ACCC's Request for Reconsideration of Board's Ruling re Opt-Outs Denied

ACCC's request for "reconsideration" of the Board's ruling that opt-out institutions must still answer interrogatories has been denied. See below.

A request for "reconsideration" is not the same an application for judicial review ("appeal", in layperson's terms).

It remains to be seen whether ACCC or AUCC will seek judicial review.

As indicated in my earlier blog about this issue, "The deadline to file the required notice of application, which begins the process, would be September 19, 2011."

My earlier blog described some of the issues regarding the warnings  (threats?) of potential subpoenas. 

HK

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From: Gilles.McDougall@cb-cda.gc.ca [mailto:Gilles.McDougall@cb-cda.gc.ca]
Sent: Tuesday, September 13, 2011 11:38 AM
To: XXXXXXXXXXXXXXXXXXXXXXXXX

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

RULING OF THE BOARD

On August 18, 2011, the Board issued a ruling providing in part that Access would be allowed to obtain information from institutions that do not avail themselves of the interim tariff (the "opt-out institutions"). On September 12, ACCC asked that the Board reconsider this ruling for two reasons. First, opt-out institutions have severed their licensing relationship with Access. They do not currently intend to be "prospective users" of the repertoire of Access; therefore, as a matter of law, they should not be required to comply with the Board’s ruling. Second, since 68 of 77 institutions have responded to interrogatories, Access already has in its possession more than a reasonable amount of relevant information from a reasonable number of institutions. There is no information in the possession of the opt-out institutions which could affect the Board’s consideration of the tariff under examination.

The first argument misses the point. The reference to "prospective users" in subsection 67.1(5) of the Copyright Act, which section 70.14 incorporates by reference in the general regime, is to users of the final tariff. Opt-out institutions do not know whether they may now be making protected uses requiring their compliance with a final tariff that does not yet exist. They can sever their relationship with Access if, and only if, they make no unauthorized, protected use of the repertoire of Access; that relationship is governed by facts and law, not intentions. More importantly, the Board’s power to order someone to provide relevant information is not limited to prospective users.

The second argument is misplaced. Access has no information from opt-out institutions. And as stated in the August 18 ruling, "[t]he June 6, 2011 ruling is clear: information concerning these institutions is relevant." The August 18 ruling required Access and ACCC to agree on which opt-out institutions should be approached precisely in order that only a reasonable number of these institutions be required to respond to the questions of Access.

The application for reconsideration is dismissed.

Gilles McDougall
Secretary General | Secrétaire généralCopyright 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