Thursday, December 30, 2010

Copyright Board Grants Access Copyright’s Application for Interim Tariff

After a process lasting about 10 weeks, without an oral hearing, and without yet providing reasons, the Copyright Board announced just before 6:00 PM on December 23, 2010 its decision to grant the application by  Access Copyright (“AC”) for an Interim Tariff applicable to post-secondary institutions outside Quebec commencing January 1, 2011 until December 31, 2013 (i.e. three years) or until a final tariff is certified, whichever is earlier. This could be worth about $48,000,000 over its likely three year duration, based upon AC’s own figure for annual revenue for the post-secondary sector outside Quebec. It is possible that an interim tariff could eventually be imposed for a much longer period - perhaps on modified terms - given that inaugural tariffs can take several years to be determined at the Copyright Board, not to mention possible subsequent judicial review and even Supreme Court proceedings. According to the Board, “The interim tariff, as any interim measure, may be modified or replaced at any time, on application.”

Here is the Board’s decision of December 23, 2010. Here is the Interim Tariff dated December 23, 2010. Here is the Board’s redlined version comparing the Interim Tariff as granted to the  AUCC model license.

The justifications advanced by AC for this interim tariff included:
•    preservation of the status quo;
•    promotion of legal certainty; and,
•    relief for AC against the “deleterious effects of the length of the hearing”.

The interim tariff was vigorously opposed by several major associations in the post-secondary establishment, including ACCC, AUCC, CASA, CAUT, and CFS on behalf of their members. There were also forceful objections by the Province of Alberta, Athabasca University and Prof. Ariel Katz. Various objections by one or more of the participants included the following grounds:
•    lack of jurisdiction;
•    lack of evidence; and
•    procedural fairness.

The above summary is very cursory and mentions only some of the many issues raised by the various participants. I have attempted to publish all of the written submissions (without attachments) from AC and all of the participants earlier on this blog.

In an unusual twist, the Board sets dates for further submissions “since this tariff is being issued even though its provisions would benefit from fuller discussion”.  Also, the Board stated that:
This decision is being issued without reasons because the Board considers this matter to be urgent. Reasons will follow.
Naturally, we all await the reasons for decision with great interest.

It will be interesting to see if and, if so, when judicial review proceedings (i.e. “appeal” for non-lawyers) are commenced by one or more participants. If this happens, then it is possible that the interim tariff itself will be set aside by the Federal Court of Appeal in the next several weeks or months and that there could even be, if sought, an interim stay of the interim tariff, pending the full determination of any judicial review application.

Check back on this blog for updates when the Board releases its reasons as well as any news as to judicial review applications or other developments.

As well, another major and potentially relevant event to watch out for in the next weeks in the context of this Copyright Board case will be the judgment of the Supreme Court of Canada (“SCC”) as to whether it will grant leave to appeal in the CMEC K-12 case. This would not be surprising, given that leave was just granted in the SOCAN “previews” case and that the K-12 decision is arguably, inter alia, inconsistent with the slightly earlier “previews” decision in the same Court on the fair dealing issue.  Whether the SCC takes the K-12 case, and if so what it does with it, is bound to be very important in the eventual outcome of the AC posts-secondary tariff application.

On a closing note, Season’s Greetings and best wishes for the New Year to all my readers, including those with whom I may respectfully disagree or critique in the wonderful and efficient marketplace of ideas that the blogosphere makes possible and even inevitable. Thank you all for your interest in this blog, which is approaching its fifth birthday on January 10, 2011.



  1. And a Happy New Year to you Howard. I can see that both of us will have lots to write about in 2010 :)


  2. Difficult to see grounds for judicial review or for setting aside the interim tariff pending review. The way the Board did it, making it optional, merely requires AC to go on licensing universities and colleges that want to go on being licensed on the original terms.

  3. It will be interesting to see all judicial review proceedings. They way they described the decision will highly be found. The way the Board did it, making it optional