Access Copyright’s Post-Secondary Tariff – The Glacier is Starting to Melt at the Copyright Board

Here is a recent Notice from the Copyright Board concerning the Access Copyright (“AC”) proposal for post-secondary tariffs. This Notice has not yet been posted on the Board’s website, although it was issued at 11:40 AM yesterday, June 30, 2015: 

From: <Gilles.McDougall@cb-cda.gc.ca>
Date: Tue, Jun 30, 2015 at 11:40 AM
Subject: Access Copyright - Post-Secondary Educational Institution Tariffs, 2011-2013 and 2014-2017 - Notice of the Board - June 30, 2015 [CB-CDA 2015-042]
To: arenaud@accesscopyright.ca, cgillis@accesscopyright.ca, efinlay@accesscopyright.ca, smagu039@uottawa.ca

[CB-CDA 2015-042]

NOTICE OF THE BOARD

The Board is of the preliminary view that, in accordance with the attached Access’ request, Access Copyright Post-Secondary Educational Institution Tariffs for the years 2011-2013 and for the years 2014-2017 should be consolidated. The reasons invoked by the Board in its ruling of December 4, 2013 to deny the application for consolidation have become moot with the passage of time. The Board also agrees on a preliminary basis with Access that a hearing on the consolidated matter could be scheduled for early 2016.

Mr. Maguire can provide comments on the Board’s preliminary view no later than Friday, July 3, 2015. Access may reply to the comments no later than Monday, July 6, 2015.

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@cb-cda.gc.ca

(highlight added)

This is a very significant Notice that comes very quickly in turn after the Board’s Notice of June 18, 2015.

 June 18, 2015

[CB-CDA 2015-037]

NOTICE OF THE BOARD

Following Access Copyright’s attached request, the Board suspends sine die the deadline to respond to the June 3, 2015 Order. Further instructions will be issued shortly. Attachment: 2015-06-16 Application to Copyright Board requesting a hearing (final).pdf

The Board often moves at a glacial rate. But when it moves quickly, it can do so at amazing speed. When glaciers being to melt, they sometimes do so dramatically and make a big splash.

The above Notice of June 18, 2015 followed in turn very quickly from AC’s letter of June 16, 2015 setting the stage for judicial review following shortly after the Board’s Order of June 3, 2015. The June 3, 2015 Order asked some perfectly reasonable questions about AC’s proposed “Premium” and “Choice” offerings to post-secondary institutions. And no – AC has not gone into the cable TV business. On May 25, 2015 I had asked on my blog, re the implications of the Board’s devastating Provincial Government tariff:

What will this mean to Access Copyright’s new “Access Premium” and “Access Choice” offerings?  [Why does this sound more like a cable TV package? ;-)] Hard questions should be asked as to why universities should pay $18 per FTE for similar rights that Governments will now be paying less than $0.50 per FTE. That’s a 3,600% difference. While there is undoubtedly more copying per capita in universities than in Governments, it is hardly likely to be 3,600% more. And what effect will these “voluntary” license rates have on the tariffs being sought at the Copyright Board, which are much higher still – i.e. $35 for a university FTE and $25 for other post-secondary FTEs for 2014-1017.

AC’s letter of June 16, 2015 can be seen here. It doesn’t want to answer the perfectly reasonable questions and seems to be setting the stage to go to Court to force the Board to proceed with a hearing on AC’s Post-Secondary tariff, which has indeed been in a state of suspended animation for over a year. This is a file that has put the Board in a nearly impossible situation “Twixt the Rock and a Hard Place”.

Interestingly, AC also advised the Board on June 16, 2015 that “Also, we request that you kindly remove Blakes as counsel of record on this matter.  Instead, Art Renaud, Claire Gillis and I should be listed on the Board’s service list for Access Copyright”.  So, AC becomes yet another major collective to partially or wholly assimilate its Board and even judicial review work in-house. Indeed, its recent judicial review notice re the Provincial Tariff was filed by in-house counsel. This is yet another indication of the changing economics of Copyright Board work and the apparent possibility that some large firms representing some large collectives and objector associations have made or allowed these cases to become so complex and expensive that “big law” may have priced itself out of this once very lucrative market.

So – the Board seems poised to proceed as follows – allowing AC and the one remaining objector, an unrepresented  student named Sean Maguire, just a few days to respond – with Canada Day intervening.

•  The Board evidently is of the “preliminary view” that it intends, inexplicably, to go along with AC’s request that it “revisit” its December 4, 2013 ruling denying consolidation. Now, and potentially controversially, the Board seems intent on consolidating Tariffs for the years 2011-2013 and for the years 2014-2017, a request that the Board had quite convincingly denied on December 4, 2013. In that brief ruling, the Board rightly raised complexities potentially arising from AC’s claims to payment for linking, hyperlinking and “making available”.
•  The Board evidently intends proceed with an oral  hearing in 2016
•  The hearing will be effectively unopposed (apart from Mr. Maguire, I am unware of any remaining objectors or interveners), following withdrawal of the two main objectors – AUCC and ACCC. As I have previously indicated, this withdrawal has never been publicly explained, but may well be for budgetary reasons, since AUCC and ACCC 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.

Frankly, even as an avid Board watcher and sometime active counsel, it is not the slightest bit apparent to me why “The reasons invoked by the Board in its ruling of December 4, 2013 to deny the application for consolidation have become moot with the passage of time”.

If the Board provides AC with a “mandatory tariff” of any significant value, especially one that is based upon a “making available", linking, hyperlinking or other controversial basis, there will be much concern and even outrage but very unclear and uncertain recourse, if any,  in the public interest. That is because the enormous post-secondary community potentially directly affected were represented by associations (AUCC and ACCC) that have withdrawn their objections, without any public explanation. I should remind readers that I have been involved in a recent intervention in the Supreme Court of Canada on the issue of whether a tariff can be “mandatory”, and many await the result of that case with considerable interest.

All that said, nothing can be predicted with much certainty regarding the Board these days. Recent decisions of the Board may suggest that the Board is taking a more inquisitorial approach that allows the Board to go beyond the submissions and evidence of counsel, which may sometimes be inadequate on all sides, despite the money being spent. This is perfectly legitimate, as long as the Board takes appropriate steps to ensure procedural fairness. So, we may see even more of this in the Post-Secondary file.

Somebody needs to look out for the public interest in the post-secondary file. The AUCC and ACCC, although they have spent millions on legal fees, have apparently done nothing useful to do so.

HPK