Below is the latest ruling from the Board on the overall process, responding to requests by Prof. Ariel Katz and Glen Bloom on behalf of AUCC for delays of different lengths, different natures and for different reasons. It is interesting that the Board states that “Both applications proceed from a common misconception”.
If two such sophisticated participants have “a common misconception”, then what about the numerous less sophisticated participants with no legal expertise or access to it?
In any event, some aspects of this ruling are, with respect, unclear to this blogger. Here are some examples why:
- The Board states that “Access proposes maintaining what it refers to as the status quo, with additional, potential uses being allowed at no additional cost.” However, on its face it combines elements of the old regime with elements of the new “proposed” tariff. And what about what is missing, such as “indemnity” scheme, which, as legally dubious as it was, was seen as valuable by at least some institutions and the exclusion list, which was important in order to avoid troubles from third parties.
- It’s not clear that questions 1 and 2 can be separated for practical purposes. If the Board were to issue a non-binding or optional mechanism on generous terms to users, such a ruling might indeed be welcome. However, we don’t know on what terms and rates the Board will issue an interim tariff, if it does so.
- There is no “status quo” – other than considerable confusion. All the previous agreements are about to expire – according to AC’s plan. The status quo up until now was that of voluntary agreements. Now expired or expiring – but VOLUNTARY. ANY tariff is a drastic departure from the status quo because tariffs, by their nature, will be regarded as MANDATORY for all practical and legal purposes. AC will no doubt insist that ANY institution that uses ANY of its supposed repertoire, when such repertoire is not otherwise licensed or such use is not insubstantial or fair dealing, is liable is caught by the tariff and liable for the whole amount as applicable. Since it’s hard to imagine that any university or college can get through the year without some minor slip up in clearance, this means that ALL universities and colleges will be effectively be liable for the tariff for all practical if not legal purposes, even if they don’t wish to be and use best efforts to otherwise comply with the Act.
- Question 4 simply can’t be answered until the Board provides full reasons on questions 1-3.
- The delay granted simply allows the splitting of participants’ memos and may encourage more confusion, with only a few more days to sort out the existing confusion.
BTW, just before 5:00 PM, AC delivered to all concerned 48 pages of charts in response to the Board’s recent order. Although half of this documentation appears to be “redlined” material, that still amounts to an enormous amount of new material to review in two days. Concerning this material, the Board said below:
It is to make it easier for other participants to understand the relationship between the proposed text of Access Copyright and its application for an interim decision. The Board could have left participants to respond to the application on the sole basis of the documents filed with it, which are sufficient for anyone to respond to the application and adequate for the purposes of making a decision. (emphasis added)
Participants will need to ponder whether they agree with these conclusions of the Board.
[email addresses omitted]
Subject: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013)
RULING OF THE BOARD
RULING OF THE BOARD
The December 6, 2010 request of Mr. Katz for a "temporary moratorium" is denied. AUCC’s application of the following day to extend the deadline for responding to the application for an interim decision is also denied.
Both applications proceed from a common misconception. The draft interim tariff is not a new proposal. The only proposal of which the Board is seized is the application filed on October 13, 2010. Access Copyright has not changed the relief requested; nor would the Board allow this to happen without giving other participants additional time to respond, unless the proposed change clearly favours users. The purpose of the Board’s requests for additional information, including the draft interim tariff and tables correlating that draft with the model licence, is not to help the Board understand the terms of the application or "to accommodate the inadequacy of Access Copyright’s material". It is to make it easier for other participants to understand the relationship between the proposed text of Access Copyright and its application for an interim decision. The Board could have left participants to respond to the application on the sole basis of the documents filed with it, which are sufficient for anyone to respond to the application and adequate for the purposes of making a decision.
The application of Mr. Katz for an oral hearing is also denied. The application relies on alleged complexities that cannot be assessed until the Board has read the submissions of all participants. In these matters, the Board’s practice is to hold oral hearings only if the panel seized of the matter finds it necessary to decide the issue. Participants will be informed of this if need be. If not, the matter will be addressed as usual, without a hearing.
The application of Mr. Katz
To help participants focus on relevant issues, the Board would like to remind them that, in order to deal with the application for an interim decision, the Board will have to address, at a minimum, four questions or sets of questions that logically flow from any such application.
1) Should the Board grant Access Copyright's application for an interim decision?
2) If the Board decides to issue an interim decision, which form should that decision take?
3) If the Board decides to issue an interim decision, what should the substantive content of the decision be? Access proposes maintaining what it refers to as the status quo, with additional, potential uses being allowed at no additional cost. Does the proposal achieve what it purports to achieve? Is that what the interim decision should indeed achieve? If not, what else?
4) Once the content or substance of the decision has been determined, does the proposed text reflect that substance or content and if not, how should it be modified?
AUCC’s alternative request is granted in part. Participants still have to file their submissions no later than on Friday, December 10, 2010, but only with respect to the application for an interim decision (question 1 above). Participants shall file their submissions on questions 2 to 4 above, or on any other issue, no later than on Friday, December 17, 2010.
Access shall reply no later than by noon (EST) on Wednesday, December 15, 2010 to the submissions filed on December 10 and no later than by noon (EST) on Wednesday, December 22, 2010 to the submissions filed on December 17.
A/Secretary General | Secrétaire général par int.