No Leave to Appeal Sought in Access Copyright K-12 Tariff Case - Is this "The End"?

I can now report that neither side in the Access Copyright K-12 tariff matter that was the subject of judicial review by the Federal Court of Appeal ("FCA") has sought leave to appeal to the Supreme Court of Canada. The deadline was yesterday.

Does this mean "The End" for the matters that were at stake, most notably substantiality, repertoire, fair dealing and the burden of proof re fair dealing?

Another shoe has yet to drop in the Access Copyright Provincial Tariff case, which was heard several months earlier in the FCA. For reasons which remain unexplained, that case - which involved several similar issues -  was heard by a different panel, even though the issues overlapped and the counsel were the same on both sides of both cases. So, it is possible, in principle, that we could see diverging views from the FCA. That would be interesting.

And we wait and wait for the Copyright Board to rule on the effectively unopposed Access Copyright Post-Secondary tariff file, which as been ongoing since 2010 and in which the effectively unopposed hearing concluded  in January, 2016.

Of course, we still await Justice Phelan's ruling on Phase I of Access Copyright's litigation  against York University (oral arguments completed in June, 2016) - in which York's fair dealing guidelines were put on trial.

"The End"?  

I don't think so...

HPK

PS:

The following is my post from February 1, 2017 which originally appeared here

***************

On March 15, 2016 I initially wrote about the Copyright Board’s decision on the Access Copyright K-12 tariff here.  

On April 14, 2016 I further wrote regarding the Copyright Board’s K-12 tariff decision as follows:

Not surprisingly, Access Copyright (“AC”) is pursuing judicial review (“JR”, or an “appeal” in layperson’s terminology). Except for the surprising outcome that would potentially give it almost $10 million per annum based almost solely on the reproduction of “consumables” (assuming all school boards actually decide to pay – which is very doubtful - see below), AC lost badly on just about every other conceivable aspect – including some very important ones such as fair dealing, insubstantial copying, and its agency by ratification argument, about which the Board has effectively, even if belatedly, done a 180 degree turn around. Here is AC’s comparatively fulsome JR Notice of Application.

Somewhat surprisingly in view of the arguably much too high FTE rate of $2.46, CMEC [the “Consortium”], which represents school boards outside of Quebec, is not seeking JR. For those interested in Federal Court of Appeal procedure, there is no such thing as “cross” judicial review. Each party needs to launch its own JR on or before the 30 day deadline. In this case, only AC did so. CMEC (Council of Ministers of Education, Canada) will no doubt ably defend AC’s JR but has not commenced its own, perhaps for the reasons I speculate about below.

Well, the Federal Court of Appeal has now ruled on AC’s JR proceeding. The issues as defined by the FCA were as follows:

[10] I have regrouped the issues raised by Access under the following headings:

A. Repertoire

(1) Did the Board err in ignoring expert evidence provided by Access to correct and clarify the breadth of its repertoire as described in the volume study?

(2) Did the Board err in restricting the “substantiality” (term used by the parties) of compensable exposure under section 3 of the Act?

B. Fair Dealing

(1) Did the Board err in its application of the burden of proof?

(2) Did the Board breach its duty to act fairly?

(3) Was the Board’s methodology unreasonable and did it err in assessing the relevant factors?

A. Repertoire

(1) Did the Board err in ignoring expert evidence provided by Access to correct and clarify the breadth of its repertoire as described in the volume study?

In a nutshell the bottom line of this 35-page decision is as follows:

-        AC scored a minor legal point but a potentially commercially significant point by convincing the FCA that the Board essentially ignored certain evidence as to its repertoire. The FCA states that:

[19] It is not disputed that if Circum’s calculations had been accepted, this would represent a sizeable increase in the royalties to be paid to Access, which it estimates to represent approximately $500,000.00 per year, or $3 million dollars over the two tariff periods. Before us, the Consortium did not offer any other estimate of the potential impact of these coding errors, saying that it would have to review the validity of Access’ calculations should the matter be reconsidered by the Board as its experts had not yet had the opportunity to comment on Access’ calculations.

….

[22] Although the Consortium argued that this finding was based on the weight given to the evidence by the Board, a matter with which this Court should not lightly intervene, it is difficult to conclude anything other than that the Board, through oversight, overlooked the expert evidence and submissions it accepted as exhibits AC-114 and AC-114A on December 5, 2014.

[23] The Board’s clear wording that Access provided no evidence rebuts the presumption that a decision-maker has considered all the evidence before it.

[24] There is no ambiguity in the reasons expressed at paragraph 405 of the Board’s Reasons reproduced above. The Board failed to consider that expert evidence had been filed to estimate the degree of the underestimation, that Access had chosen to correct the underestimation and that it explained in detail why it had not done so before. Access’ statement that the corrections proposed by its expert did not result from an expansion of Access’ repertoire in the years subsequent to the data collected in the 2005-2006 volume study was not challenged before us. Thus, the Board’s refusal to consider whether the repertoire was underestimated is unreasonable.

(highlight added)

On virtually all other issues as defined by the FCA, CMEC prevailed, although not necessarily for all the reasons that it may have wished.

The FCA supported the Board’s decision “that it could not rely on the Guidelines for the purpose of setting the royalty rates (Reasons at paras. 233-234). “. These were the guidelines propounded in Wanda Noel’s booklet Copyright Matters!.

[58] The Consortium chose to present its case using two different approaches. First, the Consortium presented evidence in respect of guidelines issued in 2012 (see Copyright Matters! Some Key Questions & Answers for Teachers, 3rd ed., Respondents’ Record [RR], Vol. 1 at Tab 4) (the Guidelines)), and the fact that they had been widely distributed to K-12 school teachers. This was presented as evidence of a general practice of the type referred to at paragraph 63 of CCH. The Consortium argued that any copy made following those Guidelines would necessarily be fair (presumably these would only be relevant for the period covered by the Second Tariff). Ultimately, the Board found that it could not rely on the Guidelines for the purpose of setting the royalty rates (Reasons at paras. 233-234).

[59] Although both parties were clearly disappointed by the fact that the Board did not offer any detailed comments on their evidence relating to those Guidelines, Access did not challenge this finding, which was based on its assessment of the weight of the evidence. This was a wise decision, for indeed, the Board’s conclusion was clearly open to it on the evidentiary record.

[60] Access argued extensively in its memorandum (not at the hearing or in its outline of oral argument) that the Board was wrong to discard the Guidelines as they were the best evidence of the behaviour to be assessed to determine the issue of fairness. This resulted, according to Access, in the rejection of what Access believed was the Consortium’s better case. Yet, in my view, Access does not indicate how the Board’s actions on this point render its analysis unreasonable.

[61] That said, contrary to Access’ submissions, the Guidelines were not the only evidence tendered by the Consortium to meet the second part of the CCH test (i.e. weighing the fairness factors).

[62] It is apparent from a review of the expert report filed by the Consortium (RR, Vol. 2 at Tab 17) that the Consortium did present a second approach based on an evaluation of the CCH factors. I note that the Consortium’s experts even offered alternative calculations, for example, in respect of “the amount of the dealing” factor, although it assumed based on the instructions received, that reproduction of 10% or less of a book would be considered fair, the said experts also calculated the impact of the Board’s finding that only the reproduction of 7%, 5%, 3% or 1% of each work would be fair (RR, Vol. 2, Tab 17 at 438).

[63] Access had, for its part and as mentioned, marshalled evidence in respect of the sixth factor given that in its view, this factor militated towards finding that the dealing was not fair because of the considerable effect that copying had on the market for those works. Its expert had also calculated what would be fair by using and adjusting the Board’s previous calculations in 2009 to account for what it considered fair based on Alberta (Applicant’s Record [AR], Vol. 1, Tab I at 887-889). Access had also taken the position that the Guidelines were flawed and indeed promoted unfairness (Reasons at para. 231). In its view, the Board could only deduct the exposures that Access had conceded met the fairness test.

(highlight added)

For convenience, here are paras 233 and 234 of the Board decision discussing the Guidelines:

[233] However, in this matter, the parties have asked the Board to treat the Volume Study as representative. Thus, on one hand, the Board is being asked to consider the effect of the Guidelines on the copying behaviour of the Objectors, and on the other hand, to evaluate the copying captured by the Study. These two approaches are not readily reconcilable. If the Guidelines have modified the copying behaviour of the Objectors, then the Volume Study is no longer representative. If the Volume Study is representative, then the introduction of the Guidelines has not had a pronounced effect on the copying behaviour of the Objectors.

[234] Much of the evidence presented by the Objectors related to only certain schools or school boards. Evidence showed that while the Guidelines may have been distributed, and may even be known by, teachers and other persons that make copies of published works, there was insufficient evidence of the extent of the compliance with those Guidelines. Indeed, cross-examination of Objectors’ witnesses showed that there was little or any emphasis on monitoring and compliance with the Guidelines.147 As such, we cannot conclude that there is a generally uniform practice among all the elementary schools, secondary schools and school boards that can be evaluated for fairness in the manner contemplated in CCH.

(highlight added)

So, for better or for worse, we still have no explicit commentary on the substance of the Guidelines from either the Copyright Board or the Federal Court of Appeal. These are essentially the same Guidelines that are now, for better or worse, “on trial” in the Federal Court in the York University litigation. I have written extensively about whether letting the York Fair Dealing Guidelines be put on trial could have been avoided. We will likely know soon enough what Justice Phelan thinks about these guidelines when his decision on Phase I of that monumentally complex litigation that might have been greatly simplified is released. The final arguments in the Phase I hearing took place on June 22-24, 2016.

Here are some other observation on the FCA decision, which is complicated, lengthy and important and which no doubt requires much more detailed scrutiny by university counsel and the library community that is increasingly becoming involved in copyright issues.

Concerning “substantiality”, there was a discussion of the Supreme Court’s decision in CINAR and the FCA’s acceptance that the burden of proof was on AC to establish that copying was “substantial” in order to be eligible for payment. All of this is in the context of the very problematic volume study relied on by both sides, which was undertaken a year of so after CCH but which failed to take that decision adequately into account.

[37] I have not been persuaded by Access that the Board ignored any evidence produced by Access. Indeed, the Board considered it and found that it did not provide a reasonable basis to assess the qualitative nature of the thousands of copying excerpts at issue.

[38] That said, the Board had a couple of options. First, if it had applied the approach proposed by Access in respect of the Consortium’s burden of proof under the fair dealing analysis (see paragraph 81 below), the Board could have concluded that Access had not established that the exposures reported in the volume study amounted to reproduction of “a substantial part of the books” in its repertoire (this is the only genre in respect of which the finding of the Board is contested) given the lack of probative evidence produced by Access in this respect. Second, and what the Board chose to do, was to determine that because it did not have the benefit of a qualitative analysis applicable to the majority of cases, it was reasonable in the particular circumstances of the matter before it (fulfilling its statutory mandate to set a tariff where the parties only presented evidence on an aggregate basis) to infer that the copying of one or two pages from a book was not qualitatively substantial. This approach resulted in a smaller volume of copying being classified as non-substantial than if a threshold of 1% of each such work was adopted (Reasons at paras. 226-227).

[39] It is the task of a tribunal or trial court to fulfil its mandate, despite the paucity or quality of the evidence before them. Such decision-makers must determine if they are satisfied that a certain question of fact has been established. This task is at the very core of the expertise of tribunals such as the Board. Inferences, like findings of facts, are owed considerable deference.

[40] In my view, in the particular circumstances of this case, and considering the mandate of the Board under the Act, it was not unreasonable for the Board to infer that the copying of one or two pages of a book did not constitute reproduction of a “substantial part of the work” within the meaning of section 3 of the Act. It should be clear however that, in my view, such an inference would rarely be within the range of acceptable outcomes when there is evidence produced about each work at issue and would normally constitute an overriding and palpable error in the context of civil litigation proceedings where infringement is at issue.

[41] Finally, I note that considering the application of fair dealing and of section 29.4 of the Act to the exposures, most of the so called “non-substantial copying” in respect of books would have been deducted anyway from the compensable exposures (see tables 24 and 25 of Appendix A to the Reasons).

          (Highlight added)

It is clear that the Board made many of its findings based upon “impression” and “inference”, simply because there was inadequate evidence both in terms of data and expert testimony to fully analyse the thousands of copying events recorded back in 2005 in a flawed survey. The highlighted passage above makes is clear that the FCA would frown on such an approach in “civil litigation proceedings where infringement is at issue.”

It is also interesting that the Court suggests at para. 38 that the Board “could have concluded that Access had not established that the exposures reported in the volume study amounted to reproduction of “a substantial part of the books” in its repertoire (this is the only genre in respect of which the finding of the Board is contested) given the lack of probative evidence produced by Access in this respect.”

The Board instead chose “to infer that the copying of one or two pages from a book was not qualitatively substantial.”  This would seem to suggest that AC was indeed very lucky to get anything, based upon the problems with its evidence and its burden of proof on this issue.

On fair dealing, there is lengthy and useful analysis from the Court. However, one paragraph merits comment because it may be seized upon by those eager to repeal “fair dealing” to some extent.

[45] In Alberta, the Supreme Court focused on fair-dealing for the purpose of private study. The Court had to deal with the viewpoint from which fair dealing for this purpose is to be assessed – the teacher or the student, particularly when multiple copies are made for one or more classes. Shortly thereafter, the Act was amended to include “education” as another purpose in respect of which users could rely on section 29 of the Act. In my view, this addition removed the dichotomy between teachers’ or students’ viewpoints under the section 29 analysis, when education is the relevant purpose.

(highlight added)

With respect, I believe that the “dichotomy between teacher’s or students’ viewpoints” was resolved in paras. 42 to 45 the Province of Alberta decision of the Supreme Court of Canada under the law in place before s. 29 was amended. In this respect, the SCC had accepted arguments on this point that I made along with Prof. Ariel Katz and his institute at U. of T.

There are extensive comments that will encourage the educational community about how the Board was right in not relying solely on the “aggregate volume of pages copied or otherwise”. In fact, the Court states at para. 93 that “I find no reviewable error on the part of the Board in this respect. In fact, this finding is reasonable even if one were to consider that the overall number of copies represents approximately 90 pages per student per year.”

The FCA also supported the Board’s finding that the declining book sales could be caused by such factors as “open educational resources movement, digital sharing and the general emergence of new technologies” (para. 98)

This is an important decision that comes at an interesting time. We can only speculate as to if and how it may, or may not, affect the following pending decisions, which have been argued and which are under reserve as I have previously noted:

-        AC Provincial Government tariff, which was heard on June 20, 2016 by the Federal Court of Appeal, in which fair dealing and non-substantial copying were also major issues. For reasons which are not apparent, these cases were heard by different panels on different dates. So, it will be interesting to see whether the Provincial Government case – which was heard several months before the current case – will be consistent with the current decision.

-       decision from the Copyright Board in the AC Post-Secondary tariff case, from which the interim tariff that gave rise to the York University litigation arose. This case, which began in 2010, was finally heard by the Copyright Board in January of 2016. For all practical purposes, it was a default proceeding. The Copyright Board “ordinarily” and, indeed, often takes two years or more to render decisions – a delay that is unusual by any measure. So, a decision in 2017 – while certainly reasonably to be expected – cannot be assured unless the new Chairman is able to change the way the Board has worked for very many years.

-        The AC v. York University litigation, in which York’s fair dealing guidelines are very similar to those that were in issue – but which escaped detailed comment – in the K-12 Board decision and the current FCA decision.

It will be interesting to see whether AC seeks leave to appeal the current decision to the Supreme Court of Canada. It has 60 days to do so, i.e. until Tuesday, March 28, 2017. If the “other” case involving the Provincial Governments tariff does not come down in the meantime, or comes down within that time in manner that is notably inconsistent with the current decision, such a leave application would not be surprising. However, if the FCA’s ruling in the Provincial Government case, whenever it is released, is reasonably consistent with the current ruling, it would seem that a successful application for leave to appeal would be a long shot for AC in either case in all the circumstances.

Hanging over all of this, of course, is the question of whether Copyright Board tariffs are “mandatory”. One would have thought that the Supreme Court of Canada clearly indicated in CBC v. SODRAC that they are not, a subject that I have written about extensively here and elsewhere. (I successful argued the issue in the Supreme Court of Canada on behalf of Ariel Katz and David Lametti’s Centre at McGill). However, just like the CCH decision in 2004, it seems that it is taking a very long time for the good news to sink in and be understood by those who stand to benefit.

It’s therefore nothing if not ironic that AC is once again trying to reinvent the wheel. It recently sent out this message to its affiliates, which I am one:

We could use your help. Our innovation team is aiming to re-invent Access Copyright’s offerings for universities and colleges and needs help finding students and professors willing to sit for 1-hour research interviews on the topic of content use and technology.  

I may have more to say about this invitation later. However, in the meantime certain things would seem obvious if AC wishes to survive. How about, for example, for starters:

-        Offering easy and inexpensive transactional licenses online for repertoire for which it actually has a chain of title?

-        Not purporting to license repertoire for which it claims title only on the basis of “implied agency” or any other dubious or discredited theory?

-        Not purporting to license the public domain, or to “sell the Brooklyn Bridge”, as I have suggested?

-        Offering a clearly non-mandatory but enticing blanket license at really low cost for a really large repertoire with really generous terms of use that would make it efficient and inviting for schools, colleges and universities to consider?

-        Not suing its customers?

Or is this too much to expect?

-         

-        HPK