s manifest intention was to adopt the applicant’s tariff and that these two words were added inadvertently.

[78] Contrary to the applicant’s assertion, I do not believe that it is possible to identify the Board’s manifest intention from reading the Original Decision with the result that the finality of decisions rule cannot be circumvented on the basis of this criterion.


[83] Independently of the Decision to Reopen, it is impossible, in my view, to determine the Board’s manifest intention. In fact, paragraph 166 of the reasons for the Original Decision contains an inherent contradiction which precludes any conclusions regarding the Board’s intention: on the one hand, the Board states that it accepts the applicant’s position, while, on the other, it fixes a “per-minute, per-copy” royalty rate that greatly exceeds what was proposed by the applicant. This may be a simple clerical error – with the inadvertant addition of the words “per minute”—as the applicant argues, or the result of a misunderstanding the tariff proposed by the applicant. The remainder of the Original Decision does not make it possible to resolve this question or to clarify the Board’s intention.


[85] Given that the Redetermination Decision was rendered without jurisdiction, there is no reason to review the issue whether the Board could render this decision without hearing the parties or whether it certified a tariff that is not supported by the evidence. I believe it useful, however, to point out that the Redetermination Decision disposes of substantive legal issues that should not have been dealt with without the input of the parties. For example, the Board could not conclude that a new tariff was required because the schedule proposed by the applicant was “unreasonably low” without giving the applicant an opportunity to demonstrate that this was not the case (Redetermination Decision at para. 16).

 [86] The sixth issue concerns the reasonableness of the Original Decision. For the reasons given above, it must be concluded that the Original Decision did not meet the transparency and intelligibility criteria required by Dunsmuir. Indeed, in claiming to choose one tariff structure but certifying another, the Board said one thing but did the opposite, which makes the decision unreasonable.

….

[88] I would therefore allow both applications for judicial review and set aside the Original Decision and the Redetermination Decision. Moreover, I reluctantly conclude, given the efforts invested to date, that the matter must be referred back to the Board so that it can recommence and complete the process to certify a new tariff for the years 2009 to 2012 as soon as possible. In the meantime, SODRAC Tariff, 2004–2008, will remain in effect. The applicant will be entitled to costs in both dockets for the proceedings instituted before the consolidation order and to only one set of costs in docket A-265-13 for subsequent proceedings.
(highlight added)

So, it’s back to square one for the parties after more than six years. The proposed tariff in this case was filed on March 28, 2008.  Here’s the time line from the Board’s website of what took place, not including the judicial review:
Tariff - Redetermination (July 6, 2013) - Suspended by the Federal Court of Appeal on November 26, 2013 (Files: A-525-12/A-265-13);
Reasons - Redetermination (July 5, 2013);
Reasons - Interim Decision (April 26, 2013);
Interim Decision (December 20, 2012);
Tariff
(November 3, 2012) - Suspended by the Federal Court of Appeal on November 26, 2013 (Files: A-525-12/A-265-13);
Reasons (November 2, 2012)

The Board hearing took place in June of 2010. The Board’s decision was rendered on November 2, 2012 – which is about 2.5 years later. So, whatever the reason for the Board’s initial “palpable error”, it was certainly not due to undue haste.

Actually, there were two FCA proceedings, namely A-265-13 and A-525-12, which were eventually consolidated in the judicial review that led to the October 20, 2014 decision. The successful applicant in this proceeding, CAFDE, had asked both for juridical review and a determination at the same time, apparently hedging its bets in the hope that the Board had made an essentially clerical error by wrongly inserting the words “per minute” into the tariff. But, although the Board accepted that it had erred, it came back with something that none of the parties had asked for and refused to hear further submissions along the way. In hindsight, it simply should have passed on the redetermination because it was “functus officio” (i.e. its decision has been rendered and its jurisdiction concerning the particular matter has been exhausted) and left matters to the Federal Court of Appeal, where they ended up anyway.

So, the FCA heard the judicial review application on the merits on September 4, 2014. On October 20, 2014 - just over six weeks later which is a normal pendency period for this Court - it rendered its 29 page decision to “reluctantly” send the matter back to the Board “so that it can recommence and complete the process to certify a new tariff for the years 2009 to 2012 as soon as possible”, with costs to the Opponent/Applicant in the judicial review.

I shall follow up shortly with more about other recent decisions by and/or concerning the Board, the forthcoming Supreme Court case involving SODRAC and ephemeral rights (and possibly some other important issues) and some pending matters at the Board, including two very important hearings concerning K-12 and Post-Secondary education.


HPK

Monday, November 17, 2014

Copibec v Laval - The Class Action - First Step

Here is the first step in the Quebec copyright infringement class action by Copibec against the University of Laval. This is a request to the Quebec Superior Court to authorize Copibec to proceed by way of a class action. 

Two immediate differences leap out in comparison to the Access Copyright v. York U. litigation:

  1. There is no "interim tariff" in effect for Copibec. York is relying on the "interim tariff" from the Copyright Board, which AUCC and ACCC took no steps to have set aside when this might have been possible and perhaps quite feasible at the time back in January 2011.
  2. This is a proposed class action. The AC v York U litigation is not.
More news when I have it...

HPK

Monday, November 10, 2014

Now COPIBEC Is Suing Laval in the Quebec Superior Court

Copibec is the Quebec counterpart of Access Copyright. It has started litigation in the Quebec Superior Court against  l’Université  Laval. I'll post the claim when I get a copy. Here is the press release:
***
En Anglais:


Copibec: $4 Million Class Action Lawsuit Against Universite Laval for Copyright Infringement

MONTREAL, QUEBEC--(Marketwired - Nov. 10, 2014) -
Copibec has filed a motion in Quebec Superior Court for authorization to launch a class action on behalf of thousands of authors and publishers from Quebec, the rest of Canada and other countries around the world because their copyright protected works have been copied without permission by Université Laval.
On an annual basis, the Quebec City-based university copies more than 11 million pages from 7,000 different works published in Quebec, the rest of Canada or abroad and includes them in coursepacks sold to students or distributes them online via its secure internal computer network.
Until May 2014, Université Laval, like all other Quebec universities, held a comprehensive licence issued by Copibec allowing it to make those copies legally. However, the university's board of directors decided not to renew its licence and on May 21, 2014 put into effect a policy concerning the use of third-party works for teaching, learning, research and private study purposes ("Politique et directives relatives à l'utilisation de l'œuvre d'autrui aux fins des activités d'enseignement, d'apprentissage, de recherche et d'étude privée à l'Université Laval"). That policy now lets professors, lecturers, instructors and researchers make copies of copyright protected works and excerpts from those works without the university having to obtain permission from each author and publisher or pay the required royalties. Université Laval is the only educational institution in Quebec acting in that way.
Copibec, whose official name is the Société québécoise de gestion collective des droits de reproduction, is a not-for-profit created in 1998 by the Union des écrivaines et écrivains québécois (UNEQ) and the Association nationale des éditeurs de livres (ANEL) to manage the reproduction rights for copyright protected works in print and digital formats. It has the authority to manage the reproduction rights of 2,330 publishers and 24,295 authors from Quebec as well as the authors and publishers represented by reproduction rights organizations in 32 countries, including France, Belgium and the United States.
On behalf of the authors and publishers whose works were copied without permission by Université Laval, Copibec intends to ask the Superior Court to issue orders so that the illegal copying can be stopped and the illegally copied material can be seized. It also intends to ask the Court to sentence Université Laval to pay those authors and publishers approximately $2 million in unpaid royalties, $1 million in moral damages and $1 million in punitive damages in addition to the profits earned on the sale of coursepacks to students.
Since the case is before the courts, Copibec's representatives will not be giving interviews about the class action.

CONTACT INFORMATION

  • For more information, please contact Copibec's legal
    counsel in this case
    Daniel Payette
    418-837-2521

    En Francais: 

COMMUNIQUÉ
L’UNIVERSITÉ LAVAL POURSUIVIE EN RECOURS COLLECTIF
POUR 4 MILLIONS DE DOLLARS EN VIOLATION DE DROITS D’AUTEUR
Montréal, 10 novembre 2014
COPIBEC a déposé aujourd’hui devant la Cour supérieure du Québec une demande afin d’être 
autorisée à exercer un recours collectif au nom des milliers d’auteurs et d’éditeurs québécois, 
canadiens et étrangers, dont les œuvres ont été reproduites sans permission par l’Université 
Laval.

Cette institution d’enseignement supérieur reproduit annuellement plus de 11 millions de pages 
tirées de plus de 7 000 œuvres québécoises, canadiennes ou étrangères, qu’elle intègre dans des 
recueils de textes vendus aux étudiants, ou qu’elle distribue en ligne sur son réseau informatique 
interne sécurisé.

Jusqu’en mai 2014, l’Université Laval, comme toutes les autres universités québécoises, détenait 
une licence générale de Copibec l’autorisant à effectuer légalement ces reproductions. Toutefois, 
le conseil d'administration de l’université a décidé de ne pas renouveler sa licence et de mettre en 
application, à compter du 21 mai 2014, une politique concernant «l’utilisation de l’œuvre d’autrui 
aux fins des activités d’enseignement, d’apprentissage, de recherche et d’étude privée à 
l’Université Laval». Cette politique permet aux professeurs, chargés de cours et chercheurs de 
continuer à reproduire des œuvres et des extraits d’œuvres sans que l’Université n’obtienne les 
autorisations ni n’acquitte les redevances requises auprès de chaque auteur et éditeur. C’est la 
seule institution d’enseignement qui se comporte de cette façon au Québec.

Copibec est un organisme sans but lucratif, créé en 1998 par l’Union des écrivaines et écrivains 
québécois (UNEQ) et l’Association nationale des éditeurs de livres (ANEL) afin de gérer les 
droits de reproduction des ouvrages en format papier et numérique. Elle a été habilitée pour 
administrer ces droits par 2 330 éditeurs et 24 295 auteurs québécois, ainsi que par les auteurs et 
éditeurs regroupés dans des sociétés de gestion du droit de reproduction de 32 autres pays, dont la 
France, la Belgique et les États-Unis.

Au nom des auteurs et des éditeurs dont les œuvres ont été copiées sans autorisation par le 
personnel de l’Université Laval, Copibec entend demander à la Cour supérieure des ordonnances 
pour faire cesser cette pratique illicite et pour saisir le matériel contrefait. Elle entend demander 
également à la Cour de condamner l’Université Laval à payer aux auteurs et éditeurs près de deux 
millions de dollars en redevances impayées, un million de dollars en dommages moraux et un 
million en dommages punitifs en plus des profits réalisés lors de la vente des recueils de textes 
aux étudiants.
-30-

L’affaire se trouvant portée devant les tribunaux, les représentants de Copibec n’accorderont pas 
d’entrevue à ce sujet. Pour toute information complémentaire, veuillez communiquer avec le 
procureur au dossier, Me Daniel Payette, 418-837-2521.

Tuesday, November 04, 2014

Last Minute Discontinuance of Patent Case on “Promised Utility” in Supreme Court of Canada

In a very unusual development in a case that promised to be very interesting and important both domestically and internationally, Apotex has filed a notice of discontinuance literally on the day before and figuratively on the steps into the Court in its appeal against Sanofi in the Supreme Court of Canada that was to have been heard earlier today in Apotex et al v. Sanofi et al.  The notice states that “The Appellants wholly discontinues this Appeal on a without costs basis on consent.” This language suggests that some kind of settlement agreement – presumably very confidential – must have been concluded.

I can think of only one other similar situation in the IP and related galaxies at the Supreme Court of Canada level where an appellant discontinued a closely watched appeal at a late stage, and this was in  Vidéotron Ltée, et al. v. Her Majesty the Queen, et al., where the issue was whether certain broadcasting fees were a tax or a regulatory charge. That discontinuance was filed 12 days before the hearing that had been scheduled for October 19, 2009.

We recently saw an abrupt discontinuance of another notable appeal in the Federal Court of Appeal in the copyright litigation involving Richard Warman and Fournier v. National Post. This case was discontinued 5 days before the hearing for February 19, 2014.

Private parties, of course, have every right to settle their cases. However, when the Supreme Court of Court decides to hear cases that require leave to appeal, it is because “the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.

So, it can be very frustrating to the public and particularly to interveners when a case is discontinued and certain questions that are obviously of “public importance” may be left in limbo, even though the decision below technically is left standing.

In today’s discontinued case, the “promise doctrine” and “utility” are also very much are the heart of the Eli Lilly NAFTA Chapter 11 investor/state challenge, although today’s case and the NAFTA case are not directly linked. However, whatever the Court might have ruled in today’s discontinued case might well have been of some considerable interest in the NAFTA case that we will hear much about in the future as it unfolds.

HPK


Thursday, October 30, 2014

The Supreme Court of Canada Takes Another Patent Case - On Delayed Entry and NOC Regs s. 8 Damages

The Supreme Court of Canada is going to hear another patent case arising from this decision of the FCA on issues involving the damages regime for delayed entry resulting from the Notice of Compliance Regime. Here's the Court's official summary - which doesn't necessarily indicate precisely what the real issues will turn out to be:

35886

Sanofi-Aventis, et al. v. Apotex Inc., et al.
(Federal Court) (Civil) (By Leave)
(Sealing order) (Court file contains information that is not available for inspection by the public)


Keywords

Intellectual property - Patents, Medicines.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.
Intellectual property — Patents — Medicines — Generic manufacturer seeking damages under s. 8 of Patented Medicines (Notice of Compliance) Regulations, SOR/93-133 after delayed market entry due to statutory stay occasioned by failed prohibition proceedings — What is correct interpretation of, and correct legal framework applicable to determination of appropriate compensation owed under s. 8? — What is status and legal implications of PM(NOC) Regulations in the hypothetical “but for” world? - Whether legal framework applicable to s. 8 requires the construction of a hypothetical market in which failed prohibition proceedings against plaintiff are excluded, while those against its competitors are legally considered extant
The Applicants (collectively, “Sanofi”) are the patentees and have the rights to a series of Canadian patents for the drug, ramipril, used in the treatment of hypertension. The original ‘087 patent issued in 1985 and was set to expire in 2002. In an effort to extend that patent protection, Sanofi obtained a further series of patents for different indications for ramipril and listed them on the Patent Register. Between 2003 and 2008, these “new” ramipril patents were challenged by Apotex Inc. and other generic manufacturers under the PM(NOC) Regulations. Sanofi applied for prohibition orders in each case, triggering a 24-month statutory stay that kept the generic competitors off the ramipril market during that period of time. Only one prohibition application was successful. Apotex received its NOC to market Apo-ramipril in December, 2006. Sanofi commenced separate unsuccessful infringement actions against both Apotex and the other generic manufacturers. Apotex then brought an action under s. 8 of the PM(NOC) Regulations, to claim damages for its net lost profits during the period of the statutory stay.

The Court will hear the following patent case on November 4, 2014:


35562

Apotex Inc., et al. v. Sanofi-Aventis, et al.
(Federal Court) (Civil) (By Leave)
(Sealing order)


Keywords

Intellectual property - Patents, Medicines.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.
Intellectual property – Patents – Medicines – Patent for medicine held to be valid and infringed by generic manufacturer – How the utility promised by a patent is to be identified and ascertained – How an appellate court is to review factual findings of trial judge as to how skilled addressee would understand the promised utility – How limitations periods are to be applied in respect of activity that only involves conduct, including import and export, in one province.
Plavix is a drug useful in inhibiting platelet aggregation activity in the blood which was developed, patented, and marketed by the respondents (collectively, “Sanofi”). The ‘777 Patent for Plavix is considered to be a selection patent that claims a subset of compounds which are already within the scope of the prior genus ‘875 Patent. The active ingredient in Plavix is clopidogrel bisulphate, the dextro-rotatory isomer of the racemate, having beneficial properties over both the racemate and the levo-rotatory isomer. Apotex Inc. (“Apotex”) attempted to market its own version of clopidogrel bisulfate. It applied for a Notice of Compliance from the Minister of Health, alleging that its version of clopidogrel did not infringe Sanofi’s patent. Apotex also alleged that the ‘777 Patent for Plavix was invalid on several grounds. Sanofi successfully obtained an order prohibiting the Minister from issuing the Notice of Compliance to Apotex. This order was upheld on appeal and again at the Supreme Court of Canada. Apotex then commenced an impeachment action in the Federal Court seeking a declaration that the ‘777 Patent was invalid on several grounds including lack of utility. Sanofi commenced its own action, alleging that Apotex had infringed its patent by importing clopidogrel into Canada and then exporting it from Canada for sale in other countries including the United States. The two actions were consolidated.

Friday, October 24, 2014

The Copyright Act Political Ad Amendment That Wasn't Tabled

In this uniquely tragic and distressing week on Parliament Hill, there was one thing that was a big story a week ago about an event that was rumoured to be on the brink of happening but which has now quietly disappeared from the radar screen.

There were rumours and/or leaks and/or trial balloons about a possible amendment to the Copyright Act buried deep inside an omnibus budget implementation bill that would supposedly legalize the use of excerpts of broadcast network footage of political figures sounding foolish or frightening or otherwise unattractive for the benefit of other politicians who want to use this kind of advertising. Some call this “negative ads”. Others call it “information” or “freedom of expression”.

In any event, I, Michael Geist and Ariel Katz quickly pointed out on our blogs and on air that this is already normally legal and does not require permission, much less payment. Normally, either the use is not going to be “substantial” or it will be “fair dealing” for one or more of the purposes of research, education, parody, satire or criticism. It will normally almost certainly pass the six factor test of fairness laid down by the Supreme Court of Canada.

Now, it seems that the budget implementation Bill C-43, introduced on October 23, 2014 the day after the tragic terrorist event at the National War Memorial and in Parliament Hill, is devoid of any references to the amendments to the Copyright Act. HT to @SDoyle333 for this.

If the Government has decided that it won’t amend the Act to deal with this issue, that would be wise because it would have been unnecessary. Moreover, it wouldn’t have worked anyway, because it seems that the real problem was that of a certain self-styled “consortium” of the major networks, which  agreed not to broadcast these political ads that contain each other’s or third party footage, notwithstanding their documented awareness that copyright arguments won’t wash anymore, if they ever did.

One of the ATIP documents unearthed by Sun News, not a party to the “consortium”, says:

“The goal is to keep news content from being used without permission. In past we fought this stuff using legal threats, but shifts to laws w.r.t. copyright and fair dealing have made this a less effective route. This ‘consortium’ we think would limit the activity.” 
(emphasis added)

So, it will be interesting to see whether six residents or the Minister of Industry cause the Commissioner of Competition to commence an inquiry into this matter, or whether the Commissioner himself chooses to do so.  Such inquiries are not conducted in public. If charges are ever laid under s. 45 of the Competition Act – and I’m not suggesting that this should necessarily happen – we will then certainly hear about it.

Perhaps the networks will quietly undo their consortium agreement and we will see lots of political ads using embarrassing footage in the next year or so, whether we like the ads not.  And there’s always this 1988 ruling by the Federal Court of Appeal, from which leave to appeal to the Supreme Court of Canada was denied in 1989, and which I was pleased to inform many unaware onlookers about, that should serve as a cold shower to any network or rival party who tries to block such ads.


HPK

Thursday, October 16, 2014

The Access Copyright Post-Secondary Hearing – the Narrowing Space Twixt the Rock and Hard Place



As I have suggested before in some detail on April 11, 2014, the Copyright Board is caught between a rock and hard place on the Access Copyright (“AC”) Post-Secondary file and the gap is narrowing.  The withdrawal of the two main objectors – AUCC and ACCC – has not been publicly explained, but may well be for budgetary reasons, since they had already by mid-2012 spent almost three million that we know about to accomplish apparently little if anything other than providing a huge amount of interrogatory information for the benefit of AC and to reach model agreements that have been widely rejected by their own members.

If indeed their withdrawal was for budgetary reasons, perhaps a lot of money could have been saved (not to mention time and resources amongst their members) if they had followed the well-established practice of responding to interrogatories only from a representative sample of members – as explicitly though belatedly reminded by the Board on June 6, 2011. Perhaps the Board assumed that they would have done just that. However, their failure to follow this practice remains unexplained, at least in public.

Unfortunately, it only now appears that a very large number of universities and colleges may have spent an incalculable amount of time providing answers that could turn out to have been unnecessary. Even the smallest of the two hundred or so affected institutions has probably spent hundreds of person/hours on this process. One can only imagine the resources put in by the larger ones. 

In any event, this is water under the bridge and the AUCC and ACCC have indeed withdrawn, and also inexplicably withdrawn their objections, paving the way for a default decision that may be very harmful for their members and which may leave their members in a very difficult if not impossible position in terms of judicial review or other recourse in the event that there is a “mandatory tariff” and Access Copyright sets about to enforce it. The situation will be even more serious if York loses its litigation against AC, which won’t even get to trial before May of 2016.

In any event, the Board is clearly troubled by this situation and has issued no indication as to how it will proceed with a hearing in this file since its cryptic notice on January 17, 2014 that:
Finally, the withdrawal of CAUT and CFS as well as Mr. Katz implies that the Board staff needs to play a more active role in the file.
For these reasons, and because of the additional drain on Board's resources this implies, the Board postpones sine die the hearing in this matter. After having received and analysed all answers from Access, and replies from Mr. Maguire, the Board will either decide when to reschedule the hearing or proceed on paper

Now, it seems that even Access Copyright is getting worried. It recently filed this letter dated October 6, 2014  with the Board. The letter says:
In Access Copyright’s submission, an oral hearing is needed as a matter of procedural fairness and in view of Access Copyright’s reasonable expectation, based on directives and Notices of the Board, that there would be an oral hearing. The Directive on Procedure issued by the Board on October 16, 2012 stipulated that an oral hearing will be held. Notices issued by the Board on a number of occasions before Access Copyright filed its case1 confirmed that the Board would be holding an oral hearing. Access Copyright accordingly filed its case in the reasonable expectation that there would be an oral hearing. The Board adjourned the hearing sine die only after Access Copyright had filed its case. Given the reasonable expectation created by the Board’s directives and Notices, Access Copyright respectfully submits that the principles of natural justice and procedural fairness require that an oral hearing be scheduled in order to permit Access Copyright to put its entire case before the Board.

There remains one objector, Mr. Maguire, in these tariff proceedings. It is not the fault of Access Copyright that the Association of Universities and Colleges of Canada (“AUCC”), the Association of Canadian Community Colleges (“ACCC”) and other institutions and individuals all withdrew as objectors. Access Copyright should not be prejudiced by the decision of those objectors to withdraw. We note that the Board has held hearings in other proceedings where there have been no objectors.
(emphasis and highlight added)

It is quite clear that AC is setting the state for judicial review here, if for any reason the default proceeding does not go their way and as far they want it to go, i.e. to a “mandatory tariff” that could render a large university liable for millions for making just one infringing copy of just one work that happens to be in AC’s repertoire, no matter how much money and effort that the university has spent in good faith on other means of copyright clearance and compliance.

This file has been plagued from problems from the beginning, not least of which was the interim tariff imposed on the eve of Christmas  in 2010 and the blatant failure of the AUCC and ACCC to even try have it set aside, which may be been quite possible at the time on several grounds as I have outlined many times.

The current system in place at the Board is based upon the adversarial system, which has fundamentally failed in this instance due to the withdrawal of the main adversaries.
The members of the AUCC and ACCC have a lot to be worried about. But so does AC. This is not a pretty picture.

An oral hearing would provide at least some measure of transparency. It would provide the Board with an opportunity to publicly question AC’s witnesses to the extent that the Board believes it can and should do so, and to the extent of the Board’s resources, given that the Board does not seem to be contemplating the involvement of an amicus curiae. It would give the public the opportunity to attend and some basis to provide informed written comments, pursuant to the Board’s usual Directive on Procedure, especially if the Board were to promptly post a transcript of the hearing and set a deadline that would allow for meaningfully sufficient time for such comments.  

Perhaps the Board should grant AC’s wish, with AC being mindful, as many copyright collectives and NGOs have learned the hard way, of the old adage about being “careful what you wish for.”

It may fall to the next Chair of the Board to decide how to proceed, since the past Chair’s appointment expired on May 13, 2014 due to the operation of the statute. In any event, the silence is beginning to get louder and the suspense is building.

HPK