AUCC also calls for delay @ Copyright Board citing "procedural fairness" Concerns

Following the submission of Prof. Katz last night, but in different terms, AUCC has also now called for a delay in the Board’s scheduled deadline of December 10, 2010  to respond to AC's application for an “interim decision” and “interim tariff”.  See this letter from Glen Bloom dated December 7, 2010. Mr. Bloom also raises the question of “procedural fairness”.


Note that this request for an extension of time of one week  is much shorter than that called for by Prof. Katz.


HK

Prof. Ariel Katz's Submission to Copyright Board - Dec, 6, 2010

Prof. Ariel Katz is a an expert in copyright and competition law and teaches at the University of Toronto Faculty of Law, where he is Innovation Chair, Electronic Commerce Director, Centre for Innovation Law and Policy. He is also an "intervenor" as ruled by the Copyright Board – though he asked to be an "objector" – re AC’s proposed $45/$35 tariff for 20111-2013. Here’s his important submission to the Board dated December 6, 2010:

HK

***************************************************

From: Ariel Katz

[email addresses omitted]

Sent: 12/6/2010 11:14:06 PM

Subject: Urgent Request for a Temporary Moratorium

Dear Mr. McDougall:

Although the Board denied my application to extend the period for responding to Access Copyright's Application for an Interim Decision, I urge the Board to order a temporary moratorium on its consideration of AC's Application.  This is without prejudice to other arguments below, including an argument that the present application for an interim tariff should simply dismissed, and without prejudice to any argument that I fully reserve the right to make should this proceeding go forward. Cleary, if the Board is prepared to dismiss the application at this time, there is no need for a moratorium.

Under the current circumstances, which have changed fundamentally since last Friday, it will be impossible for me-and I believe for any other party in these proceedings-to respond adequately to the application.  I write "application" with a lower-case "a", because at this point it is very difficult even to determine what document constitutes the application that I, as a party, has to respond to.  The application, at this point, seems to have become a rapidly moving target.

As per the Board's instruction from last Friday, AC sent yesterday a "draft interim tariff".  It is a new document-in effect a new "licensing scheme" within the meaning of s. 70.1 of the Copyright Act-intended to take effect Jan. 1, 2011.   Leaving aside for the moment the important question of whether the clear deadlines and language requirement set in s. 70.13(2) of the Act, as well as the requirements of s. 67.1(5), will be circumvented if the Board proceeds to consider this application, the simple reality is that practically impossible to respond to the application (whatever the application may be) within the extremely short period prescribed by the Board.

The Board's order from today, asking AC to provide further clarification by the end of Wednesday, Dec. 8, 2010 further emphasizes the difficulty of responding to the application.  It demonstrates, on the one hand, that even the Board finds it difficult to fully understand the terms of the application.  At the same time, the Board's order aggravates the problem the responding parties face if they need to respond to the application within less than two working days.

Let me state very briefly, and without prejudice to any other argument, just a few problems demonstrating the serious lack of procedural fairness that would result if the parties would have to respond to this unprecedented application by this Friday.

1)      For many participants in this proceeding, this is an extremely busy and stressful time of year.  Instructors need to draft and mark examinations within very strict deadlines, students need to write exams.  University administrators and librarians, which clearly need to be consulted if an informed response to the application is to be made, are also extremely busy making sure that these critical days in the life of an academic institution proceed without disruption.  It is very difficult for instructors, students, administrators and librarians, to set these firm commitments aside and devote considerable time to analyze the language of the new application and address the novel and unprecedented legal question that it brings forth.

2)      The "draft interim tariff" combines some elements from the expiring AUCC Model License with elements from the Proposed Tariff.  This combination is significantly different from both the Proposed Tariff, the Model License, as well as from the combination contemplated in AC's letter of Oct. 7, 2010.  Understanding what the new proposal is and responding to it within 4 days is impossible.  The need to provide wide notice with ample time for all prospective users to analyze a proposed tariff and respond to it has been acknowledged by Parliament, when it provided a period of 60 days to file objections.  The Board should follow this rule.

3)      The uncertainty of the situation is confirmed and will be exacerbated by the delivery of yet more material by Wednesday, December 8, 2010. With all respect, it is not the Board's role or responsibility to accommodate the inadequacy of AC's material and in so doing to cause prejudice to the position of objectors and intervenors.

4)      AC's counsel letter of Oct. 7, 2010 refrained from using the term "interim tariff", and insisted on using the term "interim decision".  It further emphasized (in footnote 13) that the benefit accorded to users by s. 70.17 of the Act, will not apply in the present case.  Does the fact the AC presently uses the term "interim tariff" mean that s. 70.17 will apply? Will the corresponding s. 68.2(1) apply?

In light of the above, I think all parties would benefit from having a moratorium of several weeks on this application for an interim tariff.   If the application proceeds, it should be heard orally in light of the complexity, controversy, and unprecedented nature of this application. I specifically request that the hearing be an oral one and that I be allowed full participatory rights at this hearing, either with or without counsel as I may later decide.

Naturally, there is another option. For reasons such as those outlined by Howard Knopf today on his blog (his earlier blog posting today can be found at: http://excesscopyright.blogspot.com/2010/12/confrontation-at-copyright-board-big.html , there are compelling reasons why the Board could and should summarily dismiss this application at the outset. Naturally, if the Board so rules based on its current schedule, there will be no need for a moratorium and I would accept such a ruling which I believe is called for and would not result in any difficulties that could not be resolved with good faith on the part of those concerned.  All parties will benefit from using their resources and the skills of their legal advisors to find solutions to whatever licensing problem they face, if any, rather than spending them on trying to respond to moving targets.

Indeed, dismissing the present application may have the salutary effect of creating a market place environment wherein rationale economic and legally sound solutions can be negotiated, consistent with the intent of the legislation and the Board's commendable emphasis over the years on rates and conditions that emulate market place proxies or preferably even realities.

I would stress that there is no urgency in deciding anything prior to the end of this year.  Presumably, all course packs for the winter term have already been printed or will be printed prior to the expiry of the current licenses and there should be no serious disruption in the work of academic institutions.  In the case of digital copies, most academic institutions already have in place contractual relations with various publishers and other content providers (see, e.g., the License Information Database set up by the UBC Library, at http://licenses.library.ubc.ca/).  These arrangements authorize the academic institutions to access and use to a repertoire that is clearly wider than that which AC can legally authorize.

If any academic institution still feels a need to obtain a license from AC on an interim or permanent basis, there is no reason why AC and the institution will not be able to agree on that, and should they fail, they can always seek the Board's assistance as an arbitrator, as per s. 70.2, or perhaps in some other capacity as proposed by Mr. Knopf.

I would therefore suggest that the Board dismiss the present application, or at least provide a significant moratorium to allow all parties fairly to understand the application and formulate their response.

Best regards.

Ariel Katz

Associate Professor

Innovation Chair, Electronic Commerce

Director, Centre for Innovation Law and Policy

Faculty of Law, University of Toronto

78 Queen's Park

Toronto ON, M5S2C5

Tel: (416) 978-8892; Fax: (416) 978-2648

e-mail:  ariel.katz@utoronto.ca

http://www.law.utoronto.ca/faculty/katz

__________________________________

P.S. Please view works on SSRN at http://ssrn.com/author=114637.  You can also see my selected writings site and sign up for notifications of my new work:  http://works.bepress.com/ariel_katz/.

More Confusion At the Copyright Board - more time for AC to get it right?

Here’s the latest from the Copyright Board from this afternoon. If the Board can’t figure out what AC is up to, how are all the objectors and users supposed to do so? Interesting comment re French version. S. 70.13 requires new tariff to be filed in BOTH official languages. 

 

This is another example of why the interim tariff should be refused outright at this time  - or a lengthy delay and oral hearing should be provided to ensure fairness.

Wednesday - (or is it today December 6???) - gives objectors and intervenors virtually no time respond to yet more surprises by new due date of Dec. 10. 

This is shaping up to be very questionable from a "fairness" standpoint.

HK

PS - the Board has corrected the error referred to above:

Please note that in the Order below, which was just released, the first line of paragraph 1) should have read:

 

1) Access shall file, no later than by 5 p.m. (EST) on Wednesday, December 8, 2010 (and not Wednesday, December 6, 2010):

 

We apologize for any inconvenience this might have created.

That's not enough time in my view. It gives the objectors only two days to respond to the full picture, whatever that may be. AC has had years to figure this out. 

**********************

From: "Gilles.McDougall@cb-cda.gc.ca" <Gilles.McDougall@cb-cda.gc.ca>
Date: Mon, 6 Dec 2010 15:54:47 -0500
To:

[email addresses omitted[

Subject: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013)

ORDER OF THE BOARD

Further to Access Copyright filing a draft interim tariff pursuant to the Board's notice of December 3, last, the Board further orders as follows.

1) Access shall file, no later than by 5 p.m. (EST) on Wednesday, December 6, 2010:

    (a) a table indicating precisely the source for each provision of the proposed interim tariff. If any provision in the interim tariff is new, its purpose shall be explained.

   

    (b) a table correlating the model licence with the provisions of the proposed interim tariff. Where a provision of the licence is not in the interim tariff, an explanation shall be provided.

Any question Access may have in this regard should be directed to the Board's General Counsel.

2) Access shall also file at the same time any existing French version of the model licence or any other licence.

Gilles McDougall
A/Secretary General | Secrétaire général par int.

Copyright Board of Canada | Commission du droit d'auteur du Canada
56 Sparks, Suite| Bureau 800
Ottawa ON K1A 0C9
Telephone | Téléphone 613.952.8624



Gilles.mcdougall@cb-cda.gc.ca

Confrontation at the Copyright Board? Big Problems - Proposed Solution

Yesterday, on a snowy Sunday afternoon, with a deadline to object looming in five business days as Christmas approaches, AC sent out this new proposal labelled “Draft Statement of Interim Royalties to Be Collected by the Canadian Copyright Licensing Agency (Access Copyright)”. Here's the covering email.

In other words, this is a proposed supposedly binding interim tariff that will likely last for the SEVERAL years (probably at least four) required to resolve the proposed tariff before the Copyright Board and the Federal Court of Appeal, given the history of previous files at the Board. BTW, the proposed tariff on its face will expire at the end of 2013.

This latest iteration of an “interim tariff” is substantially different than anything seen to date. It combines some elements of the old expired agreements and some elements of the new proposed tariff. It does not include the “indemnity” scheme, which, although very controversial,  served a useful purpose by getting around AC’s problem of lack of repertoire for practical purposes.

The Board would be well within its power and arguably is indeed  required  to dismiss this application for an interim tariff outright for any one of the following reasons, amongst others:

•    It is a vague and imprecise moving target, of which inadequate notice has been given. There are only five working days notice to consider the legal and practical ramifications of a brand new document that changes many if not most of the rules and moves the goal posts to unclear new places;
•    It offends the Board’s own precedents because there is no previous tariff in place and AC doesn’t need and doesn’t deserve to get funding from its adversaries; 
•    The Board lacks statutory authority to grant this interim tariff, for several reasons, not least of which is s. 70.13 of the Copyright Act, which requires that any new tariff be filed by March 31 in the year preceding the proposed application of the tariff. To repeat, AC does NOT have a previous tariff in place;
•    It is intended to impose a mandatory regime that will likely last for at least four years on institutions that may well have regarded the previous voluntary arrangement as unsatisfactory and may have been planning in good faith and perfectly legally to do without AC by using internal material, source licencing, open access material, e-reserves, etc., etc.; 
•    Even the new proposed tariff does not purport to go beyond 2013 - and there could be all kinds of problems with eventual retroactive application of a new tariff and/or refunds (although the latter are unlikely, given past history at the Board) if this interim tariff is in place. In fact, if AC’s cash possible flow problems are as dire as it claims in their letter of October 7, 2010, it may be unable to pay any refunds due and there are good arguments that any new tariff should be substantially less than amounts that the recently expired regime imposed (i.e. with the full implications of  CCH v. LSUC duly considered); and,
•    The interim tariff is, in effect, a sweeping mandatory injunction to pay a LOT of money and forfeit a lot of academic freedom through unduly restrictive provisions (post CCH v. LSUC) when NONE of the three required tests for an injunction are met here (serious issue, irreparable harm, and balance of convenience) and AC has created the very problem that it now wants to resolve.  Besides, the Board is not a Court, which has far greater inherent jurisdiction, and even a Court must follow the statute.

There is a solution to this very convoluted situation which is causing considerable stress on post secondary institutions of all shapes and sizes and their administrators, faculty and students at one of the busiest times of the academic and personal year for everyone concerned.
   
The solution is this:

1.    The Board could “bless” a voluntary licensing scheme under the old rates and conditions for those institutions that may wish to use it, with suitable amendments, such as including the indemnity scheme, etc. The Board would make it clear that institutions that wish to remain outside of this regime are free to ensure that they comply with copyright obligations in any manner that they see fit.  It goes without saying that such compliance could include voluntary transactional licenses with AC, if such licenses are available on reasonable negotiated terms;
2.    AC should withdraw its deeply flawed proposed tariff for 2011 to 2013. It is ridden with problems such as its references to linking, display etc. that can’t be sustained under the legislation, the extraordinarily privacy invasive and arguably illegal reporting arrangements, etc. This tariff, as framed, will likely drag on for years before the Board and the Federal Court of Appeal, and very likely the Supreme Court of Canada at enormous costs to all concerned. Even AC will eventually feel the costs pain; and,
3.    AC should file a new and more reasonable licencing scheme by next March 31, 2011 for a five year period that would reflect what the legislation (possibly new legislation) provides and respects the needs of post secondary institutions. Such a proposed regime should available to institutions that want it and optional for those that don’t. If reasonable and if developed in a consultative manner, it would encounter far less resistance - possibly none - and come into effect much sooner and at much less legal costs for all concerned than the current proposal - which is arguably the most problematic proposed tariff that has ever been filed at the Board. And I say this as a veteran of the private copying wars.

HK

PS - here's the submission of BCAIU dated December 6, 2010.

Curiouser & Curiouser @ Copyright Board's AC Hearings

Here’s another extraordinary ruling below from the Board from earlier today offering AC a chance to rehabilitate its clearly vague and inadequate material to date in support of an interim tariff.

This is another illustration of the fact that objectors or intervenors really can have no idea of what is actually being sought here and to what they must respond on a few day’s notice. For example:

• There is a world of difference between a “license” (which one can take or leave) and a tariff, which arguably has the force of law (leaving aside questions such as whether it was validly issued or whether an “interim” tariff can ever have such a force).

• AC did not even ask for an “interim tariff” as such. The “relief sought” in AC’s former lawyer Barry Sookman’s letter of October 7, 2010 asks rather for a decision “licensing the respondents for the uses described in the proposed Tariff” and requiring compliance with certain aspects of the Existing Agreements, such as record keeping, payment, auditing, and sampling.

• Will the post-secondary institutions get the benefit of the “indemnity” arrangement that was previously in place? As dubious as this was from a legal standpoint, it was perceived as very useful and valuable by many parties as long as nobody asked too many questions.

This is quickly morphing into something completely different - and as yet unknown - from what AC’s asked for in the letter of October 7, 2010 that was not even provided to about 99 of the 101 initial objectors.

The lengths to which the Board is going to accommodate AC in this case are very interesting and noteworthy. Given the vagueness, inadequacy, inaccuracy and even uncertainty of the material filed, and the incredibly short time lines and the apparent decision of the Board not to convene an oral hearing on this matter, issues  are bound to arise with respect to fairness, jurisdiction, etc. that could well raise questions that could be pursued on judicial review.

HK

**************************************

From: "Gilles.McDougall@cb-cda.gc.ca"

Date: Fri, 3 Dec 2010 11:31:17 -0500

To: [email addresses omitted]

"Subject: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013)

NOTICE OF THE BOARD

The Board has received from Access Copyright the royalty rate information it requested in its order of November 26, 2010. Whether the application for an interim decision will be granted remains an open issue. However, if the application is granted, it is probable that the decision will take the form of a tariff, not a licence. For this reason, the Board would appreciate receiving forthwith from Access Copyright a draft interim tariff that reflects the terms of the model licences, with such modifications as necessary.

Gilles McDougall

A/Secretary General | Secrétaire général par int.

Copyright Board of Canada | Commission du droit d'auteur du Canada

56 Sparks, Suite| Bureau 800

Ottawa ON K1A 0C9

Telephone | Téléphone 613.952.8624

Gilles.mcdougall@cb-cda.gc.ca

**************************************

AC's Tries Negative Option to Sustain Digital Rights Licensing

As I pointed out on October 26, 2010:

Many if not most creator and publisher affiliates have refrained from giving AC any digital rights.

It now looks like AC is going to attempt use a "negative option" scheme to get digital rights it currently does not have in order to try to sustain the basis of its proposed $45/$35 tariff.

Previously, creators were asked to specifically agree and check off their agreement to license a the "digital conversion right" and the "digital importation right". Now, AC is apparently purporting to do this by negative option. Here is the November 15, 2010 communication (with my highlight and underline) to creator affiliates, of which I am one. Here is the key excerpt:

Access Copyright's board of directors also approved a change in the way we license works for digital uses. We will now license the scanning and posting of works from a paper source the same way we currently license photocopying; on an exclusions basis. This means that, unless you tell us otherwise. we will license users to scan, post and distribute portions of your works.
(emphasis added)

Based upon the documentation I have seen, this simply won't work. It's an attempt at a unilateral amendment not permitted by the basic agreement. If there is other documentation or an opinion that AC will reveal that leads to a different conclusion, I'd like to see it. Moreover, this seems like a pretty explicit admission that, at least in respect of creators, AC does indeed lacks the digital rights for which it is all ready to collect about $50 million a year, i.e.the difference between the $11 million it now collects and that $60 million it seeks. The current publisher affiliation agreement also holds back digital rights, unless specifically agreed to - so it may be that AC is also trying to rely on "negative option" with the publishers as well.

Hopefully, this will be raised before the Copyright Board, which will hopefully reach the right conclusion. If intellectual property is to be taken seriously as "property", then "chain of title" matters.

There is stormy weather is ahead for AC, if AUCC or ACCC choose to push this button. If they don't, others definitely should.

HK

AC's proposed $45/$35 Tariff - Board Ruling of Nov 25 2010 on Intervenors etc.

Below is the Board’s response of November 25, 2010 to the submission below of AC and others that were filed in response to the Board’s November 23, 2010 deadline. The Board rarely moves this fast. This is really getting to be quite interesting.

Here are some brief comments:

• The Board will be treating all “intervenors” in effect as full objectors (although it is still hedging its bets to some extent here) – i.e. “unless absolutely necessary”
• This probably means a big fight ahead for these intervenors to stave off interrogatories that will very likely be overly onerous, unnecessary, irrelevant and designed to force them out of the hearing or to severely limit their ability to fully participate
• The Province of Alberta, which seemed to want a mores specifically defined role, is being told that it must accept a full role and responsibility in effect as a full objector (i.e. with interrogatories) and that this will the be the case “unless absolutely necessary” – whatever that means.
• The Board’s emphasis on treating “all participants equally” is not necessarily a good thing. As Ariel Katz reminded us from Orwell, "All animals are equal, but some animals are more equal than others." Obviously, not all participants have budgets of several million dollars a year to spend on lawyers and “expert” consultants, surveys etc.

Clearly, many of the participating intervenors are involved in this process because they have insufficient confidence that the main objector, AUCC, will adequately deal with their interests. Many participants do not believe that cutting the proposed $45/$35 amount more or less in half (as the Board usually does) and taking out some of the more over the top aspects such as paying for non-existent linking and display rights and the absurdly privacy invasive and very likely illegal reporting requirements would be a “victory”. It would seem almost to be a foregone conclusion that this much can be achieved without extraordinary effort. Oddly enough, however, the AUCC has not even been this explicit in its objection, which is noticeably less vigorous than that of other established institutions.

A real victory would be a either no tariff or a an essentially nominal tariff based upon rights that AC actually has in repertoire that it actually has that results in much less cost overall now that we have seen several years elapse following the 2004 Supreme Court decision in CCH v. LSUC. For reasons that are far from apparent, AUCC negotiated renewed arrangements following CCH v. LSUC at the same rates as were in place before. Those arrangements are expiring this year. There is finally an opportunity to pay much less. Moreover, paper course packs are becoming obsolete. It should not be a question of how much more should be paid – but rather how much less, if anything,

As for repertoire outside of AC, there are many ways of dealing with it – ranging from direct licensing to creative and legal use of e-reserves to forming a new academic based collective.

At any rate, the remaining participants will have a lot of challenges ahead of them and both AC and likely AUCC will want to see as little of them as possible. Let’s hope that this brave group of independent intervenors stays the course and finds a way to get their views across without having to spend a lot of money. Money is not a problem for either AC or AUCC which are both using taxpayer’s and students’ money they have collected from universities and colleges. Both these institutions have budgets in the millions for this exercise.

Back to the November 25, 2010 ruling, AC’s new lawyer, Randall Hofley, who has replaced Barry Sookman, had sent the following to the Board on November 23, 2010:

Mr. McDougall:

I write, on behalf of Access Copyright, in response to the Board's Notice below. It is our understanding that the Board invited (in the Notice below) Access Copyright (and others) to provide its views as to whether "the government of Alberta [and] teachers, students and staff from the targeted institutions", being the "potential intervenors", should be granted "intervenor status with full participatory rights, in effect allowing them to act in these proceedings as if they were objectors" (setting aside "issues of duplicative representation or overlapping argumentation at this stage"). Please be advised that Access Copyright does not contest the Board's discretion to accord these potential intervenors the status suggested by the Board.

Access Copyright notes, however, that at least one such potential intervenor, Prof. Katz, and perhaps other persons whose submission we have not yet been provided, has responded to the Board's Notice, inter alia, by making legal submissions as to the Board's jurisdiction to confirm or deny a party's status as an "objector" within the meaning of the Copyright Act, effectively responding to Access Copyright's correspondence of September 22, 2010. It was not Access Copyright's understanding that such a submission was contemplated by the Notice. However, to the extent that any such submission(s) will be considered by the Board in its future deliberations on the status of the various parties who filed objections in this matter, Access Copyright requests the right to reply to any such submission(s) on an expedited basis.

I would be pleased to discuss the above request should the Board find that of utility.

Regards,

Randall Hofley

Partner | Blakes

The November 23, 2010 Boar ruling in response to the November 23, 2010 submissions follows below.

RULING OF THE BOARD

In its Notice of November 15, 2010 (the "Notice"), the Board acknowledged as objectors the Association of Universities and Colleges of Canada, the Association of Canadian Community Colleges, Athabasca University and the British Columbia Association of Institutes and Universities.

The purpose of this Ruling is to identify those who may participate to the examination process of the above-referenced proposed tariff as intervenors with full participatory rights.

1) In its Notice, the Board stated that it was inclined to grant to certain persons intervenor status with full participatory rights, in effect allowing them to act in these proceedings as if they were objectors. No one is challenging the participation of these persons. These persons were informed of the rights and obligations of such intervenors and were asked to confirm whether they wished to remain as participants. The following persons, who provided the confirmation the Board requested, are granted status as intervenor with full participatory rights: Mr. Sean Hunt, Mr. Ariel Katz, Mr. Sean Maguire, Mr. Mark McCutcheon, Ms. Meera Nair, Ms. Nancy Pardoe, Mr. Jay Rahn, the Canadian Alliance of Student Associations, the Canadian Association of University Teachers (CAUT) and the Canadian Federation of Students (CFS).

2) Alberta was one of the persons to whom the Board was inclined to grant intervenor status with full participatory rights. The province now asks that its participation be limited to receiving copy of evidence and arguments, filing a statement of case, calling witnesses and presenting oral or written arguments. Given the number of participants, the Board does not intend to treat some of them differently unless absolutely necessary. Alberta is asked to confirm by no later than Tuesday, November 30, 2010, whether it wishes to remain as intervenor with full participatory rights and obligations. If not, Alberta will not be granted intervenor status.

3) In its Notice, the Board expressed the preliminary opinion that the participation of certain persons would not be of assistance in these proceedings. These persons were invited to indicate the extent and nature of any association they may have with any post-secondary educational institution outside of the Province of Quebec targeted in the proposed tariff if they wished to be granted intervenor status in these proceedings. Only Mr. Pat Donovan and Mr. Jason Koblovsky responded to the Board’s Notice. Both failed to disclose any association with a targeted institution. Neither did they offer any evidence that they may be prospective users or reasons that would lead the Board to conclude that their participation may be of assistance. A mere statement that one is "covering" the public interest or that the proposed tariff’s terms are unfair are insufficient to establish a person’s status or to explain the contribution she may make. Consequently, these persons will not be granted intervenor status.

4) In its Notice, the Board asked three persons to clarify whom they intended to represent. Ms. Liz Fulton-Lyne stated that she intended to represent Yellowhead Tribal College, Mr. Sandy Ayer, Ambrose University College and Mr. Brad Neufeldt, St. Mary’s University College. All asked to remain as intervenors with full participatory rights. The Board grants their request.

5) As stated in the Notice, notices of objections filed by any person other than those to whom this Ruling grants intervenor status will be treated as letters of comment and will be made part of the official record of these proceedings. The Board members who will hear the matter will consider them before reaching their decision. These persons are still permitted to consult the public record and to comment in writing on any aspect of the proceedings until the date set for the filing of final arguments, as are all members of the public.

6) Anyone even remotely familiar with how the Board proceeds knows that as a matter of course, the Board treats all participants equally, be they collectives, objectors or intervenors: they enjoy the same rights and are required to comply with the same obligations. Indeed, in the few instances where the Board has treated an intervenor differently, it has been usually, if not always, at the request of the concerned intervenor.

In these proceedings, intervenors and objectors will be treated identically unless circumstances dictate otherwise and being identified as one or the other will be of no practical consequence. As a result, and as was stated in the Notice, it is not necessary to rule on whether persons who filed notices of objection and who are allowed to participate as intervenors are proper objectors. Furthermore, since all participants who complied with the Notice are in effect being granted everything they asked for, there is no need to either afford them the opportunity to further comment or for the Board to provide reasons for its ruling. The only possible exceptions are Messrs. Donovan and Koblovski. In their case, they were afforded an opportunity to explain why they should remain as participants, and the reasons why they are not being allowed to so remain are clearly outlined above.

____________________________________________________________

HK

Access Copyright - Responding to Copyright Board by November 23, 2010

The Copyright Board issued a procedural ruling on November 15, 2010, though there are elements of it that are rather inconclusive. Here are my initial comments on it. It talks about “being inclined”, etc.

Here’s what those in various categories created by the ruling may wish to do. This is NOT legal advice. As always, if you want legal advice, retain a lawyer.

1. Those apparently singled out for full fledged objector status should indicate to the Board whether they believe that others should be permitted to be intervenors with full rights of participation and otherwise respond to the Board as invited, i.e. ““may make their views known on the participation of the potential intervenors no later than Tuesday, November 23, 2010. They are asked not to deal with issues of duplicative representation or overlapping argumentation at this stage. These matters will be addressed later, when the intentions of all participants are more fully ascertained.”

2. Those who the Board is “inclined” to consider as “intervenor status with full participatory rights” (“ISFPR) should specifically notify Gilles McDougall - Acting Secretary of the Board - that they wish to avail themselves of such rights i.e. “Those who wish to remain as participants in these proceedings are asked to inform the Board no later than Tuesday, November 23, 2010". They may also wish to indicate that they do so without prejudice as to any arguments as to whether they should be full fledged objectors. These persons may wish to express their view on why they do not seem to qualify as full fledged objectors. In this respect, see Prof. Ariel Katz’ very useful submission to the Board dated November 21, 2010 available here. He is a copyright law professor at the University of Toronto Faculty of Law, who is focusing his knowledge of IP and antitrust law on collectives, and at the moment on AC. Note that he has indicated that the Board should provide adequate reasons why he is not being accepted as a full fledged objector. See CAB v. SOCAN 2006 FCA 337 at para. 11.

3. Those in respect of whom the Board has indicated that its “preliminary opinion that the participation of the following persons would not be of assistance” may wish to indicate, if it is the case, why they believe that this “preliminary opinion” is wrong and demand that the Board provide adequate reasons in each and every case. (see above).

4. Note that there is no downside to remaining involved at this point for any individual or association. Unlike civil litigation, one can always withdraw later without being liable for the costs of other parties. It is very likely that AC will attempt to impose “interrogatories” (written questions akin to "discovery") on those who wish to remain involved that will be arguably be unduly onerous and irrelevant. Hopefully, the Board will deal with this in the appropriate fashion. The amount of time required to be present at the ultimate hearing could also be a problem for some. Hopefully, the Board will fashion its hearing schedule to accommodate the needs of individuals who may still be involved at the hearing stage and who may not be able to be present for a hearing that could last two or three weeks. Individual objectors or intervenors may wish to begin to organize themselves to deal with such issues.

HK

Access Copyright’s Proposed $45/$35 Tariff - My Comments the Board’s Ruling on Status of the "Group of 99"

The Copyright Board has issued one of its more interesting and important procedural rulings in recent memory with respect to the status of 99 of the 101 objectors that Access Copyright (“AC”), through its former counsel Barry Sookman, had sought to eliminate from the pending post-secondary $45/$35 proposed tariff.

In a nutshell, the Board has:

- Confirmed (subject to unspecified future concerns about “duplicative representation”) the “objector” status of Athabasca University and the British Columbia Association of Institutes and Universities (BCAIU)

- indicated that. with respect to the Government of Alberta and teachers, students and staff from the targeted institutions in the proposed tariff that is “inclined to grant them, if they so wish, intervenor status with full participatory rights, in effect allowing them to act in these proceedings as if they were objectors”

- ruled, with respect to approximately 38 individuals ranging from parents (those paying the bills of students) to post doctoral fellows that their “participation ... would not be of assistance”

- left in limbo the status of CAUT and CFS (representing university teachers and students respectively), which are represented by CIPPIC (the U. of Ottawa public interest legal clinic) and refused, for the time being, their request to “bifurcate” this hearing in a similar manner to what was done in SOCAN’s perpetual Tariff 22 tariff proceeding - i.e. separate out certain legal issues that presumably do not involve disputed or extensive evidence

- indicated that AC, AUCC, ACCC, Athabasca and BCAIU “may make their views known on the participation of the potential intervenors no later than Tuesday, November 23, 2010. They are asked not to deal with issues of duplicative representation or overlapping argumentation at this stage. These matters will be addressed later, when the intentions of all participants are more fully ascertained.”

- Indicated that “Those who wish to remain as participants in these proceedings are asked to inform the Board no later than Tuesday, November 23, 2010"

- asked for clarification by November 23, 2010 from Ambrose University College and the Library, St. Mary's University College and the Library, Yellowhead Tribal College and the Library as to whether it is the institution or the library that is objecting

The Board’s ruling is certainly a blow to AC, which had sought to get rid of all but two of the 101 objectors, the two being the AUCC representing university management (here is the AUCC’s objection, which is noticeably less vigorous than that of many other established institutions) and the ACCC (representing the community colleges of Canada).

The ruling, however, is not all good news for all of the “Group of 99". The status of those who have not been eliminated is still somewhat in limbo. Is the Board’s indication that it is “inclined” to grant “full participatory rights” to intervenors so wishing the same a "ruling" that it will grant such rights? Does “full participatory rights” include the right to cross examine AC’s witnesses, including expert witnesses and challenge its survey evidence? Will intervenors have the right to adduce their own expert and other evidence? One would certainly hope so in both respects. What does “present oral argument at the end of the hearings” mean? Surely, “full participatory rights” would include the right to make oral submissions as the hearing progresses in the same manner as other parties, subject only to the Board’s prerogative to ensure an orderly, efficient and fair process.

One would assume that “full participatory rights” should mean all the rights and responsibilities of an objector. But some are less than convinced that this is the case. One very sophisticated objector who has now been classified as an “intervenor” has suggested to me that the Board has created a “separate but equal” regime.

In fairness to the Board, it has to be concerned with conducting a process leading to what could be a lengthy hearing that cannot be allowed to become chaotic. However, that potential problem is invariably self-correcting, since few persons or institutions other than those with pressing interests and sufficient resources will remain involved throughout the lengthy and exhausting process. AC will almost certainly try to wear down any “intervenors” with onerous interrogatories of questionable relevance. This is how the game is played at the Board. Hopefully, the Board will manage to ensure ongoing fairness in the process. AC’s new counsel, Mr. Hofley, and I have been down this road before in the private copying file, in which there were 3,500 initial objectors.

Presumably, the logic of the Board in this ruling was dictated to some extent by the wording of the legislation which requires that objectors be “prospective users.” See this letter to the Board from Prof. Ariel Katz of U. of T. Faculty of Law, who was a timely objector but has now been classified as an intervenor, dealing with some of the issues surrounding status and who should be considered as a proper objector. This submissions in this letter weren’t referred to by the Board in its reasons, even though AC’s submissions (see here) were.

Very likely, many of the objectors who wanted to remain involved didn’t even realize that a ruling such as this was in the works, unless they read my blog. This should not be the case. The Board should ensure that all parties potentially affected by a decision have sufficient notice of their right to make submissions. I trust that this will be done with respect to the ultra-controversial attempt by AC to impose an interim tariff that would render a voluntary, obsolete, overpriced, and expired agreement into a supposedly legally binding “interim tariff” with the force of law for years to come - that is if AC, with its new counsel, still intends to proceed in this direction.

AC no doubt hopes that parties will sign its “interim agreement” in the meantime, as the supposed deadline of January 1, 2011 looms. However, this deadline has effectively been imposed by AC itself, and the “interim agreement” does not even provide a license. It simply requires ongoing payment and an agreement to accept whatever the Board ultimately decides. There is no apparent reason why any institution would sign on to this and even AUCC seems to so agree.

Is yesterday’s decision correct in all respects? Maybe or maybe not. The reality is that it is very difficult to seek judicial review (i.e. “appeal”) interim procedural rulings of the Copyright Board. The Board will almost always prevail in these situations. However, in this instance, one hopes that that Board will treat any committed “intervenor” as indeed having “full participatory rights”, if the “intervenor” so chooses and that AC will not be permitted to unfairly inflict unduly onerous and irrelevant interrogatories or other barriers to such participation.

So - here’s what the survivors of the “Group of 99" need to do immediately.

- Answer the Board as required by November 23, 2010.

- Make the Board aware, assuming that it is the case, that they wish to be heard on the question of an interim tariff. If they wish to make oral submissions, which is not unreasonable considering the enormous amount of money and the issues at stake, objector and intervenors should make the Board so aware as soon as possible.

HK