To the surprise and disappointment of some, neither of the main objector associations, namely AUCC and ACCC, sought judicial review of the interim decision, despite their apparently vigorous protest against it and despite what appeared to be arguably solid grounds for review. Contrary to beliefs held by some, this ruling arguably went well beyond a mere fact finding and procedural exercise by the Board. It was eminently reviewable and reversible in my view. It may be that the decision not to seek judicial review - which is normally quick and relatively inexpensive - was motivated more by practical and political rather than legal reasons. The interim tariff provided institutions with the comfort of the status quo, if they chose to use it, and the ability to pass the costs along to the students anyway to a very large if not total extent.
So, armed with the Board’s refusal to impose a requirement for transactional licenses, as explicitly and reasonably sought by Athabasca, AC is now entirely predictably as foreseen by Athabasca, allegedly refusing to issue such licenses. Whatever the motivation for this refusal, the result is pressure on institutions to sign on to the supposedly voluntary interim license.
After many copyright administrators have complained privately about AC’s refusal to issue transactional licenses, and Michael Geist made this public, AUCC is now protesting this to the Board and asking the Board to amend the interim tariff. AUCC relies on Athabasca’s and Ariel Katz’s earlier submissions. Here is AUCC’s submission, which states that “this tactic is a gross abuse of the collective administration of copyright and an improper use of collective monopoly power.”
If the Board does not provide appropriate relief here very quickly, some may wish to consider seeking remedies under the Competition Act, or persuading the Commissioner of Competition to intervene in this proceeding. There is also a procedure whereby any “six citizens” can effectively force the Commissioner to launch an “inquiry” into an issue. Competition law and procedures are quite complex - but potentially the Commissioner will take on appropriate cases and fight them at taxpayers’ expense. Here, there may be good reasons to think about whether there is an illegal “refusal to deal” or an illegal “abuse of dominance”, and if so, what should be done about it.
If the Copyright Board does not provide a remedy rather quickly, the Competition Act may prove to be an interesting and fertile potential resource since this “interim” tariff could last for several years, given the usual rate of proceedings at the Board and likely subsequent judicial review.
The Commissioner of Competition - despite an explicit statutory invitation which is really not necessary - has never before become involved in a Board hearing or file. Perhaps it is now time. Better late than never.