Monday, April 29, 2019

The Copyright Board’s “New Leaf”? Not So Much and Not at All


By Jin Zan - Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=43789998

On April 14, 2019 I blogged with great optimism that:
On March 6, 2019 the Copyright Board appears to have turned over one new leaf by asking for comments more than three years after the close of the hearing from “affected persons” on the “feasibility and clarity of the terms of the tariff” with respect to Access Copyright’s proposed tariffs for the Post-Secondary Educational (“PSE”) Institutions.  I reported on this here. Those entitled to comment potentially included lots of people and institutions that may have withdrawn from this nearly nine-year-old saga or may even have never engaged. In the past, the Board has limited acceptance of comments to a short window following the close of the oral hearing.

The invitation resulted in 11 submissions, which have conveniently been made available here from the Board itself – a helpful and timely development and another new leaf in itself. (Publishing filed court and tribunal public documents is a crucial component of access to justice). From the users’ point of view, these submissions feature a comforting degree of consistency and, at the same time, a considerable degree of independent analysis and approach.
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Well – it turns out that the Board intends to disregard and ignore virtually all of the substantive comments regarding:
      1.     the mandatory nature of the tariffs,
2.     the retroactive application of the tariffs,
3.     the structure of the royalties (i.e. FTE vs transactional) and
4.     the scope of acts covered by the tariffs
and presumably many other important submissions from these 11 submissions. It should be noted that these 11 submissions came from very sophisticated parties who responded to the Board’s invitation in good faith and spent a lot of time, resources and expense to do so. Here’s the Board’s Notice dated April 24, 2019 which I reproduce here in full because the Board has apparently not even seen fit to send it to those 11 “affected persons” who went to the trouble of responding to the Board’s invitation.
  
April 24, 2019
[CB-CDA 2019-021]
NOTICE OF THE BOARD
File: Access Copyright – Post-Secondary Educational Institutions (2011-2013
and 2014-2017)

Pursuant to Notice 2019-013, the Board received comments on the draft tariffs. These were provided to the Parties on April 1, 2019. The Parties may now respond to these comments.

The Notice specified that comments are to be on “the feasibility and clarity of the terms of the tariff.” Given the breadth of issues raised by the comments, the Board notes that it is of the view that many issues go beyond “feasibility and clarity.” The Board does not intend to rely on those comments and does not expect the Parties to respond thereto. This includes comments on issues of the mandatory nature of the tariffs, the retroactive application of the tariffs, the structure of the royalties (i.e. FTE vs transactional) and the scope of acts covered by the tariffs. It is also not the case that these issues are new: they were either explicitly made an issue by the proposed tariffs, or their possibility should have been reasonably contemplated (e.g., that a certified tariff may have retroactive effect).

For greater certainty, the Board is of the view that comments made in relation to issues such as record keeping, manner of performing FTE calculations, and specific issues of wording/definitions are within the scope of comments sought by the Notice.

Additionally, while not within the scope of the Notice, the Board notes that certain comments raised the issue of previous payments made for the licensing of material during the tariff period. The Board is of the preliminary view that it does not have the evidence in this proceeding necessary to establish a mechanism in the tariffs that would adjust royalties based on other licensing activities of the user.

The Board asks the Parties to respond to the Board’s preliminary view.

Parties’ responses shall be filed with the Board by no later than Thursday, May 9, 2019.

Gilles McDougall
Secretary General

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It will be interesting to see how the “affected persons” whose submissions are now being ignored in whole or in part react to the above notice, if they somehow become aware of it. Here are some questions I am thinking about that do not necessarily reflect any position of any clients of mine:
      1.     Why did the Board invite submissions from “affected persons” on the “feasibility” of the tariffs – only to now ignore those submissions?
2.     Why has the Board failed to notify the “affected persons” who were invited to make submissions on the draft tariffs that their submissions will be ignored in whole or part and is only interested at this point in hearing further from “the Parties” – which technically means only Access Copyright and Sean Maguire?
3.     Did the Board create a “legitimate expectation” among “affected persons” that their submissions would be accorded fair and adequate consideration?
4.     How can the Board ignore the “retroactivity” issue – especially in the context of this proposed tariff – when “affected persons” may have to try to reconstruct information on course pack content, third party licenses, fair dealing and other considerations going back almost a decade and particularly if the tariff is “mandatory” in any way? How can the Board’s decision to ignore the retroactivity issue in this context be reasonable and how could a lengthy period of retroactivity possibly be feasible in this case?
5.     How can fundamental and even jurisdictional issues such as whether tariffs can be mandatory and to what extent, if any, they can be retroactive not go straight to the core of the “feasibility and clarity of the terms of the tariff”? Surely, if a tariff is inconsistent with the Copyright Act and several Supreme Court of Canada decisions, the “feasibility” of such a tariff would be fundamentally at issue.
Unfortunately, my optimism about new leaves being turned at the Board may have been premature. What I am seeing now looks more like withered leaves. The current situation is unprecedented in my experience with the Copyright Board – which spans more than three decades. 

And that’s not all folks. Wait for my comments on the proposed regulations regarding “Time Limits in Relation to Matters Before the Copyright Board”…

HPK

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