The Latest in Access Copyright's Quest for a “Mandatory” Tariff for 2010 to What is Now Suddenly 2017

Below are some recent filings at the Copyright Board concerning Access Copyright’s proposed post-secondary tariffs. Prof. Ariel Katz is trying to convince the Board to seek a “reference” to the Federal Court of Appeal on the fundamental legal issue of whether a tariff is “mandatory”.  At the same time, AC is suddenly attempting at the last moment to “consolidate” its 2014-2017 tariff hearing with that for 2010-2013, which is scheduled to begin on February 11, 2013.

Readers will recall that AUCC and ACCC have withdrawn their objections on behalf of universities and colleges respectively, after having spent about $3 million and after having handed Access Copyright  ("AC") a treasure-trove of interrogatory evidence that AC can now use to its own advantage, without any responding material, argument, expert analysis or reports, or cross-examination by AUCC and ACCC. The remaining participants cannot possibly be expected to even begin to fill this void. It appears at this point as if the overall contribution of AUCC and ACCC to this hearing has been to be very helpful to AC by providing evidence at the considerable expense of their members (and ultimately the students and taxpayers) that could reinforce AC’s case and bolster the legitimacy of the Board’s ultimate fact finding. We also shouldn’t forget that AUCC’s and ACCC’s failure to even attempt to seek judicial review of the initial “interim” tariff in this matter set the stage for the current York University litigation. Such an application would have had a good chance of success if vigorously pursued at the time, in my view. It could have also been very incredibly inexpensive in relation to what has followed and is likely to unfold.

The notion of the Board stepping in with a vigorous and full-fledged “inquisitorial” approach at this late stage under all these circumstances is probably both very unrealistic and very problematic. All of this raises a lot of questions that should be answered, but likely won’t be.

At issue at the moment, as Christmas and various deadlines loom, are the following immediate issues:

• Should the Board refer the issue of whether there can be a “mandatory tariff” to the Federal Court of Appeal for determination at this stage, rather than in the course of the Board’s hearing or in some other forum?
•  Should the Board adjourn the current deadlines and the hearing itself set to begin on February 11, 2014 and/or, indeed, stay the whole proceeding pending final determination of a reference to the Federal Court of Appeal? 
• Should AC be permitted, at this very late stage, to consolidate the 2014 – 2017 tariff hearings with the 2010-2017 process, even though the former arguably raise significant new factual and legal issues?

So, with the foregoing in mind, here are the following key recent filings: 

• CIPPIC’S submission of November 26, 2013 on behalf of CIPPIC and CFS re “consolidation”, filed several days late but with the permission of the Board and consent of AC
• Prof. Ariel Katz’s reply re the reference question, filed November 29, 2013 
• Access Copyright’s reply re the consolidation issue, filed November 29, 2013 
• A comment by Frits Pannekoek, Ph.D., President of Athabasca University in support of Prof. Katz’s request for a reference and stay. This follows the comment by Cheryl Regehr, V-P & Provost of the University of Toronto, filed November 18, 2013.

HPK