Tuesday, August 23, 2011

Ruling of the Copyright Board re AC's Proposed Tariff: The Province of Alberta's "status as intervenor is terminated".

The Province of Alberta, which is responsible for funding a large portion of the costs of post-secondary education within its borders, has been "terminated" in the current AC tariff hearing.

This is a ruling that could raise many questions. I have highlighted certain portions of the ruling and may comment further.


Date: Tue, 23 Aug 2011 12:53:48 -0400
Subject: Access Copyright - Post-Secondary Educational Institutions Tariff (2011-2013)
Twice in these proceedings, Alberta sought to obtain a status that would allow it to intervene without having to answer interrogatories. Both times the Board refused.

Alberta is now declining to respond to some questions on two accounts.

Alberta claims that it is not responsible for establishing copyright policies for the institutions targeted in the proposed tariff and has no direct responsibility, nor direct knowledge of copyright arrangements made by them. Institutions are autonomous agencies responsible for establishing their own policies and procedures. As a result, Alberta is unable to provide "substantial information" for a number of questions. However, Alberta relies on its strategic interest in these proceedings, due to its role as the primary funding source for these institutions, to ask that it remain as an active intervenor. Access responds that if Alberta can offer no useful information that will assist the Board in setting a fair tariff, its participation as intervenor serves no useful purpose. Alberta replies that its participation is a settled matter, that it has a clear interest and that the perspective of the primary funder is crucial and useful.

Alberta has little relevant information to provide, given its role within the educational system. It wants to provide the "perspective" of the "primary funder" of targeted institutions. It does not intend to file evidence or cross-examine witnesses. This is precisely what the Board would expect of a person acting as commentator pursuant to the Directive on Procedure. The application of Access is granted. Alberta’s status as intervenor is terminated.

Alberta relies on its freedom of information and privacy protection legislation to decline providing documents it claims are privileged or confidential. Access counters that the legislation does not apply, that nothing is personal information and that the Board’s confidentiality order settles the issue. Alberta replies that the legislation either allows or compels it to refuse disclosure.
On the one hand, Access’ comment on personal information is besides the point: Alberta is not claiming that Access seeks to disclose personal information. On the other, Alberta’s non-disclosure claim fails on three accounts. First, paragraph 3(d) of the Freedom of Information and Protection of Privacy Act (Alberta) provides that it "does not affect the power of any court or tribunal in Canada to compel a witness to testify or to compel the production of documents." Second, the exceptions to disclosure on which Alberta relies are for the purposes of dealing with access to information requests and are therefore irrelevant. Third, it is difficult to conceive that provincial legislation could prevent a federal agency from either gaining access to information or at least making the continued participation of a province to a proceeding contingent on gaining such access.

Had Alberta retained its status as intervenor, the Board would have ordered that it answer the questions. Had Alberta wished to prevent disclosure of certain documents, it would have had to rely on the Canada Evidence Act and convince the Board that a relevant privilege or some form of specific public interest justified that the information not be provided to Access Copyright. However, since Alberta hereby ceases to be an intervenor, the issue is moot.
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 613.952.8624Gilles.mcdougall@cb-cda.gc.ca

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