The late breaking news is that Access Copyright (“AC”) is
now proposing at the last minute by letter of November 18, 2013 to
combine the deeply troubled 2010-2013 proposed post-secondary tariff hearing with
the even more problematic 2014-2017 hearing in the hearing set to begin on
February 11, 2014. The Board has allowed
just two days (see below)
for comments on this unprecedented situation in which the future of the collective
administration of copyright in Canada’s educational sector and beyond will
likely be decided by default.
Since October 25, 2013 we have seen the withdrawal of
ACCC from the current and future (2014-2017) proposed AC post-secondary tariffs
(following AUCC’s withdrawal in April of 2012). We have also seen Prof. Katz’s significant
submission of November 6, 2013 requesting a reference to the Federal Court of
Appeal on the issue of whether the Board’s final tariff can be “mandatory” and
a request for an adjournment and stay while this is being considered by the
Board and potentially referred to the Court. We have seen the Board’s quick and
summary denial without reasons of Prof. Katz’s perfectly logical request for a
three week or so adjournment of the hearing set to commence on February 11,
2014 while the Board considers submissions on his request for the reference,
and his request for a stay, if the reference is indeed sought, pending final
determination by the Courts.
AC expressed its view in its letter of November 11,
2013 that “there is no reason why the tariff proceeding must await the outcome
of a decision on a reference, if any”. It is interestingly coincidental that,
given the Board’s abrupt rejection of both an adjournment and a stay, AC suddenly
expresses great concern in its letter of November 18, 2013 for the “administration
of justice” and “judicial economy” by proposing to consolidate the 2010-2013
proposed tariff with the 2014-2017 proposed tariff, set to begin in less than
three months, and when the remaining objectors have to file their cases in
exactly a month from tomorrow. AC justifies this because, in its view, the
absence of AUCC and ACCC will leave enough time so that the Board can dispose
of two hearings in the time allocated for one – with substantial new evidence
of an unknown nature to be introduced on the record at an unknown time.
As Prof. Katz explained compellingly in his request, a
reference and a stay are necessary to promote judicial economy and ensure the
administration of justice in the face of the collapse of the adversarial
process before the Board. AC, not unexpectedly, has objected to a stay of the
Board hearing, but now requests to compound the problem by using a single
fundamentally flawed hearing to approve two tariffs, not only one.
Moreover, AC, which could have asked to consolidate
the hearings many months ago, has waited until a month before the remaining
objectors have to file their Statements of Case, before filing this surprising
request, and before casually requesting to file substantial new evidence of an unknown
nature to be introduced on the record at an unknown time, all while the Board
holds the remaining objectors up in the air, having to file their Statements of
Case with respect to two, not one, proposed tariffs in a month, without even having
all the evidence the AC wishes to rely on before them. All of this, of course, is
said to be in the interest of “judicial economy” and the “administration of
justice”.
Moreover, AC has not even requested to amend its
Statement of Case so that it would explain why what it claims to be justified
for the years 2011-2013 is necessarily justified to 2014-2017. Needless to say,
in this highly dynamic environment, no such assumption can be made.
Furthermore, AC says that the two tariffs are “are effectively
identical save for the royalty rate that Access Copyright seeks to have set by
the Board. A comparison of the two tariffs is attached for the Board’s
convenience.”
However,
a quick look at AC’s “comparison” document reveals at
least one rather notable and definitive difference, namely the inclusion of a
“making available” right that AC somehow manages not to mention in its letter
of yesterday. Whether this new supposed “right” even exists is the subject of
much current contention before the Board and is likely headed to the Supreme
Court of Canada – again. One would have thought that this issue was laid to
rest by the Supreme Court and Parliament in 2012 – but evidently many entities including
SOCAN, AC and apparently the Board itself are not convinced that this is the
case. It looks like this will be déjà vu all over again, in a similar way to
how the Court had to reiterate twice in 2012 what is said about fair dealing in
2004, and the Federal Court of Appeal had to reiterate in 2008 what it said
about an iPod levy in 2004. Sometimes, it seems that some copyright collectives
in denial (but with lots of their members’ money to spend) need to be reminded from
time to time that Courts tend to say what they mean and mean what they say. Moreover,
even if such “making available to the public by telecommunication in any
material form whatever” exists, it is not clear on what basis AC claims to have
the power to license it on behalf of its members.
So,
the 2014-2017 AC proposed tariff is a brand new ball game, with the “making
available” addition and the new evidence, whatever it may be. Except, of
course, that both the AUCC and ACCC have gone from being objectors to
effectively (even though doubtlessly inadvertently) to becoming “enablers” by
dropping out, walking away and withdrawing objections – after having spent
millions resulting only in the provision of ample evidence for the resulting benefit
of AC in the forthcoming hearing (or maybe combined hearing), where they won’t even
be present to challenge the characterization, relevance or use of this
evidence..
Only
the CFS and AUCC
CAUT remain as objectors in the proposed 2014-2017 tariff through pro bono representation by the student
law clinic CIPPIC. However, with its limited resources, CIPPIC’s visible role to
date has not been very substantial. It is absurd to expect Prof. Katz, capable
as he may be, to single-handedly defend the Canadian public interest and the
entire educational sector on his own without
resources or a mandate – although he has made some remarkably good and important
efforts to date that have benefitted these interests or at least preserved some
battleground turf for them. The appearance of the University of Toronto on the
record pursuant to Section 2 of the Board’s Directive On Procedure on November
18, 2013 may prove to be significant.
All
in all, there are many reasons for great concern in the educational community
at all levels. These include the inexplicable abdication of AUCC and ACCC from their
expected roles, the summary and unexplained refusal of the Board to even temporarily
adjourn the forthcoming hearing in the face of a highly credible request for a
reference to the Federal Court of Appeal, and now this interestingly timed attempt
to promote “judicial economy” and to “enhance the administration of justice” by
proceeding at the last minute by effective default with two major new tariffs – one with a startling, completely
new and untested “making available right”. Let us see how interested parties on
the record and in the public as well as the Board react. And if the finally
result is controversial, it will be interesting to see if, when and how the Government
reacts.
If
ever there were a time and a reason to call “time out” on this proceeding that
has devolved into an unfortunate failure of the adversarial system, it would
seem to be now.
In
the face of this unprecedented situation, the Board this morning issued this
Notice with a very short fuse (highlight added):
NOTICE OF THE BOARD
Objectors in the files
mentioned above can respond to the attached Access request no later than Thursday,
November 21, 2013. Access can reply no later than Monday, November 25,
2013.
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
- at - cb-cda.gc.ca
Members
of the public can provide comments c/o Secretary General McDougall (see above)
pursuant to s. 2 of the Board’s Directive On Procedure which reads as follows:
2.
Comments
Anyone
may comment in writing on any aspect
of
these proceedings. As a general rule,
comments
received later than the date by which
participants
must present or file oral or written
arguments
will not be considered. In due course,
the
Board will forward these comments to
participants.
HPK