Even More Unsettling News After the AC/AUCC “Negotiated Settlement”?

There are dozens of universities and colleges in Canada that appear to have been caught unaware and will probably be very unhappy about major developments that go to the core of research, teaching, access to knowledge and the economics of education. All of this has suddenly happened at a time when we are likely only weeks or months away from new copyright legislation that will explicitly include "education" in its fair dealing exceptions and may well reverse the adverse decision on K-12 education from the Copyright Board and the Federal Court of Appeal.

The few short days since the Association of Universities and Colleges Canada ("AUCC") announced on April 16, 2012 that it had reached a “successful outcome” and a "negotiated settlement" with Access Copyright ("AC") have raised more questions than they provided answers. Indeed, one might well ask whether these developments are calculated to put enormous pressure on AUCC members to sign on ASAP to this arguably very disadvantageous model license by renewing the schedule for the dreaded interrogatories and survey and renewing and accelerating the process for the clearly unsettled hearing that will almost certainly, the way things are going, result in a certified mandatory tariff with the force of law that makes the model license look good by comparison?

 And, as the late Billy Mays might have said, “And that’s not all!”  Believe it or not, there’s a "Limited Time Offer of Discounted Pricing on Retroactive Payments" (which Prof. Ariel Katz suggests is “an offer than can’t be refused”), that demands virtually immediate agreement in order to mitigate losses. According to AUCC President Davidson:

Access Copyright has agreed that the best retroactivity discounts available to universities will be available those that indicate in writing to Access before May 1, 2012 that they expects to sign the licence, and then actually sign before June 30, 2102 [sic]. While you need to indicate your intent to sign the licence by May 1, you may still reconsider your options after that date, and you could choose to delay signing (in which case the discount will be lower), or not sign at all. (highlight added)

However, among other things, it’s not at all clear:

·       how this “”Limited Time Offer” will work; and,

·       why it is so limited in time and so urgent?

Nor is it clear what AC means when it says that those who “advise Access Copyright in writing of their intention to sign the Model License by no later than May 1, 2012, and sign by no later than June 30, 2012, pay no retroactive payments.” What does “intention to sign” mean? What happens if the university changes its mind?

May 1^st is seriously really soon. It is only a week away. What exactly is the emergency? 

Nor is it clear that those institutions which had hoped to avoid further involvement in the onerous interrogatory process can actually count on being able to do so, even if they bow to the pressure to sign the model license right away. Davidson says in his April 16 email to presidents: 

...a number of institutions that have opted out of the tariff would now be required to respond to the intrusive and time-consuming interrogatory process. Should these institutions instead choose to sign a licence with Access, they will not be required to submit to the interrogatory process.  (highlight added)

However, if there is such an understanding, neither the model license nor the "limited time offer" say anything about it. Moreover, the notice below from the Copyright Board in response to the email dated Friday, April 20, 2012 from AC suggests that  these interrogatories are very much an ongoing issue. 

In fact, by remarkable coincidence, things are also happening once again at warp speed over at the Copyright Board:

• AUCC is getting ready to “negotiate” the terms of some kind of presumably mega survey that would presumably appear to intended to be inflicted upon those don’t quickly extricate themselves from this situation and to report to the Board on this by May 7, 2012.
• AUCC has not yet responded as of Friday, April 20, 2012 to AC’s demands to press forward immediately on the answering of interrogatories by several AUCC members who may have thought that would not happen and who now may be very unhappy. See the very interesting notice and email below. Institutions affected and whose interests face a virtually immediate deadline of April 24, 2012 for AUCC to respond to AC’s demands. Institutions affected by this rapid notice from the Board include certain universities that earlier took a lead in opposing AC on this file, such as  Athabasca, UBC and York. Interestingly, the President of UBC, Stephen Toope, who was an early outspoken critic of AC’s proposed tariff and who is a very accomplished law professor and former dean of law at McGill, became the Chair of AUCC on October 25, 2011. This is what UBC had to say shortly after the UofT/Western deal, following an earlier much tougher statement. [This paragraph has been corrected]
  
•  On April 20, 2012 (see below) the Board demanded a response from AUCC by April 24, 2012 regarding how it will deal with AC’s demands.     

All of this sudden and inexplicable pressure is bound to cause much confusion and consternation at many institutions and is no doubt now occupying the attention of literally dozens if not hundreds of very important senior administrators and university counsel who would surely rather be focusing on almost anything else. They may be wondering just exactly what was settled by this “negotiated settlement”?

This is a very unusual “settlement” and a very difficult situation for Canadian universities. There are and will be lots of questions about it. Despite this apparently bleak situation, some may still be looking for a “deus ex machina” development + a“Hail Mary pass” that could somehow succeed. This may not be completely impossible. But this is not the appropriate forum to have that discussion. 

However, absent such developments, this battle is shaping up to be a really major, though  quite possibly ultimately Pyrrhic, victory for AC and a really serious setback, at least for the foreseeable future, for Canadian academia. One can understand why Prof. Ariel Katz calls this a "dismal outcome".

Whatever happens, it is not likely to be a pretty picture. And there could be even more troubled waters ahead quite soon.

HPK

******************************************

[April 20, 2012]

From: "Gilles.McDougall@cb-cda.gc.ca" <Gilles.McDougall@cb-cda.gc.ca>
To: "NANCY.BROOKS@blakes.com" <NANCY.BROOKS@blakes.com>, "Gbloom@osler.com" <Gbloom@osler.com>, "RANDALL.HOFLEY@blakes.com" <RANDALL.HOFLEY@blakes.com>, "wanda.noel@bell.net" <wanda.noel@bell.net>, "aoneill@fasken.com" <aoneill@fasken.com>
Cc: "gov@CASA.ca" <gov@CASA.ca>, David Fewer <dfewer@uottawa.ca>, Ariel Katz <ariel.katz@utoronto.ca>, "smagu039@uottawa.ca" <smagu039@uottawa.ca>, "athomas@fasken.com" <athomas@fasken.com>, "jordan.snel@bell.net" <jordan.snel@bell.net>, "BFong@osler.com" <BFong@osler.com>, "MKlee@osler.com" <MKlee@osler.com>
Subject: Access Copyright Post-Secondary Educational Institutions Tariff, 2011 to 2013

NOTICE OF THE BOARD

AUCC shall provide a response to ACCC and Access Copyright request described below by no later than Tuesday, April 24, 2012 at noon. ACCC and Access Copyright shall reply by no later than Wednesday April 25, 2012 at 5pm.

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
Gilles.mcdougall@cb-cda.gc.ca

---

De : BROOKS, NANCY [mailto:NANCY.BROOKS@blakes.com]
Envoyé : le 20 avril 2012 14:17
À : McDougall, Gilles: CB-CDA
Cc : Gbloom@osler.com; HOFLEY, RANDALL; wanda.noel@bell.net; aoneill@fasken.com
Objet : Access Copyright Post-Secondary Educational Institutions Tariff, 2011 to 2013

Dear Mr. McDougall:

We write concerning completion of the interrogatories process with respect to the sample of Opt-Out Institutions, which is required as a result of the decision of the Federal Court of Appeal dismissing the application for judicial review brought by the AUCC et al.

Opt-Out Institutions Sample

Please note that, due to errors in the original sample pool, the sample of AUCC opt-out institutions has changed since the list was filed with the Board on September 27, 2011. As now agreed by the parties, the representative sample of Opt-Out Institutions required to respond to Access Copyright’s interrogatories is as follows:

ACCC

Group	Institution
A	Holland College
A	Lethbridge College
A	University College of the North
B	Northern Lights

AUCC

Group	Institution
A	Brandon University
A	Campion College (affiliate of U of Regina)
A	University of Guelph
B	Athabasca University
B	Mount Royal University
B	Nova Scotia College of Art & Design
B	Royal Roads University
B	University of Alberta
B	University of British Columbia
B	University of Saskatchewan
B	University of Waterloo
B	York University

Letter to Opt-Out Institutions:

The Board’s August 25, 2011 Ruling provided that the letter to the Opt-Out Institutions should be sent on September 27, 2011. We expect that the letter to the Opt-Out Institutions (version as attached to the Board’s September 20, 2011 Order) can be sent immediately.

Schedule for Opt-Out A Institutions

Applying the same time periods as set by the Board in its September 20, 2011 Order, we propose the following schedule for completion of the interrogatories process by Opt-Out A Institutions:

1.   Answers to interrogatories: no later than Tuesday, June 19, 2012

2.   Notice with respect to unsatisfactory/incomplete responses: no later than Monday, July 23, 2012

3.   Filing with the Board of replies to notices of the grounds with respect to any remaining issues: no later than Tuesday, August 7, 2012

4.    Filing of complete/satisfactory responses: no later than six weeks following the decision of the Board on deficiency claims

Schedule for Opt-Out B Institutions

With respect to the Opt-Out B Institutions, these Institutions have already completed steps 1 and 2, above. The AUCC and ACCC have been provided with Access Copyright’s claimed deficiencies with respect to the  Opt-Out B Institutions. Applying the same time periods as set by the Board in its September 20, 2011 Order, the following schedule is proposed for the process for Opt-Out B Institutions:

2.      Notice with respect to unsatisfactory/incomplete responses: Already completed

3.      Filing with the Board of replies to notices of the grounds with respect to any remaining issues: no later than Thursday, April 26, 2012

4.      Filing of complete/satisfactory responses: no later than six weeks following the decision of the Board on deficiency claims

Requested Ruling

Counsel for the ACCC has agreed to the schedule set out above. Mr. Bloom has been given notice of the above but has not responded on behalf of the AUCC.

The ACCC and Access Copyright respectfully request that the Board issue an order setting the schedule as set out above.

I note that the first deadline under the proposed schedule occurs on April 26, 2012. We respectfully request that the Board seek the AUCC’s position as soon as practicable so that the interrogatories process regarding these institutions may be completed in a timely manner.

Yours very truly,

Nancy Brooks

Partner | Blakes

Email: Nancy.Brooks@blakes.com

Dir: 613.788.2218

____________
Blake, Cassels & Graydon LLP | Ottawa
Tel: 613-788-2200 Fax: 613-788-2247
blakes.com | Twitter

Blake, Cassels & Graydon LLP | Barristers & Solicitors | Patent & Trade-mark Agents
This email communication is CONFIDENTIAL AND LEGALLY PRIVILEGED. If you are not the intended recipient, please notify me at the telephone number shown above or by return email and delete this communication and any copy immediately. Thank you.

L'information paraissant dans ce message électronique est CONFIDENTIELLE. Si ce message vous est parvenu par erreur, veuillez immédiatement m’en aviser par téléphone ou par courriel et en détruire toute copie. Merci.