The Copyright Board’s Access Copyright Post Secondary Decision: The Incorrect Correction

(Federal Court of Appeal)

In the very fraught file concerning Access Copyright’s quest for a post-secondary tariff, the Copyright Board issued a decision on December 6, 2019 and certified a tariff dated December 7, 2019. The tariff application was almost a decade old. It had been almost 4 years since an effectively uncontested hearing had taken place in January of 2016. As I’ve indicated, the timing was nothing if not interesting and, for whatever reasons, there has been no attempt at judicial review. That may be in part because the Board explicitly took no position on whether the tariff is “mandatory” and that question, as everyone knows, is pending in the Federal Court of Appeal and may be headed once again to the Supreme Court of Canada, which will presumably, if necessary, confirm that it said what it meant and meant what it said in 2015 about tariffs not being mandatory for users in the CBC v SODRAC case argued  by yours truly on behalf of Prof. Katz and Prof. David Lametti as he then was, and his CIPP institute at McGill.

The Board’s certified tariff dated December 7, 2019 contained a serious arithmetical error that would have doubled the tariff, which the Board corrected on December 28, 2019.

However, the Board’s decision of December 6, 2019 contained other errors that the Board has attempted to correct by means of an email – NOT a formal notice – on Wednesday, February 12, 2020. Essentially:

1. The Board mistakenly referred to the Federal Court rather than the Federal Court of Appeal. This is very embarrassing for whoever drafted the decision and whoever was responsible for proof-reading it. The Board has a very large staff considering its very limited caseload. This staff includes five lawyers and an articling student. It has been about three decades since the Federal Court, in contrast to the Federal Court of Appeal, has been involved in any review of Copyright Board matters. Even first year law students quickly learn the difference between the Federal Court and the Federal Court of Appeal. Surely everyone at the Board knows the difference. That makes it even more astonishing that this error wasn’t caught.
2. More seriously, the Board had erroneously referred in its December 6, 2019 decision to a non-existent attempt by Prof. Ariel Katz to ask the Federal Court of Appeal to review the Board’s refusal of his request for a reference to the Federal Court of Appeal on a question of law. That was not only false and misleading. It cast Prof. Katz in a less than flattering light and showed the Board’s lack of familiarity with an important milestone in this long and still very much unresolved file.
3. The Board has confessed to the first error – but notably ignores the second and far more serious one in its emailed notice.

These errors involve none other than Prof. Katz, who provides full details of all of this on his blog entitled Oops, the Board did it again, and again, and again,  along with details of the more serious substantive error of the Board in completely ignoring in its decision the important evidence that Prof. Katz had duly provided to the Board on the crucial issue of Access Copyright’s repertoire – and notable lack thereof.

The Copyright Board apparently doesn’t even deem it necessary to indicate that the decision has now been corrected and revised. To date, there has to date been no official “Notice” on the Board’s website. The failure of the Board to deal adequately with these errors has now resulted in the existence and likely persistence of two “official” versions of this decision, one of which contains on its face a rather significant error that the Board has not even acknowledged and apparently doesn’t wish to acknowledge.

HPK