Wednesday, June 08, 2011

Copyright Board Ruling re Interrogatories in Access Copyright Post Secondary Proposed Tarifff

The ruling below on interrogatories was issued by the Board on Monday, June 6, 2011.

Many universities and colleges will be particularly interested in the following part (full ruling below):

ACCESS INTERROGATORIES TO ACCC/AUCC
General comment: the volume of information Access requests is largely a result of the breadth of issues raised by the objectors. That being said, parties are reminded that the Board does not need all existing relevant information to set fair tariffs. The associations should provide a reasonable amount of relevant information, from a reasonable number of institutions, preferably identified with the concurrence of Access. The institutions will in turn be required to make reasonable inquiries from staff.

(emphasis added)

The Board is being consistent. It has long been the practice of the Board in hearings involving radio and TV, for example, not to require answers from each of the hundreds of affected members of the objector  association. A representative sample has sufficed.

The ruling comes only a week before interrogatory answers are due on June 13, 2011. Unfortunately, it only now appears that a very large number of universities and colleges may have spent an incalculable amount of time providing answers that could turn out to have been unnecessary. Even the smallest of the two hundred or so affected institutions has probably spent hundreds of person/hours on this process. One can only imagine the resources put in by the larger ones. 

All this during the months of May and June when Canadians usually prefer to concentrate on gardening and hockey...


HK

***************************************************
From: "Gilles.McDougall@cb-cda.gc.ca" <Gilles.McDougall@cb-cda.gc.ca>
Date: 6 June, 2011 4:35:36 PM EDT
To: XXXXXXXXXXXXXXX
Subject: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013)
RULING OF THE BOARD

AUCC/ACCC INTERROGATORIES TO ACCESS

Q. 14, 15, 16:
Access shall provide what it has, in the form it has it. If the list of 220,000 or more works alluded to in the associations’ reply does not exist, Access shall provide any document on which the claim made on the web site was based.

Q. 34, 35, 36, 38, 39: the objection is dismissed. The fact that information requested is in the possession of the other party is not in itself relevant. This is all the more true when, as is the case here, information may or may not be in the possession of someone else than the party itself. With respect to Q. 39, it is not the Board’s practice to require a party to provide information beyond the date on which a question is addressed, even if the information is highly relevant.

ACCESS INTERROGATORIES TO ACCC/AUCC
General comment: the volume of information Access requests is largely a result of the breadth of issues raised by the objectors. That being said, parties are reminded that the Board does not need all existing relevant information to set fair tariffs. The associations should provide a reasonable amount of relevant information, from a reasonable number of institutions, preferably identified with the concurrence of Access. The institutions will in turn be required to make reasonable inquiries from staff.

Q. 3/3: the objection is dismissed. Information concerning institutions that do not avail themselves of the interim tariff is relevant and shall be provided, subject to the general comment above. Institutions who resist providing information should be reminded of the Board’s powers pursuant to subsection 66.7(1) of the Copyright Act.

Q. 10/10, 49/50, 88/89, 103/104: the questions as reformulated shall be answered. The objectors made the issues relevant. Questions about the use of licensed databases are relevant to determine the extent to which institutions can credibly operate without the Access repertoire.

Q. 63/64, 64/65, 78/79, 79/80, 98/99, 99/100: since all Access wants to know is if these systems make copies and if so how, the questions shall be answered accordingly.

Q. 70/71, 80/81: given the reply of Access, the question shall be answered by identifying the platforms and by providing information concerning copies made for mobile devices operation and how they differ from non-mobile counterparts.

Q. 87/88, 125/126: the objection is dismissed, for the reasons given by Access.

Q. 121/122: the objection is dismissed.

Q. 129/130, 130/131: the question as reformulated shall be answered. Again, institutions are only required to make reasonable inquiries and to provide a reasonable amount of relevant information.

Q. 21/22, 22/23, 23/24, 25/26, 28/29, 31/32, 32/33, 36/37, 44/45, 47/48, 48/49, 50/51, 62/63, 65/66, 66/67, 67/68, 83/84, 84/85, 95/96, 96/97, 101/102, 111/112, 113/114, 114/115: AUCC, ACCC and their members are ordered to respond to the interrogatory.

Q. 38/39, 54/55, 55/56, 57/58, 59/60, 60/61, 72/73, 73/74, 74/75, 76/77, 85/86, 89/90: AUCC, ACCC and their members are ordered to respond to the interrogatory. If a contract specifies that information may only be disclosed with the consent of the contractor, AUCC and ACCC shall identify the existence of the contract and supply the names of the parties to the contract. Access will hold the interrogatory in abeyance until it can determine whether it considers that other contracts supplied in response to the interrogatory contain a representative sample of the information requested. If so, no further answer shall be required. If not, Access shall apply to the Board for directions.

Q. 53/54, 71/72, 81/82, 105/106, 106/107, 107/108, 108/109, 117/118, 119/120: the interrogatory shall be held in abeyance pending negotiation of a survey.
Gilles McDougall
Secretary General | Secrétaire général

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 begin_of_the_skype_highlighting            613.952.8624      end_of_the_skype_highlighting
Gilles.mcdougall@cb-cda.gc.ca

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