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.

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HK