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AC-1 - AC Statement of Case

AC-1 - AC Statement of Case

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ACCESS COPYRIGHT EXHIBIT AC-1 Statement of Case December 18, 2013

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EXHIBIT AC-1 STATEMENT OF CASE ACCESS COPYRIGHT
I. Introduction 1. This Statement of Case provides an outline of the evidence and submissions that the Canadian Copyright Licensing Agency (“Access Copyright”) will advance in support of two proposed statements of royalties it filed under section 70.13 of the Copyright Act (the “Act”) on March 31, 2009 and March 30, 2012, respectively (collectively referred to as the “Proposed Tariffs”). 2. The first Proposed Tariff relates to the royalties Access Copyright proposes to collect, in the period 20102012, for the reproduction, in Canada, of Published Works in its repertoire by educational institutions and persons acting under their authority outside of Quebec (“K-12 schools”). 3. The second Proposed Tariff relates to the royalties Access Copyright proposes to collect, effective January 1, 2013, for the reproduction, in Canada, of Published Works in its repertoire by K-12 schools. 4. In accordance with the Copyright Board’s Directives on Procedure, this Statement of Case also attaches, as Appendix A, the identities of the witnesses Access Copyright expects to give oral testimony on its behalf at the hearing scheduled to begin on Tuesday, April 29, 2014. Appendix A also provides an estimate of the time that each witness will testify in chief. 5. Access Copyright reserves the right to add or delete names to the list of witnesses, as subsequent circumstances may require. The estimates given are Access Copyright’s best estimates at this time. The actual time required at the hearing may be more or less depending on the subsequent events in these proceedings.

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II. Overview/Outline of Evidence 6. Access Copyright will be asking the Copyright Board to fix the value of the annual FTE royalty rate for each of 2010, 2011 and 2012 at $13.69. 7. For the period beginning January 1, 2013, Access Copyright will be asking the Copyright Board to fix the value of the annual FTE royalty rate for each of 2013, 2014 and 2015 at $9.50, the value proposed by Access Copyright in its Statement of Proposed Royalties for that time period. 8. These FTE royalty rates will be established by the testimony of two expert witnesses, Benoit Gauthier of Circum Network Inc (“Circum”), in respect to the volume of compensable copying of each genre of published work in Access Copyright’s repertoire; and by Michael Dobner of PricewaterhouseCoopers LLP (“PwC”), in respect to the per page value of a copied page of such works. Both of these witnesses have filed expert reports. [Exhibit: AC-11, AC-12 Contains Highly Confidential Information] 9. The testimony of these expert witnesses will be supported by factual testimony from employees of Access Copyright and the president of the Canadian Musical Reproduction Rights Agency Limited (“CMRRA”). These witnesses will provide evidence relating to their respective repertoires of Published Works (as defined in the Proposed Tariffs); and evidence relating to the various analyses that were performed to identify works in the repertoire so that Circum could establish the annual volume of compensable copies of such works that Access Copyright submits were, and will be, made in K-12 schools in the years covered by the Proposed Tariffs. [Exhibit: AC-2 Contains Confidential Information, AC-9 Contains Confidential Information] 10. A legal and factual issue in this proceeding will be the effect of the fair dealing exception under s. 29 of the Act. As of January 1, 2013, the Objectors have taken the position that all copying authorized under the Proposed Tariffs is “fair dealing” and they therefore are not obligated to pay a royalty to Access Copyright for any such copying. The Objectors have the legal burden of establishing that every act of copying in K-12 schools during each year covered by the Proposed Tariffs was for an allowable purpose and was fair. Access Copyright submits that the Objectors will be unable to discharge that burden. Simply, the copying at issue in this proceeding is not fair. Access Copyright bears the evidential burden in respect to one of the recognized fair dealing factors – the effect of the dealing on the published works. Access Copyright will discharge that burden by tendering the expert and factual testimony identified in Part V below.

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III. Compensable Volume of Copying in K-12 Schools of Published Works in Access Copyright’s Repertoire i) Introduction 11. In June 2009, the Copyright Board certified a tariff for the reproduction, in Canada, in 2005 to 2009, of works in Access Copyright’s repertoire for the purpose of elementary or secondary education – the Access Copyright Elementary and Secondary School Tariff, 2005-2009 (the “Certified Tariff”). 12. Based upon the record and arguments made in those proceedings, the Copyright Board arrived at a value per photocopied page of books, magazines and newspapers in Access Copyright’s repertoire; multiplied those values by the compensable volume of copying of each such genre of work; added the product of those multiplication steps, and then divided the total by the number of FTE students to arrive at the certified annual royalty of $5.16 per FTE student enrolled in K-12 schools. The Objectors to the Certified Tariff filed applications for judicial review to the Federal Court of Appeal and the Supreme Court of Canada. After all appeals were exhausted, the Copyright Board certified the tariff at an annual royalty of $4.81 per FTE student. 13. In the Proposed Tariffs, Access Copyright asks the Board to fix the royalty rate per FTE student for the above three genres of works. In addition, the Proposed Tariffs also ask that a royalty rate be fixed for the copying of three additional genres of Published Works in Access Copyright’s repertoire – “consumables”, “reproducibles” and sheet music; and for one additional licensed copying activitymaking digital copies of such Published Works. 14. “Consumables” are educational resources that are designed and priced by K-12 publishers to be used by a single student, such as a workbook that a student writes in, and then kept by the student or discarded. Until April 2010, Access Copyright licensees were prohibited from copying this genre of work. 15. “Reproducibles” are educational resources that are designed and priced by K-12 publishers with the expectation that they will be copied by teachers and provided to students in the form of a worksheet. Beginning in 2010, K-12 publishers began to change the copyright notices appearing in these resources in order to trigger an obligation to obtain a licence from Access Copyright for copying pages from these resources. 16. Sheet music is a type of print musical work. Unlike print musical works included in a book (which some rightsholders of Access Copyright have published for many years), sheet music is (a) “stand-alone” sheet(s) of paper upon which music, with or without words, is printed by the print music publisher. 17. Beginning in October, 2010, Access Copyright was authorized to collect royalties for the reproduction of sheet music in K-12 schools as agent for CMRRA. [Exhibit: AC-2 Contains Confidential Information, AC9 Contains Confidential Information]

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ii) Determination of Compensable Volume of Each Genre of Published Works 18. In the proceedings that resulted in the 2009 Certified Tariff, Access Copyright tendered the expert evidence of Benoit Gauthier of Circum, who testified about the design, methodology, implementation and results of a survey conducted in K-12 schools in 2005-2006 in order to obtain a reliable estimate of the extent of the copying of Published Works in Access Copyright’s repertoire throughout the entire public K-12 sector (excluding Quebec) (the “Volume Study”). 19. The Copyright Board accepted the relevance and reliability of the Volume Study and placed determinative weight on its results to arrive at the number of compensable copies of pages of books, magazines and newspapers in Access Copyright’s repertoire made in the K-12 schools for the years 2005 to 2009. 20. The Volume Study recorded not only copying transactions of books, magazines and newspapers but also recorded copying transactions of consumables, reproducibles and sheet music. 21. Access Copyright will submit to the Copyright Board that the results of the Volume Study continue to be a relevant, reliable and conservative indicator of the volume of copied pages made of each of the six genres of works in each of the years covered by the Proposed Tariffs. 22. Access Copyright has been unable to collect information about the volume of reproducibles copied in its repertoire and the extent of digital copying in K 12 schools during the periods covered by the Proposed Tariffs. Without prejudice to the position it may take in future tariff proceedings, Access Copyright will not, for the purposes of the Proposed Tariffs, be asking the Copyright Board to fix a royalty rate for the copying of reproducibles in K-12 schools; nor will it be asking the Board to fix a rate for digital copying of Published Works in Access Copyright’s repertoire. The evidence of Access Copyright’s employees provides the bases for that decision. [Exhibit: AC-2 Contains Confidential Information] 23. Access Copyright will rely on the expert testimony of Benoit Gauthier who will testify that the results of the Volume Study are a reliable proxy for copying behaviour in K-12 schools in the years covered by the Proposed Tariff. His conclusion is supported by his analysis of bibliographic studies conducted by Access Copyright which reveal that copying in K 12 Schools was not materially lower in 2010 and 2011 and that copying was materially higher in 2012. [Exhibit: AC-11] 24. Access Copyright will also rely on the evidence of its own employees who will testify that the results of the Volume Study are still given significant weight when delineating to whom royalty payments should be distributed. [Exhibit: AC-2 Contains Confidential Information] 25. Access Copyright will submit that all testimony in the previous proceedings given in respect to the Volume Study is admissible and should again be given determinative weight by the Copyright Board in the current proceedings.

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26. For all the above reasons, Access Copyright will submit that the volume of compensable copying of books, magazines and newspapers in its repertoire for the purposes of the Proposed Tariffs is no less than that reported in the Volume Study. Thus, the starting point for calculating the compensable volume of these genres of Published Works for the Proposed Tariffs is the volumes arrived at by the Copyright Board in Table 4 of its reasons issued in support of the Certified Tariff. [Access Copyright Elementary and Secondary School Tariff, 2005 to 2009] 27. For the purposes of both Proposed Tariffs, Access Copyright concedes the volumes determined by the Board must be reduced to reflect the Supreme Court of Canada’s decision in Alberta et al. v. Access Copyright (the “Access Copyright decision”), the effect of which was to render approximately 7% of the overall copying volume of these genres non-compensable. That court found certain copying transactions (of approximately 16.9 million copied pages) were for an allowable purpose and were fair. 28. For the purposes of the 2013-2015 proposed tariff, Access Copyright further concedes that, by reason of legislative amendments to section 29.4 of the Act, the volume (approximately 6.9 million) of copied pages of books, magazines and newspapers determined by the Board to have been made for the purposes of tests or examinations must be deducted from the category of compensable copies. 29. In respect to the Copyright Board’s determination of the volume of compensable copying of consumables and sheet music, the starting point is again the volume of copying of these genres of works reported in the Volume Study. 30. Access Copyright will ask the Board to rely on the repertoire analyses conducted by its document analysts and those of CMRRA; and the expert testimony of Benoit Gauthier to establish the volume of compensable copying of these two additional genres of Published Works in Access Copyright’s repertoire. [Exhibit: AC-2 Contains Confidential Information, AC-9 Contains Confidential Information, AC-11] 31. As reported in the expert report of Benoit Gauthier, public K-12 schools copy over 330 million compensable pages, or approximately 90 pages per full-time equivalent student, of copyright-protected content in Access Copyright’s repertoire each year. The compensable volume of the five genres of Published Works for which Access Copyright is asking the Board to fix a royalty is as follows [Exhibit: AC11]: 2010-2012 (volume per year) 197,814,201 16,255,565 14,881,855 917,649 110,119,591 339,988,862 91.0 2013-2016 (volume per year 191,776,176 15,759,385 14,427,606 917,649 110,119,591 333,000,406 89.2

Books Newspapers Magazines Sheet Music Consumables TOTAL TOTAL /FTE

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IV.

The Value of a Copied Page of Each Genre of Published Work in Access Copyright’s Repertoire

32. Access Copyright will tender the expert evidence of Mr. Dobner of PwC in support of the FTE royalty rates Access Copyright submits ought to fixed by the Copyright Board for the years under the Proposed Tariffs. [Exhibit: AC-12 Contains Highly Confidential Information] 33. In determining the FTE royalty rate under the Certified Tariff, the Copyright Board undertook a four-step process. It began its valuation by determining the average selling price per page of the genres of works – books, newspapers and magazines – in Access Copyright’s repertoire. 34. Second, the Board reduced the price per book page by 10.26 percent to recognize that educational institutions usually receive a discount from the educational book list prices offered by K-12 publishers. 35. Third, the Board deducted all costs that related to anything other than the authors’ and publishers’ creative contributions to the works. The Board deducted the following four categories of costs: printing, paper and binding; order fulfillment; marketing/sales/promotion; and occupancy costs/administrative costs. 36. Fourth, the Board increased the resulting dollar amount by 30 percent to reflect the value added of a photocopy as a result of the selection made by the user (a “selection premium”). 37. In respect to the valuation of these three genres of works for the purposes of the Proposed Tariffs, Access Copyright will submit that the Copyright Board ought to again carry out these four steps, but with certain adjustments discussed below. 38. In respect to the first step, Access Copyright will submit that the average selling prices per page ought to be adjusted upward to account for inflation. 39. In addition, based upon Mr. Dobner’s evidence, evidence that was not before the Board in the previous tariff proceedings, Access Copyright will submit that the sequence of the above steps ought to be altered; and not all the categories of costs previously deducted by the Board should be deducted from the average selling price per page of the works to arrive at the rates per page per genre. 40. Mr. Dobner will testify that the selection premium ought to be applied to the average selling price per page, net of any applicable volume discount, before any cost deductions are made. In addition, Mr. Dobner will testify that, as only the costs of paper, printing and binding are incremental in nature, only those costs ought to be deducted in arriving at a value of a photocopied page.

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41. Access Copyright will submit, based on Mr. Dobner’s testimony, that the addition of the selection premium ought to be made between the second and third steps above, that is, before any costs deductions are made. In addition, Access Copyright will submit that only incremental costs – paper, printing and binding- should be deducted from the average selling price per page to arrive at the rates per page per genre. 42. Had Mr. Dobner’s evidence been before the Copyright Board in the previous proceedings, Access Copyright submits that the Board would have given it significant weight and would have arrived at a higher value of photocopied pages than appear in Table 4 of the previous Board decision. The resulting final FTE royalty rate would have approximated the annual FTE royalty rate requested in paragraph 6 above. 43. Access Copyright submits that, in the present proceedings, the Copyright Board ought to afford significant weight to Mr. Dobner’s expert evidence in arriving at annual FTE royalty rates. In addition, the FTE royalty rate must also be adjusted upward to account for the inclusion of consumables and sheet music in Access Copyright’s repertoire. 44. In arriving at the value of photocopied pages of these additional genres of works, Access Copyright will again rely on the expert testimony of Mr. Dobner. Applying the Copyright Board’s previous valuation methodology, with the adjustments discussed above as applicable, Mr. Dobner will provide testimony as to the value of a photocopied page of a consumable and sheet music. 45. Using the valuations established by Mr. Dobner’s evidence and multiplying those values by the volume of photocopied pages established by the expert testimony of Mr. Gauthier , Access Copyright will submit that the FTE royalty rate for each of 2010, 2011 and 2012 under the first Proposed Tariff be calculated as follows:
Books Value of a photocopied page Volume of photocopied pages triggering remuneration Value of photocopied pages triggering remuneration Full-time equivalent students Final Rate $ $ 0.1966 197,814,201 $ 38,890,272 $ $ Newspapers 0.0352 16,255,565 572,196 $ $ Magazines 0.0312 14,881,855 464,314 Consumables $ 0.0975 110,119,591 $ 10,736,660 $ $ Sheet Music 0.5030 917,649 461,577 $ 51,125,019 3,734,383 13.69 Total

[Exhibit: AC-11, AC-12 Contains Highly Confidential Information]

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46. The evidence of Mr. Dobner supports a FTE royalty rate of $13.36 for each of 2013, 2014 and 2015 under the second Proposed Tariff, the calculation of which is as follows:
Books Value of a photocopied page Volume of photocopied pages triggering remuneration Value of photocopied pages triggering remuneration Full-time equivalent students Final Rate $ $ 0.1966 191,776,176 $ 37,703,196 $ Newspapers $ 0.0352 $ 15,759,385 554,730 $ Magazines 0.0312 14,427,606 450,141 $ Consumables $ 0.0975 110,119,591 10,736,660 $ $ Sheet Music 0.5030 917,649 461,577 $ 49,906,305 3,734,383 13.36 Total

[Exhibit: AC-11, AC-12 Contains Highly Confidential Information] 47. Access Copyright did not have the benefit of Mr. Dobner’s expertise when it filed the second Proposed Tariff with the Copyright Board on March 30, 2012. In section 8 of that Proposed Tariff, Access Copyright therefore undervalued the royalties that ought to be paid by K-12 schools for the copying of published works in its repertoire. Access Copyright understands that the royalties for each of 2013, 2014 and 2015 are, despite the valuation supported by expert testimony, capped at the $9.50 requested by Access Copyright in the second Proposed Tariff.

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V. Copying Behaviour Is Not Exempted by Fair Dealing i) Introduction

48. In respect to the nature and extent of the copying behaviour in public K-12 schools on and after January 1, 2013, Access Copyright expects the Objectors to advance arguments that every page copied from a Published Work in Access Copyright’s repertoire – estimated by Access Copyright to be greater than 300 million pages for each year under the second Proposed Tariff – escapes the payment of a royalty because, in their view, all such copying constitutes fair dealing under section 29 of the Act. 49. This position was advanced by Objectors’ counsel in a formal communication to Access Copyright on December 5, 2012 . In that letter, Access Copyright was advised that, effective January 1, 2013, all the Objectors would “…not be operating under the Access Copyright Elementary and Secondary School Tariff, 2005-2009…”. In other words, every page copied from a Published Work in Access Copyright’s repertoire would now be a “fair dealing”. [Exhibit: AC-2O] 50. In the interrogatory process, the Objectors produced a pamphlet entitled Copyright Matters!. That pamphlet, published by the Objectors, advocates, among other copying guidelines, that all acts of copying in K-12 schools covered under the Proposed Tariffs, for which a royalty was formerly paid to Access Copyright are, as of January 1, 2013 now exempt as acts of “fair dealing” (the “Guidelines”). [Exhibit: AC-2U] 51. Access Copyright will submit that the Guidelines are not supported in law. 52. To qualify as “fair dealing”, the act of copying must be for one of the allowable purposes enumerated in section 29 of the Act. Once it is established that the copies were made for an allowable purpose, it must then be established that the copying was fair. Fairness is assessed by a consideration of the following factors: the purpose, character and amount of the dealing; the alternatives to the dealing; the nature of the work copied; and the effect of the dealing on the work. 53. In respect to the fair dealing issue, the Objectors have the legal burden of establishing that every act of copying in K-12 schools during each year covered by the Proposed Tariffs was for an allowable purpose and was fair. This means that if, after consideration of all relevant factors, the Copyright Board remains in a state of uncertainty as to whether the copying was fair, or finds that the parties’ positions are evenly balanced, it must find that the copying was not fair. 54. In addition, the Objectors bear a number of evidential burdens. They have an obligation to adduce evidence, or to point to evidence in the record, to permit the Copyright Board to assess the first five identified fairness factors.

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55. Access Copyright bears the evidential burden in respect to the sixth factor – the effect of the dealing on the work. In other words, Access Copyright has a burden to adduce evidence, or point to evidence in the record, concerning the effect that the copying behaviour in K-12 schools during the periods covered by the Proposed Tariff has had on the Published Works that are copied and on the market for such works. 56. When all the evidence in the record is appropriately weighed, Access Copyright will submit that the copying behaviour in K-12 schools is not fair. 57. The Supreme Court of Canada in the Access Copyright decision stated that there was, in those proceedings, an “evidentiary vacuum” in the record before the Copyright Board in respect to the sixth fair dealing factor- the effect of the dealing on the work. Access Copyright continues to bear that burden in these proceedings. 58. Access Copyright will discharge that burden, and address the other fair dealing factors, by tendering expert and factual testimony from the following witnesses. As such, there will be no evidentiary vacuum in these proceedings: a) Glenn Rollans, a principal and co-owner of an educational resource publisher and the author of two K12 publishing industry reports who will, among other matters, testify concerning the K-12 publishing industry, the “health” of that industry in the last few months leading into 2013, and the likely effects upon that industry by the implementation of the Guidelines. Mr. Rollans will testify that in the months leading into 2013, K-12 educational resource publishers were in a fragile state because of a “perfect storm” of factors, including uncertainty introduced by pending legislative reform; continuing decreases in provincial educational funding; continuing substitution, at the school level, of the publishers’ K-12 educational resources with reproductions these works to compensate for reduced funding. [Exhibit: AC3]; b) Dr. Gerry McIntyre, the Executive Director of Canadian Educational Resources Council (“CERC”), who will, among other matters, testify concerning CERC’s efforts to have a constructive dialogue with provincial Ministries of Education concerning the legislative amendments to the Act (all of which were rebuffed); and the impacts and likely impacts of the Guidelines on CERC’s members – seven educational publishers who produce roughly 80% of the curriculum-based student learning resources used in K-12 schools [Exhibit: AC-4 Contains Highly Confidential Information]; c) Nancy Gerrish, President of the School Division of McGraw-Hill Ryerson Limited (“MHR”), who will, among other matters, testify as to MHR’s process of publishing K-12 works; the copying of those works in K-12 schools; the impact of K-12 schools’ decisions to stop paying royalties to Access Copyright; and the impacts and likely impacts of the Guidelines on MHR and the market for its K-12 publications [Exhibit: AC-5 Contains Highly Confidential Information];

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d) Chris Besse, Senior Vice-President and Managing Director, School Division at Nelson Education Ltd.(“Nelson”), who will, among other matters, testify concerning Nelson’s decreasing sales of K-12 educational publications; the copying of these publications in K-12 schools; and the impacts and likely impacts of the Guidelines (and the K-12 schools’ decision to stop paying royalties to Access Copyright) on Nelson and the market for its K-12 publications [Exhibit: AC-6 Contains Highly Confidential Information]; e) Rick Wilks, the president and co-founder of Annick Press Limited (“Annick”) an award-winning, internationally recognized publisher of trade non-fiction and fiction books geared to children and young adults, who will, among other matters, testify concerning the importance of receiving royalties from Access Copyright; and the impacts and likely impacts of the Guidelines on Annick and the market for its publications [Exhibit: AC-7 Contains Highly Confidential Information]; f) Dr. Alan Taylor, a retired educator and creator/publisher of educational resources specific to the grades 4-12 mathematics curricula in the Western provinces, who will, among other matters, testify concerning the benefits of his relationship with Access Copyright; the impacts and likely impacts of the Guidelines on that relationship, his business and the educational resources he has authored/co-authored; and the infringement of his copyrights by a BC school district that had been ongoing for years [Exhibit: AC-8 Contains Highly Confidential Information];

g) Benoit Gauthier of Circum, who will, among other matters, testify about his analysis of a survey commissioned by Access Copyright of its creator-affiliates concerning, among other topics, the importance of revenues received by them from Access Copyright; and the impacts and likely impacts that the elimination or diminishment of these revenues will have on their ability or willingness to continue contributing to the authorship of publications copied in the K 12 sector [Exhibit AC-2L, AC-10, AC-11]; and h) Michael Dobner, a Chartered Business Valuator (“CBV”) and a partner with PwC, who will provide testimony as an expert witness concerning, among other matters, the impacts and likely impacts of the Guidelines on the market for the production of K-12 educational publishers, including: (i) Total secondary licensing income received by copyright holders from Access Copyright will be virtually eliminated and will negatively impact the profitability of copyright holders; (ii) Publisher primary sales will decline as content sold by publishers becomes substituted by free content; (iii) The number of creators or time spent by them creating new content, and the number of works produced by creators, will decline; (iv) Publishers will reduce their investment in K-12 publishing in Canada and will reduce investment in crucial areas for innovation; and

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(v) The diversity, quality and indigenousness of K-12 educational resources will be negatively impacted. [Exhibit: AC-12 Contains Highly Confidential Information, AC-13 Contains Highly Confidential Information]

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VI. Conclusion 59. This Statement of Case provides an outline of the evidence and submissions that Access Copyright will advance in these proceedings. 60. Access Copyright reserves the right to rely on other evidence obtained between the date of this Statement of Case and the conclusion of the hearing. Access also reserves the right to file evidence in response to the Objectors’ Case. In accordance with the Copyright Board’s Directive on Procedure, Access Copyright also reserves the right to modify this Statement of Case during the course of the proceedings as required. DATED AT TORONTO THIS 18TH DAY OF DECEMBER 2013

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APPENDIX A TO ACCESS COPYRIGHT EXHIBIT AC-1 (STATEMENT OF CASE)
Witness Panel Roanie Levy, Executive Director, Access Copyright Kerrie Duncan, Director, Operations, Access Copyright Jennifer Lamantia, Manager, Education Licensing, Access Copyright

Estimated Time 3.0 hours in Chief List of Exhibits Exhibit AC-2 Witness Statement of Roanie Levy, Kerrie Duncan and Jennifer Lamantia dated December 13, 2013 – CONTAINS CONFIDENTIAL INFORMATION Letters Patent, Supplementary Letters Patent and By-Laws List of Member Organizations 2010 Annual Report 2011 Annual Report 2012 Annual Report Standard Affiliation Agreement and Forms CARCC Agreement List of Affiliates List of RROs Sample of Agreements with Foreign Reproduction Rights Organizations CMRRA Agreements Circum Network Inc. Report dated January 2, 2013 Summary of Uncashed Non-publishers Cheques (2010 – 2013) Publisher and Creator Document sent January 2010 CMEC’s Counsel’s Letter dated December 5, 2013 Template of Independent School Model Licence Distribution Letter dated September 15, 2011 Genre Classification Codes and Criteria Repertoire Analysis of Consumables Dataset – Produced on the CD attached to Exhibit AC-2S Repertoire Analysis of Sheet Music Dataset - Produced on the CD attached to Exhibit AC-2S

AC-2A AC-2B AC-2C AC-2D AC-2E AC-2F AC-2G CONFIDENTIAL AC-2H AC-2I AC-2J AC-2K AC-2L AC-2M AC-2N AC-2O AC-2P AC-2Q AC-2R AC-2S AC-2T

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Witness Panel

Roanie Levy, Executive Director, Access Copyright Kerrie Duncan, Director, Operations, Access Copyright Jennifer Lamantia, Manager, Education Licensing, Access Copyright AC-2U AC-2V AC-2W Copyright Matters! published by CMEC Transcript from March 24, 2011 Hearing of the Legislative Committee on Bill C-32 Transcript from December 7, 2011 Hearing at the Supreme Court of Canada

Witness Panel

Glenn Rollans, Partner and Co-Principal Owner, Brush Education Inc.

Estimated Time 2.0 hours in Chief List of Exhibits Exhibit AC-3 AC-3A AC-3B AC-3C AC-3D Witness Statement of Glenn Rollans dated December 16, 2013 Joint Publishers Witness Statement filed in the 2005-2009 Elementary and Secondary School tariff proceedings Glenn Rollans Curriculum Vitae Study of the Canadian K to 12 Educational Book Publishing Sector (August 2010) Consultation on K to 12 Educational Publishing in Canada (2012)

Witness Panel

Gerry McIntyre, Executive Director, Canadian Educational Resources Council

Estimated Time 1.5 hours in Chief List of Exhibits Exhibit AC-4 AC-4A AC-4B AC-4C AC-4D HIGHLY CONFIDENTIAL AC-4E Witness Statement of Gerry McIntyre, dated December 16, 2013 – CONTAINS HIGHLY CONFIDENTIAL INFORMATION CERC Communication to Ministries of Education dated October 2012 Sasketchewan Ministry of Education Fair Dealing Response 2013 CERC Communication to Ministries of Education dated March 2013 Ontario Ministry of Education Summary and PPM 2013 CERC Sales Statistics January 2008 – October 2013

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Witness Panel

Nancy Gerrish, President of the School Division, McGraw-Hill Ryerson Limited

Estimated Time 2.0 hours in Chief List of Exhibits Exhibit AC-5 Witness Statement of Nancy Gerrish, dated December 16, 2013 – CONTAINS HIGHLY CONFIDENTIAL INFORMATION

Witness Panel

Chris Besse, Senior Vice-President and Managing Director, School Division, Nelson Education Ltd.

Estimated Time 2.0 hours in Chief List of Exhibits Exhibit AC-6 Witness Statement of Chris Besse, dated December 13, 2013 – CONTAINS HIGHLY CONFIDENTIAL INFORMATION

Witness Panel

Rick Wilks, President and Co-Founder, Annick Press Limited

Estimated Time 1.5 hours in Chief List of Exhibits Exhibit AC-7 Witness Statement of Rick Wilks, dated December 12, 2013 – CONTAINS HIGHLY CONFIDENTIAL INFORMATION

Witness Panel

Alan Taylor, Co-Owner and Vice President, Raven (Guway) Research Associates, Inc.

Estimated Time 2.0 hours in Chief List of Exhibits Exhibit AC-8 AC-8A AC-8B AC-8C AC-8D AC-8E AC-8F AC-8G Witness Statement of Alan Taylor, dated December 11, 2013 – CONTAINS HIGHLY CONFIDENTIAL INFORMATION Printout from Raven Research and Associates website Partial list of resources published by Raven Research and Associates Unsigned Letter to Raven received March 2013 Raven’s Letter to School District No. 83 dated August 12, 2013 School District No. 83 Reply Letter to Raven dated September 18, 2013 School District No. 83 Reply Email to Raven dated November 4, 2013 Raven’s Email to School District No. 83 dated November 22, 2013

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Witness Panel

Caroline Rioux, President, Canadian Musical Reproduction Rights Agency

Estimated Time 2.0 hours in Chief List of Exhibits Exhibit AC-9 AC-9A CONFIDENTIAL AC-9B AC-9C Witness Statement of Caroline Rioux, dated December 18, 2013 – CONTAINS CONFIDENTIAL INFORMATION CMRRA Publisher Affiliation Agreement Kit Musical Work Publishers Subscriptions to Schedule G of the Affiliation Agreement CMRRA Musical Works Repertoire Analysis of Access Copyright’s Sheet Music Dataset

Witness Panel

Benoît Gauthier, President, Circum Network Inc.

Estimated Time 3.5 hours in Chief List of Exhibits Exhibit AC-10 Circum Network Inc., “Analysis of Survey of Access Copyright Creator Affiliates in the Context of the Elementary and Secondary School Tariff (2010-2012 and 2013-2015) Proceedings” and Appendices dated November 19, 2013 Circum Network Inc., “Expert Report on the Copying of Published Works in Elementary and Secondary Schools in Canada Outside Quebec” and Appendices dated December 9, 2013

Exhibit AC-11

Witness Panel

Michael Dobner, Partner, PricewaterhouseCoopers LLP

Estimated Time 6.0 hours in Chief List of Exhibits Exhibit AC-12 PricewaterhouseCoopers LLP, “Determination of a Royalty Rate for the Copying of Published Works in the Repertoire of Access Copyright” – Valuation dated December 17, 2013 – CONTAINS HIGHLY CONFIDENTIAL INFORMATION PricewaterhouseCoopers LLP, “Access Copyright; Market Impact of Fair Dealing and Appendices” dated December 17, 2013 – CONTAINS HIGHLY CONFIDENTIAL INFORMATION

Exhibit AC-13

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