Friday, December 10, 2010

Objections to AC's proposed Interim Tariff - December 10, 2010

Several objections have been filed to AC's proposed interim tariff. More may come by the end of the evening.

There is overwhelming opposition based upon factors such as:
  • procedural fairness
  • lack of jurisdiction on the part of the Board 
  • lack of any preceding tariff
  • inappropriateness of imposing an interim tariff to fund AC's application
  • lack of any evidence filed by AC as to its financial hardship or any other issues
  • lack of rights and repertoire by AC and evidence showing that AC has a "minuscule" portion of necessary repertoire
  • contrary precedents from the Board itself 
  • lack of any legal void if no interim tariff is imposed
  • how AC has brought the current situation onto itself
  • etc.
Here are the main documents (without the numerous attachments) filed so far (in alphabetical order):
There are a lot of important and good arguments here. Quite unlike the AC submissions, there is also a lot of evidence. If the Board does decide to impose an interim tariff, it would seem very likely that judicial review (an appeal) would be pursued and there may well be very good grounds to do so. Indeed, Access Copyright will have its work cut  out for it in the next few days before it files its reply by noon on Wednesday, December 15, 2010. A reply, of course, can only deal with new issues raised in the objections today. It cannot be used to fill in any lacunae in the arguments or evidence filed earlier.

Several of the arguments confirm points I have previously made on this blog, such as AC's inability to sue anyone on its own. For many reasons, including AC's previous track record in major test cases, it would be surprising if any publishers would lend their good names and money to pursuing a Canadian post-secondary institution that is acting in good faith and choosing to do so without being tied to Access Copyright either by a voluntary agreement or a supposedly mandatory interim tariff imposed by the Board. 

Indeed, AC's choices leading up to the current circumstances are mentioned by several participants. These choices might make it very difficult for a plaintiff  in such potential litigation, even if the plaintiff had status to sue, to obtain an injunction. It would also be interesting to see if statutory minimum damages could be pushed down to a nominal or maybe even nil amount under the circumstances.

Hopefully, this material and recent blogs will provide useful insights for many in the post secondary community who may have felt overwhelmed and even intimidated by Access Copyright and who may now see that it is quite possible to move on without AC and without an interim tariff.


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