- The recent important precedent of the CRTC “value for signal” case, wherein the Supreme Court of Canada told the CRTC that it, as an administrative tribunal, cannot create new copyright rights that aren’t found explicitly in the Copyright Act or other federal legislation. This is arguably exactly what AC is trying to do here with its mandatory tariff that would give it far more power and rights than any copyright owner or group of owners would have – i.e. to collect millions of dollars for the making of just one infringing copy for which an educational institution is liable of just one work in AC’s repertoire. It's important to note that this Supreme Court case began as a reference from the CRTC to the Federal Court of Appeal - exactly the procedure that Prof. Katz is suggesting.
- The inevitable systemic failure of this hearing to adequately address public interest concerns, given the withdrawal, for whatever reasons, of the two main objectors representing university and college administrations
- The legal issues involved in AC’s “mandatory tariff” or “single reproduction theory” (as Prof. Katz calls it) compel the case for authoritative interpretation at this time by the Federal Court of Appeal. Questions will arise that include construction of the Act, the equitable doctrine of forfeiture, etc. that go to the heart of the Board’s jurisdiction and would be best adjudicated by the FCA. Moreover, Prof. Katz documents two instances where the Board has already opined rather explicitly on this issue in AC’s favour without calling for or hearing submissions.
Gilles McDougall email@example.com
PS - here's Prof. Katz's own blog about his request to the Board.