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