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14-02-18 L to McDougall (2)

14-02-18 L to McDougall (2)

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Published by hknopf

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Published by: hknopf on Feb 20, 2014
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February 18, 2014
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 Educations Institution Tariff (2011 -2013) (the "Proposed Tariff")
We write on behalf of the University of Toronto (the “
U of T
”) pursuant to the Noticesof the Board dated December 20, 2013and February 7, 2014. The purpose of this letter isto respondto Access Copyright’s December 13, 2013 application to the Board, seekingleave to filea report prepared byCircum Network Inc. (“
”) entitled“Analysis of the Volume and Nature of the Copying of Published Works at the University of Toronto, 2005 -2012” (the “
Circum Report
”) and the Supplementary Witness Statement of Kerrie Duncan (the “
SupplementaryDuncan Statement
”)(collectively, the “
Additional Materials
A.Overview of the U of T’s opposition to Access Copyright’s application
1.The U of T strongly opposes Access Copyright’s applicationon the following grounds:a.
Breach of Contract.
 Access Copyright’s attempt to file the Additional Materials is abreach of its explicitcontractualobligations to the U of T pursuant to the Agreementin two ways. i.First, the Additional Materials rely on survey data (the “
Survey Data
”) provided by the U of T to Access Copyright pursuant to a licence agreement executed on January 30, 2012 (the “
Licence Agreement
”) and amended by a letter agreement executed the same day (the “
Amending Agreement
”) (collectively, the “
”). Copies of these documents are attached as Schedules “A” and “B”, respectively, to this letter. The U of T entered into the  Agreement on the explicit understanding that it would not be required to participate in the Proposed Tariff proceeding and that Access Copyright would not seek to rely on the Survey Data in connection with its tariff proposal. It provided the Survey Data for two very limited purposes: to facilitate Access Copyright’s distribution of royalties collected under the  Agreement and to assist the parties in renegotiating an extension termto the  Agreement. ii.Second, as the U of T has objected to Access Copyright’s use of the Survey Data, and as Access Copyright has refused to withdraw its application,
Page 2
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 Access Copyright persists in attempting to do indirectly what the Agreement precludes it from doing directly –that is, causing the U of T “to provide information as to its copying activities” and to “otherwise participate” in the Proposed Tariff proceeding –contrary to the explicit language of the Agreement.b.
The late submission of the Additional Materials in a public proceeding, well outside the deadlines that were published by the Board,is prejudicial to the U of T and to the integrity of the tariff process itself. Further, given that all but one of the parties opposing the certification of the Proposed Tariff have withdrawn from the proceeding, there is no participant remaining to meaningfully challenge the propriety or accuracy of the Additional Materials.The U of T itself, having entered into the  Agreement for, among other things,the express purpose of not having to participate in the Proposed Tariff proceeding, does not intend (and should not be compelled) to do so.c.
The Circum Report is inaccurate and unreliable.
In the alternative, the U of T submitsthat, should the Board admit the evidence despite Access Copyright’s clear breach of contract and the U of T’s right to procedural fairness, the evidence should nevertheless be given very little weight. The Circum Report itself is based on incorrect and incomplete information provided to Circum by Access Copyright and is neither accurate nor probative.2.The U of T acknowledges that it is not a party to the Tariff Proceedings, nor does it desire to become oneby way of these submissions. However, insofar as the Additional Materials pertain to the U of T’s copying activity during the term of the Proposed Tariff, and comments on data derived from the U of T’s course management system, the U of T wishes to make these submissions to the Board as to whether the additional evidence should be admitted, and,in the alternative, as to the weight to be given to the additional evidence if admitted. As the Board stated in its Notice of January 17, 2014, the withdrawal of the few remaining objectors “implies that the Board staff needs to play a more active role in the file.” The Board’s Directive on Procedure allows any member of the public to comment on proceedings. In that capacity, the U of T welcomes the opportunity to provide these comments to the Board to assist it in its scrutiny of the Additional Materials.3.In sum, for the reasons set out below, the U of T submits that the Board ought to dismiss  Access Copyright’s application. Further, inasmuch as the attempted filing of the AdditionalMaterials amounts to compelling the U of T, against its will,to “provide information as to its copying activities”in the Proposed Tariff proceeding, the U of T again calls upon Access Copyright to fulfill its obligation under the terms of the Agreement “to support the position” that the U of T should not be required to do so.
B.Procedural Background
4.In response to Access Copyright’s December 13 application, the U of T brought a motion before the Ontario Superior Court of Justice on January 24, 2014, seeking an injunction restraining Access Copyright from using or disclosing the Survey Data for any purpose other
Page 3
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than those purposes specifically identified in the Agreement, includingby filing the Additional Materials with the Copyright Board or otherwise publishing or relying on same.5.In reasons dated February 4, 2014, the Honourable Mr. Justice Marangerdismissedthe U of T’s motion.While MarangerJ. found that the U of T had not established the basis for an interlocutory injunction, he noted that it nonetheless had a “valid argument” that the Agreement prevented Access Copyright from using the Additional Materialsin the manner that they are attempting before the Board.
C.Access Copyright’s application is in breach of the Agreement
i.The Licence Agreement and the Amending Agreemen
6.On January 30, 2012, the parties entered into the Licence Agreementand the Amending  Agreement. The Licence Agreement was effective as of January 1, 2011and had the effect of removing the U of T from the Proposed Tariff regime.Among other things, the Agreement provided the U of T withthe ability to continue using works in the Access Copyright repertoireat rates lower than those set out in the Proposed Tariff.This purpose and the parties’ intentionsin entering into the Agreement,were clear on the face of the Agreement. The preamble of the Licence Agreement provided, among other things, that “[t]he parties wish to enter into an agreement, instead of relying on the tariff, that facilitates access and distribution of copyright-protected works and respects academic freedom and privacy….”7.The provision of the Survey Data, described above, was subject to specific limitations. Specifically, section 11 of theLicence Agreementprovided as follows. Access Copyright and the Licensee shall establish a joint taskforce ...to develop a mutually agreeable survey methodology and/or reporting structure for the provision of valid and reliable bibliographic and volume data to Access Copyright
for distributionpurposes and to be used as a measure of volume to assess the appropriateness of the Royalties for any extension term
... [Emphasis added.]8.The Licence Agreement also containedan “entire agreementclause, specifying that there wereno representations, covenants or other terms other than those set forth in the Licence Agreement, and that the Licence Agreement may only be amended only in writing. 9.For its part, the Amending Agreementexplicitly confirmed Access Copyright’s agreement that the U of T shouldnot have to participate in the Proposed Tariff proceeding, including by providing information about its copying activities. Specifically, the relevant provision of the  Amending Agreement provided as follows:Further,
 Access Copyright agrees to support theposition,
if taken by U of T in the context of [the Proposed Tariff proceeding],
that, in view of the settlement of the tariff as between Access Copyright and U of T,U of T should not be required to
respond to interrogatories,
 participate in surveys,

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