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Katz Reply to AC Re Reference Final

Katz Reply to AC Re Reference Final

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Published by hknopf

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Published by: hknopf on Nov 30, 2013
Copyright:Attribution Non-commercial


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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. [2]
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”. [3]
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. [4]
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 Copyrigh
, 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.
Interim Tariff approved in this case.
 It is also the theory that Access Copyright relies on in para. 3 of its Statement of Case in the current proceedings (“any such copying constitutes compensable copying which … is subject to the tariff to be certified by the Board”), unless the word “any” in that paragraph means something else than “one or more”. Therefore, it can hardly be said that this theory it totally foreign to the current proceedings, or that it is me, rather than Access Copyright who has raised this theory.
Moreover, I note that while Access Copyright appears to be very pedantic by focusing on my use of the terminology “single”, in contrast to such terminology as “any copies”, or “made … a non-exempt reproduction of one … work”, which it has used before, it actually does not deny its and the Board’s earlier pronouncements of the theory, does not repudiate it, and does not appear to be offering any alternative theory. [7]
I agree, however, that to the extent that using the phrase “making of a single infringing reproduction” may not fully capture the issue that requires determination, the question should be framed differently. Therefore, I would propose the following question (with highlighted changes): Does a tariff approved under section 70.15(1) of the
Copyright Act 
, concerning the reproduction of literary works by an educational institution, entitle the collective society that filed the tariff to collect the royalties specified therein only from an educational institution that has agreed or offered to pay those royalties, or is the collective society entitled to collect the royalties from any educational institution that is liable for the making of a single one or more infringing reproductions of any work in the collective society’s repertoire, as well as and is it further entitled to force such institution to comply with the terms and conditions set forth in the tariff? [8]
It seems to me that these changes adequately address Access Copyright’s objections and  present a clear question for determination. I would also submit that framed in this way, the question is preferable to the one proposed by Access Copyright, for reasons that I will address  below.
 See para 15 of Access Copyright Statement of Claim, in Case T-578-13,
 Access Copyright v. York University
, Apr. 8, 2013 (FC) (“The plaintiff claims that the defendant is, and has been since January 1, 2011, obligated to comply with the terms of the
 Approved Tariff 
 if, subsequent to that date, one Educator made or authorized the making of a non-exempted reproduction of 
 one copyright-protected work 
 within the Repertoire” (emphasis added)).
 Access Copyright has also relied on this theory in its Application for an interim approved tariff in respect to the Access Copyright Educational Institutions Tariff (2013-2015) from April 8, 2013, available at http://www.scribd.com/doc/134779087/2013-04-08-Interim-Tariff-Application-K-12-1, at p 4 (“each Ministry and School Board [that has stopped paying royalties] would have to nevertheless establish to the Board
s or a Court
s satisfaction that each school may avail itself of this interpretation [of the
Copyright Act 
in respect to each copy of a published work in Access Copyright
s repertoire that teachers continue to make
” (emphasis added)).

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