As I have suggested before in some
detail on April 11, 2014, the Copyright Board is caught between
a rock and hard place on the Access Copyright (“AC”) Post-Secondary file and
the gap is narrowing. The withdrawal of
the two main objectors – AUCC and ACCC – has not been publicly explained, but
may well be for budgetary reasons, since they had already by mid-2012 spent
almost three million that we know about to
accomplish apparently little if anything other than providing a huge amount of
interrogatory information for the benefit of AC and to reach model agreements
that have been widely rejected by their own members.
If indeed their withdrawal was for budgetary
reasons, perhaps a lot of money could have been saved (not to mention time and
resources amongst their members) if they had followed the well-established
practice of responding to interrogatories only from a representative sample of
members – as explicitly though belatedly reminded by the Board on June 6, 2011. Perhaps the Board assumed that they would have done just
that. However, their failure to follow this practice remains unexplained, at
least in public.
As I said back in
2011:
Unfortunately, it
only now appears that a very large number of universities and colleges may have
spent an incalculable amount of time providing answers that could turn out to
have been unnecessary. Even the smallest of the two hundred or so affected
institutions has probably spent hundreds of person/hours on this process. One
can only imagine the resources put in by the larger ones.
In any event, this is water under the bridge and the
AUCC and ACCC have indeed withdrawn, and also inexplicably withdrawn their
objections, paving the way for a default decision that may be very harmful for
their members and which may leave their members in a very difficult if not
impossible position in terms of judicial review or other recourse in the event
that there is a “mandatory tariff” and Access Copyright sets about to enforce
it. The situation will be even more serious if York loses its litigation against
AC, which won’t even get to trial before May of 2016.
In any event, the Board is clearly troubled by
this situation and has issued no indication as to how it will proceed with a
hearing in this file since its cryptic notice
on January 17, 2014 that:
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
Now, it seems that even Access Copyright is
getting worried. It recently filed this
letter dated October 6, 2014
with the Board. The letter says:
In Access Copyright’s submission, an oral hearing is needed as a matter
of procedural fairness and in view of Access Copyright’s reasonable expectation, based on directives
and Notices of the Board, that there would be an oral hearing. The Directive on
Procedure issued by the Board on October 16, 2012 stipulated that an oral
hearing will be held. Notices issued by the Board on a number of occasions
before Access Copyright filed its case1 confirmed that the Board would be
holding an oral hearing. Access Copyright accordingly filed its case in the
reasonable expectation that there would be an oral hearing. The Board adjourned
the hearing sine die only after Access Copyright had filed its case. Given the reasonable expectation created by the Board’s
directives and Notices, Access Copyright respectfully submits that the
principles of natural justice and procedural fairness require that an oral
hearing be scheduled in order to permit Access Copyright to put its entire case
before the Board.
There remains one objector, Mr. Maguire, in these tariff proceedings. It is not the fault of Access Copyright that the
Association of Universities and Colleges of Canada (“AUCC”), the Association of
Canadian Community Colleges (“ACCC”) and other institutions and individuals all
withdrew as objectors. Access Copyright should not be prejudiced by the
decision of those objectors to withdraw. We note that the Board
has held hearings in other proceedings where there have been no objectors.
(emphasis and
highlight added)
It is quite clear that AC is setting the stage for
judicial review here, if for any reason the default proceeding does not go
their way and as far they want it to go, i.e. to a “mandatory tariff” that
could render a large university liable for millions for making just one infringing
copy of just one work that happens to be in AC’s repertoire, no matter how much
money and effort that the university has spent in good faith on other means of
copyright clearance and compliance.
This file has been plagued with problems from the
beginning, not least of which was the interim tariff imposed on the eve of
Christmas in 2010 and the blatant
failure of the AUCC and ACCC to even try have it set aside, which may have been
quite possible at the time on several grounds as I have outlined many times.
The current system in place at the Board is based upon the adversarial system, which has fundamentally failed in this instance due to the withdrawal of the main adversaries.
The members of the AUCC and ACCC have a lot to be
worried about. But so does AC. This is not a pretty picture.
An oral hearing would provide at least some measure of
transparency. It would provide the Board with an opportunity to publicly
question AC’s witnesses to the extent that the Board believes it can and should
do so, and to the extent of the Board’s resources, given that the Board does
not seem to be contemplating the involvement of an amicus curiae. It would give the public the
opportunity to attend and some basis to provide informed written comments,
pursuant to the Board’s usual Directive
on Procedure, especially if the Board were to promptly post a
transcript of the hearing and set a deadline that would allow for meaningfully
sufficient time for such comments.
Perhaps the Board should grant AC’s wish, with AC
being mindful, as many copyright collectives and NGOs have learned the hard
way, of the old adage about being “careful what you wish for.”
It may fall to the next Chair of the Board to
decide how to proceed, since the past Chair’s appointment expired on May 13,
2014 due to the operation of the statute. In any event, the silence is
beginning to get louder and the suspense is building.
HPK
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