Access Copyright’s Coincidentally Convenient Copyright Board Consolidation Motion: Concern for the Administration of Justice and Judicial Economy?

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):

From: "Gilles.McDougall - at - cb-cda.gc.ca" <Gilles.McDougall - at - cb-cda.gc.ca>
Date: Tuesday, 19 November, 2013 9:48 AM
To: "NANCY.BROOKS - at - blakes.com" <NANCY.BROOKS - at - blakes.com>, Ariel Katz <ariel.katz - at - utoronto.ca>, "RANDALL.HOFLEY - at - blakes.com" <RANDALL.HOFLEY - at - blakes.com>, David Fewer <dfewer - at - uottawa.ca>, "smagu039 - at - uottawa.ca" <smagu039 - at - uottawa.ca>
Subject: Access Copyright Post-Secondary Educational Institution Tariffs, 2011-2013 and 2014-2017

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