Monday, November 29, 2010

Warp Speed at the Copyright Board - Towards an Interim AC Tariff?

If you think that the Copyright Board has been moving quickly on the AC proposed $45/$35 1,300% increase tariff up to now, it has just pushed the warp speed button.

As I predicted here, the Board, through its ruling below from November 26, 2010, seems clearly determined to set the stage an “interim decision” or “interim tariff” which it and AC would regard as legally binding with the force of law on ALL post secondary institutions (outside of Quebec) which use ANY supposed AC repertoire – and to make this ruling well before the Christmas break season begins in Ottawa, which is just over two weeks from now.

On Friday November 26, 2010 the Board gave the remaining participants – a fraction of the original 101 objectors after the first (but likely not last) cull – just five full working days until December 6, 2010 to respond to AC’s unprecedented attempt to impose an interim tariff that would enshrine an obsolete and seriously over-valued voluntary arrangement into an effectively state imposed “tariff” regime that the Board and AC will insist is legally binding. This “interim tariff” would last for the several years that AC and AUCC will take to conclude this proceeding, only for the Board to very likely arrive at the perfectly predictable conclusion that the tariff should be something a little less than half of the $45/$35 and shouldn’t contain some of its outlandish items such as those dealing with linking, displaying and illegal reporting requirements. That, however, would hardly be a victory – other than for AC, which of course will complain all the way to the bank.

There are several problems with this interim application, which I have basically already outlined here. To summarize,

· The Board arguably lacks legal jurisdiction to do this. It can make interim procedural decisions, for example on interrogatories, scheduling, etc. It probably can even extend existing tariffs on an interim basis, where warranted. But it arguably cannot impose what in effect would be an enormously invasive and expensive mandatory injunction imposing enormous costs and restrictions on the entire post-secondary educational framework in Canada (outside of Quebec). It has no authority from Parliament to do so and has no “inherent jurisdiction” on such substantive matters as this, especially as they involve “equitable” principles. The Board has only the powers specifically given to it by Parliament. Even the Federal Courts are limited to the powers given to them by Parliament, and the Board is in turn is subject to review by the Federal Court of Appeal. To state the obvious, the Board is not a court.

· There is NO reliable evidence on file here to address an “interim tariff”. There is not a single affidavit in support of this sweeping application. A Court would not rely on the material filed by Access Copyright in support of such sweeping relief. Affidavits can be cross-examined upon. Affidavits are evidence. Letters from lawyers are not.

· In any case, AC’s application runs contrary to the Board’s own precedents, since there is no pre-existing tariff and the AC most certainly doesn’t need or deserve to have an interim tariff to fund its own battle against objectors by using the objectors' (i.e. students’ and taxpayers’) money.

· An interim tariff in these circumstances would violate numerous legal canons of procedural fairness and natural justice. For example, AC gave no notice of this application to almost all of the original 101 objectors. The remaining few now have only a few days to respond – and their only “official” notice comes from the Board itself. (My blog is NOT the same as “notice”.)

The remaining intervenors need to realize that:

  • Although AUCC has indicated that it will oppose an interim tariff, it has filed one of the noticeably less vigorous objections, even though it has budgeted about $2 million of what is ultimately students’ and taxpayers’ money to deal with this matter. AUCC has never fully confronted AC on several very basic issues, and has, apparently, chosen over the years to negotiate mainly about the rate. Indeed, it agreed to renew the standard pre CCH v. LSUC license at the same rate even after the Supreme Court’s landmark 2004 decision.
  • The Board is moving at unprecedented to speed to deal with what it clearly perceives to be some kind of critical drop dead deadline, when that deadline is imposed solely by AC’s strategy to make all previous agreements run out and its essentially failed strategy to procure voluntary “interim agreements” that very few institutions have signed and rightly so, even according to AUCC.
  • This warp speed attitude of the Board to AC proposed tariffs is being reflected in another AC matter, which is the astonishing attempt to impose a $24 per full time employee tariff on ALL employees of provincial governments. This would set Canadian taxpayers (outside of Quebec) back more than $6.5 million a year. What do these civil servants do? Presumably, a few of them occasionally photocopy articles from newspapers, download research material from the internet and copy occasional items from their libraries. This would normally be called “research”. The rest of the copying is likely entirely internal administrative material. That matter is also proceeding at virtually supersonic speed by Board standards, even though there could be fundamental questions as to whether it should proceed at all and there is no apparent case of urgency.
  • Not even SOCAN – the granddaddy of all Canadian collectives – gets this warp speed approach by the Copyright Board. Very often, proposed tariffs take months or years just to set a schedule that will in turn take many more years to unfold and 18 months to two years from a hearing to a decision.
  • AC on its own has a very flimsy basis at best to sue anyone after January 1, 2011 once its agreements all run out, as it has deliberately planned. This is for legal reasons I’ve mentioned, which include lack of repertoire, lack of rights, and lack of sufficient standing under the Copyright Act. So – it’s very unlikely indeed that the sky will fall on January 1, 2011 on any post secondary institution in Canada, even without a license.
  • UBC and University of Alberta have apparently decided that they won’t need a license after January 1, 2011. It won’t be the first time if trends start out West and move East prompted by controversial payment demands and policies from Ottawa and Toronto.
  • AC would almost certainly never get an injunction against any institution from any Court, given its behaviour in engineering the very crisis that it now urges the Board to resolve with an interim tariff
  • An interim tariff would arguably bootstrap AC into a hugely advantageous position that it simply doesn’t deserve
  • The remaining objectors should consider demanding on oral hearing on this interim tariff matter and the right to be heard in person or through counsel.
  • There is a good chance that an interim tariff as proposed could be overturned in the Federal Court of Appeal – but it would be advisable if not essential to make certain arguments at the Board stage. Remaining objectors and intervenors will need to evaluate whether they are content to leave all of this to AUCC.

Remaining objectors have a brief window now to coalesce and to stand up and be counted. Their responses are expected by the very unusually short deadline of December 6, 2010.

The Board’s decision of Friday, November 26, 2010 follows below:


Sent: 11/26/2010 11:47:06 AM
Subject: FW: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013)


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


On October 13, 2010, Access Copyright filed an application, dated October 7, for an interim tariff. The application and relevant documents are attached. Participants are asked to respond to the application (and to copy all other participants) no later than Monday, December 6, 2010. Access Copyright may reply to these comments no later than Monday, December 13, 2010. The response of the Canadian Association of University Teachers and the Canadian Federation of Students to the application is attached.

Access Copyright shall indicate forthwith the precise amounts that, in its view, are payable by the targeted institutions and ought to be included in section 14 of the model licence (or any other provision where such figures may be relevant) if the Board were to issue an interim decision as requested.

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>



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