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OTTAWA-#40300040-V2-18nov2013 Letter to G McDougall

OTTAWA-#40300040-V2-18nov2013 Letter to G McDougall

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Published by: hknopf on Nov 19, 2013
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Nancy Brooks
November 18, 2013
Partner Dir: 613-788-2218
nancy.brooks@blakes.com Reference: 00071273/000007
Copyright Board of Canada 800
 56 Sparks Street Ottawa, IN K1A 0C9
Attention: Gilles McDougall Secretary General
Dear Mr. McDougall:
RE: Access Copyright Post-Secondary Educational Institutions Tariffs, 2011-2013 and 2014-2017
We write concerning the Copyright Board proceeding relating to the proposed tariff filed by Access Copyright on March 28, 2013 for the purpose of having the Board set out by licence royalties for copying of works
in Access Copyright’s repertoire
by post-secondary educational institutions from January 1, 2014
through December 31, 2017 (the “2014
2017 Proposed Tariff”)
 For the reasons set out below, Access Copyright requests that the Board consolidate the proceedings for Access Copyright Post-Secondary Educational Institutions Tariffs, 2011-2013
2011-2013 Proposed
 and the 2014-2017 Proposed Tariff, with the hearing scheduled to commence on February 11, 2014 covering both tariffs.
In Access Copyright’s submission
, the following factors militate in favour of consolidation of the two tariffs: 1. Both tariff proceedings raise virtually the same legal and factual issues; 2. Access Copyright would rely on the evidence and interrogatories from the 2011-2013 Proposed Tariff proceeding, and would only need to file a minimal amount of evidence with respect to the 2014-2017 Proposed Tariff proceeding; and 3. Having both tariff proceedings heard together will enhance the administration of justice and  judicial economy and will facilitate the most expeditious and least expensive determination of the issues before the Board.
Proposed Statement of Royalties to be Collected by Access Copyright for the Reprographic Reproduction, in Canada, of Works in its Repertoire
, Supplement Canada Gazette, Part I, June 20, 2013.
Page 2
1. Factual and Legal Issues In Common
 The 2011-2013 Proposed Tariff and the 2014-2017 Proposed Tariff are effectively identical
save for the royalty rate that Access Copyright seeks to have set by the Board. A comparison of the two tariffs is
attached for the Board’s convenience.
 The case filed by Access Copyright on September 20, 2013 addressed all of the factual and legal issues needed for it to prove its case in relation to the 2011-2013 Proposed Tariff. Its reply evidence will address issues identified by the Objectors. The same factual and legal issues will arise in the relation to the 2014-2017 Proposed Tariff. Thus, th
e evidence of Access Copyright’s fact
and expert witnesses will be relevant and probative of the issues in the 2014-2017 Proposed Tariff.
2. A minimal amount of new evidence with respect to the 2014-2017 Proposed Tariff would be filed by Access Copyright
If the Board orders consolidation of the two proceedings, Access Copyright would rely on its existing case and interrogatories in support of both the 2011-2013 Proposed Tariff and the 2014-2017 Proposed Tariff.
With the withdrawal of the Association of Canadian Community Colleges (“ACCC”) as an object
or in the 2014-2017 Tariff proceeding, the only remaining Objectors are the Canadian Association of University
Teachers (“CAUT”) and Canadian Federation of Students (“CFS”)
. As these parties are also Objectors in the 2011-2013 Proposed Tariff, they have h
ad Access Copyright’s case since September 20, 2013
. Access Copyright would seek to adduce a supplemental report by NERA addressing the value of the tariff to be certified for the 2014-2017 tariff period in support of the 2014-2017 Proposed Tariff on a timeline as directed by the Board.
3. Hearing both tariff proceedings together will enhance the administration of justice
 At this point in the 2011-2013 Proposed Tariff proceedings, the Board has not been provided with an estimate of the time the parties expect will be required to put in the evidence, including the Objectors
’ case
in chief and cross-examinations by the parties.
 However, with the absence of the AUCC and the ACCC from both the 2011-2013 Proposed Tariff and the 2014-2017 Proposed Tariff, the Board can expect that, if it orders consolidation, the entire length of the consolidated hearing would likely fit within the time originally set aside for the 2011-2013 Proposed Tariff proceeding. If the proceedings are consolidated, this would permit the Board to deal with these two tariff applications in the most expeditious and efficient manner. The Board will avoid a multiplicity of proceedings and increased expense and inconvenience to the parties, witnesses and the Board. Indeed, it can be expected that CAUT and CFS would welcome the cost savings and convenience to witnesses and counsel that would result from consolidation. Consolidation of the proceedings will also permit greater rate certainty for potential licensees, for example, the decision in the 2014-2017 Proposed Tariff would be issued closer to the start date of the tariff on January 1, 2014.
 In its Statement of Case, Access Copyright estimated it will require 16 hours to put in its case in chief.

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