The Access Copyright Interim Tariff - Looming January 21, 2011 Deadline and Issues regarding Judicial Review

For anyone contemplating the possibility of a an “appeal” (i.e. judicial review or “JR”) of the Copyright Board’s Access Copyright (“AC”) Interim Tariff decision dated December 23, 2010, it is important to immediately consult counsel with experience both with the Copyright Board and the Federal Court of Appeal.  Here are some general observations, which are NOT - as always is the rule on this blog - legal advice:

1.    The safe deadline for filing the judicial review application is this Friday, January 21, 2011.  The Christmas Recess doesn’t count because the 30 day deadline is set by the Federal Courts Act and not the Rules. Also, strictly speaking, Saturday is not a “holiday” under the Interpretation Act.

2.    The Board’s deadline of this Friday, January 21, 2011 for further submissions is arguably irrelevant for the purposes of judicial review of the decision dated December 23, 2010. These new submissions that some may file with the Board may allow - maybe - for tinkering at the edges on the wording. The basic decision to impose an interim tariff was made on December 23, 2010. That’s the decision to be reviewed.

3.    Case law suggests that the fact that reasons have not yet been rendered is also irrelevant for the purposes of the deadline for filing a judicial review notice in this instance.

4.    In any event, when it comes to deadlines, it always better to be safer rather than sorry.

5.    The basic grounds for judicial review - based upon the many objections filed to the interim tariff and the process that was undertaken - are likely to include:
    a.    Lack of jurisdiction
    b.    Lack of evidence
    c.    Lack of procedural fairness.

6.    A judicial review notice that preserves options is a simple document. Indeed, the whole judicial review process is normally relatively very simple, fast and only a small fraction of the cost when compared to a Copyright Board hearing.

This decision is arguably the most controversial in the Copyright Board’s history. It grants a so-called “interim” tariff that will almost certainly last for at least three years and be worth about $48,000,000. This was done in a few weeks without an oral hearing and - arguably and according  to virtually all of the objectors -without ANY  evidence.

However, information received from several sources suggests that the AUCC, which represents university administrations, and which is  supposedly the main opponent of the tariff, will NOT be seeking judicial review in this instance, despite its protestation that it “vigorously opposes” the AC application and said that the Board has “no jurisdiction” in this instance.  If AUCC fails to seek JR, it will be interesting to see the rationale for not pursuing what is arguably a very strong case for successful judicial review. If the “interim tariff” is not set aside on judicial review, the result will arguably be that, among other things:

1.    This interim tariff could become the foundation or floor for a much more expensive and restrictive tariff to follow retroactively several years from now;
2.    The likely minimum cost of $48 million over the three year likely minimum life of this so-called “interim” tariff will likely be passed on to students, who will not have any obvious recourse; and,
3.    AC will surely argue that the terms of the interim tariff - if not set aside - including the totally new and controversial digital provisions - will serve as the new norm in the marketplace and thereby become incorporated into future “fair dealing” decisions by the Board and maybe even the Courts with respect to the six factor test in CCH, particularly the last factor and likewise for the arguably unnecessarily highly restrictive fair dealing guidelines proposed by AUCC itself - which couldn’t have been much more restrictive even if drafted by AC itself.

There are a lot of questions to be answered in the next few days. Rumours are out there that the Board’s reasons will come soon - perhaps even today - but those reasons are unlikely to change any of the above.

HK