ARIEL KATZ

ASSOCIATE PROFESSOR
INNOVATION CHAIR, ELECTRONIC COMMERCE

November 21, 2010 - BY EMAIL -

Mr. Gilles McDougall

Acting Secretary General
The Copyright Board of Canada
56 Sparks Street, Suite 800
Ottawa, Ontario
K1A 0C9

Dear Mr. McDougall,

Re: Access Copyright’s Post-Secondary Educational Institutions Proposed Tariff (2011-
2013) - Submission Pursuant to the Copyright Board’s Notice Dated Nov. 15, 2010
Pursuant to the Copyright Board Notice, dated Nov. 15, 2010 I hereby make this submission
regarding the contemplated changes in the status of various parties who filed timely notices of
objection.
I am one of these objectors. I am a law professor at the University of Toronto and the proposed
Tariff, if approved, will affect me in direct and profound ways. It may subject me to legal
obligations that otherwise would not exist; it may expose me to liability for acts that otherwise
would be totally lawful; it threatens my privacy and my academic freedom. Moreover, and
notwithstanding the misnomer AC chose as its trade name, the anti-competitive nature of the
Tariff will limit the scope of materials which I will be able lawfully to access.
Before addressing the contemplated changes in parties’ status, I would like to direct the Board’s
attention to some ambiguities in the Notice, which I would request the Board to clarify as
outlined below in Part A.
Part B of this submission details my objection to the contemplated changes in various parties’
status. In a nutshell, the right to object to a proposed tariff was granted by Parliament and is not
subject to the Board’s discretion. With regard to the majority of the persons who filed objections,
Access Copyright’s Submission from Sept. 22, 2010 reveals no basis on which their status of
objectors could be denied. Therefore, the Board should deny Access Copyright’s submission and
refrain from changing the status of those objectors to whom Parliament granted such right.
Alternatively, if the Board still decides to relegate me or other objectors to a new status, I would
expect it to give adequate reasons for such an unprecedented ruling.1

1
Canadian Association of Broadcasters v. Society of Composers, Authors & Music Publishers of Canada, 2006 FCA
337, at para. 11

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

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 2

A. Request for Clarification

Background
1. On September 22, 2010 Access Copyright (“AC”) requested that apart from the AUCC and
the ACCC, all other individuals and organization who filed notices of objection do not qualify
as “objectors” within the meaning of subsection 67.1(5) of the Copyright Act (“AC’s
Submission”).2
2. On November 15, 2010 the Board issued a Notice. According to the Notice, the Board found
that AUCC, ACCC, Athabasca University and BCAIU, “being targeted by the proposed
tariff, are proper objectors.”
3. The Board also found that Mr. Degen's letter in support of the proposed tariff would be
treated as a letter of comment. Since a supporter cannot logically be an objector this finding
flows directly from subsection 67.1(5).
4. Nevertheless, there exists some ambiguity and uncertainty with regard to the status of many
of the other individuals and organizations that filed objections. Therefore, it would be
prudent for the Board to dispel this ambiguity by issuing a clarification as requested below.
5. The Notice suggests that with the exception of a few named parties, the Board has not yet
reached any decision about the status of the other individuals and organizations who filed an
objection. The Board distinguished between the government of Alberta and of teachers,
students and staff from the targeted institutions in the proposed tariff on the one hand, and a
group of other 38 individuals on the other.3 With respect to persons from the first group, the
Board formed a “preliminary opinion” that their participation “would enrich the record of
these proceedings and assist the Board’s deliberations.” It therefore indicated that it would be
“inclined to grant them, if they so wish, “intervenor status with full participatory rights, in
effect allowing them to act in these proceeding as if they were objectors”. The Board then
explained that “[t]o the extent that the contemplated status is granted, it is not necessary to
rule on whether these persons are proper objectors.” It invited AC, AUCC, ACCC, Athabasca
University and BCAIU to submit their views about this contemplated status of “intervenor
with full participatory rights” (IFPRs).
6. With respect to the group of 38 individuals, the Board formed the “preliminary opinion” that
their “participation … would not be of assistance.” It suggested that it might give them an
intervenor status if they apply for such status, but it would only rule on their status after they
submitted their applications and the other parties had the opportunity to comment on them.
The Board, however, did not specify whether these individuals’ contemplated status is of
ordinary intervenors or IFPRs.
7. The Board did not indicate whether it made any ruling with respect to the status of two
prospective users’ representative organizations: CAUT and CFS.

2
On October 13, 2010 I filed an Initial and Partial Response the AC’s submission. In my Response, I noted that it
would be prudent for the Board, if it intended to consider AC’s Submission, to invite all interested parties to submit
their own views on that issue before making any decision. In addition, I noted in my Response that AC’s
Submission has no basis in law and briefly provided the grounds for my submission.
3
The Board also asked three Academic institutions to clarify whether the institution or its library is being
represented.

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 3

8. While it is clear that the Board ruled against AC and found that Athabasca University and
BCAIU do qualify as objectors, it seems that the Board has not decided yet about the status of
all the others who filed objections. The Board’s carefully used the terms “preliminary
opinion”, “inclined to grant”, and “to the extent that the contemplated status is granted.”
Furthermore, the invitation of some parties to comment about the contemplated status of
others suggests that no decision has been made yet.

9. This conclusion is also supported by the fact that a many of the objectors are indeed
“prospective users” within the plain meaning of the Copyright Act. Therefore, a ruling that
denies, changes, or potentially limits their statutory rights without giving them the
opportunity to make their opinion about such drastic outcome known (and solely on the basis
of their opponent’s submission), would run afoul the fundamental principles of due process
and fair adjudication. Presumptively, the Board would not do that.

10. Nevertheless, there are some lingering doubts. First, the Board only invited some of the
parties to make their views known about the participation of the potential intervenors.
Ostensibly, the potential intervenors are not invited to submit any opinion about the change of
their status, only to inform the Board whether they wish to assume this status or not
participate at all. The Notice does not even contemplate an opportunity to reply to the
submissions of the invited parties.

11. Although it is hard to imagine that the Board would invite some parties to comment on the
status of others, but would not invite those affected by such ruling to make their views known
to the Board, this seems to be what the Notice stipulates.

12. Such outcome would also be inconsistent with the Board’s promise that IFPRs will be treated
as any objector and will have full participatory rights. Yet, the failure to invite the IFPRs to
express their views already indicates their relegation to a lower status, and oddly suggests that
while the Board regards IFPRs as equal, it views some other parties as “more equal”.4

13. Therefore, to remove any doubt that the Board actually intended to achieve such an Orwellian
outcome, and to clarify that the above confusion is a result of an an inadvertent error, it is
requested that the Board issue the following clarification:

a) That all parties are invited to make their views known about the different level of
participation contemplated by the Board;

b) That the parties whose status of proper objectors might be denied, would have the
opportunity to respond to the other parties’ submissions.

14. There is also some ambiguity about whether the proposed IFPRs will truly have full
participatory rights and will be treated as any objector. First, as mentioned above, they have
already been treated, perhaps inadvertently, as “less equal”. Second, while the Notice
mentions many participatory rights, it does not mention all of them. For example, it is not
clear that IFPRs can file motions, cross-examine witnesses, call their own experts, and

4
Cf. George Orwell, Animal Farm (Penguin Books: London UK, 2008), at 90 (“All animals are equal, but some
animals are more equal than others”).

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

Tel: 416-978-8892 Fax: 416-978-2648 ariel.katz@utoronto.ca www.law.utoronto.ca/faculty/katz
 4

present oral arguments apart from at the end of the hearings (which may occur many years
from now). Although it seems reasonable to interpret the participatory rights that were
mentioned merely as examples, the Notice does not use any term supporting this
interpretation such as, “without limitation”, “such as”, or “for example”.

15. Moreover, since the Board is inclined to make a distinction between “proper objectors” and
“IFPRs”, it seems that, presumptively, there must be some difference between them that
justifies the different terminology. If that is not the case, one would expect the Board to
unequivocally state that. If that were the case, one would expect the Board to clarify the
distinction for future guidance.

B. Position and Argument Regarding the Status of Several Objectors

The Board has no Power to Deny Rights Granted by Parliament

1. The Board’s Notice states the following: “Having read all notices, the Board is … of the
preliminary opinion that the participation of the government of Alberta and of teachers,
students and staff from the targeted institutions in the proposed tariff would enrich the record
of these proceedings and assist the Board's deliberations. As such, the Board is inclined to
grant them, if they so wish, intervenor status with full participatory rights, in effect allowing
them to act in these proceedings as if they were objectors. To the extent that the contemplated
status is granted, it is not necessary to rule on whether these persons are proper objectors.”

2. The Board should not pursue this approach, which is based on a wrong assumption and has
no basis in law. It is common ground that the Board has broad authority to determine its own
procedure, and this authority allows it to create various types of participants, allow
interveners, and in general, allows it to expand the number and type of parties participating in
the proceedings before it beyond those specifically mentioned in the Copyright Act.5 It is also
common ground that “[t]he only limitations on the authority of the Board to determine its
procedures are those arising by express terms of the Act…”6 However, the right to object and
the concomitant status of an “objector” are an example on such statutory limitation. These
rights were granted by Parliament and mandated by the Act.

3. Under subsection 67.1(5) “prospective users” or “their representatives” may file written
objections to a proposed tariff. Therefore, any “prospective user” or any “representative” of
“prospective users” who filed a timely written objection is an “objector.” The Board has no
power to deny this status. Just as the Board “may not treat submissions as objections under
the Act unless they are written, filed on time and are from users or their representatives”,7 it
cannot treat submissions meeting these requirements in any manner other than as objections.

4. The status of an objector, created by Parliament, is not subject to the Board’s discretion. It
does not depend on the potential for substantive contribution of the objection to the

5
Society of Composers, Authors & Music Publishers of Canada v. Canada (Copyright Board), 47 C.P.R. (3d) 297,
61 F.T.R. 141 (1993).
6
Ibid, at para. 41.
7
Ibid, at para. 52.

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

Tel: 416-978-8892 Fax: 416-978-2648 ariel.katz@utoronto.ca www.law.utoronto.ca/faculty/katz
 5

proceeding before the Board. The question whether someone’s perspective would assist the
Board in fulfilling its mandate is relevant only when a party (other than an objector) seeks a
status of an intervenor. For determining the status an objector, however, the only questions
are: (1) was the written submission filed on time; (2) by a prospective user or a representative
of users; and (3) does it express objection to the tariff (as opposed to supporting it, for
example). When those conditions are met “all objections are equal before the Board and all
objectors must be presumed to have status.”8

5. It is also immaterial that the Board has the power to grant a particular applicant a status of
intervenor and could decide to grant such intervenor procedural rights identical to those of an
objector. The status of an objector is conferred upon the objector upon satisfying the three-
abovementioned conditions. The right to object and the concomitant status of an objector
were granted by Parliament; the Board cannot replace them with someone else as similar as it
may be.

6. According to the Notice, with the exception of Mr. Degen’s submission, all other submissions
were filed on time and expressed objection. Therefore, the only issue is whether prospective
users or their representatives submitted them. Therefore it remains to be determined who is a
“prospective user”.

Who is a Prospective User: Generally

7. At the outset, it should be emphasized that the terms “prospective users” and “their
representatives” must be broadly construed. Yet, to support its contrary position and overly
narrow construction, AC relies on an amendment to the Act enacted in the aftermath of the
Federal Court decision in Canadian Broadcasting Corp. v. Canada (Copyright Appeal
Board).9 AC draws the wrong conclusions from this case and the subsequent statutory
amendment.

8. In that case the CBC’s was a prospective user under proposed tariffs filed by PROCAN and
CAPAC. The CBC sought to deny a status of objector from two parties: SPACQ and CIRPA,
who filed objections, maintaining that the proposed tariffs should be increased. The CBC and
other prospective users objected to the participation of SPACQ and CIRPA on the grounds
that the members of SPACQ and CIRPA, for the most part, had already assigned their
relevant copyrights to PROCAN and/or CAPAC, and therefore, did not have an independent
interest from CAPAC and PROCAN.

9. At that time, the relevant section of the Copyright Act (then subsection 49(1)) provided that
“any person” could lodge an objection. The CBC sought to limit this status only to users.
The court declined to give the phrase “any person” such narrow construction and took the
position that the regulatory framework created by Parliament for the oversight of collecting
societies justifies a large and liberal interpretation of the right to object to a tariff. The court
emphasized that “if an objection has been filed on time, pursuant to the notice published … in
the Canada Gazette, all objections are equal before the Board and all objectors must be

8
Canadian Broadcasting Corp. v. Canada (Copyright Appeal Board), 7 C.I.P.R. 194, 8 C.P.R. (3d) 484, 3 F.T.R.
241 (1986), at para. 33.
9
Ibid.

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

Tel: 416-978-8892 Fax: 416-978-2648 ariel.katz@utoronto.ca www.law.utoronto.ca/faculty/katz
 6

presumed to have status. Once having obtained status, they, like the applicant who is also an
objector, must have equality before the Board.”10

10. Two years later, however, the Act was amended and the term “any person” was replaced by
the phrase “prospective users or their representatives”, currently in subsection 67.1(5). It is
clear, therefore, that the change from “any person” to “prospective users and their
representatives” was meant to address the peculiar situation in which a collective society files
a proposed tariff and then its members oppose on the ground that the tariff is too low; the
amendment reflects Parliament’s intent to protect and empower users, not to restrict their
right to object. The amendment would prevent members of AC from proposing higher fees
by “opposing” to those requested by AC. Parliament agreed with the CBC that the right to
object should not be granted in such situations and adopted the CBC’s view the objectors
should be prospective users (and their representatives). Parliament could never have intended
that this amendment would restrict or weaken their ability of those targeted and affected by a
tariff to object. Therefore, as before the amendment, prospective users’ right to object should
be liberally construed. AC’s Submission turns the statutory amendment on its head.

11. It follows that in order to deny a status of an objector, the Board must be persuaded that the
person who submitted a timely objection is NOT a prospective user or NOT a user
representative. The burden of persuasion is on AC.

12. Contrary to what is suggested in the Notice, the Board does not have to decide affirmatively
who IS a proper objector. It only has to rule whether it was persuaded by AC’s Submission
that those persons are NOT proper objectors. If the Board is not so persuaded, these persons
must be presumed to be objectors. It is only after a finding by the Board that a person who
filed a timely objection is not an objector that the Board can consider granting it another
status, but it cannot grant another status without making such finding first.

13. AC’s Submissions fails to meet the burden of persuasion. It submits that only an academic
institution can be considered a “prospective user” under the Copyright Act, and that
accordingly only an academic institution, but not its teachers or students, for example, would
have standing to object to the Tariff. This view is too narrow, contradicts AC’s own
definitions, and has no basis in law. Accordingly, the Board should reject it.

Who is a Prospective User: Specifically

14. In its Submission, AC contends that only the targeted institutions are “prospective users”
having standing to object. It advances three main arguments to support its contentions:

15. First, it argues that only the academic institutions would have an obligation to pay the Tariff
amounts, but not students or teachers. That is factually correct (in a very strict sense), but
irrelevant. The supra-competitive fees that AC members seek to impose on the academic
institutions would have to be paid somehow. Without a corresponding increase in their
budgets, the institutions would have to either increase the fees paid by students (as many of
them have done in the past), or cut on other expenses, e.g., reduce their subscriptions and
acquisitions budgets. These effects would be felt directly by the objectors.

10
Ibid.

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

Tel: 416-978-8892 Fax: 416-978-2648 ariel.katz@utoronto.ca www.law.utoronto.ca/faculty/katz
 7

16. AC further maintains that only the targeted institutions are responsible for reporting, record-
keeping, and surveying compliance, while teachers and students will only make copies under
the proposed Tariff. This assertion is incorrect and misleading. It portrays an imaginary
reality in which the Tariff would confer upon teachers, students and other staff worriless
liberty to copy works for their academic pursuits, while all the burdens (financial,
administrative, or otherwise) would fall on the institutions. If only that were so.

17. Complying with reporting, record-keeping and surveying requirements would necessarily
impact teachers, students, and other staff because the activities reported, recorded and
surveyed are the activities of teachers, students and staff members. These requirements will
have a detrimental effect on privacy and academic freedom, because in order to comply with
them the institution would have to ensure the compliance of teachers and staff (see section
13(1), for example).

18. Nor does the Tariff confer upon teachers, students and staff worriless liberty to copy the
works covered by the Tariff. Section 4, for example, imposes onerous restrictions on the use
of works, including unprecedented “book-burning” provisions, such as the ones contained in
subsections 4(2), 4(3) or 5(4). The Tariff also aims at restricting many lawful uses, yet
section 15 demands that the academic institution shall take steps to ensure compliance with
those conditions—even those that otherwise would be lawful.

19. Furthermore, if approved, the Tariff would change the legal rights and obligations of teachers,
students and staff. It can expected that AC or its members would take the position that use
made without full compliance with the various conditions is an unauthorized use, for which
the relevant teacher, student of staff member could be personally liable.

20. Therefore, the assertion that the proposed Tariff only targets the institution but not their
teachers, students and staff misrepresents its nature, its intended purpose and its effect. The
proposed Tariff not only targets teachers, students and staff directly and explicitly, it targets
the core and very essence of their everyday academic activity.

21. Second, AC argues that “when the term “prospective user” is read in the entire context of the
collective licensing regime imposed by the Copyright Act, it becomes clear that this term
refers to entities responsible for payment under a given collective’s licensing scheme.” The
examples given are sections 30.3 and 70.17. The term “user”, however, is not mentioned in
any of these provisions, so it is not clear how they aid in its interpretation. If anything, the
provisions strengthen the conclusion that teachers’, students’ and staff members’ right to
object to a tariff is independent of that of the academic institution.

22. For example, s. 30.3 identifies some conditions under which the institution will not be liable
for the infringing acts of its members. It clearly does not immunize the members; that would
defeat its purpose. Moreover, if AC’s interpretation of 70.17 is correct, and the immunity it
creates applies only to the institution who paid or offered to pay but not to its individual
members, the remarkable outcome would be that if the proposed Tariff is approved, the
academic institutions will pay millions of dollars for various Authorized Purposes by
Authorized Persons (as defined by the Tariff), those persons would have to comply with
various conditions, but these payments would only immunize the academic institution, not its
teachers, students and staff. Such an outcome hardly provides a compelling reason to deny
such individuals and their representatives the right to object.
Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5
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 8

23. In fact, both s. 30.3 and 70.17 (or AC’s interpretation thereof), only emphasize the point that
while an academic institution, a teacher, a student, or a staff member, may all be authorized
under a tariff, each of them could face different legal risks, each may be liable for different
acts and on different grounds, and at times their legal interests might be in conflict. This only
strengthens the conclusion that no group can adequately represent the interests of the other.
Members of each group should have equal standing before the Board.

24. Thirdly, AC contends that only the academic institutions are the prospective users because
students, faculty librarians and their respective representative organizations “are not, and
never have been, licensees of Access Copyright, nor could they be under the Tariff.” AC’s
argument, however, is based on a fundamental mistake: it confuses the question of who has
the obligation to pay with the questions of who is a licensee; it confuses the question of with
whom it negotiated in the past, with the question of who is a prospective user having statutory
standing to object.

25. Moreover, this contention is inconsistent with the words of the Act and with AC’s own
chosen words in the Tariff. As per sections 70.1 and 70.12, a proposed tariff must be
“licensing scheme”, it must set out “classes of uses” that AC agrees to “authorize” and it must
set out the relevant royalties, terms and conditions.

26. The phrase “classes of uses” contemplates “users”, and those are defined in s. 2 of the
proposed Tariff under the definition of “Authorized Person”. This definition includes “a
Student or a Staff Member” (and those are later defined as including an instructor, professor,
librarian and other university staff). Because the proposed Tariff contemplates “classes of
uses” by students, instructors and other staff, every such “Authorized Person” is both a
“prospective user” for the purpose of s. 67.1(5), and a licensee under the proposed Tariff. If
that were not so, there would be no “licensing scheme” for the Board to approve. To argue
that a person explicitly authorized to copy a work under the Tariff is not a user and that the
authorization is not a license defies all logic. Such contention also runs against first
principles of copyright law, namely that a “licence is merely a permission or consent to do
that which would be otherwise unlawful.”11 A license does not necessarily require payment,
and even when it does, the question of who is a licensee is separate from the question of who
has the obligation to pay for the license. The two need not be the same person.

27. To put it otherwise, even though the obligation to pay the proposed royalties might fall on the
academic institution (ignoring for the moment this financial burden will be borne by many
others), the Authorized Persons are the ones who use the works (by reproducing them,
posting them electronically, etc.). They are also the ones who bear legal risks of being
personally liable should they fail to comply with the various limitations and conditions that
the tariff proposes to impose on them, and they are the ones whose privacy and academic
freedom the proposed tariff threatens.

28. Consequently, as long as students, instructors and other university staff are the ones using the
works; as long as they are expected to comply with the proposed tariff’s terms and
conditions; as long as they could be legally liable should they fail to comply; and as long their

11
John S, McKeown, Fox on Canadian Law of Copyright and Industrial Designs, 4th ed. (Toronto:
Thomson/Carswell, 2003) (loose‑leaf updated 2008, release 1), at 19-26.

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 9

privacy and freedoms would be compromised by the tariff, they are “prospective users” for
the purpose of the Copyright Act and this proceeding, and have the right, granted by
Parliament fully to participate in it as equal objectors.

29. The notion that these individuals are not “prospective users” and that they and their
representatives should be denied full and equal standing in a proceeding that directly affects
their rights and obligations is not only incompatible with AC’s own definition of an
“Authorized Person” and with the express language of the Copyright Act, it also runs afoul
the fundamental principles of due process and fair adjudication.12

30. In sum, AC’s Submission fails to show that teachers, students, librarians and other staff from
the targeted institutions are not “prospective users.” Therefore, their status of objectors and
the status of their respective representative organizations of objectors, granted by Parliament,
cannot be taken by the Board.

C. Relief Sought

1. In light of the above, I respectfully request the Board to rule as follows:

2. Clarify at its earliest convenience that:

a) All parties are invited to make their views known about the different types of participation
contemplated by the Board;

b) All parties whose status of proper objectors might be denied, have the opportunity to
respond to the other parties’ submissions;

c) The Board should indicate the deadlines by which such submissions ought to be filed.

3. The Board should deny AC’s Submission and affirm that all the individuals who are either
teachers, students, librarians or other staff members in institutions targeted by the proposed
Tariff, or representative organizations of such individuals are proper objectors.

4. Should the Board decide to deny such status from a particular individual or organization, it
should provide adequate reasons for such decision.

Yours respectfully,

Ariel Katz

12
Society of Composers, Authors & Music Publishers of Canada v. Canada (Copyright Board), 47 C.P.R. (3d) 297,
61 F.T.R. 141 (1993), at para. 41.

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

Tel: 416-978-8892 Fax: 416-978-2648 ariel.katz@utoronto.ca www.law.utoronto.ca/faculty/katz