Thursday, June 16, 2011

Copyright Board and the Commissioner of Competition? Expect the Unexpected

Access Copyright (“AC”), whether intentionally or not,  has thrown down the gauntlet regarding the role of the Competition Act and the Commissioner of Competition in the current post secondary tariff application in particular and Copyright Board proceedings generally.

Prof. Ariel Katz - a participant in this proceeding - has taken up the challenge in this very important filing with the Copyright Board. He is Canada’s leading scholar in the interplay between IP and competition law. Here is his own posting on this submission.

I have previously mentioned that AC’s refusal to issue transactional licenses to universities could arguably amount to a refusal to deal or an abuse of dominant position, contrary to the Competition Act. See here and here.

Prof. Katz  also makes this point and goes on to raise the possible application of s. 45 of the Competition Act, which deals with "conspiracies, agreements or arrangements between competitors."

Prof. Ariel Katz has boldly and rightly asked the Board to request the participation of the Commissioner of Competition pursuant to s. 125 of the Competition Act, which seems to have been enacted precisely for moments such as this.    

This is what the Competition Act says:
125. (1) The Commissioner, at the request
of any federal board, commission or other tribunal
or on his own initiative, may, and on direction
from the Minister shall, make representations
to and call evidence before the board,
commission or other tribunal in respect of competition,
whenever such representations are, or
evidence is, relevant to a matter before the
board, commission or other tribunal, and to the
factors that the board, commission or other tribunal
is entitled to take into consideration in
determining the matter.
Despite the clear intention of Parliament, the involvement of the Commissioner of Competition in the proceedings of other tribunals in Ottawa is a rare and delicate matter. I would be surprised if the Board were to welcome - much less request - such participation, as Prof. Katz quite logically and diplomatically asks.

But I always like to be pleasantly surprised.

And - the above provision clearly indicates that the Minister (meaning the Minister of Industry) can require such participation.

The Commissioner of Competition has never before become involved in a Copyright Board proceeding. Perhaps it is time.

Keep an eye on this. Things could evolve very quickly and unexpectedly.

And hopefully positively.


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