The real issue is the nature of an approved tariff, not the number of infringing copies
I fully agree with Access Copyright that the real issue is whether an approved tariff (as far as educational institutions are concerned) is merely a
, which therefore only binds an institution that has chosen
to operate under it, or can it become
on those institutions irrespective of whether they have chosen to operate under it or not. I also fully agree that under my interpretation, the number of infringing copies that an institution might be held liable for is irrelevant. 
If I understand its objection to my draft question correctly, Access Copyright takes issue with the phrase “a single infringing reproduction”. It claims that my proposed question raises a hypothetical fact scenario whereby an institution makes
no more than
a single infringing reproduction
. I agree that if understood in this way, the question may not fully present a clear distinction between the “voluntary” vs. “mandatory” interpretations. My proposed question, however, meant to refer to “
one or more
infringing reproductions”. 
I disagree, however, with Access Copyright’s suggestion that the “single reproduction” issue is a red herring, and I reject its claim that it is totally unrelated to the current proceedings. While I may be credited for coining the term “single reproduction theory”, I disclaim any authorship in the theory itself. 
Rather, credit to the theory itself should be given to the Board, which has previously expressed it in its August 18, 2011 Ruling, and even more explicitly (and in direct reference to the certification of the current proposed tariff) in its submissions to the Federal Court of Appeal.
The Board has also expressed the theory in para. 4 of its decision from My 29, 2013 to approve an interim tariff for the K-12 sector.
Credit is also due to Access Copyright for explicitly endorsing this theory in its filings to the Federal Court in its action against York University to collect the royalties specified in the
Cases A-339-11, A-395-11,
AUCC v. Access Copyright
, Memorandum of Fact and Law of the Intervener The Copyright Board of Canada, March 1, 2012 (FCA), para 23 (“Any institution that performs a
unlicensed, protected use of the Access repertoire anytime between January 1, 2011 and the date when the final tariff is certified will need to comply with the final tariff” (emphasis added)).
Reprographic Reproduction, 2010-2015, Statement of Royalties to be Collected by Access Copyright for the Reprographic Reproduction, in Canada, of Works in its Repertoire
, Interim Decision of the Board, May 29, 2013, para 4 (“The [educators’] decision to cease paying royalties under the tariff supposes one of two things, in respect of the 200 million or more copies that the Board found to trigger a royalty.
Either teachers no longer make any such copies, or all such copies are no longer compensable
, as a result of recent changes to the
or of recent decisions of the Supreme Court of Canada, or because compensable copies are now licensed through other channels” (emphasis added)). There is, of course, a third possibility: that the K-12 edicators have chosen not to take advantage of the approved licensing scheme and therefore are not obliged to pay the royalties under the tariff.