Friday, June 17, 2011

Copyright Board Does Not Want to Hear from Commissioner of Competition At This Stage re Access Copyright

The Board has responded to Prof. Ariel Katz's suggestion that the Commissioner of Competition be requested, pursuant to s. 125 of the Competition Act,  by the Board to participate in the upcoming consideration of the issue of transactional licenses. The Board has indicated that it will not do so because this would be "unhelpful and disruptive".

Here is the Board's order from this afternoon. This, of course, is not necessarily the end of the matter. In principle, at least, the Commissioner can request to intervene and the Minister can even require her to do so and that she be heard.

As I indicated earlier, the schedule has been extended.

From: "" <>
Date: Fri, 17 Jun 2011 16:57:49 -0400
Subject: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013)

The June 15, 2011 "encouragement" from professor Katz that the Commissioner of Competition be asked to participate in the examination of the June 8, 2011 application by the Association of Universities and Colleges of Canada for the addition of a transactional licence in the Access Copyright Interim Post-Secondary Educational Institution Tariff, 2011-2013 is noted.

The Board is aware of section 125 of the Competition Act. Any resort to this provision in these proceedings would have to be at a much later stage, such as once the evidence and arguments of the parties have been filed. Asking the Commissioner to participate in the examination of an application to amend an interim tariff would be both unhelpful and disruptive.

It would be unhelpful because the Board’s policy with respect to interim tariffs in general, and this interim tariff in particular, is first and foremost to extend the status quo unless convinced to do otherwise. Some may wish to argue that the very state of affairs existing before the interim tariff was put in place raised competition issues. To the extent this is even relevant at this stage of the process, it can be addressed on the basis of the parties’ submissions.

It would be disruptive because interim matters should be dealt with "in an expeditious manner on the basis of evidence which would often be insufficient for the purposes of the final decision." [Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission) [1989] 1 S.C.R. 1722] The participation of the Commissioner would achieve the opposite.

Considering the above, parties will refrain from commenting in any way on the above-referenced encouragement.

Gilles McDougall
Secretary General | Secrétaire général

Copyright Board of Canada | Commission du droit d'auteur du Canada
56 Sparks, Suite| Bureau 800
Ottawa ON K1A 0C9
Telephone | Téléphone 613.952.8624 begin_of_the_skype_highlighting            613.952.8624

(emphasis added)

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