ACCC gets counsel and seeks delay on AC’s Interim Tariff – Katz nails fairness & delay issue

The Association of Universities and Colleges (“ACCC”) has retained Wanda Noel and Aidan O’Neill. They are the solicitors who represented CMEC and the countless named school boards, etc. in the K-12 case before the Copyright Board that resulted in a decision more than doubling the previously negotiated rate to $5.16 per student.

Much of the reasoning in that CMEC K-12 decision will be used by Access Copyright to justify its effort to extract $60 million a year from Canada’s post secondary educational institutions outside of Quebec. AC will surely argue that if a kindergarten student is worth $5.16 per annum, a university/college student is surely a bargain at $45/$35 a year or even twice the price. Moreover, AC will surely argue that if what a Grade 6 teacher tells her students to read cannot be fair dealing, then neither can what a professor tells a grad student to read be fair dealing – even if it is for “research”.

One will watch with interest to see whether ACCC will raise certain arguments in this case that CMEC, for whatever reason, did not raise in the K-12 file before the Board, or in its unsuccessful appeal in the Federal Court of Appeal, or its pending attempt to get leave to appeal in the Supreme Court of Canada. (Full disclosure – I acted for CAUT in an intervention in the Federal Court of Appeal, raising arguments that neither CMEC nor AC had advanced).

One will also watch to see whether there is a better evidentiary record this time around. For example, in the K-12 matter, CMEC eventually admitted to the Copyright Board that the fundamentally important survey evidence that had been gathered using a methodology it had agreed to several months after the CCH v. LSUC decision was rendered in 2004 did not adequately take that decision into account.

Meanwhile, ACCC has asked for a delay on the December 6, 2010 deadline to respond to the Interim Tariff application.

Prof. Katz quite neatly points out that AUCC and ACCC have had about 7 weeks notice of this application – whereas he and the other intervenors that are supposedly equal have had only a few days notice. He asks for 7 weeks as well. Given the controversy and complexity of this matter, that seems more than reasonable. There is no urgency here other than what AC itself has created and no “evidence” has even been filed by AC. A lawyer’s letter is not “evidence” – and should certainly not suffice for imposing an “interim tariff” worth about $11 million a year that could last for several years and serve as a spring board for the much higher tariff AC seeks. It would be very unlikely that the Board would eventually impose a lower rate and order a retroactive refund.

HK

From: Ariel Katz [omitted
Date: Tue, 30 Nov 2010 13:58:41 -0500
To: [omitted]

Subject: Re: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013)

Dear Mr. McDougall,

Mr. O'Neill and Mr. Bloom were quicker than me, but otherwise I would have applied for an extension on my own. While Mr. Randall may be correct in pointing out that both the ACCC and the AUCC were provided with a copy of Access Copyright's application on or about October 13, 2010, he does not mention that AC never sent copies of its application to me and to many other parties to this proceedings. AC chose to ignore all other parties and sent copies only to the parties listed in Appendix A of its application. All other parties were fully notified about the application only last Friday, when the Board attached it to its notice.

While 7 weeks may be a reasonable time for responding to AC unprecedented application, 10 days is an extremely short time. Requiring some participants to respond within such a tight schedule is not only unfair, it would be contrary to the Board's ruling from Nov. 25 according to which all parties will be treated equally. Accordingly, I request that all parties would be granted the same amount of time to respond to AC's application.

I would also note that AC has not yet responded to the Board's instruction to "indicate forthwith the precise amounts that, in its view, are payable by the targeted institutions and ought to be included in section 14 of the model licence (or any other provision where such figures may be relevant) if the Board were to issue an interim decision as requested." I am sure you would appreciate the fact that responding to an application for a tariff that does not indicate the amounts sought would be a difficult exercise.

Accordingly, I suggest that all parties would be granted a period of at least 7 weeks to respond to the application, beginning on the day they received it, and that may be extended depending on when AC specifies the amounts it seeks to collect.

There is no urgency that requires compromising procedural fairness, because all the delays so far are of AC's own making: AC decided to create delay by filing an application to deny standing from various objectors; it decided not to notify all parties of its application for an interim tariff; and it still hasn't specified the amounts it seeks to collect as of Jan 1, 2011.

Regards,

Ariel Katz

From: "HOFLEY, RANDALL"

Subject: RE: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013)

Mr. McDougall,

I write on behalf of Access Copyright in response to the email communications of Mr. O'Neill, on behalf of ACCC, and Mr. Bloom, on behalf of AUCC, of November 29, 2010 (both reproduced below) seeking an extension of time within which to provide a response to Access Copyright's application for an interim tariff.

Both ACCC and AUCC were provided with a copy of Access Copyright's application on or about October 13, 2010. ACCC has, therefore, had approx. 7 weeks (prior to the Board's Notice) to retain counsel and for such counsel to prepare a response to the application. As Access Copyright's application makes clear, the current (extended) licences expire on December 31, 2010 and thus the issuance of a decision by the Board in respect of Access Copyright's application is required on an urgent basis. In this context Access Copyright does not believe that the extension sought by ACCC (and supported by AUCC) is warranted (or is in any way required by any applicable principle of law). Having said that, and understanding the Board's interest in receiving "meaningful written representations" that are coordinated as between the Objectors (to the greatest extent possible), should the Board wish to grant an extension, Access Copyright suggests that the Objectors be provided until Friday, December 10 at Noon ET to provide their submissions and that Access Copyright be provided until Wednesday, December 15 at Noon to provide its reply.

Access Copyright sincerely hopes that, with the decision of the Board as to Objectors and Interveners and the retention of counsel by certain parties, Access Copyright's application for an interim tariff (and the proposed tariffs, generally) may be pursued on an expedited basis with efficiency brought about, inter alia, by parties' adherence to any schedule set by the Board.

Please do not hesitate to contact me should you have any questions regarding the above.

Regards,

Randall

▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀
Blake, Cassels & Graydon LLP
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From: Bloom, Glen
Sent: Monday, November 29, 2010 5:15 PM
To: O'Neill_Aidan; Gilles.McDougall@cb-cda.gc.ca
Cc: HOFLEY, RANDALL

Subject: RE: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013)

Mr. McDougall, I am writing to you on behalf of the Association of Universities and Colleges of Canada (“AUCC”) in respect of the request below of ACCC to extend the deadline for it to response to Access Copyright’s application for an interim tariff.

AUCC support’s ACCC’s request for the reasons specified below.

There are certain similarities between the post secondary institutions that AUCC and ACCC represent. The application for an interim in augural tariff is a very serious matter. AUCC intends to co-ordinate its response to the application with ACCC. We therefore request that the extension requested by ACCC apply to AUCC.

From: O'Neill_Aidan []
Sent: Monday,

Subject: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013)

Dear Gilles,

As you are aware, Wanda Noel and I were just retained today by the Association of Canadian Community Colleges ("ACCC") with respect to the Board's Notice dated November 26, 2010. That Notice (set out below) requested participants in the Access Copyright tariff proceeding under reference to respond to Access Copyright's application for an interim tariff by no later than Monday, December 6.

Given the fact that Ms. Noel and I have only just been retained by the ACCC with respect to this matter, we will obviously need a reasonable opportunity to confer with our client and determine what position to take with respect to Access Copyright's application. Moreover, as the Board is also aware, Ms. Noel and I have other deadlines to meet this week in relation to the ongoing interrogatory process before the Board in the Access Copyright provincial and territorial governments tariff proceeding. (Finally, speaking personally for myself, I am in the United States for most of this week.)

Given these circumstances, Ms. Noel and I do not feel that we will have enough time to "come up to speed" on this tariff case and prepare meaningful written representations on behalf of the ACCC in response to Access Copyright's application for an interim tariff -- which is a very important matter -- before next Monday. As such, we would like to ask the Board if the ACCC could be granted a one week extension until Monday, December 13 to provide its response. Access Copyright could then respond to the ACCC's representations, as well as those of the other participants, by Monday, December 20. Ms. Noel and I would, of course, appreciate it very much if the Board could consider this request.

If you have any questions about this matter, please let me know. Thank you.

Aidan

J. Aidan O'Neill

Partner

Fasken Martineau DuMoulin LLP

Barristers & Solicitors

Patent & Trade-mark Agents

55 Metcalfe Street

Suite 1300

Ottawa, ON K1P 6L5

Canada

http://www.fasken.com

aoneill@fasken.com

Tel: 613-236-3882

Fax: 613-230-6423

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From: Gilles.McDougall@cb-cda.gc.ca
To:

Sent: Fri Nov 26 09:56:18 2010
Subject: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013)

NOTICE OF THE BOARD

On October 13, 2010, Access Copyright filed an application, dated October 7, for an interim tariff. The application and relevant documents are attached. Participants are asked to respond to the application (and to copy all other participants) no later than Monday, December 6, 2010. Access Copyright may reply to these comments no later than Monday, December 13, 2010. The response of the Canadian Association of University Teachers and the Canadian Federation of Students to the application is attached.

Access Copyright shall indicate forthwith the precise amounts that, in its view, are payable by the targeted institutions and ought to be included in section 14 of the model licence (or any other provision where such figures may be relevant) if the Board were to issue an interim decision as requested.

Gilles McDougall
A/Secretary General | Secrétaire général par int.

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

---

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Warp Speed at the Copyright Board - Towards an Interim AC Tariff?

If you think that the Copyright Board has been moving quickly on the AC proposed $45/$35 1,300% increase tariff up to now, it has just pushed the warp speed button.

As I predicted here, the Board, through its ruling below from November 26, 2010, seems clearly determined to set the stage an “interim decision” or “interim tariff” which it and AC would regard as legally binding with the force of law on ALL post secondary institutions (outside of Quebec) which use ANY supposed AC repertoire – and to make this ruling well before the Christmas break season begins in Ottawa, which is just over two weeks from now.

On Friday November 26, 2010 the Board gave the remaining participants – a fraction of the original 101 objectors after the first (but likely not last) cull – just five full working days until December 6, 2010 to respond to AC’s unprecedented attempt to impose an interim tariff that would enshrine an obsolete and seriously over-valued voluntary arrangement into an effectively state imposed “tariff” regime that the Board and AC will insist is legally binding. This “interim tariff” would last for the several years that AC and AUCC will take to conclude this proceeding, only for the Board to very likely arrive at the perfectly predictable conclusion that the tariff should be something a little less than half of the $45/$35 and shouldn’t contain some of its outlandish items such as those dealing with linking, displaying and illegal reporting requirements. That, however, would hardly be a victory – other than for AC, which of course will complain all the way to the bank.

There are several problems with this interim application, which I have basically already outlined here. To summarize,

· The Board arguably lacks legal jurisdiction to do this. It can make interim procedural decisions, for example on interrogatories, scheduling, etc. It probably can even extend existing tariffs on an interim basis, where warranted. But it arguably cannot impose what in effect would be an enormously invasive and expensive mandatory injunction imposing enormous costs and restrictions on the entire post-secondary educational framework in Canada (outside of Quebec). It has no authority from Parliament to do so and has no “inherent jurisdiction” on such substantive matters as this, especially as they involve “equitable” principles. The Board has only the powers specifically given to it by Parliament. Even the Federal Courts are limited to the powers given to them by Parliament, and the Board is in turn is subject to review by the Federal Court of Appeal. To state the obvious, the Board is not a court.

· There is NO reliable evidence on file here to address an “interim tariff”. There is not a single affidavit in support of this sweeping application. A Court would not rely on the material filed by Access Copyright in support of such sweeping relief. Affidavits can be cross-examined upon. Affidavits are evidence. Letters from lawyers are not.

· In any case, AC’s application runs contrary to the Board’s own precedents, since there is no pre-existing tariff and the AC most certainly doesn’t need or deserve to have an interim tariff to fund its own battle against objectors by using the objectors' (i.e. students’ and taxpayers’) money.

· An interim tariff in these circumstances would violate numerous legal canons of procedural fairness and natural justice. For example, AC gave no notice of this application to almost all of the original 101 objectors. The remaining few now have only a few days to respond – and their only “official” notice comes from the Board itself. (My blog is NOT the same as “notice”.)

The remaining intervenors need to realize that:

• Although AUCC has indicated that it will oppose an interim tariff, it has filed one of the noticeably less vigorous objections, even though it has budgeted about $2 million of what is ultimately students’ and taxpayers’ money to deal with this matter. AUCC has never fully confronted AC on several very basic issues, and has, apparently, chosen over the years to negotiate mainly about the rate. Indeed, it agreed to renew the standard pre CCH v. LSUC license at the same rate even after the Supreme Court’s landmark 2004 decision.
• The Board is moving at unprecedented to speed to deal with what it clearly perceives to be some kind of critical drop dead deadline, when that deadline is imposed solely by AC’s strategy to make all previous agreements run out and its essentially failed strategy to procure voluntary “interim agreements” that very few institutions have signed and rightly so, even according to AUCC.
• This warp speed attitude of the Board to AC proposed tariffs is being reflected in another AC matter, which is the astonishing attempt to impose a $24 per full time employee tariff on ALL employees of provincial governments. This would set Canadian taxpayers (outside of Quebec) back more than $6.5 million a year. What do these civil servants do? Presumably, a few of them occasionally photocopy articles from newspapers, download research material from the internet and copy occasional items from their libraries. This would normally be called “research”. The rest of the copying is likely entirely internal administrative material. That matter is also proceeding at virtually supersonic speed by Board standards, even though there could be fundamental questions as to whether it should proceed at all and there is no apparent case of urgency.
• Not even SOCAN – the granddaddy of all Canadian collectives – gets this warp speed approach by the Copyright Board. Very often, proposed tariffs take months or years just to set a schedule that will in turn take many more years to unfold and 18 months to two years from a hearing to a decision.
• AC on its own has a very flimsy basis at best to sue anyone after January 1, 2011 once its agreements all run out, as it has deliberately planned. This is for legal reasons I’ve mentioned, which include lack of repertoire, lack of rights, and lack of sufficient standing under the Copyright Act. So – it’s very unlikely indeed that the sky will fall on January 1, 2011 on any post secondary institution in Canada, even without a license.
• UBC and University of Alberta have apparently decided that they won’t need a license after January 1, 2011. It won’t be the first time if trends start out West and move East prompted by controversial payment demands and policies from Ottawa and Toronto.
• AC would almost certainly never get an injunction against any institution from any Court, given its behaviour in engineering the very crisis that it now urges the Board to resolve with an interim tariff
• An interim tariff would arguably bootstrap AC into a hugely advantageous position that it simply doesn’t deserve
• The remaining objectors should consider demanding on oral hearing on this interim tariff matter and the right to be heard in person or through counsel.
• There is a good chance that an interim tariff as proposed could be overturned in the Federal Court of Appeal – but it would be advisable if not essential to make certain arguments at the Board stage. Remaining objectors and intervenors will need to evaluate whether they are content to leave all of this to AUCC.

Remaining objectors have a brief window now to coalesce and to stand up and be counted. Their responses are expected by the very unusually short deadline of December 6, 2010.

The Board’s decision of Friday, November 26, 2010 follows below:

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

Sent: 11/26/2010 11:47:06 AM
Subject: FW: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013)

[EMAIL ADDRESSES OMITTED]

Subject: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013)

NOTICE OF THE BOARD

On October 13, 2010, Access Copyright filed an application, dated October 7, for an interim tariff. The application and relevant documents are attached. Participants are asked to respond to the application (and to copy all other participants) no later than Monday, December 6, 2010. Access Copyright may reply to these comments no later than Monday, December 13, 2010. The response of the Canadian Association of University Teachers and the Canadian Federation of Students to the application is attached.

Access Copyright shall indicate forthwith the precise amounts that, in its view, are payable by the targeted institutions and ought to be included in section 14 of the model licence (or any other provision where such figures may be relevant) if the Board were to issue an interim decision as requested.

Gilles McDougall
A/Secretary General | Secrétaire général par int.

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.caGilles.mcdougall@cb-cda.gc.ca>

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

HK

AC's proposed $45/$35 Tariff - Board Ruling of Nov 25 2010 on Intervenors etc.

Below is the Board’s response of November 25, 2010 to the submission below of AC and others that were filed in response to the Board’s November 23, 2010 deadline. The Board rarely moves this fast. This is really getting to be quite interesting.

Here are some brief comments:

• The Board will be treating all “intervenors” in effect as full objectors (although it is still hedging its bets to some extent here) – i.e. “unless absolutely necessary”
• This probably means a big fight ahead for these intervenors to stave off interrogatories that will very likely be overly onerous, unnecessary, irrelevant and designed to force them out of the hearing or to severely limit their ability to fully participate
• The Province of Alberta, which seemed to want a mores specifically defined role, is being told that it must accept a full role and responsibility in effect as a full objector (i.e. with interrogatories) and that this will the be the case “unless absolutely necessary” – whatever that means.
• The Board’s emphasis on treating “all participants equally” is not necessarily a good thing. As Ariel Katz reminded us from Orwell, "All animals are equal, but some animals are more equal than others." Obviously, not all participants have budgets of several million dollars a year to spend on lawyers and “expert” consultants, surveys etc.

Clearly, many of the participating intervenors are involved in this process because they have insufficient confidence that the main objector, AUCC, will adequately deal with their interests. Many participants do not believe that cutting the proposed $45/$35 amount more or less in half (as the Board usually does) and taking out some of the more over the top aspects such as paying for non-existent linking and display rights and the absurdly privacy invasive and very likely illegal reporting requirements would be a “victory”. It would seem almost to be a foregone conclusion that this much can be achieved without extraordinary effort. Oddly enough, however, the AUCC has not even been this explicit in its objection, which is noticeably less vigorous than that of other established institutions.

A real victory would be a either no tariff or a an essentially nominal tariff based upon rights that AC actually has in repertoire that it actually has that results in much less cost overall now that we have seen several years elapse following the 2004 Supreme Court decision in CCH v. LSUC. For reasons that are far from apparent, AUCC negotiated renewed arrangements following CCH v. LSUC at the same rates as were in place before. Those arrangements are expiring this year. There is finally an opportunity to pay much less. Moreover, paper course packs are becoming obsolete. It should not be a question of how much more should be paid – but rather how much less, if anything,

As for repertoire outside of AC, there are many ways of dealing with it – ranging from direct licensing to creative and legal use of e-reserves to forming a new academic based collective.

At any rate, the remaining participants will have a lot of challenges ahead of them and both AC and likely AUCC will want to see as little of them as possible. Let’s hope that this brave group of independent intervenors stays the course and finds a way to get their views across without having to spend a lot of money. Money is not a problem for either AC or AUCC which are both using taxpayer’s and students’ money they have collected from universities and colleges. Both these institutions have budgets in the millions for this exercise.

Back to the November 25, 2010 ruling, AC’s new lawyer, Randall Hofley, who has replaced Barry Sookman, had sent the following to the Board on November 23, 2010:

Mr. McDougall:

I write, on behalf of Access Copyright, in response to the Board's Notice below. It is our understanding that the Board invited (in the Notice below) Access Copyright (and others) to provide its views as to whether "the government of Alberta [and] teachers, students and staff from the targeted institutions", being the "potential intervenors", should be granted "intervenor status with full participatory rights, in effect allowing them to act in these proceedings as if they were objectors" (setting aside "issues of duplicative representation or overlapping argumentation at this stage"). Please be advised that Access Copyright does not contest the Board's discretion to accord these potential intervenors the status suggested by the Board.

Access Copyright notes, however, that at least one such potential intervenor, Prof. Katz, and perhaps other persons whose submission we have not yet been provided, has responded to the Board's Notice, inter alia, by making legal submissions as to the Board's jurisdiction to confirm or deny a party's status as an "objector" within the meaning of the Copyright Act, effectively responding to Access Copyright's correspondence of September 22, 2010. It was not Access Copyright's understanding that such a submission was contemplated by the Notice. However, to the extent that any such submission(s) will be considered by the Board in its future deliberations on the status of the various parties who filed objections in this matter, Access Copyright requests the right to reply to any such submission(s) on an expedited basis.

I would be pleased to discuss the above request should the Board find that of utility.

Regards,

Randall Hofley

Partner | Blakes

The November 23, 2010 Boar ruling in response to the November 23, 2010 submissions follows below.

RULING OF THE BOARD

In its Notice of November 15, 2010 (the "Notice"), the Board acknowledged as objectors the Association of Universities and Colleges of Canada, the Association of Canadian Community Colleges, Athabasca University and the British Columbia Association of Institutes and Universities.

The purpose of this Ruling is to identify those who may participate to the examination process of the above-referenced proposed tariff as intervenors with full participatory rights.

1) In its Notice, the Board stated that it was inclined to grant to certain persons intervenor status with full participatory rights, in effect allowing them to act in these proceedings as if they were objectors. No one is challenging the participation of these persons. These persons were informed of the rights and obligations of such intervenors and were asked to confirm whether they wished to remain as participants. The following persons, who provided the confirmation the Board requested, are granted status as intervenor with full participatory rights: Mr. Sean Hunt, Mr. Ariel Katz, Mr. Sean Maguire, Mr. Mark McCutcheon, Ms. Meera Nair, Ms. Nancy Pardoe, Mr. Jay Rahn, the Canadian Alliance of Student Associations, the Canadian Association of University Teachers (CAUT) and the Canadian Federation of Students (CFS).

2) Alberta was one of the persons to whom the Board was inclined to grant intervenor status with full participatory rights. The province now asks that its participation be limited to receiving copy of evidence and arguments, filing a statement of case, calling witnesses and presenting oral or written arguments. Given the number of participants, the Board does not intend to treat some of them differently unless absolutely necessary. Alberta is asked to confirm by no later than Tuesday, November 30, 2010, whether it wishes to remain as intervenor with full participatory rights and obligations. If not, Alberta will not be granted intervenor status.

3) In its Notice, the Board expressed the preliminary opinion that the participation of certain persons would not be of assistance in these proceedings. These persons were invited to indicate the extent and nature of any association they may have with any post-secondary educational institution outside of the Province of Quebec targeted in the proposed tariff if they wished to be granted intervenor status in these proceedings. Only Mr. Pat Donovan and Mr. Jason Koblovsky responded to the Board’s Notice. Both failed to disclose any association with a targeted institution. Neither did they offer any evidence that they may be prospective users or reasons that would lead the Board to conclude that their participation may be of assistance. A mere statement that one is "covering" the public interest or that the proposed tariff’s terms are unfair are insufficient to establish a person’s status or to explain the contribution she may make. Consequently, these persons will not be granted intervenor status.

4) In its Notice, the Board asked three persons to clarify whom they intended to represent. Ms. Liz Fulton-Lyne stated that she intended to represent Yellowhead Tribal College, Mr. Sandy Ayer, Ambrose University College and Mr. Brad Neufeldt, St. Mary’s University College. All asked to remain as intervenors with full participatory rights. The Board grants their request.

5) As stated in the Notice, notices of objections filed by any person other than those to whom this Ruling grants intervenor status will be treated as letters of comment and will be made part of the official record of these proceedings. The Board members who will hear the matter will consider them before reaching their decision. These persons are still permitted to consult the public record and to comment in writing on any aspect of the proceedings until the date set for the filing of final arguments, as are all members of the public.

6) Anyone even remotely familiar with how the Board proceeds knows that as a matter of course, the Board treats all participants equally, be they collectives, objectors or intervenors: they enjoy the same rights and are required to comply with the same obligations. Indeed, in the few instances where the Board has treated an intervenor differently, it has been usually, if not always, at the request of the concerned intervenor.

In these proceedings, intervenors and objectors will be treated identically unless circumstances dictate otherwise and being identified as one or the other will be of no practical consequence. As a result, and as was stated in the Notice, it is not necessary to rule on whether persons who filed notices of objection and who are allowed to participate as intervenors are proper objectors. Furthermore, since all participants who complied with the Notice are in effect being granted everything they asked for, there is no need to either afford them the opportunity to further comment or for the Board to provide reasons for its ruling. The only possible exceptions are Messrs. Donovan and Koblovski. In their case, they were afforded an opportunity to explain why they should remain as participants, and the reasons why they are not being allowed to so remain are clearly outlined above.

____________________________________________________________

HK

My Response to Mihály Ficsor

Dear Mihály:

Thank you very much indeed for taking the time to respond so fully and so quickly to my post from yesterday when you are so busy and en route to Rio.

My points were not “ad hominem”. Indeed, in your case, I would be much more inclined to be on the “pro hominem” side. This is because I have known you for so long (at least 25 years) as a passionate defender of your very carefully researched positions, and as a man of unbelievable energy and extraordinary accomplishment.

Indeed, you were the catalyst and your writings were the main reason why I personally fought a very interesting and potentially very important court case in my own name at enormous expense in terms of my own time and that of my firm and another very fine law firm, over the refusal of a Canadian Parliamentary Committee to let me provide it with useful written documents on national treatment and private copying levies.

The most important document by far was a substantial excerpt (I assure you, however, that it was “fair dealing”) from your still indispensable 2002 book on “The Law of Copyright and the Internet” published by Oxford University Press - which can be purchased here.

The reason that the Committee refused to accept your material was, incredibly, that it was not in both English and French. And I had naively thought that Canada is a bilingual country - especially in our Parliament! The Committee, and later the Courts, however, took the view that “either” official language means “both” official languages and that the word “use” means the right to speak orally but not in writing. See here and here.

Unfortunately, I did not succeed in getting the Supreme Court of Canada to hear this case, which many believe was wrongly decided. My belaboured point here is that I not only would - but did - go to extraordinary lengths to get Canadian policy makers to consider your opinions.

As for the “lobbying” issue, I was certainly was not suggesting that you are or ever have been a “lobbyist” yourself. Indeed, there is nothing wrong with being a “lobbyist”. In fact, as they say, “some of my best friends are lobbyists”. I have the highest regard for Eric and Steve - even though I strongly disagree with them about their views on Canada and “Special 301" and have a hard time resisting any opportunity to say so, as my blog shows over the years, including yesterday. I’ve had a very civilized and public debate with Steve over this at Fordham. They are both real gentlemen and quite brilliant. That does not mean, however, that one cannot disagree with what they say.

It is obviously inevitable but still somehow sad that professional lobbyists have become so much a part of the copyright world. Indeed, the first Canadian Bill C-32 in Canada back in 1996 was said to be the most lobbied bill on any issue in Canadian history to that point in time - and I was reported (quite flatteringly but erroneously) to be one of the most active lobbyists at that time. The role of lobbyists in the current Bill C-32 is even greater. The involvement of lobbyists is inevitable, I suppose, because of the vast amounts of money involved, the strongly polarized views, and the difficult and technical nature of the subject matter, which requires great skill in communication and diplomacy to make it understood to those in government and the media.

As for my reference above to Greenberg, Traurig, I relied on the press release obligingly generated by Google but did not check the www.gtlaw.com site deeper to see if you are still listed, which you are not. Theretofore, I have struck this reference from my post from yesterday.

Thanks again, Mihály, for your thoughts. I, too, affirm our friendship and look forward to seeing you again at Fordham - where I hope that Canada will get some attention this year. Your concern about Canada and our difficult quest to modernize our copyright legislation - along with your views on everything else - will be, as always, of the utmost interest and importance.

Sincerely,

Howard

Don't Touch My Digital Junk: TPMs & Bill C-32 - Geist v. Ficsor

The great debate between Michael Geist and Mihály Ficsor over Bill C-32'a treatment of TPM’s and when and how they can be legally circumvented continues and, indeed, escalates.

The big issues include:

• Must C-32 address BOTH "access" and "copy" controls?
• Can there be a general exception for circumventing for non-infringing purposes, e.g. fair dealing?
• Should devices, software, or services that have substantial legitimate purposes be caught in the anti-circumvention net?

Prof. David Vaver points to links on both sides and suggests, quite correctly, that these materials are “mandatory reading” for all concerned. It’s too bad that David himself has not expressed his view on this debate, or other aspects of the Bill C-32 as far as I know. Hopefully, his decade at Oxford has not diminished his interest in Canadian copyright law and he will share his valuable insights before it too late for the public debate.

I do have some brief comments.

Mihály is a good friend and we have invited each other to important copyright conferences back in the 1990's. He is a major figure in the world of international copyright law and played a very significant role while at WIPO in the development of the 1996 WIPO treaties. I respect his decision since leaving WIPO to align himself with the IIPA and the key lawyers and law firms behind it. See here, here and here He is currently associated with Greenberg, Traurig, a powerful Washington law firm and the IP group led by Eric Smith, who is one of the key figures behind the IIPA.

The IIPA is the powerful Washington lobbying organization that is highly influential in the content of the notorious annual USTR “Special 301" report - which provides predictable and perennial negative commentary about Canada that our own Government says "lacks reliable and objective analysis". It includes the RIAA, MPAA, NMPA, BSA and ESA. But that’s another story and I have no reason to think that Mihály is involved in this aspect of IIPA’s work. He is not currently listed as one of the IIPA’s personnel.

To his credit, Mihály has been consistent on the issue of the need to provide both access and copy control protection for TPMs since his 2002 book. Indeed, there are aspects of his 2002 book I quite like but which may not suit the views the Canadian appendages of some of the IIPA’s major client/members, such as his vigorous insistence that remuneration from private copying must be dealt with on a national treatment basis both under the WCT and WPPT - i.e. both for authors and sound recording producers/performers. If Mihály is right on this point - and many in the Canadian government would agree with him - this is a real deal breaker for any form of “iPod tax”, since the "tax" would be almost exactly doubled and almost all of the hundreds of millions of dollars that would be collected - after paying for CPCC managers, consultants and lawyers, etc. - would leave Canada with almost nothing coming back in return. This would clearly not be good public policy. It would also be dreadful politics - a huge "tax on technology" with almost all of the proceeds leaving Canada. Subsidies, if absolutely need, would be far more efficient and far cheaper and could be kept entirely in Canada - though lawyers, lobbyists and collective managers wouldn't be happy for obvious reasons.

Michael Geist is also a good friend. He needs no introduction to Canadian or most foreign readers.

Anyway, back to TPMs.

Here is what the WIPO Copyright Treaty (“WCT”) says on TPMs, with similar language in the WPPT (producers and phonograms treaty):

Obligations concerning Technological Measures

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

(Emphasis added)

As for his position on TPM’s, Mihály goes on at great length about the meaning of “adequate” and “effective” and “adequate and effective”. These are words - especially the word “effective” - that have little if any intrinsic or precise meaning in international IP law. In particular, the word "effective" refers to “procedure” (i.e. "remedies") - not substance. Canada will provide more than “adequate legal protection” and very “effective legal remedies” if we take an approach of permitting exceptions for non-infringing activity and provide only for copy control and not Orwellian and para-copyright “access control”. There is nothing in the treaties that requires protection of devices that are capable of substantial non-infringing legitimate uses.

The reason I say this is that I was asked to research the meaning of “adequate” and “effective” and “adequate and effective” in the context of the US Grokster case in the US Supreme Court. I co-authored the attached brief for a major amicus curiae, which showed, inter alia, that the word “effective” is used in TRIPs and otherwise to refer simply to procedural and not substantive matters.

Treaties should normally stand on their own without minute analysis and recourse to “preparatory work”, just as national laws, at the least in the case of Canada, will not normally require recourse to domestic legislative history, much less to treaties, in order to be interpreted by national courts. If the Canadian law is clear, it will be assumed to be consistent with the treaty that required its implementation, and that treaty will normally be interpreted, if the court even looks at it, at face value.

It's true that one can have recourse to the preparatory work that goes into treaties under certain circumstances set out in the Vienna Convention on the Law of Treaties:

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

It's not clear that such recourse is needed in this instance, but if it were, it would probably help Michael more than Mihály. For example, the early versions of the treaty language were replete with references to "devices" of which "the primary purpose or primary effect of which is to circumvent any process, treatment, mechanism or system that prevents or inhibits any of the acts covered by the rights under this Treaty." See here. Earlier versions of Article 13 of the WCT, which eventually became Article 11, contain language prohibiting devices that clearly isn't in the final text, incdicating the rejection of such an approach. Both Michael and Mihály rely heavily on the Vienna Convention to make their cases. Can they both be right?

What seems clear is that, for reasons that are not apparent, the Government is using language in Bill C-32 similar to that which was specifically rejected in the WIPO treaty making process - i.e. re "devices".

While David Vaver may be right that the wording of the treaties is hardly “pellucid” on this question, it is sufficiently lucid to have at least a clear base line meaning. The whole point is that Canada need not implement beyond that base line, unless it so chooses. And it would seem axiomatic that such meaning must be consistent with the normal canons of what constitutes “copyright law”. Otherwise, Canada and presumably most other countries had no mandate to sign such the WIPO treaties in the first place. Moreover, countries such as Canada with constitutions that specifically refer to “copyright”, may face constitutional challenges if they attempt to implement provisions that go beyond any reasonable conception of “copyright” law. For example, it’s one thing to prevent “copying” of a locked DVD in order to deter commercial piracy. It’s quite another thing to prevent “access” to viewing such a DVD simply because it was sold in India, sent here as a gift, but not region coded for Canada. Indeed, Heather Mallick makes this very point here in an excellent Toronto Star article.

Would we tolerate a law that prevents even the very “reading” of foreign printed books? Or the very “viewing” of foreign films? Would anyone say that this is law in relation to copyright? No - because it has nothing to do with “copying” and everything to do with restraint of trade, monopolization and perhaps even being an "an instrument of trade control not contemplated by the Copyright Act" in the words of Justice Fish of Canada’s Supreme Court in the Kraft decision.

I am not impressed by pointing to other countries such as Australia that have implemented these treaties in a manner more less dictated by the U.S.A. The Australian decision to toss out an earlier version of WIPO implementation that featured only "copy control" and to embrace a version dictated by American trade negotiators was controversial and the government of the day paid the ultimate price for this and other examples of following American direction contrary to Australian interests. There are many excellent aspects of US copyright law - but the TPM measures of the DMCA are not among them. For reasons that are unclear, Canada’s proposals as they now stand are even more restrictive and harmful to consumers and even to creators themselves. Again, see Heather Mallick, who is hardly alone in being both. At any rate, Michael Geist's analysis points to several countries, including Japan, Switzerland, and several EU members that have minds of their own and availed themselves of available flexibilities under the 1996 WIPO treaties.

All in all, an approach such as that advocated in the Liberal Government's Bill C-60 would seem to be not only wise but perfectly safe in terms of international trade law, not that there is any foreseeable risk or indeed any mechanism for a trade-challenge on this issue as international law currently stands. While I am in no way advocating the adoption of a Canadian law in contravention of the WIPO treaties, it should be noted that they curiously contain no dispute resolution mechanism. This is ironic, since the US efforts to undermine IP multilateralism make any revision of the WTO TRIPs agreement, which could conceivably bring the 1996 WIPO treaties into a dispute resolution arena, very unlikely in the foreseeable future. It is further ironic because the USA has deliberately shirked its obligations respecting moral rights under Berne Convention by managing to get them exempted from dispute resolution under TRIPs.

I am assuming that Prof. Geist’s interest in this issue is purely academic and independent and not funded by any commercial interest. His recent book chapter did get funding from the usual academic sources, which have no commercial strings attached.

Mihály’s "interest in the Canadian experience" and his recent lengthy writings about it, which are frequently relied upon by Canadian lobbyist Barry Sookman and his junior associate, Mr. James Gannon, are also said by Mr. Gannon to be "purely academic".

HK

Some Common Sense at Bill C-32 Committee Hearings

Sarah Schmidt is reporting that the C-32 Legislative Committee will meet only for four hours a week, not the 16 hours suggested by the Government members. This means that that the Bill cannot get through the House of Commons until well into next year.

The reports that the Government intended to wrap this up in the House of Commons Committee by Christmas were quite disconcerting. There is no way that the dozens of interested parties who have essential viewpoints to contribute could have been heard and been fully and fairly considered in less than a month. Even the first Bill C-32, which was a bad (though much less complex and controversial) bill and which was made worse in Committee under a strong majority government received far more lengthy attention in 1996-1997. Ramming the current Bill C-32 through Committee in less than one month would have been seen to lack any credibility or even legitimacy.

HK

Access Copyright - Responding to Copyright Board by November 23, 2010

The Copyright Board issued a procedural ruling on November 15, 2010, though there are elements of it that are rather inconclusive. Here are my initial comments on it. It talks about “being inclined”, etc.

Here’s what those in various categories created by the ruling may wish to do. This is NOT legal advice. As always, if you want legal advice, retain a lawyer.

1. Those apparently singled out for full fledged objector status should indicate to the Board whether they believe that others should be permitted to be intervenors with full rights of participation and otherwise respond to the Board as invited, i.e. ““may make their views known on the participation of the potential intervenors no later than Tuesday, November 23, 2010. They are asked not to deal with issues of duplicative representation or overlapping argumentation at this stage. These matters will be addressed later, when the intentions of all participants are more fully ascertained.”

2. Those who the Board is “inclined” to consider as “intervenor status with full participatory rights” (“ISFPR) should specifically notify Gilles McDougall - Acting Secretary of the Board - that they wish to avail themselves of such rights i.e. “Those who wish to remain as participants in these proceedings are asked to inform the Board no later than Tuesday, November 23, 2010". They may also wish to indicate that they do so without prejudice as to any arguments as to whether they should be full fledged objectors. These persons may wish to express their view on why they do not seem to qualify as full fledged objectors. In this respect, see Prof. Ariel Katz’ very useful submission to the Board dated November 21, 2010 available here. He is a copyright law professor at the University of Toronto Faculty of Law, who is focusing his knowledge of IP and antitrust law on collectives, and at the moment on AC. Note that he has indicated that the Board should provide adequate reasons why he is not being accepted as a full fledged objector. See CAB v. SOCAN 2006 FCA 337 at para. 11.

3. Those in respect of whom the Board has indicated that its “preliminary opinion that the participation of the following persons would not be of assistance” may wish to indicate, if it is the case, why they believe that this “preliminary opinion” is wrong and demand that the Board provide adequate reasons in each and every case. (see above).

4. Note that there is no downside to remaining involved at this point for any individual or association. Unlike civil litigation, one can always withdraw later without being liable for the costs of other parties. It is very likely that AC will attempt to impose “interrogatories” (written questions akin to "discovery") on those who wish to remain involved that will be arguably be unduly onerous and irrelevant. Hopefully, the Board will deal with this in the appropriate fashion. The amount of time required to be present at the ultimate hearing could also be a problem for some. Hopefully, the Board will fashion its hearing schedule to accommodate the needs of individuals who may still be involved at the hearing stage and who may not be able to be present for a hearing that could last two or three weeks. Individual objectors or intervenors may wish to begin to organize themselves to deal with such issues.

HK

Access Copyright’s Proposed $45/$35 Tariff - My Comments the Board’s Ruling on Status of the "Group of 99"

The Copyright Board has issued one of its more interesting and important procedural rulings in recent memory with respect to the status of 99 of the 101 objectors that Access Copyright (“AC”), through its former counsel Barry Sookman, had sought to eliminate from the pending post-secondary $45/$35 proposed tariff.

In a nutshell, the Board has:

- Confirmed (subject to unspecified future concerns about “duplicative representation”) the “objector” status of Athabasca University and the British Columbia Association of Institutes and Universities (BCAIU)

- indicated that. with respect to the Government of Alberta and teachers, students and staff from the targeted institutions in the proposed tariff that is “inclined to grant them, if they so wish, intervenor status with full participatory rights, in effect allowing them to act in these proceedings as if they were objectors”

- ruled, with respect to approximately 38 individuals ranging from parents (those paying the bills of students) to post doctoral fellows that their “participation ... would not be of assistance”

- left in limbo the status of CAUT and CFS (representing university teachers and students respectively), which are represented by CIPPIC (the U. of Ottawa public interest legal clinic) and refused, for the time being, their request to “bifurcate” this hearing in a similar manner to what was done in SOCAN’s perpetual Tariff 22 tariff proceeding - i.e. separate out certain legal issues that presumably do not involve disputed or extensive evidence

- indicated that AC, AUCC, ACCC, Athabasca and BCAIU “may make their views known on the participation of the potential intervenors no later than Tuesday, November 23, 2010. They are asked not to deal with issues of duplicative representation or overlapping argumentation at this stage. These matters will be addressed later, when the intentions of all participants are more fully ascertained.”

- Indicated that “Those who wish to remain as participants in these proceedings are asked to inform the Board no later than Tuesday, November 23, 2010"

- asked for clarification by November 23, 2010 from Ambrose University College and the Library, St. Mary's University College and the Library, Yellowhead Tribal College and the Library as to whether it is the institution or the library that is objecting

The Board’s ruling is certainly a blow to AC, which had sought to get rid of all but two of the 101 objectors, the two being the AUCC representing university management (here is the AUCC’s objection, which is noticeably less vigorous than that of many other established institutions) and the ACCC (representing the community colleges of Canada).

The ruling, however, is not all good news for all of the “Group of 99". The status of those who have not been eliminated is still somewhat in limbo. Is the Board’s indication that it is “inclined” to grant “full participatory rights” to intervenors so wishing the same a "ruling" that it will grant such rights? Does “full participatory rights” include the right to cross examine AC’s witnesses, including expert witnesses and challenge its survey evidence? Will intervenors have the right to adduce their own expert and other evidence? One would certainly hope so in both respects. What does “present oral argument at the end of the hearings” mean? Surely, “full participatory rights” would include the right to make oral submissions as the hearing progresses in the same manner as other parties, subject only to the Board’s prerogative to ensure an orderly, efficient and fair process.

One would assume that “full participatory rights” should mean all the rights and responsibilities of an objector. But some are less than convinced that this is the case. One very sophisticated objector who has now been classified as an “intervenor” has suggested to me that the Board has created a “separate but equal” regime.

In fairness to the Board, it has to be concerned with conducting a process leading to what could be a lengthy hearing that cannot be allowed to become chaotic. However, that potential problem is invariably self-correcting, since few persons or institutions other than those with pressing interests and sufficient resources will remain involved throughout the lengthy and exhausting process. AC will almost certainly try to wear down any “intervenors” with onerous interrogatories of questionable relevance. This is how the game is played at the Board. Hopefully, the Board will manage to ensure ongoing fairness in the process. AC’s new counsel, Mr. Hofley, and I have been down this road before in the private copying file, in which there were 3,500 initial objectors.

Presumably, the logic of the Board in this ruling was dictated to some extent by the wording of the legislation which requires that objectors be “prospective users.” See this letter to the Board from Prof. Ariel Katz of U. of T. Faculty of Law, who was a timely objector but has now been classified as an intervenor, dealing with some of the issues surrounding status and who should be considered as a proper objector. This submissions in this letter weren’t referred to by the Board in its reasons, even though AC’s submissions (see here) were.

Very likely, many of the objectors who wanted to remain involved didn’t even realize that a ruling such as this was in the works, unless they read my blog. This should not be the case. The Board should ensure that all parties potentially affected by a decision have sufficient notice of their right to make submissions. I trust that this will be done with respect to the ultra-controversial attempt by AC to impose an interim tariff that would render a voluntary, obsolete, overpriced, and expired agreement into a supposedly legally binding “interim tariff” with the force of law for years to come - that is if AC, with its new counsel, still intends to proceed in this direction.

AC no doubt hopes that parties will sign its “interim agreement” in the meantime, as the supposed deadline of January 1, 2011 looms. However, this deadline has effectively been imposed by AC itself, and the “interim agreement” does not even provide a license. It simply requires ongoing payment and an agreement to accept whatever the Board ultimately decides. There is no apparent reason why any institution would sign on to this and even AUCC seems to so agree.

Is yesterday’s decision correct in all respects? Maybe or maybe not. The reality is that it is very difficult to seek judicial review (i.e. “appeal”) interim procedural rulings of the Copyright Board. The Board will almost always prevail in these situations. However, in this instance, one hopes that that Board will treat any committed “intervenor” as indeed having “full participatory rights”, if the “intervenor” so chooses and that AC will not be permitted to unfairly inflict unduly onerous and irrelevant interrogatories or other barriers to such participation.

So - here’s what the survivors of the “Group of 99" need to do immediately.

- Answer the Board as required by November 23, 2010.

- Make the Board aware, assuming that it is the case, that they wish to be heard on the question of an interim tariff. If they wish to make oral submissions, which is not unreasonable considering the enormous amount of money and the issues at stake, objector and intervenors should make the Board so aware as soon as possible.

HK