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Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5
Access Copyright filed the Proposed Tariff on March 31, 2010 with an effective date of January1, 2011. The Proposed Tariff was published in the
Canada Gazette
on June 12, 2010 andobjections were filed by August 11, 2010.
The Proposed Tariff did not contemplate anyobligation on prospective users on an interim basis. Instead, as we learned from AccessCopyright’s letter of October 7, 2010 and its appendices, Access Copyright sought to securecontinued funding for itself as of January 1, 2011 by means of an “Interim Agreement”. The plandid not work; only a very limited number of institutions signed this Interim Agreement.
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Therefore, on October 7, 2010 Access Copyright asked to Board to issue an interim decision,which is in effect an interim tariff. Access Copyright modified the terms of the tariff severaltimes, most recently on December 5, 2010. By requesting that the Board approve an interimtariff effective January 1, 2011, Access Copyright proposes a
new
Licensing Scheme within themeaning of s.70.1. It sets out
new
classes of uses that it seeks to authorize, with
new
royaltiesand
new
terms and conditions
for the effective date of the Proposed Tariff. Given the anticipatedlength of the proceedings (which by Access Copyright’s own estimate make take more than fiveyears),
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and given that this period will exceed the period of the Proposed Tariff, in practice, theinterim tariff might well be that only tariff with additional payment imposed sometime in thefuture on a retroactive basis. This cannot be done: the statutory deadline has elapsed; thelanguage requirements were not followed; and no notice and opportunity to object as mandated by the
Act
were given. Granting the application would circumvent the clear framework created by the
Act.
II.
The Power to Make an Interim Decision Does Not Extend to Ordering anInterim Tariff
It is well established that an administrative tribunal cannot issue an order or directive unless it isexpressly authorized to do so by its empowering legislation.
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Further, since express powerscannot be implied, the power to make a particular kind of order cannot be read into or inferredunder the
Act
, even if a tribunal thinks such a power is necessary to fulfill its mandate.
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Unlike all the other documents that it mentioned in its Application, Access Copyright did not attach a copy of this“Interim Agreement”. A copy of what I believe to be this proposed “Interim Agreement” is attached to thissubmission as Appendix A. It is easy to understand why very few institution signed this agreement, why many other rescinded their signatures, and why Access Copyright’s current solicitor advised the Board in an email sent on Nov.30, 2010 at 2:39 pm that Access Copyright decided to treat some of these signed agreements as null and void (seeAppendix B). The Interim Agreement would require the signing institution to continue paying as before, continuereporting as before, but for nothing. Clause 3(i) made it clear that Access Copyright did not grant any license inreturn.
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Access Copyright, “Application for an Interim Decision on the Access Copyright Post-Secondary EducationalInstitutions Tariff (2011-2013) [
AC Application
], Appendix C, at p. 4
7
Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission)
, [1989] 1 S.C.R. 1722at para. 50 [
Bell Canada
];
Curly Posen and Motion Picture Theatres Association of Canada v. Minister of Consumer and Corporate Affairs Canada
, [1980] 2 F.C. 259 at paras. 5-7;
Matthews v. Canada (Attorney General)
, [1996]F.C.J. No. 1077 at paras. 27-31,
aff’d
[1999] F.C.J. No. 830,
leave to appeal. denied
[1999] S.C.C.A. No. 412.
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Nova Scotia Construction Safety Assn. v. Nova Scotia (Human Rights Commission)
, [2006] N.S.J. No. 210 at para.143.
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