- The Board states that “Access proposes maintaining what it refers to as the status quo, with additional, potential uses being allowed at no additional cost.” However, on its face it combines elements of the old regime with elements of the new “proposed” tariff. And what about what is missing, such as “indemnity” scheme, which, as legally dubious as it was, was seen as valuable by at least some institutions and the exclusion list, which was important in order to avoid troubles from third parties.
- It’s not clear that questions 1 and 2 can be separated for practical purposes. If the Board were to issue a non-binding or optional mechanism on generous terms to users, such a ruling might indeed be welcome. However, we don’t know on what terms and rates the Board will issue an interim tariff, if it does so.
- There is no “status quo” – other than considerable confusion. All the previous agreements are about to expire – according to AC’s plan. The status quo up until now was that of voluntary agreements. Now expired or expiring – but VOLUNTARY. ANY tariff is a drastic departure from the status quo because tariffs, by their nature, will be regarded as MANDATORY for all practical and legal purposes. AC will no doubt insist that ANY institution that uses ANY of its supposed repertoire, when such repertoire is not otherwise licensed or such use is not insubstantial or fair dealing, is liable is caught by the tariff and liable for the whole amount as applicable. Since it’s hard to imagine that any university or college can get through the year without some minor slip up in clearance, this means that ALL universities and colleges will be effectively be liable for the tariff for all practical if not legal purposes, even if they don’t wish to be and use best efforts to otherwise comply with the Act.
- Question 4 simply can’t be answered until the Board provides full reasons on questions 1-3.
- The delay granted simply allows the splitting of participants’ memos and may encourage more confusion, with only a few more days to sort out the existing confusion.
Date: December 8, 2010 1:25:08 PM EST
A/Secretary General | Secrétaire général par int.