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.
First, it apparently was not happy with the approach of either side on fair dealing and decided to embark upon a methodology of its own without giving the parties an opportunity to comment. It also decided, in contrast to the previous tariff, to included “consumables”.
Indeed, if the Board’s decision - to unilaterally go off on its own on a fundamental issue long after the hearing was over and not consult the parties - results in judicial review, whether or not successful, another year at least will be added to the retroactive effect of this tariff. It could even be a much longer, if the Federal Court of Appeal remits the matter back to the Board – and far longer still if the matter ends up in the Supreme Court of Canada.
Moreover, an old issue is suddenly back and potentially in the foreground. This is the very fundamental jurisdictional question of whether the Board can even render such retroactive rulings, concerning which see more below. Spoiler alert: the “retroactivity” issue is now clearly on the Supreme Court of Canada’s radar screen. This could be a game changer.