Friday, January 31, 2014

Deadline of Wednesday February 5, 2014 to Oppose CD "Levy" of $0.29 Each

The deadline to object to CPCC's proposed tariff on blank CDs of $0.29 each is next Wednesday, February 5, 2014. Here's the Copyright Board's notice. There is no cost in terms of Board fees to file an objection and no liability to the CPCC if the objection is later withdrawn or not pursued.

It's surprising that the existing levy generates any income for CPCC, since it's cheaper now to buy DVDs, which hold about seven times the data. But there are, apparently, still some legacy computers out there that don't have DVD burners. There are other obvious storage media choices that are very cheap or virtually free - including cloud, microSD, USB and hard drives.

Here's the latest reported financial data from CPCC.

At the current rate of decline in revenue, CPCC will likely soon be out of business - absent any miracle delivered by way of legislation. This would seem unlikely from a Government that issued a regulation stopping a levy on microSDs and whose then Minister of Heritage, the Hon. James Moore,  referred in 2010 to a proposed levy on iPods, etc. in the following terms:
This idea of imposing a new tax on iPods and MP3 players is not a new idea because there are very few new ideas, unfortunately, that come from the opposition on the issues of copyright and taxes. However, this idea is really toxic and, frankly, really dumb. This would punish consumers if we were to put in place a tax of up to $75 on iPods, Blackberries, cell phones, laptops, computers, memory sticks and automobiles, anything that is capable of playing digital music. (emphasis added)


Tuesday, January 28, 2014

CMEC’S Leave to Intervene Application Material in AC v. York U Litigation

Last week the CMEC, the Council of Ministers of Education, Canada sought leave to intervene in the Access Copyright v York U lawsuit.  I have obtained, from the Court itself, a copy of these materials, which are on the public record.

CMEC is not seeking to get involved in the discovery process but rather wishes to make oral and written submissions following completion of the evidence and to have standing to seek leave to appeal. CMEC wishes to address four main issues:
  • The legal guidelines, justifications and international norms that underlie the copying limits set out in the York Fair Dealing Guidelines;
  •  The interpretation of the word “education” in s. 29 of the Copyright Act, and in particular, the meaning of fair dealing in the context of a classroom with teachers and students; 
  • The interpretation of the SCC’s decision in CCH v. LSUC and Alberta (Education) v. Access Copyright; and, 
  •  The Copyright Board’s jurisdiction to set tariffs and the compulsory or mandatory nature of these tariffs.
CMEC says that “It is not clear, based upon the pleadings in this case, how and whether York University will address each of this [sic] issues. It is crucial that this Court be able to fully explore each of these issues in order to determine this case…”

CMEC states that its K-12 members are subject to an interim tariff that is “similar” to the interim tariff pursuant to which York is being sued and that its members are thus “currently in the same position as the Defendant, York University”. This is presumably the interim tariff that the Board imposed on May 29, 2013. There is no indication that CMEC sought judicial review from this decision. Nor is there any indication that AC has sued any school board pursuant to the interim tariff. 

CMEC  states that its guidelines are “virtually identical in substance” to the York U guidelines. In particular, CMEC seems to be concerned that any judicial interpretation of the SCC’s K-12 decision, in which it was the Appellant, of the phrase “short excerpt” may directly affect the use of copyright-protected works by students and teachers in every K-12 school outside of Quebec. 

CMEC appears to be willing and even determined, along with York U, to put their guidelines on trial. However, some will question whether this is either desirable or even necessary. 

It may be recalled that over the last decade the Supreme Court of Canada has handed down three landmark decisions on fair dealing, including CMEC’s own case involving fair dealing in the classroom. Those decisions (as well as in the other copyright cases that the Court has decided) are highly favourable to CMEC and all educators and students in Canada. The Court has articulated clear guidelines that give educators a strong and unequivocal mandate to pursue their educational mission in accordance with the law, and without the need to obtain the restrictive, expensive, and intrusive licenses that AC seeks to impose on them. It is difficult to see what additional clarification is needed, and why York U and CMEC would want to put their own policies on trial, unless they have no choice. 

As far as the interpretation of the word “education” is concerned, the word itself, its usage in the act, and legislative history make if quite clear that the meaning is very broad. As far as I know, AC has not disputed that teachers in Canadian K-12 schools, colleges or universities are engaged in “education”. Asking a court to confirm what is obvious may not only be unnecessary but risky, unless this becomes absolutely inevitable. 

As to whether it is necessary to put these issues on trial, I have previously questioned whether the AC v. York U litigation even needed to proceed at all and why steps have not been attempted to attack the pleadings. Such an attack, had it succeeded, might have saved a lot of time and money and avoided a lot of risk for educators and the public interest at large.

The one issue that arguably really does need to be tested in the appropriate way,  in the appropriate forum and sooner rather than later is that of AC’s “sword of Damocles”, which is whether the Copyright Board has the jurisdiction to put in place an effectively  “mandatory” tariff – whether on an interim or final basis. We cannot count on the York U litigation to resolve this issue. Indeed, as I have pointed out before:
York appears to have effectively conceded that the inevitable final tariff, when certified by the Copyright Board, will be “mandatory”. Its main defence in this litigation seems focussed on the notion that the tariff is merely “interim”. It does not confront the “elephant in the room” question as to whether any final tariff for reproduction of literary works – and a fortiori (even more so) an interim tariff – can be “mandatory” in the “one copy of one work” sense espoused by AC and endorsed by the Copyright Board.
CMEC makes a good point in addressing this issue but is asking, as a potential intervener, to make submissions only after the completion of the evidentiary stage. Moreover, as things currently look, it seems that the York U litigation will go on potentially for years with an agenda being largely controlled by Access Copyright itself, as the plaintiff.  

There are other and better ways to determine the “mandatory tariff” issue, and to do so in the short term. Ariel Katz suggested the best and most elegant possible solution, which the Board rejected, even though AC itself had stated that “Assuming the question is framed as Access Copyright proposes, Access Copyright would not oppose a reference by the Board of such question to the Court.” The differences in the wording being suggested by Prof. Katz and AC were simply semantic and likely could have been easily reconciled.  The result could have been a direct reference from the Board to the Federal Court of Appeal. It might have been quick, inexpensive, and conclusive. Nonetheless, there are still other ways to resolve this issue sooner rather than later, if there is a will to do so. 

I won’t comment on the likelihood of CMEC’s success in being allowed to intervene in the York U case, other than to say that, generally speaking, such an attempt is unusual at this early stage, at the trial level, and in these circumstances. It will be interesting to see how AC and York U react.

By the way, CMEC will have an opportunity to address all of the issues with which it is concerned in this potential AC v. York U intervention at the Copyright Board in the hearing on AC’s proposed K-12 tariff, set to begin on April 29, 2014.  CMEC’s Statement of Case is due to be filed on March 14, 2014 and it will be posted on this blog as soon as I obtain a copy. 


Wednesday, January 22, 2014

CMEC seeks leave to intervene in AC v York U Litigation

CMEC, which represents the K-12 School Boards, is seeking leave to intervene in the AC v. York U litigation. It filed its material seeking leave yesterday in the Federal Court. Here's the Court docket.

I will post the material as soon as I get a copy of it.


Friday, January 17, 2014

Copyright Board Postpones Access Copyright Post-Secondary Hearing Sine Die (Indefinitely to a a date to be determined)

Here's an important notice from the Copyright Board postponing the Access Copyright Board hearing sine die (indefinitely, to some later date to be determined). Here is also a list of the questions issued today (January 17, 2014) that the Board is posing to AC in these circumstances. 

Moreover, "depending on whether the additional evidence filed by Access in respect of the University of Toronto is included in the file or not, the Board may well have additional questions to which Access could probably not respond before the scheduled starting date."

Comment will follow. However, in the meantime, this very unusual development  and the content of the notice makes it clear that the Board is reacting to the fact that this is now a default hearing.


Access is asked to supply as soon as possible all raw data, in Excel format, used to generate the report it filed as Exhibit AC-5 (Analysis of the Volume and Nature of the Copying of Published Works Documented in the Post-Secondary Coursepack Data Delivered to Access Copyright between 2005 and 2012).
Access is also asked to respond to the attached Board’s questions no later than Friday, February 28, 2014. Mr. Maguire should inform the Board no later than Monday, March 3, 2014, whether he wishes to provide a response to Access’ answers and provide the Board with an estimate of the time needed to provide such response.
The nature of the questions addressed by the Board are such that Access cannot realistically provide full answers before the start of the hearing currently scheduled for February 12, 2014. In addition, depending on whether the additional evidence filed by Access in respect of the University of Toronto is included in the file or not, the Board may well have additional questions to which Access could probably not respond before the scheduled starting date. Furthermore, the staff is also currently analysing the legal issues at stake in this file, which will likely lead to a number of legal questions to Access.
Finally, the withdrawal of CAUT and CFS as well as Mr. Katz implies that the Board staff needs to play a more active role in the file.
For these reasons, and because of the additional drain on Board’s resources this implies, the Board postpones sine die the hearing in this matter. After having received and analysed all answers from Access, and replies from Mr. Maguire, the Board will either decide when to reschedule the hearing or proceed on paper.
Gilles McDougallSecretary General | Secrétaire général
Copyright Board of Canada | Commission du droit d'auteur du Canada56 Sparks, Suite| Bureau 800Ottawa ON K1A 0C9Telephone | Téléphone

Tuesday, January 14, 2014

Update on Access Copyright's Proposed Educational Tariffs at the Copyright Board

This is an update regarding the pending Access Copyright hearings scheduled at the Copyright Board.

Regarding the Access Copyright (“AC”) proposed Post-secondary tariff, the most noteworthy point at this time is that the proceeding has become a default event. AUCC and ACCC withdrew long ago. CIPPIC (representing CAUT and CFS) has now withdrawn. Prof. Ariel Katz, has also decided not to file a Statement of Case, though he sent a letter making some very important submissions, as is explained below. The only objector who has submitted a Statement of Case and who plans to appear is a student named Sean Maguire, who makes some perceptive points. However, the Board cannot realistically treat this hearing as anything other than a default proceeding. That such an important Board hearing with so much at stake is proceeding by default is unprecedented and raises many very important and even troubling questions.

It will be recalled that the Board has rejected Prof. Katz’s request that the overwhelming “elephant in the room” issue about whether any tariff in this matter can be “mandatory” be referred to the Federal Court of Appeal, pursuant to an established procedure that can be used in such a situation. Such a reference would have been a very good idea from every point of view. Indeed, even Access Copyright did not disagree with making such reference, and there were only some minor semantic points of distinction between it and Prof. Katz over the proposed wording of the reference question, and there were really no facts in dispute. It seemed like the perfect case for a reference. However, the Board declined to seek this reference, and issued some fairly explicit hints that it may devise a tariff that is supposedly not mandatory. However, a tariff can appear to be optional in form but effectively be mandatory in substance.

Nonetheless, the fact is that the dozens of post-secondary institutions have concluded, based upon careful analysis and advice, that they don’t need an AC license in view of the extensive licensing deals that they already have in place, the new legislation, the three SCC decisions on fair dealing in the last nine years, and the measures that they have taken to comply with the current legal regime as they see it. They will find any tariff certified by the Board at any price to be unacceptable if it is “mandatory” in any sense.  Even a tariff for a nominal rate or some other scheme that lies between the extreme of all or nothing would still be highly problematic because of the inevitably “onerous obligations such as auditing, accounting and reporting”. There could very well be consequential legal and political repercussions if the Board certifies any tariff under these circumstances, unless such a tariff is truly and explicitly optional. And even then, it will be of interest to institutions only if it offers something clearly of value upon reasonable terms and conditions.

There is a lot at stake in this default proceeding. To mention just a few obvious points:

  • Whether any final certified tariff can be “mandatory”, either in form or in substance
  • Tens of millions of taxpayers’ and/or students’ dollars per year
  • Whether AC’s limited vision of fair dealing, its denial of the impact of SCC and relevant jurisprudence from other jurisdictions, its restrictive views on academic freedom and access to knowledge, and its agenda that is inimical to research and teaching have any legal foundation
  • Whether such views will adversely affect the quality of post-secondary education in Canada, the competitiveness of Canadian students, researchers and teachers, and, ultimately, even the ability of Canadians to innovate
  • The very existence of AC (i.e. if its clients see insufficient value in it licenses and these licenses are not legally “mandatory”, why would any rational institution sign on? OTOH, even if the licences are somehow ultimately held to be “mandatory” by the Courts but provide insufficient value, can government intervention be far behind?)
  • Whether the professors and instructors who provide most of the material that is used in Canada’s post-secondary institutions may see the need or the utility of forming their own collective that might be more efficient and responsive to the needs of Canada’s post-secondary educational system, something I have been talking and writing about for at least 15 years. 
  • The future of the Board itself, since an unacceptable result could provoke the Government to implement regulations sooner rather than later and eventually, if necessary, legislation that might deal with some of the problems that have arisen in this proceeding that are not simply attributable to the controversial withdrawal of the two essential institutional objectors.

Some key recent documents and links are provided below: 

BTW, virtually all of the above is also at stake in the K-12 hearing that is scheduled to commence on April 29, 2014.  AC has recently filed its statement of case for this hearing.  AC’s Statement of Case in the K-12 proceeding contains the following formulation of a “mandatory tariff”, which is notable not only for its breadth and scope but for its astonishing assertion about the burden on institutional objectors to prove that “every act of copying in K-12 schools during each year covered by the Proposed Tariffs was for an allowable purpose and was fair”.

10. A legal and factual issue in this proceeding will be the effect of the fair dealing exception under s. 29 of the Act. As of January 1, 2013, the Objectors have taken the position that all copying authorized under the Proposed Tariffs is “fair dealing” and they therefore are not obligated to pay a royalty to Access Copyright for any such copying. The Objectors have the legal burden of establishing that every act of copying in K-12 schools during each year covered by the Proposed Tariffs was for an allowable purpose and was fair. Access Copyright submits that the Objectors will be unable to discharge that burden. Simply, the copying at issue in this proceeding is not fair. Access Copyright bears the evidential burden in respect to one of the recognized fair dealing factors – the effect of the dealing on the published works. Access Copyright will discharge that burden by tendering the expert and factual testimony identified in Part V below.
(highlight added)

The K-12 proceeding will be defended by the school boards, which will be represented by experienced counsel.