Tuesday, November 16, 2010

Access Copyright’s Proposed $45/$35 Tariff - My Comments the Board’s Ruling on Status of the "Group of 99"

The Copyright Board has issued one of its more interesting and important procedural rulings in recent memory with respect to the status of 99 of the 101 objectors that Access Copyright (“AC”), through its former counsel Barry Sookman, had sought to eliminate from the pending post-secondary $45/$35 proposed tariff.

In a nutshell, the Board has:

- Confirmed (subject to unspecified future concerns about “duplicative representation”) the “objector” status of Athabasca University and the British Columbia Association of Institutes and Universities (BCAIU)
- indicated that. with respect to the Government of Alberta and teachers, students and staff from the targeted institutions in the proposed tariff that is “inclined to grant them, if they so wish, intervenor status with full participatory rights, in effect allowing them to act in these proceedings as if they were objectors”
- ruled, with respect to approximately 38 individuals ranging from parents (those paying the bills of students) to post doctoral fellows that their “participation ... would not be of assistance”
- left in limbo the status of CAUT and CFS (representing university teachers and students respectively), which are represented by CIPPIC (the U. of Ottawa public interest legal clinic) and refused, for the time being, their request to “bifurcate” this hearing in a similar manner to what was done in SOCAN’s perpetual Tariff 22 tariff proceeding - i.e. separate out certain legal issues that presumably do not involve disputed or extensive evidence
- indicated that AC, AUCC, ACCC, Athabasca and BCAIU “may make their views known on the participation of the potential intervenors no later than Tuesday, November 23, 2010. They are asked not to deal with issues of duplicative representation or overlapping argumentation at this stage. These matters will be addressed later, when the intentions of all participants are more fully ascertained.”
- Indicated that “Those who wish to remain as participants in these proceedings are asked to inform the Board no later than Tuesday, November 23, 2010"
- asked for clarification by November 23, 2010 from Ambrose University College and the Library, St. Mary's University College and the Library, Yellowhead Tribal College and the Library as to whether it is the institution or the library that is objecting

The Board’s ruling is certainly a blow to AC, which had sought to get rid of all but two of the 101 objectors, the two being the AUCC representing university management (here is the AUCC’s objection, which is noticeably less vigorous than that of many other established institutions) and the ACCC (representing the community colleges of Canada).

The ruling, however, is not all good news for all of the “Group of 99". The status of those who have not been eliminated is still somewhat in limbo. Is the Board’s indication that it is “inclined” to grant “full participatory rights” to intervenors so wishing the same a "ruling" that it will grant such rights? Does “full participatory rights” include the right to cross examine AC’s witnesses, including expert witnesses and challenge its survey evidence? Will intervenors have the right to adduce their own expert and other evidence? One would certainly hope so in both respects. What does “present oral argument at the end of the hearings” mean? Surely, “full participatory rights” would include the right to make oral submissions as the hearing progresses in the same manner as other parties, subject only to the Board’s prerogative to ensure an orderly, efficient and fair process.

One would assume that “full participatory rights” should mean all the rights and responsibilities of an objector. But some are less than convinced that this is the case. One very sophisticated objector who has now been classified as an “intervenor” has suggested to me that the Board has created a “separate but equal” regime.

In fairness to the Board, it has to be concerned with conducting a process leading to what could be a lengthy hearing that cannot be allowed to become chaotic. However, that potential problem is invariably self-correcting, since few persons or institutions other than those with pressing interests and sufficient resources will remain involved throughout the lengthy and exhausting process. AC will almost certainly try to wear down any “intervenors” with onerous interrogatories of questionable relevance. This is how the game is played at the Board. Hopefully, the Board will manage to ensure ongoing fairness in the process. AC’s new counsel, Mr. Hofley, and I have been down this road before in the private copying file, in which there were 3,500 initial objectors.

Presumably, the logic of the Board in this ruling was dictated to some extent by the wording of the legislation which requires that objectors be “prospective users.” See this letter to the Board from Prof. Ariel Katz of U. of T. Faculty of Law, who was a timely objector but has now been classified as an intervenor, dealing with some of the issues surrounding status and who should be considered as a proper objector. This submissions in this letter weren’t referred to by the Board in its reasons, even though AC’s submissions (see here) were.

Very likely, many of the objectors who wanted to remain involved didn’t even realize that a ruling such as this was in the works, unless they read my blog. This should not be the case. The Board should ensure that all parties potentially affected by a decision have sufficient notice of their right to make submissions. I trust that this will be done with respect to the ultra-controversial attempt by AC to impose an interim tariff that would render a voluntary, obsolete, overpriced, and expired agreement into a supposedly legally binding “interim tariff” with the force of law for years to come - that is if AC, with its new counsel, still intends to proceed in this direction.

AC no doubt hopes that parties will sign its “interim agreement” in the meantime, as the supposed deadline of January 1, 2011 looms. However, this deadline has effectively been imposed by AC itself, and the “interim agreement” does not even provide a license. It simply requires ongoing payment and an agreement to accept whatever the Board ultimately decides. There is no apparent reason why any institution would sign on to this and even AUCC seems to so agree.

Is yesterday’s decision correct in all respects? Maybe or maybe not. The reality is that it is very difficult to seek judicial review (i.e. “appeal”) interim procedural rulings of the Copyright Board. The Board will almost always prevail in these situations. However, in this instance, one hopes that that Board will treat any committed “intervenor” as indeed having “full participatory rights”, if the “intervenor” so chooses and that AC will not be permitted to unfairly inflict unduly onerous and irrelevant interrogatories or other barriers to such participation.

So - here’s what the survivors of the “Group of 99" need to do immediately.

- Answer the Board as required by November 23, 2010.
- Make the Board aware, assuming that it is the case, that they wish to be heard on the question of an interim tariff. If they wish to make oral submissions, which is not unreasonable considering the enormous amount of money and the issues at stake, objector and intervenors should make the Board so aware as soon as possible.


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