On March 6, 2019 the Copyright Board appears to have
turned over one new leaf by asking for comments more than three years after the
close of the hearing from “affected persons” on the “feasibility and clarity of
the terms of the tariff” with respect to Access Copyright’s proposed tariffs
for the Post-Secondary Educational (“PSE”) Institutions. I reported on this here. Those entitled to
comment potentially included lots of people and institutions that may have
withdrawn from this nearly nine-year-old saga or may even have never engaged. In
the past, the Board has limited acceptance of comments to a short window following the close of the oral hearing.
The invitation resulted in 11 submissions, which have
conveniently been made available here from the Board itself –
a helpful and timely development and another new leaf in itself. (Publishing
filed court and tribunal public documents is a crucial component of access to justice).
From the users’ point of view, these submissions feature a comforting degree of
consistency and, at the same time, a considerable degree of independent
analysis and approach.
There are some common themes throughout most of these
submissions. These are as follows:
1. The tariffs should not be mandatory and should expressly
so state. As
clearly stated by CARL, for example (to which I was pleased to provide a
helping hand):
Our first comment is that there should
be text at the outset of both drafts indicating that use of the tariff is voluntary. This flows from the decision
of the Supreme Court of Canada in Canadian Broadcasting Corp. v. SODRAC 2003
Inc. The proposed tariffs should therefore clearly state that, while Access
Copyright cannot demand higher royalties or more onerous terms and conditions
than those approved by the Board, the duty to pay such royalties and comply
with the related terms and conditions will only apply to users who have paid or
have offered to pay the royalties under such a tariff. (Footnote omitted)
2. A number of the submissions pointed out the practical and
even the legal difficulties with a retroactive tariff that reaches back almost
a decade. How are institutions supposed to reconstruct
records of what material they used so long ago? How are institutions supposed
to known what was in Access Copyright’s repertoire at the time? Even now, that
repertoire database, if it even exists, is not available to users. Some institutions
pointed explicitly to the potential invalidity of retroactive tariffs in light
of the venerable 1954 Maple Leaf Broadcasting v. Composers, Authors and
Publishers Association of Canada Ltd., [1954] SCR 624 (“Maple
Leaf”) decision from the Supreme Court
of Canada (“SCC”). That decision was concerned with a tariff on radio stations
that was retroactive by less than three months and the SCC – with some rather
explicit reluctance – permitted it as a “practical necessity” but stated
clearly that it was the "implied duty" of the Board to proceed with "all
possible expedition" in cases where tariffs may have a retroactive effect.
In the recent CBC v. SODRAC 2015 SCC 57 case in the SCC, I cited this same Maple Leaf
case in the factum prepared along with Prof. Ariel Katz and Prof.
David Lametti (as he then was). There was
considerable interest during the oral argument in the
retroactivity issue and the SCC commented on it very explicitly in this unusual
footnote – which may be seen as a warning signal to collectives and an
invitation to users seeking judicial review of retroactive tariffs:
[2] During the hearing before this
Court, counsel for the interveners the Centre for Intellectual Property Policy
and Ariel Katz briefly raised concerns regarding the Board’s power to
issue retroactively binding decisions in general. That issue was not squarely
before this Court in this case, and I do not purport to decide broader
questions concerning the legitimacy of or limits on the Board’s power to issue
retroactive decisions here.
CARL also mentioned the
Board’s own 2008 decision in SOCAN 22.B to 22.G Tariffs wherein the Board found
that it would be “highly disruptive, and therefore ipso facto unfair” to certify a tariff that, among other
considerations, was for a period (1996 to 2006) that is long past.“ This
decision was upheld by the Federal Court of Appeal in Society of Composers, Authors and Music Publishers of Canada v.
Bell Canada, 2010 FCA 139 at paras.
20 and 26, a case which I argued. I’ve discussed the Maple Leaf case before.
Clearly, the Board has not proceeded “with all possible
expedition” in this nine-year-old proceeding and it would seem inconceivable that
there could be any reasonable basis to justify a nine-year retroactive tariff as
a “practical necessity”. The University of Toronto has wisely
submitted that “The effect of the extreme delay in the present case raises a series
of issues that merit full, transparent and detailed review, with input from any
affected party, before a final decision regarding the tariffs is made.” In light of the case law, any retroactivity in
this instance may be vulnerable.
There are a number of
possible twists and turns ahead on both the “mandatory” and “retroactive”
issues. We should get some guidance on the “mandatory” issue in the next weeks
or months from the Federal Court of Appeal in the appeal of the York University
case, where the issue loomed large, although it was not addressed as fully as
it would have been if my client CARL had been allowed to intervene.
In any event, this “mandatory” issue may very likely end up in the SCC, unless
Parliament clarifies the law as enunciated by the SCC as I have suggested to the
INDU Committee.
3. A number of institutions also raised other important
points, such as:
a. The
need for Access Copyright to make its repertoire database accessible online;
b. The
need to point out that fair dealing may permit copying in excess of any bright
line set out in the tariff language;
c. The
possible inclusion of a transactional license mechanism;
d. The
overbroad definition of “copy” which goes beyond the legislation, for example
by including linking or display; and,
e. The
overreaching and intrusive records and reporting provisions.
Overall, these 11 submissions raise some existentially
important points in the terms of the “feasibility” of these tariffs. If the
Board intends to approve a tariff that can survive judicial review and/or be
enforceable, it may need to turn over even more new leaves, as it were. Maybe
that will involve rediscovering the Maple Leaf, as in the landmark 1954 SCC Maple Leaf decision. And following the
2015 SCC decision in CBC v. SODRAC – which
would indicate that, if a tariff provided pursuant the voluntary “arbitration”
regime is not mandatory, then a fortiori,
the use of the general regime cannot result in a tariff that is mandatory as
against unwilling institutional users who clear their copyright obligations
more efficiently in other ways. How can it be that such an institution, which may
have inadvertently made even only a single copy of single work in Access Copyright’s
repertoire in manner that might amount to technical infringement, be liable for
millions of dollars for maybe tens of thousands of FTEs for the term of the
tariff? And here’s another potentially
crucial issue. If the current proposed
tariffs start to involve constitutional issues, as the redoubtable Prof. Katz
suggests in his submission, – given that education is a provincial power – we
could see some interesting arguments about a concept much beloved by the SCC known as the “living tree”.
Enough arborist allusions. No doubt because spring is
so late this year. Can’t wait for it and all the little maple saplings in my back
yard…
And at the risk of reopening Canada’s national anthem
debate, I include a wonderful rendition of “The Maple Leaf Forever More” by the
legendary and world-renowned Canadian tenor Edward Johnson (1878 – 1959) – who
became the manager of the Metropolitan Opera in New York and whose name is on
the Faculty of Music building at U of T, where I played at the opening ceremony
and spent many years.
HPK
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