Thursday, October 16, 2014

The Access Copyright Post-Secondary Hearing – the Narrowing Space Twixt the Rock and Hard Place

As I have suggested before in some detail on April 11, 2014, the Copyright Board is caught between a rock and hard place on the Access Copyright (“AC”) Post-Secondary file and the gap is narrowing.  The withdrawal of the two main objectors – AUCC and ACCC – has not been publicly explained, but may well be for budgetary reasons, since they had already by mid-2012 spent almost three million that we know about to accomplish apparently little if anything other than providing a huge amount of interrogatory information for the benefit of AC and to reach model agreements that have been widely rejected by their own members.

If indeed their withdrawal was for budgetary reasons, perhaps a lot of money could have been saved (not to mention time and resources amongst their members) if they had followed the well-established practice of responding to interrogatories only from a representative sample of members – as explicitly though belatedly reminded by the Board on June 6, 2011. Perhaps the Board assumed that they would have done just that. However, their failure to follow this practice remains unexplained, at least in public.

Unfortunately, it only now appears that a very large number of universities and colleges may have spent an incalculable amount of time providing answers that could turn out to have been unnecessary. Even the smallest of the two hundred or so affected institutions has probably spent hundreds of person/hours on this process. One can only imagine the resources put in by the larger ones. 

In any event, this is water under the bridge and the AUCC and ACCC have indeed withdrawn, and also inexplicably withdrawn their objections, paving the way for a default decision that may be very harmful for their members and which may leave their members in a very difficult if not impossible position in terms of judicial review or other recourse in the event that there is a “mandatory tariff” and Access Copyright sets about to enforce it. The situation will be even more serious if York loses its litigation against AC, which won’t even get to trial before May of 2016.

In any event, the Board is clearly troubled by this situation and has issued no indication as to how it will proceed with a hearing in this file since its cryptic notice on January 17, 2014 that:
Finally, the withdrawal of CAUT and CFS as well as Mr. Katz implies that the Board staff needs to play a more active role in the file.
For these reasons, and because of the additional drain on Board's resources this implies, the Board postpones sine die the hearing in this matter. After having received and analysed all answers from Access, and replies from Mr. Maguire, the Board will either decide when to reschedule the hearing or proceed on paper

Now, it seems that even Access Copyright is getting worried. It recently filed this letter dated October 6, 2014  with the Board. The letter says:
In Access Copyright’s submission, an oral hearing is needed as a matter of procedural fairness and in view of Access Copyright’s reasonable expectation, based on directives and Notices of the Board, that there would be an oral hearing. The Directive on Procedure issued by the Board on October 16, 2012 stipulated that an oral hearing will be held. Notices issued by the Board on a number of occasions before Access Copyright filed its case1 confirmed that the Board would be holding an oral hearing. Access Copyright accordingly filed its case in the reasonable expectation that there would be an oral hearing. The Board adjourned the hearing sine die only after Access Copyright had filed its case. Given the reasonable expectation created by the Board’s directives and Notices, Access Copyright respectfully submits that the principles of natural justice and procedural fairness require that an oral hearing be scheduled in order to permit Access Copyright to put its entire case before the Board.

There remains one objector, Mr. Maguire, in these tariff proceedings. It is not the fault of Access Copyright that the Association of Universities and Colleges of Canada (“AUCC”), the Association of Canadian Community Colleges (“ACCC”) and other institutions and individuals all withdrew as objectors. Access Copyright should not be prejudiced by the decision of those objectors to withdraw. We note that the Board has held hearings in other proceedings where there have been no objectors.
(emphasis and highlight added)

It is quite clear that AC is setting the stage for judicial review here, if for any reason the default proceeding does not go their way and as far they want it to go, i.e. to a “mandatory tariff” that could render a large university liable for millions for making just one infringing copy of just one work that happens to be in AC’s repertoire, no matter how much money and effort that the university has spent in good faith on other means of copyright clearance and compliance.

This file has been plagued with problems from the beginning, not least of which was the interim tariff imposed on the eve of Christmas  in 2010 and the blatant failure of the AUCC and ACCC to even try have it set aside, which may have been quite possible at the time on several grounds as I have outlined many times.

The current system in place at the Board is based upon the adversarial system, which has fundamentally failed in this instance due to the withdrawal of the main adversaries.

The members of the AUCC and ACCC have a lot to be worried about. But so does AC. This is not a pretty picture.

An oral hearing would provide at least some measure of transparency. It would provide the Board with an opportunity to publicly question AC’s witnesses to the extent that the Board believes it can and should do so, and to the extent of the Board’s resources, given that the Board does not seem to be contemplating the involvement of an amicus curiae. It would give the public the opportunity to attend and some basis to provide informed written comments, pursuant to the Board’s usual Directive on Procedure, especially if the Board were to promptly post a transcript of the hearing and set a deadline that would allow for meaningfully sufficient time for such comments.  

Perhaps the Board should grant AC’s wish, with AC being mindful, as many copyright collectives and NGOs have learned the hard way, of the old adage about being “careful what you wish for.”

It may fall to the next Chair of the Board to decide how to proceed, since the past Chair’s appointment expired on May 13, 2014 due to the operation of the statute. In any event, the silence is beginning to get louder and the suspense is building.


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