1. the mandatory nature of the tariffs,
2. the retroactive application of the tariffs,
3. the structure of the royalties (i.e. FTE vs transactional) and
4. the scope of acts covered by the tariffs
1. Why did the Board invite submissions from “affected persons” on the “feasibility” of the tariffs – only to now ignore those submissions?
2. Why has the Board failed to notify the “affected persons” who were invited to make submissions on the draft tariffs that their submissions will be ignored in whole or part and is only interested at this point in hearing further from “the Parties” – which technically means only Access Copyright and Sean Maguire?
3. Did the Board create a “legitimate expectation” among “affected persons” that their submissions would be accorded fair and adequate consideration?
4. How can the Board ignore the “retroactivity” issue – especially in the context of this proposed tariff – when “affected persons” may have to try to reconstruct information on course pack content, third party licenses, fair dealing and other considerations going back almost a decade and particularly if the tariff is “mandatory” in any way? How can the Board’s decision to ignore the retroactivity issue in this context be reasonable and how could a lengthy period of retroactivity possibly be feasible in this case?
5. How can fundamental and even jurisdictional issues such as whether tariffs can be mandatory and to what extent, if any, they can be retroactive not go straight to the core of the “feasibility and clarity of the terms of the tariff”? Surely, if a tariff is inconsistent with the Copyright Act and several Supreme Court of Canada decisions, the “feasibility” of such a tariff would be fundamentally at issue.