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
to sustain its position.”
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.
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
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
s actual repertoire may be in insufﬁcient to justify the Proposed Tariff. AChas not submitted any information as to the extent of its repertoire.
The interim decision should not be granted because AC has not met thenecessary criteria
In the case of
, 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
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”.
Bell Canada et al
, 2010 FCA 139 at para. 28.