Access Copyright's Proposed $45/$35 Post Secondary Tariff - Board Rules on Status of 99 Objectors

Here's the Board's ruling from earlier today, which was issued in both official languages. My comments will follow in a subsequent blog.

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NOTICE OF THE BOARD

On September 22, 2010, after having examined notices of objection filed in this matter, Access Copyright agreed that the Association of Universities and Colleges of Canada (AUCC) and the Association of Canadian Community Colleges (ACCC) qualify as objectors in these proceedings. It argued that Athabasca University and the British Columbia Association of Institutes and Universities (BCAIU) were duplicating the representations of AUCC and ACCC and should not be qualified as objectors. Finally, it requested that all other persons who filed notices of objection not be given objector status by reason that since they are not targeted by the proposed tariff, they are not "prospective users" within the meaning of subsection 67.1(5) of the Copyright Act.

The Board finds that AUCC, ACCC and, setting aside for the moment the issue of duplicative representation, Athabasca University and BCAIU, being targeted by the proposed tariff, are proper objectors. Having read all the notices, the Board is also of the preliminary opinion that the participation of the government of Alberta and of teachers, students and staff from the targeted institutions in the proposed tariff would enrich the record of these proceedings and assist the Board's deliberations. As such, the Board 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. To the extent that the contemplated status is granted, it is not necessary to rule on whether these persons are proper objectors.

Access Copyright, AUCC, ACCC, Athabaska University 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.

Intentions of Participants

Potential intervenors who filed a notice of objection only to ensure that their point of view would be taken into account may find it unnecessary to be further involved in these proceedings. The Board will treat their notices as letters of comment. As such, they are part of the official record of these proceedings. Access Copyright has received a copy of them. The Board members who will hear the matter will consider them before reaching their decision. Those 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.

Those who wish to remain as intervenors with full participatory rights will be treated as any objector. They will be entitled to receive a copy of all the evidence and arguments to be filed by all participants. They will also be entitled to address questions to other participants (in the form of interrogatories) and will be required to answer questions addressed to them, as long as they are relevant. They will have to file a statement of case, and will be entitled to call witnesses, file evidence and present oral argument at the end of the hearings.

All participants will be required to comply with the timetable that will be set for these proceedings and with the directive on procedure that will be issued in due course. A model directive is available on the Board's website at the following address: http://www.cb-cda.gc.ca/about-apropos/directive-e.html.

Those who wish to remain as participants in these proceedings are asked to inform the Board no later than Tuesday, November 23, 2010.

Request for information

The following institutions have sent notices of objection on behalf of both a post-secondary institution and its library. The Board needs to obtain, by no later than Tuesday, November 23, 2010, clarification and confirmation as to which one of the two is being represented.

Ambrose University College and the Library

St. Mary's University College and the Library

Yellowhead Tribal College and the Library

Possible Exclusions

The Board is of the preliminary opinion that the participation of the following persons would not be of assistance:

Aburto, Juan

Akrigg, Mark

Bannerman, Sara

Bouchard, Paul

Caswell, James

Cooper, Alan

Creighton, Angus

de Alwis, Brian

Donovan, Pat

Finney, Nik

Gilbert, David

Guy, David

Harris, Sandy

Heesen, Erika

Humphries, Graeme

Kittredge, Rob

Koblovsky, Jason

Konefal, Tomasz

Lam, David

Lavender, Graham

Liota, Cohen

McMullen, Greg

Mitchell, Pauline

Neufeld, Ryan

Neufeld, Jacqueline

Pitt, Richard

Raby, Olier

Schigas, Marnie

Schigas, Roland

Schopf Loach, Cassandra

Scott, Steven

Solman, Grayden

Stevenson, Adrienne

Thompson, Kyle

Vu, Tom

Wall, Darren

Watt, Seth

Weber, Stephen Paul

Persons named above who wish to be granted intervenor status in these proceedings are asked 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, also no later than Tuesday, November 23, 2010. The Board will then rule on these applications after giving other participants in these proceedings the opportunity to comment on the applications. Notices of objections filed by persons who are not granted intervenor status will be treated as letters of comment and will be made part of the official record of these proceedings.

Finally, Mr. Degen's letter in support of the proposed tariff will be treated as a letter of comment.

Application to Bifurcate Hearings

In their joint notice of objection, the Canadian Association of University Teachers (CAUT) and the Canadian Federation of Students (CFS) requested that the examination of the proposed tariff be bifurcated into a legal phase and an evidentiary phase. CAUT and CFS challenge the validity of certain definitions as well as the right of Access to impose certain terms and conditions or to prevent certain uses. They contend the proposed tariff targets unprotected uses and ignores certain exceptions or users' rights. They do not specify which questions, in their opinion, would justify splitting the process leading to the certification of a tariff.

The application is premature at best. Furthermore, based on the information currently available it is highly doubtful that splitting the examination of the legal questions from the substance of the tariff makes sense in this instance. Some of the issues raised by CAUT and CFS will require not, as they suggest, a minimal evidentiary record, but extensive evidence, most of which will in all likelihood also be relevant to the determination of the amount of the tariff. Finally, many of the issues raised deal with the terms and conditions of the tariff. Nothing will be gained by dealing with those issues before having some idea of how the core of the tariff will be structured.

For the time being, the application is denied. These matters can be revisited, if needed, in due course.

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

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HK