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Henein to CB 13-12-18_L to McDougall

Henein to CB 13-12-18_L to McDougall

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Published by hknopf

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Published by: hknopf on Jan 12, 2014
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06/27/2014

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December 18, 2013
By Email
Mr. Gilles McDougall, Secretary GeneralCopyright Board of Canada56 Sparks Street, Suite 800Ottawa, ON K1A 0C9
phenein@casselsbrock.comtel:416.860.5222fax:647.259.7974file #1-2812
Dear Mr. McDougall:
Re:Access Copyright Post-Secondary Education InstitutionsTariff (2011 -2013) (the "Proposed Tariff")
We are counsel to the University of Toronto (the “
U of T
”). We write to you in response to the letter from Access Copyright’s lawyer, Nancy Brooks, dated December 13, 2013, seeking leave to file evidence relating to the use by the U of T of published works and paper coursepacks and digitally on its Course Management System(“
CMS
”).Attached to Ms. Brooks’December 13 letter are the two documents Access Copyright seeks leave to file, being a report by Circum Network Inc. entitled“Analysis of the Volume and Nature of the Copying of Published Works at the University of Toronto, 2005 -2012” and the Supplementary Witness Statement of Kerrie Duncan describing the repertoire analysis carried by Access Copyright of the sample of documents posted by the U of T to its CMS(collectively, the “
ProposedEvidence
”).The U of T objects to Access Copyright’s request to file the ProposedEvidence. The U of T requests that the Board permit it to make submissions by no later than January 13, 2014 in support of its request that the Board decline to admit the ProposedEvidence in the tariff proceeding. As the U of T intends to explain in greater detail, it is of the view that Access Copyright’s attempt to file the Proposed Evidence is in direct contravention of its licence agreement with the U of T. As such, the U of T requests that the Board reconsider its preliminary views on Access Copyright’s request for leave and refrain from rendering a decision on the admissibility of the evidence until after receiving the U of T’s submissions.The U of T is not a party to the tariff proceeding and did not receive any prior notice regarding the submission of the Proposed Evidence from Access Copyright or any other party. It was only when Ms. Brooks’ December 13 letter to the Board was drawn to the U of T’s attention that it became aware of Access Copyright’s request. This failure to inform the U of T has left it in a position where it cannot substantively respond to Access Copyright’s submissions within the timelines set out by the Board. The U of T needs to brief counsel and seek legal advice in view of the prejudice that will result to the U of T if the Proposed Evidence is admitted. Due to the intervening holidays, our office has limited availability until January 3, andthe U of T closes as of the end of day on December 20and will re-open on January 6.Therefore, the U of T will not be able to respond substantively on the issue of admissibility with respect to Access Copyright’s submission or the Board’s request for submissions from theobjectors until after January 6.

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