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Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5Tel: 416-978-8892 Fax: 416-978-2648 ariel.katz@utoronto.ca www.law.utoronto.ca/faculty/katz
 
 A 
RIEL
K 
 ATZ
 
 A
SSOCIATE
P
ROFESSOR 
I
NNOVATION
C
HAIR 
,
 
E
LECTRONIC
C
OMMERCE
 
 November 21, 2010
- BY EMAIL -
 Mr. Gilles McDougallActing Secretary GeneralThe Copyright Board of Canada56 Sparks Street, Suite 800Ottawa, OntarioK1A 0C9Dear Mr. McDougall,
Re:
Access Copyright’s Post
-Secondary Educational Institutions Proposed Tariff (2011-2013) -
Submission Pursuant to the Copyright Board’s Notice Dated Nov. 15, 2010
 
Pursuant to the Copyright Board Notice, dated Nov. 15, 2010 I hereby make this submissionregarding the contemplated changes in the status of various parties who filed timely notices of objection.I am one of these objectors. I am a law professor at the University of Toronto and the proposedTariff, if approved, will affect me in direct and profound ways. It may subject me to legalobligations that otherwise would not exist; it may expose me to liability for acts that otherwisewould be totally lawful; it threatens my privacy and my academic freedom. Moreover, andnotwithstanding the misnomer AC chose as its trade name, the anti-competitive nature of theTariff will limit the scope of materials which I will be able lawfully to access.Before addressing the contemplated changes in parties
’
status
, I would like to direct the Board’s
attention to some ambiguities in the Notice, which I would request the Board to clarify asoutlined below in Part A.Part B of this submission details my object
ion to the contemplated changes in various parties’
status. In a nutshell, the right to object to a proposed tariff was granted by Parliament and is not
subject to the Board’s discretion. With regard to the majority of the persons who filed objections,
A
ccess Copyright’s Submission from Sept. 22, 2010 reveals no basis on which their status of 
objectors could be denied. Therefore, t
he Board should deny Access Copyright’s submission and
refrain from changing the status of those objectors to whom Parliament granted such right.Alternatively, if the Board still decides to relegate me or other objectors to a new status, I wouldexpect it to give adequate reasons for such an unprecedented ruling.
1
 
1
 
Canadian Association of Broadcasters v. Society of Composers, Authors & Music Publishers of Canada
, 2006 FCA337, at para. 11
 
2
Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5Tel: 416-978-8892 Fax: 416-978-2648 ariel.katz@utoronto.ca www.law.utoronto.ca/faculty/katz
 
A. Request for ClarificationBackground
1.
 
On September 22, 2010 Access Copyright
(“AC”) r 
equested that apart from the AUCC andthe ACCC, all other individuals and organization who filed notices of objection do not qualify
as “objectors”
within the meaning of subsection 67.1(5) of the
Copyright Act 
(“AC’s
Submission
”)
.
2
 2.
 
On November 15, 2010 the Board issued a Notice. According to the Notice, the Board foundthat AUCC, ACCC, Athabasca University and BCAIU,
“
 being targeted by the proposedtariff, are proper objectors.
”
 3.
 
The Board also found that Mr. Degen's letter in
 support 
of the proposed tariff would betreated as a letter of comment. Since a supporter cannot logically be an objector this findingflows directly from subsection 67.1(5).4.
 
 Nevertheless, there exists some ambiguity and uncertainty with regard to the status of manyof the other individuals and organizations that filed objections. Therefore, it would be prudent for the Board to dispel this ambiguity by issuing a clarification as requested below.5.
 
The Notice suggests that with the exception of a few named parties, the Board has not yetreached any decision about the status of the other individuals and organizations who filed anobjection. The Board distinguished between the government of Alberta and of teachers,students and staff from the targeted institutions in the proposed tariff on the one hand, and agroup of other 38 individuals on the other.
3
With respect to persons from the first group, the
Board formed a “preliminary opinion” that their participation “would enrich the record of 
these proceeding
s and assist the Board’s deliberations.” It therefore indicated that it would be“inclined to grant them
, if they so wish,
“intervenor status with full participatory rights, in
effect allowing them to act in these proceeding as if they were objectors
”.
The Board then
explained that “[t]
o the extent that the contemplated status is granted, it is not necessary torule on whether these persons are proper objectors.
”
It invited AC, AUCC, ACCC, AthabascaUniversity and BCAIU to submit their views about this c
ontemplated status of “intervenor with full participatory rights” (IFPRs).
 6.
 
With respect to the group of 38 individuals, the Board formed the “
 preliminary opinion
”
thattheir 
“
 participation
…
would not be of assistance
.”
It suggested that it might give them anintervenor status if they apply for such status, but it would only rule on their status after theysubmitted their applications and the other parties had the opportunity to comment on them.The Board, however, did not specify whether these individuals
’ contemplated status is of 
ordinary intervenors or IFPRs.7.
 
The Board did not indicate whether it made any ruling with respect to the status of two
 prospective users’ representative organizations: CAUT and CFS.
2
On Oct
ober 13, 2010 I filed an Initial and Partial Response the AC’s submission. In my Response, I noted that itwould be prudent for the Board, if it intended to consider AC’s Submission, to invite all interested parties to submit
their own views on that issue
 before making any decision. In addition, I noted in my Response that AC’s
Submission has no basis in law and briefly provided the grounds for my submission.
3
The Board also asked three Academic institutions to clarify whether the institution or its library is beingrepresented.
 
3
Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5Tel: 416-978-8892 Fax: 416-978-2648 ariel.katz@utoronto.ca www.law.utoronto.ca/faculty/katz
 
8.
 
While it is clear that the Board
ruled 
against AC and
 found 
that Athabasca University andBCAIU do qualify as objectors, it seems that the Board has not decided yet about the status of 
all the others who filed objections. The Board’s carefully used the terms
“preliminaryopinion”
,
“inclined to grant”
, and
“to the extent that the contemplated status is granted.”
 Furthermore, the invitation of some parties to comment about the contemplated status of others suggests that no decision has been made yet.9.
 
This conclusion is also supported by the fact that a many of the objectors are indeed
“prospective users” within the
 plain meaning of the
Copyright Act 
. Therefore, a ruling thatdenies, changes, or potentially limits their statutory rights without giving them theopportunity to make their opinion about such drastic outcome known (and solely on the basis
of their opponent’s submission
), would run afoul the fundamental principles of due processand fair adjudication. Presumptively, the Board would not do that.10.
 
 Nevertheless, there are some lingering doubts. First, the Board only invited some of the parties to make their views known about the participation of the potential intervenors.Ostensibly, the potential intervenors are not invited to submit any opinion about the change of their status, only to inform the Board whether they wish to assume this status or not participate at all. The Notice does not even contemplate an opportunity to reply to thesubmissions of the invited parties.11.
 
Although it is hard to imagine that the Board would invite some parties to comment on thestatus of others, but would not invite those affected by such ruling to make their views knownto the Board, this seems to be what the Notice stipulates.12.
 
Such outcome would also be inconsistent with the Board
’s
promise that IFPRs will be treatedas any objector and will have full participatory rights. Yet, the failure to invite the IFPRs toexpress their views already indicates their relegation to a lower status, and oddly suggests thatwhile the Board regards IFPRs as equal, it views some other parties
as “more equal”.
4
 13.
 
Therefore, to remove any doubt that the Board actually intended to achieve such an Orwellianoutcome, and to clarify that the above confusion is a result of an an inadvertent error, it isrequested that the Board issue the following clarification:a)
 
That
all 
parties are invited to make their views known about the different level of  participation contemplated by the Board; b)
 
That the parties whose status of proper objectors might be denied, would have theopportunity
to respond to the other parties’ submissions.
 14.
 
There is also some ambiguity about whether the proposed IFPRs will truly have full participatory rights and will be treated as any objector. First, as mentioned above, they havealready been treated, perhaps inadvertently,
as “less equal”. Second, while the Notice
mentions many participatory rights, it does not mention all of them. For example, it is notclear that IFPRs can file motions, cross-examine witnesses, call their own experts, and
4
 
Cf.
George Orwell, Animal Farm (Penguin Books: London UK, 2008), at 90 (“All animals are equal, but someanimals are more equal than others”).
 
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