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J. Aidan O'Neill aoneill@fasken.com Direct 613 236 3882

VIA EMAIL

December 17, 2010

Copyright Board of Canada 56 Sparks Street

Suite 800

Ottawa, Ontario

K1AOC

Attention: Gilles McDougall

Acting Secretary General

Dear Gilles,

Re: Application for an Interim Decision

Access Copyright Post~Secondary Educational Institution Tariff

I am writing to you on behalf of the Association of Canadian Community Colleges ("ACCC") pursuant to the Board's Ruling dated December 8, 2010. This letter addresses Questions 2, 3 and 4 which were raised in the Board's Ruling.

Introduction

On October 7,2010, Access Copyright filed an application with the Board for an interim decision (the "Interim Decision Application"). On December 3, 2010, the Board requested that Access Copyright provide the Board with "a draft interim tariff that reflects the terms of the model licences, with such modifications as necessary," Subsequently, on December 5,2010, Access Copyright filed a draft interim tariff (the "Interim Tariff') with the Board. Then, on December 10, 2010, the objectors and interveners filed their responses to Access Copyright's Interim Decision Application. Finally, on December 15, 2010, Access Copyright filed its reply to the responses of the objectors and interveners.

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Summary of ACCC's Submission

• ACCC reiterates its opposition to the Board issuing an interim decision for the reasons set out in its December 10, 2010 submission;

-if the Board decides to issue an interim decision, AeeC submits that the decision should take the form of an interim tariff;

• if issued, any interim tariff should maintain the status quo;

• the status quo is not reflected in the Interim Tariff, drafted by Access Copyright, and filed with the Board on December 5, 2010;

• the Interim Tariff filed by Access Copyright is based on the proposed tariff filed with the Board for certification on March 31, 2010 (the "Proposed Tariff");

• any interim tariff should be based on the terms and conditions of the licences now in place between Access Copyright and post-secondary educational institutions;

• in order to prevent double payment, the rate set in any interim tariff should take into account the copying which is now permitted without royalty payments under fair dealing following the CCH decision and the broad scope of digital licensing in post-secondary educational institutions; and

• basing any interim tariff on existing licences would provide Access Copyright with the relief it seeks in the Interim Decision Application because existing licences are the status quo Access Copyright wishes to malntaln.'

1 Access Copyright's reply makes the following statements: "what is sought in the Interim Application is effectively the status quo" (page 5); "Access Copyright is simply seeking to maintain the status quo" (page 8); "Access Copyright believes the interim decision ... only results in the maintenance of the status quo" (page 13); and "In this case, it is the respondents who are seeking a change to the status quo, not Access Copyright" (page 20.)

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Question 2

2) If the Board decides to issue an interim decision, which form should that decision take?

If the Board decides to issue an interim decision, something ACCC opposes as unnecessary, the Board decision should take the form of an interim tariff and be based on existing licences between post-secondary educational institutions and Access Copyright. The status quo consists of licence agreements that Access Copyright has entered into with post-secondary educational institutions, including ACCC's member institutions. By agreement, these licence agreements will expire on December 31 ,2010.

An interim decision in the form of an interim tariff that reflects the content of existing licences would provide ACCC's member institutions with the option of continuing their current arrangements with Access Copyright. It would also provide ACCC's member institutions with the second option of copying with permission (where it is required) obtained directly from the copyright owner as some may wish to do.

Question 3

3) If the Board decides to issue an interim decision, what should the substantive content of the decision be? Access proposes maintaining what it refers to as the status quo, with additional, potential uses being allowed at no additional cost. Does the proposal achieve what it purports to achieve? Is that what the interim decision should indeed achieve? If not, what else?

ACCC submits that the content of any interim decision should reflect the status quo of the existing licence agreements that ACCC member institutions have with Access Copyright. The Interim Tariff does not reflect the status quo. It imposes new obligations on post-secondary educational institutions and it uses, as its base, Access Copyright's March 31, 2010 tariff proposal rather than existing licences.

There are many, many differences between the existing licences and the Interim Tariff. One of the major differences is the shift from the existing exclusions-based licence with an indemnity clause to a repertoire, or lncluslonsbased, tariff with no indemnity. Another is changes in the record keeping and reporting obligations related to "Course Packs" (section 1 (a.1) in existing licences) and "Course Collections" (section 2) in the Proposed Tariff.

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The Interim Tariff imposes more onerous obligations than existing licences. Record keeping and reporting obligations under the existing licences are restricted to copies made for sale to, and use by, students (sections 13,13.1,14(b) of the sample licence in Appendix A attached.) Sections 2 and 6 of the Proposed Tariff would extend record keeping and reporting obligations to both required and recommended reading.

Another example is the exclusion of musical works from the Interim Tariff.

Another is changes in attribution requirements. The existing licences with ACCC's member institutions require attribution only for multiple copies made for distribution to students and for interlibrary loan (Schedule C, section 8). Section 10 of the Interim Tariff requires attribution for all copies made under the Interim Tariff.

Another is a more onerous obligation to "take steps" to ensure that the conditions in the Interim Tariff (sections 4 and 5) are complied with. The existing licences oblige ACCC member institutions to use "reasonable efforts," a less onerous obligation.

There are many more examples that could be cited. These differences are not trivial. They are very important to ACCC's member institutions. Suffice it to state here that the Interim Tariff is not a maintenance of the status quo as requested in the Interim Decision Application but, instead, a replica of the tariff Access Copyright proposed on March 31, 2010 for eventual certification by the Board with the word "interim" inserted here and there.

The Board asks "what should the interim decision achieve?" The answer in ACCC's submission is the status quo in the existing licence agreements between Access Copyright and post-secondary educational institutions.

Question 4

4) Once the content or substance of the decision has been determined, does the proposed text reflect that substance or content and if not, how should it be modified?

As the Board has not yet determined the content and substance of an interim decision, this question cannot yet be directly answered. In ACCC's submission, any text should reflect the terms and conditions in existing licence agreements with post-secondary educational institutions.

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Conclusion

ACCC submits that the Board should reject Access Copyright's Interim Decision Application. However, if an interim decision is granted by the Board, ACeC agrees with the content of the draft interim tariff prepared by AUee and filed with the Board as part of AUCC's submission.

Yours very truly,

J. Aidan O'Neill

Enclosures

CC: Michele Clarke Wanda Noel Ariel Thomas Jordan Snel Randall Hofley Erin Finlay