December 10, 2010
SENT BY EMAIL
Mr. Gilles McDougallActing Secretary GeneralCopyright Board of Canada56 Sparks StreetSuite 800Ottawa, Ontario K1A oC9Dear Mr. McDougall:
Re: Objection to an Interim Tariff Decision on the Access Copyright Post-SecondaryEducational Institutions Tariff (2011-2013)(the “Proposed Tariff”)
I am writing to you on behalf of the Government of Alberta (“Alberta”), pursuant to the Noticeof the Board dated November 26, 2010 and the Ruling of the Board dated December 8,2010.It is the position of Alberta that the Board should not should not grant Access Copyright
ʼ
sapplication for an interim decision for the following reasons.
(a)
The interim decision should not be granted because doing so would becontrary to the procedural requirements of the
Copyright Act
(Canada).
Subsection 70.13(2) of the
Copyright Act
states that where no previous tariff hasbeen approved pursuant to subsection 70.15(1), a collective society shall filewith the Board its proposed tariff, in both official languages, all royalties to becollected by it for issuing licenses, on or before the March 31 immediately beforeits proposed effective date.The application for a proposed interim tariff was filed with the Board on October13, 2010. While the Board, under section 66.51, may render interim decisions,those decisions should be consistent with the overall ambit and scheme of the
Copyright Act
. Subsection 70.13(2) does not distinguish between interim orother types of tariffs.Similarly, under section 70.14 of the
Copyright Act
, where a proposed tariff isfiled under section 70.13, subsection 67.1(5) requires the Board to publish theproposed tariff in the
Canada Gazette
and give notice to prospective users (or
Legal Services/Civil Law Branch500 Phipps McKinnon Building10020 – 101A AvenueEdmonton, Alberta T5J 3G2Telephone: 780-422-9107
Jason.fung@gov.ab.ca
their representatives) within sixty days after the publication of the tariff, that theymay file written objections to the tariff with the Board.If Access Copyright is granted the Proposed Tariff, the Board will have effectivelyoverridden express procedural requirements for the imposition of tariffs, interimor otherwise. These requirements are there in order to allow prospective usersreasonable time to consider and respond to proposed tariffs.
(b)
The interim decision should not be granted because the parties have notbeen given reasonable and sufficient time to address the application.
Although AC filed the application for the interim tariff on October 13th, it onlyprovided precise figures with respect to the Proposed Tariff on November 30thand December 1st, 2010. Moreover, additional documents, namely the modellicense and a table correlating the model license with provisions of the proposedinterim tariff were only received by the participants to these proceedings on De-cember 8th, 2010.The participants should be provided reasonable time to review and consider allmaterials filed pursuant to these proceedings. Whether or not the Board consid-ers them merely supplemental in nature is immaterial; the parties should be pro-vided adequate time to review them if they are relevant to the proceedings. Theparticipants were only provided with the most recent submission of AC at 5 p.m.on December 8th and were expected to respond to them on December 10th.Thus, the participants will have effectively only been provided one day to reviewhighly detailed documents relevant to the Proposed Tariff. That the parties havenot been provided sufficient time to review the documents filed by AC is particu-larly egregious given the fact that Proposed Tariff may last several years.
(c)
The interim decision should not be granted because AC has not providedsufficient information in support of its application for the Proposed Tariff.
Only recently, on December 1st, did AC provide precise figures with respect tothe Proposed Tariff. However, AC did not provide any further information in sup-port of those figures. AC should be required to provide further information ex-plaining the process at which those figures were arrived.AC provided information in the letter dated October 7, 2010 as to the financialeffects that would be felt by AC if an interim tariff was not imposed.
1
None of theinformation provided by AC in support of its application for a Proposed Tariffhave been supported by affidavit evidence, nor have the participants been af-forded an opportunity to test the veracity of those representations.In addition, the financial estimates provided by AC were purely one-sided esti-mates of how AC might be adversely affected if it was not granted the ProposedTariff. AC did not provide any estimations as to (a) how the amounts proposedrelate to the copying being done by post secondary institutions, (b) how thoseamounts might decrease over time due to the advent of digital collectives and
Page 2
1
Bloom, G., “AUCC response to Access Copyright Application for Interim Decision” (December 10,2010), at page 11, para. 2. According to Mr. Bloom, the effects that would be felt by AC are suspect.
creative commons licenses, and (c) how much of the amounts to be paid wouldbe distributed to creators and publisher affiliates. Provision of that information,even very rough estimates, would provide greater context into whether an in-terim tariff is necessary or fair, and assist the Board with its decision making. Aproper hearing on the evidence in support of this interim decision would be nec-essary. As the submission of Athabasca University succinctly states, “...AC hasoffered literally no
ʻ
evidence
ʼ
to sustain its position.”
2
It should be further noted that, given the (a) movement towards towards digitaluse of materials, (b) movement towards licensing materials directly from authorsor from digital collectives, (c) movement away from the use of course packs and(d) the increased role of fair dealing in Canadian law, reliance upon the previousamounts paid under prior license agreements would be likely to result in inaccu-rate overestimations of the fair and proper amounts that should be paid to AC.
(d)
The interim decision should not be granted until AC has provided furtherinformation as to the extent of its repertoire.
Under section 70.11, a collective society must answer within a reasonable time,all reasonable requests from the public for information about its repertoire ofworks, performer
ʼ
s performances, sound records or communications signals.It would be reasonable to require AC to present further information as its reper-toire for the purposes of this application for a Proposed Tariff for several rea-sons. First, it would be impossible for the parties affected by Proposed Tariff toconsider the reasonableness and fairness of the Proposed Tariff without a senseof the extent to which they continue to use the works being covered by the Pro-posed Tariff. Second, the parties that would be affected by the Proposed Tariffmay already be entitled to digital reproduction of a large portion of the materialswithin the repertoire through other license agreements (i.e. directly with theauthors themselves or through digital collectives). Post secondary institutionsshould not be required to pay more than once for the digital reproduction of thesame works.There is also question, as raised in the submission of Athabasca University, thatAC
ʼ
s actual repertoire may be in insufficient to justify the Proposed Tariff. AChas not submitted any information as to the extent of its repertoire.
(e)
The interim decision should not be granted because AC has not met thenecessary criteria
In the case of
Bell Canada
v.
Canada
, J. Gonthier set out the test for making in-terim decisions as follows:
Traditionally, such interim rate orders dealing in an interlocutory mannerwith issues which remain to be decided in a final decision are granted forthe purpose of relieving the applicant from the deleterious effects caused bythe length of the proceedings. Such decisions aremade in an expeditious
Page 3
2
Infra
note 12, at page 3. Athabasca University goes on to note that the Federal Court of Appeal re-cently ruled that the Board cannot approve a tariff where there is “a lack of or insufficient evidence”.
Socan
v.
Bell Canada et al
, 2010 FCA 139 at para. 28.
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