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  • FP To Gilles McDougall Re Copyright December 10, 2010

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    Athabasca University objects to the imposition of what Access Copyright will regard as a mandatory tariff for all practical and even legal purposes. Athabasca is strongly opposed to the creation of an interim tariff. The interim tariff is not clearly understood by many, including the Board itself.

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    Fp to Gilles McDougall Re Copyright December 10, 2010

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    Athabasca University objects to the imposition of what Access Copyright will regard as a mandatory tariff for all practical and even legal purposes. Athabasca is strongly opposed to the creation of an interim tariff. The interim tariff is not clearly understood by many, including the Board itself.

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    108 views8 pages

    FP To Gilles McDougall Re Copyright December 10, 2010

    Uploaded by

    hknopf
    Athabasca University objects to the imposition of what Access Copyright will regard as a mandatory tariff for all practical and even legal purposes. Athabasca is strongly opposed to the creation of an interim tariff. The interim tariff is not clearly understood by many, including the Board itself.

    Copyright:

    Attribution Non-Commercial (BY-NC)
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    Athabasca University Al Oftice of the President December 10, 2010 Mr. Gilles McDougall ‘Acting Secretary General Copyright Board of Canada ‘Suite 400, 56 Sparks Stree Ottawa, ON KIA OC9 Dear Mr. McDougall; Re: Access Copyright Post-Secondary Educational Institution Tariff, 2011-13 On behalf of Athabasca Usiversity, J am writing in response to the recent Notices ofthe Board, including those dated November 26", December 3", and December 8°, 2010. Athabasca University is Strongly opposed tothe creation of an interim tariff. Our more detailed submissions are attached, along with some documentary evidence. Furthermore, the interim tariff is not clearly understood by many, including the Board itself. Hence the ‘need for Orders of the Boacd dated December 3 and December 6", 2010, secking futher clarification, Despite the Board ruling of December 8", 2010, we believe that a delay until well into the new year would tive been appropriate forall parties to have time to review the engthy and detailed Access Copyright submission that was fled yesterday and that are the latest ina series of ever changing submissions beginning with Access Copyrights former lawyer's letter of October 7, 2010, which few had seen until the Board recently provided it to participants, ‘Sinoe there is no tariff presently in place, and this proposed interim tariff was not submitted by March 31", 2010, we believe thatthe Board lacks jurisdiction to even consider this matter by reason of Section 70.13 ofthe Copyright Act, and forthe other attached reasons. While some universities may wish to enter into voluntary licensing arrangements with Access Copyright, Athabasca University doesnot. If those universities or Access Copyright are unable to agree on terms, they may avail themselves of the arbitration mechanism set cut in Section 70.2 in the Copyright Act. However, that isnot what is before the Board atthe current time. ‘Without prejudice to any argument we may subsequently make about whether any interim tariff imposed in these circumstances can be valid and/or mandatory, Athabasca object to the imposition of what, ‘Access Copyright will clealy regard, whether rightly or wrongly, as a mandatory tariff fr all practical 1nd even legal purposes as 2 result ofthis bref and flawed process. AU thabasca Prone: 1-700-675-6104 ‘CANADA'S OPEN UNIVERSITY 1 Unies Deve Tle: (Cands/8))900-788-9043, essen Fae 1700675450 ‘os3a3 ‘wwwiathabeeces Canad Enquiries worwastaucs ‘We look forward to an early ruling from the Board on it first question as to whether there should be an Interim tariff in these circumstances. If, as we hope, the answer is negative, then participants such as ‘Athabasca can be spared the potentially onerous task of addressing the subsequent questions set forth by the Board on December 8, 2010. In any event, we do not understand how we can address the fourth {question in any event by December 17, 2010 without a detailed ruling ofthe Board in response to the first question, ‘Yours truly, Sonnelocd Frits Pannekoek, Ph.D. President ‘Attachments ce: All Participants Athabasca University ‘Submissions re Access Copyright (“AC”) DRABT INIEKIM TARIEE Filed in Response to Copyright Board Ruling of December 8, 2010 (All section sefereuces are to the Copyright Act) With all respect, the process to date has been fatally deficient with respect to procedural {aimess. We were served only on December 8, 2010, with 48 pages of dense new ‘material tat i supposed to help us to understand AC’s aplication - but which will have ‘the opposite effect. This has been a moving target, since it became apparent that AC is seeking an interim tariff, which it disingenuously originally called an “interim decision”. {As the Board's December 8, 2010 ruling confirms, there has not been enough ime or larity for even the most sophisticated partes to assimilate basic aspects what is going on here and the rules ofthe game andthe placement ofthe goal posts keep changing. The ‘Board has, with respect, given far too much accommodation tothe inadequacies and ‘laws - both substantive and procedural -on te pat of AC to date ‘There is no need whatsoever to make any decision based upon a perceived deadline of January 1, 2011. The only thing that will happen then i that AC's revenues may star to ‘decrease. That isthe Sole result ofits strategy to force the expiration of voluntary arrangements and to gamble onthe imposition of mandatory ones. With respect, that is ‘ot something that the Board has the role or responsibility tobe concemed about. The following arguments are without prejudice to our overwhelming objection tothe lack of procedural fires. ‘The Board has no jurisdiction to grant an interim tain this situation. S. 66.51 does not ‘0 this far, ie. to granting what would potentially amount toa very significant mandatory injunction binding on the entire postsecondary sector. While s. 66.51 may, peshaps, be validly used to keep an expired or expiring tariff n pace, especially with the consent of the parties, this is ardly the ease inthis instance. There is no existing tariff and, inthe ‘ease of Athabasca and numerous others, clearly no consent. Moreover, the Board is simply not properly seized on thi ile, since the draft interim, tariff now under consideration isan entirely different document than tht published in the ‘Canada Gazette on une 12, 2010, , 70.13 requires that any proposed inaugural tariff ‘must be filed by March 31 ofthe preceding year in both official languages. This was not done. Inany event, the Board's own precedents strongly suggest that an interim tariff here is ‘completely inappropriate fr several reasons, including that fact that there is no previous tariff and AC should not be entitled to fund its cae using revenues fom objectors - especially those who do not need or wish t have an ongoing relationship with AC. ‘An interim tariff would, if enforceable in the way AC clearly intends, would in effec, be potentially a mandatory injunction requiring the payment ofa least $11 milion a year by ‘universities to AC for several years to come, indeed well beyend 2013 which isthe outer limit ofthe officially proposed tariff. Realistically, based upon past precedents, the offically filed tariff now before the Board will probably take four to six years to resolve atthe Board level, and possibly much more if there is judicial review before a final

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