Further Setback for AUCC in Access Copyright Post-Secondary Copyright Board Case

AUCC has suffered another major setback in the Copyright Board case involving the proposed Access Copyright Post-Secondary Tariff.

The judicial review applications by AUCC regarding the Board’s order requiring  “opt out” institutions to answer interrogatories and the Board’s decision to refuse to require transactional licensing were very decisively dismissed by the Federal Court of Appeal on March 20, 2012 “from the Bench “,  with costs payable to Access Copyright.

I understand that the Court did not even call upon Access Copyright to respond to AUCC’s argument.  The Copyright Board intervened, and was also not called upon to respond.

The factums of the Parties and the intervener can be read here:

AUCC

ACCESS COPYRIGHT

COPYRIGHT BOARD

Here is the brief ruling of the Court. 

HPK

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REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Ottawa, Ontario, on March 20, 2012)

SHARLOW J.A.

[1]               Before the Court are two applications for judicial review of interlocutory decisions of the Copyright Board rendered in connection with a proposed tariff entitled “Educational Institutions Tariff (2011-2013)”. The decisions under review are dated August 18, 2011 and September 23, 2011.

[2]               Despite the able submissions of counsel for the applicants, we have concluded that there are no special circumstances that would justify the intervention of the Court at this stage of the proceedings before the Copyright Board. This is manifestly a case where the Copyright Board should be permitted to complete its work before the Court is called upon to consider administrative law remedies.

[3]               For that reason, these applications for judicial review will be dismissed with costs payable to the respondent.

“K. Sharlow”

J.A.

Ariel Katz: AUCC makes Right Diagnosis but Prescribes Wrong Remedy re Access Copyright Transactional License Issue at Copyright Board

Prof. Ariel Katz, who is Canada’s leading expert in the interplay between copyright, competition and collective administration issues, has filed a very interesting and important submission at the Copyright Board. Below is part of what he has to say, which is posted on his blog, where a link to his entire submission can also be found.

Essentially, Prof. Katz takes issue simultaneously with both Access Copyright for its “monopolistic excess, abuse, and inequitable conduct” and AUCC for diagnosing the problem but asking for a solution that could “inadvertently backfire and serve the interests of Access Copyright to the detriment of Canadian academic institutions.”

Here’s a taste - and I strongly recommend anyone interested in any or all of the post-secondary tariff hearing, copyright law, competition law, Access Copyright, collectives generally and the Copyright Board should read his whole submission:

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...

The AUCC’s Application draws a dim picture of monopolistic excess, abuse, and inequitable conduct.  It confirms that many of the concerns raised in the course of Access Copyright’s Application to grant the Interim Tariff have materialized.  The Board should intervene to rectify this problem.

Unfortunately, while the AUCC correctly diagnosed some of the problems, it asks to Board to prescribe the wrong remedy.  I am not persuaded that amending the Interim Tariff to require Access Copyright to grant transactional licenses on a per copy basis—as the AUCC requests—is the optimal remedy for these issues.  In fact, I am concerned that ordering Access Copyright to grant transactional licenses might actually—under some circumstances—aggravate the problem.  While I am confident that this was not the AUCC’s intention, I believe that the remedy that it proposes could inadvertently backfire and serve the interests of Access Copyright to the detriment of Canadian academic institutions.

Canada’s academic institutions need competitive alternatives to Access Copyright, not to enlarge its mandate.  They deserve to have the benefits of a competitive licensing marketplace, with competitive licensing practices, and competitive prices.  This marketplace is emerging and the Board should make sure that it continues to evolve despite occasional difficulties.  Extending the mandate of Access Copyright and installing it as the place to go for all licensing needs will not guarantee successful evolution of this emerging marketplace; it will ensure its stagnation.

Academic institutions need competitive alternatives to Access Copyright, not alternative offers from Access Copyright and ongoing expensive proceedings at the Copyright Board. ...

(emphasis added)

HK