Prof. Katz’s Significant Submission: Is Relief In Sight at the Copyright Board and in the Courts from Access Copyright’s “Mandatory Tariff Theory”?

Here’s Prof. Ariel Katz’s fascinating, erudite and very important submission to the Copyright Board dated November 6. 2013 requesting it to refer the issue of a “mandatory tariff” to the Federal Court of Appeal and to stay the hearing scheduled to begin on February 11, 2014 until the determination of such a reference. He is one of the only two apparently active remaining participants opposing AC’s Post-Secondary Tariff proceeding at the Copyright Board, now that AUCC and ACCC have astonishingly withdrawn from the proceedings. To paraphrase his submission, his basis for making this almost certainly unprecedented but perfectly logical request includes:

• The recent important precedent of the CRTC “value for signal” case, wherein the Supreme Court of Canada told the CRTC that it, as an administrative tribunal, cannot create new copyright rights that aren’t found explicitly in the Copyright Act or other federal legislation. This is arguably exactly what AC is trying to do here with its mandatory tariff that would give it far more power and rights than any copyright owner or group of owners would have – i.e. to collect millions of dollars for the making of just one infringing copy for which an educational institution is liable of just one work in AC’s repertoire. It's important to note that this Supreme Court case began  as a reference from the CRTC to the Federal Court of Appeal - exactly the procedure  that Prof. Katz is suggesting.
• The inevitable  systemic failure of this hearing to adequately address public interest concerns, given the withdrawal, for whatever reasons, of the two main objectors representing university and college administrations
• The legal issues involved in AC’s “mandatory tariff” or “single reproduction theory” (as Prof. Katz calls it) compel the case for authoritative interpretation at this time by the Federal Court of Appeal. Questions will arise that include construction of the Act, the equitable doctrine of forfeiture, etc. that go to the heart of the Board’s jurisdiction and would be best adjudicated by the FCA. Moreover, Prof. Katz documents two instances where the Board has already opined rather explicitly on this issue in AC’s favour without calling for or hearing submissions.

To the best of my knowledge, nobody has ever asked the Board before to make a direct reference to the Federal Court of Appeal pursuant to s. 18.3 of the Federal Courts Act. This reference could solve a lot of problems for the Board in this instance, given the way the post-secondary hearing has devolved into an effectively default proceeding. It could also solve a potentially huge problem for Canadian universities and colleges that their associations  are apparently unable or unwilling to address at the Board  and which is unlikely, according to the pleadings, to get addressed in the York University litigation, which appears to be years away from resolution in any event, given the way it has started out.

There is an opportunity for anyone to comment to the Board on Prof. Katz’s request for a reference to the Federal Court of Appeal. Pursuant to paragraph 2 of the Board’s Directive on Procedure:

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.

Comments can be sent to the Secretary General of the Copyright Board, Mr. Gilles McDougall:
Gilles McDougall gilles.mcdougall@cb-cda.gc.ca

HPK

PS - here's Prof. Katz's own blog about his request to the Board.