Wednesday, March 09, 2016

Access Copyright’s Judicial Review of Provincial Tariff: Initial Intransigence Meets Remedial Overreach and the Road to Redemption

Here’s an update on the Access Copyright (“AC”) Provincial Tariff that is now finally moving along in the process of judicial review, after an unusually slow and unusual start.

To remind readers, as I duly reported on May 22, 2015:
Eleven years ago, Access Copyright filed a tariff seeking $15 for each full time equivalent employee from provincial and territorial governments. 

Its ship has now come home.  But spoiler alert: the ending was not a happy one for Access Copyright. The ship was not full of riches as expected. Instead, the Copyright Board has awarded only 11.56¢ - that's indeed ¢ and not $ and not a typo - per employee per year or 0.0077, i.e. less than 1%, of what Access Copyright asked for. That is for the period of 2005-2009. The rate goes up to 49.71¢ per employee for 2010-2014. But that is in turn only about 2% of the $24 per employee that Access Copyright asked for.

These low rates may be contrasted with the much more generous rates that the Board recently awarded to AC for its K-12 Tariff, of which I shall have something to say in due course.

The judicial review (in layperson’s language “appeal”) process started off with an epochal procedural wrangle precipitated by AC’s basic, inexplicable and fundamentally erroneous failure to serve complete Rule 306 affidavit material containing all the material that it that would need to support its eventual memorandum of fact and law and its Rule 309 record. For whatever reasons, AC did not include a very large number of the basic documents that were used at the Copyright Board in its Rule 306 Affidavit that it eventually purported to submit to the Court in its JR Rule 309 Record – after the Respondents had duly served their material pursuant to Rule 307.  Federal Court nerds may possibly find this interesting. Almost certainly, nobody else will. But it is important – because the rules are there for a purpose, and AC’s failure in this case was potentially prejudicial to the Respondents.

The Respondent provinces and territories eventually reacted with a motion, given their unsuccessful informal attempt to get AC back on track in terms of the very clear Federal Courts Rules that had been ignored. Soon, the parties were “knee deep” in motion commotion. Without going into excessive detail, the Court was, in the result, apparently upset with both sides.

The Federal Court of Appeal basically said “A Pox on Both Your Houses”.  Frankly, it’s a little surprising that AC somehow escaped without getting punished with costs - since it was AC’s obvious error that started this entire encounter and the Respondents were forced to respond with some kind of motion. Nonetheless, here’s the bottom line of FCA’s November 26, 2015 procedural ruling – from Justice Stratas, a noted expert on the art of advocacy:

[34]           This motion was about a minor, fixable mistake. As long as humans are involved in litigating cases, no matter how much they try to prevent mistakes, mistakes like this will sometimes happen, even by excellent counsel. Happily, most procedural mistakes, like the one in this case, do not seriously implicate clients’ rights. Mistakes of this sort should be nothing more than a minor inconvenience during the drive to the ultimate destination—a judicial determination on the merits that to all is proper and fair.
[35]           But here, the parties pulled over to the side of the road and stopped to fight, forgetting the destination. After Access Copyright made its mistake, the respondents wrote, pointing out the mistake. Despite the clarity of the relevant rules, Access Copyright dug in its heels, maintaining its position rather than reassessing it. In reaction to that, the respondents brought their motion. But they too showed inflexibility, forcefully asserting their position that Access Copyright should be prevented in the judicial review from using any of the material it improperly included in its application record, whether or not it was needed by the Court. In counter-reaction to that, Access Copyright brought a counter-motion—one that in the end is unnecessary for this Court to determine—proposing a lesser, more practical remedy. In that counter-motion, it laudably advanced submissions showing an awareness of its mistake. But that changed nothing: everyone has remained stuck on the side of the road.
[36]           All have acted in good faith, representing their clients’ interests vigorously, advocating their positions with characteristic excellence. But here initial intransigence begat a motion with remedial overreach, and remedial overreach begat a counter-motion. Forgotten was the destination: this Court, as a practical problem-solver, simply wants to determine the judicial review properly and fairly on the merits, using a proper and fair evidentiary record. The focus should have been on a fix, not a fight.
[37]           An order shall issue in accordance with these reasons. There shall be no order for costs.
(highlight added)

Anyway, after an avoidable delay of several months, the case somehow now lurches forward finally on the merits. No doubt, the Parties will be on their best redemptive behaviour in terms of following the rules and focussing on principles and not on procedure.

Here are the seven points that AC considers to be “in issue”:
1. What is the standard of review to be applied with respect to the challenges to the Decision advanced by Access Copyright?
2. Did the Board exceed its jurisdiction by removing the Deletion Provision, the effect of which was removing the making of digital copies as a class of use under the second tariff (2010-2014)?
3. Was Access Copyright denied procedural fairness in the manner in which the issue of its authority to license digital copying was first raised; and was Access Copyright denied a meaningful opportunity to present its evidence responsive to the issue and have such evidence fully and fairly considered by the Board?
4. Was Access Copyright denied procedural fairness in the manner in which the Board excluded five copying events on the basis that they exceeded the copying limits under the proposed tariffs, despite neither the Respondents nor the Board ever having raised the issue prior, during or after the hearing?
5. Was the Board correct in concluding that the issue of "what constitutes a substantial part of a work" may be determined solely on a quantitative assessment of the portions copied and without regard to whether a substantial part of the author's skill and judgment has been copied?
6. Was the Board correct in assessing fair dealing without regard to the recognized evidential and persuasive burdens or misapplying those burdens given the evidence, or absence of evidence, before it?
7. Was the Board correct in determining that fair dealing is to be assessed without considering the public interest in balancing the objectives of the Act; that fairness is to be assessed in an atomistic and isolated view of the fairness factors; and that the qualitative nature of the amount of the dealing and the aggregate volume of copying are not to be considered in the fairness assessment?

Here are the three factums in the judicial review case, which contain the Respondents’ responses:

·       BC’s Factum


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