Thursday, November 11, 2010
The “Group of 99", Access Copyright and the Copyright Board - Another Update
Since my last update on AC’s proposed post secondary Tariff that features a 1,300% increase and charges for linking, displaying, etc. and extraordinarily privacy invasive reporting requirements, some further questions have arisen concerning the nature of interim tariffs and what the rights may be of those institutions that signed interim agreements. Once again, I remind readers that this blog is not legal advice. As the wise Prof. Mark Lemley might say, “if this were legal advice, it would be followed by a bill”.
INTERIM AND APPROVED TARIFFS
Where there is an “approved tariff” in place as certified by the Copyright Board, it is enforceable as such, provided that the user is one caught by the tariff and can be shown to have used, in a manner covered by the tariff, any work that is in adequately in the repertoire of the collective seeking to enforce the tariff. Such a user could be forced by a Court to pay the unpaid tariff. In the case of SOCAN and Re:Sound (i.e. collectives that fall within s. 67 of the Copyright Act, which means “performance” and “communication” rights collectives), the collective may recover statutory minimum damage in an amount between three and ten times the amount due under the tariff. This statutory minimum damage provision does NOT apply to AC, since it is not a collective that falls within s. 67 of the Act. That is one important thing less to worry about.
Naturally, use of only repertoire duly licensed other than through AC, or not requiring licensing at all because the use constitutes fair dealing, etc. should serve to keep an institution outside of the reach of AC.
But Access Copyright, even though it doesn’t have an “approved tariff”, is now seeking controversial “interim relief” in the form of an “interim decision” or an “interim tariff” as it would more accurately be called. However, it is very questionable whether the Board has jurisdiction to impose an “interim tariff” in this instance. An “interim tariff” is arguably quite different than an “interim decision” as provided for in s. 66.51 of the Copyright Act . In any event, there is an argument that an “interim tariff” does not have the same mandatory effect and is not enforceable in the same way that an “approved” tariff would be.
In any case, even if the Board does have the jurisdiction to impose an “interim tariff” as sought by AC, the Board’s own precedents strongly suggest that it should not do so in this instance. For one thing, there is no previous tariff in place - only a voluntary agreement that has long been clearly obsolete in everyone’s view. Any college or university could have choose to refrain from using the standard agreement. This has been done and there have been no law suits as a result. There is absolutely no reason to suddenly confer on an obsolete voluntary agreement the force of law for a likely minimum of five years (not counting judicial review) that the proposed tariff will take to resolve at the Board. Not to mention predictable subsequent judicial review and a possible Supreme Court of Canada hearing.
For another thing, it seems rather inappropriate for AC to seek to force colleges, universities, libraries, students and others to directly or indirectly fund its multimillion dollar campaign at the Copyright Board to extract a 1,300% increase in the basic amount currently paid and to license rights and repertoire for which it may have no basis. It will have plenty of other revenues, at least for a while, given the essentially non-confrontational approach taken by many licensees and objectors to date. There is nothing to stop AC from trying to get a bank loan, like any other business that seeks aggressive expansion and will need to incur significant legal costs in so doing.
The very idea of imposing an interim tariff on objectors to provide interim funding to a wealthy party for a clearly controversial and arguably ill founded Copyright Board proceeding can, in any case, be most politely characterized as bizarre. This would never happen in a court, where the Supreme Court of Canada has laid down that interim cost awards are made only in the rarest of circumstances involving severe inequality between litigants and matters of great public interest. Here, the inequality works strongly in favour of Access Copyright.
If a Court would not look at providing interim funding, directly or indirectly, in a case such as this, it is an even less tenable request at the Copyright Board, which is not a court and has only the specific and limited powers given to it by Parliament.
Ironically, if the Board believes that it can force objectors to fund a tariff application, it would make much more sense for the Board to force the tariff applicant to fund the objectors in the appropriate circumstances, as the CRTC does. However, the Board does not have the explicit power to do either of these things. The Board has indicated great reluctance in the past to even think about forcing collectives to fund objectors and would almost certainly not even think about the prospect now unless required to do so by the Court or by Parliament. This is something to consider for future copyright revision - or maybe even for Bill C-32, if the Legislative Committee agrees to take this issue on. But that is not likely. The Committee will have plenty of other issues to worry about. Needless to say, established collectives and, very likely the Board itself, would strongly oppose such a measure in any event.
I am told that AC has not notified many if not most of the 99 of the 101 objectors it seeks to eliminate from this proceeding about its desire to get them to fund its tariff application or of its request for an interim tariff. Many objectors apparently have learned about it only by reading this blog. This raises serious fairness, natural justice and even jurisdictional issues. Hopefully, the Board will deal with these issues correctly - which would presumably NOT include first kicking out the 99 objectors as AC has so asked.
In any event, AC has not provided any affidavit evidence concerning its alleged financial plight or the “deleterious effects” it would face if this interim tariff is not granted. One would expect an abundance of such evidence in order to sustain a request for interim, discretionary and, in effect, equitable relief in these circumstance involving so much money and matters of such great importance.
Timely objectors in the “Group of 99" should make their views known as soon as possible and insist, if so wished, on their right to present their views in an appropriate manner on these fundamentally important jurisdictional issues.
There is a strong argument here that the Board should convene an oral hearing to deal with these important questions of procedural fairness or natural justice and jurisdictional issues.
On another front, what are the options of those few institutions who have signed AC's "interim agreement"? That agreement provides that the institution agrees to be retroactively bound by whatever the Board ultimately certifies and provides NO license in the meantime. I frankly don’t know why any institution would sign this agreement, and even AUCC seems to agree.
However, I seen no reason why any institution that may have signed such an agreement, if it has also filed a timely objection at the Copyright Board, could not continue to pursue that objection. It would be astonishing if AC were to argue that the institution had waived its right to object. And if even if it has not filed a timely objection, nothing prevents that institution from contributing to the efforts of others through a coalition to fight AC or for that institution to seek leave to intervene.
More on possible interventions to follow in due course.