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These themes run through the various parts of AC’s submission. Individually, almost each andevery argument that AC raises lacks merit. Cumulatively, they only strengthen the case againstit.
AC is estopped from arguing against the jurisdiction of the Board to mandatetransactional licensing
The concern that if approved, the Interim Tariff would be mandatory has been fundamentalto most objectors’ opposition to its approval, including mine. Among other issues, Imaintained that a mandatory interim tariff could not be legally valid.2.
The Board responded to this concern by noting thatthe interim tariff we adopt in this matter is not mandatory. An Institution can avoid itsapplication by purchasing the work, negotiating a licence to copy the work with Accessor its affiliates, not using any work in the repertoire of Access or engaging only inconduct exempt from liability.
The Board did not come to this conclusion out of thin air. Indeed, the Board relied directlyon AC’s submission and incorporated it almost verbatim into its decision. For instance, on p.6 of its Dec. 22, 2010 submission, AC stated the following:[A] concern is expressed that an interim tariff will be “mandatory”. Any institution canavoid application of the tariff by: (1) purchasing the work; (2) negotiating a licence withthe rightsholder to copy the work; (3) not using any work in Access Copyright’srepertoire; (4) by engaging in conduct exempt from liability, e.g., fair dealing; or (5)negotiating a licence with Access Copyright.4.
The essence of the AUCC complaint—backed by evidence—is that AC and some of itsaffiliates have taken steps to eliminate the option of avoiding the application of the InterimTariff, contrary to the express representation AC made to the Board, and contrary to theBoard’s ruling. AC’s opponents therefore ask the Board to make sure that these optionsremain available. Contrary to its previous representations, and to evidence before the Board,it now maintains that transactional license never truly existed, and goes further to argue thatthey should not exist. The Board should ignore these contentions.
Board’s Reasons, March 16, 2011, paragraph 50.