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November 18, 2013 Mr.

Gilles McDougall Secretary General The Copyright Board of Canada 56 Sparks Street, Suite 800 Ottawa, ON K1A 0C9 By email Dear Mr. McDougall: Re: Access Copyright Post-Secondary Tariff 2011-2013; Prof. Katzs November 6 2013 Submissions I am writing on behalf of the University of Toronto in accordance with section 2 of the Boards Directive on Procedure with respect to Professor Ariel Katzs letter to the Board dated November 6, 2013. Prof. Katz is acting as an Intervenor with full participatory rights in this matter independently of the University, pursuant to his own academic freedom to share his expertise and his interests in an important and evolving area of the law. The purpose of my letter today is to indicate the University of Torontos strong support for the reference to the Federal Court of Appeal which Prof. Katz proposes. This letter will not attempt to get into the details of the legal arguments he presents. Further, in light of the Boards ruling on November 13, it will not address the request he made (which the University would have supported) for a stay of proceedings. Rather, this letter will set out how the University of Toronto has an interest in obtaining, as soon as possible, definitive guidance on the interpretation of the Copyright Act in relation to the proposed Tariff. I hope to provide the Board with some context from an educational institution to assist it in exercising its discretion on this important request. Background The University of Toronto is Canadas largest research intensive university, with over 80,000 full and part-time students, over 11,000 faculty members, over 150 librarians and over 6,000 non-academic staff. Many of its members are creators of works subject to copyright. And all of its students and faculty, as well as many others, are users of works subject to copyright. The University annually spends approximately $27 million dollars on library acquisitions, and another approximately $15 million on licensed resources. The University of Toronto is the largest university to have a Licence with Access Copyright. That Licence expires on December 31, 2013. At the time of the writing of this letter, the University is negotiating with Access Copyright regarding the possible renewal of its Licence at a different royalty rate than in the current Licence. The University takes copyright very seriously. We devote considerable resources to ensuring a good understanding among its faculty of their copyright rights and obligations as they seek to deliver the best possible educational materials to their students.

Simcoe Hall, 27 Kings College Circle, Room 225, Toronto, ON M5S 1A1 Canada Tel: +1 416-978-2122 Fax: +1 416 978-3939, provost@utoronto.ca www.utoronto.ca

Importance to the University of the Interpretation of the Act The University of Toronto, like other universities, is materially affected by the interpretation of various provisions of the Copyright Act. The most critical provisions are the ones that set out a mechanism whereby the Copyright Board may set a Tariff, the implications of that Tariff once set, and other provisions in the Act which deal with the consequences of violation of copyright. It is apparent that there are competing interpretations of the effect of a Tariff. These are well set out in Prof. Katzs letter. The University of Toronto will be materially affected by whatever interpretation is eventually taken with respect to subsection 70.15(1) of the Copyright Act. For example, the University of Toronto is currently negotiating in good faith with Access Copyright with respect to the potential renewal of its Licence at a different royalty rate than currently exists. The determination of whether what Prof. Katz calls the single reproduction theory applies would likely have a significant effect, one way or the other, on the value of a Licence to the University. Furthermore, if the University does enter into a new Licence with Access Copyright commencing January 1, 2014, it would be for a finite term. The question of interpretation regarding whether the single reproduction theory applies and the Tariff could be viewed as mandatory could become even more directly relevant to the University at some point in the future. If, despite the Universitys best efforts, the current negotiations are not successful (and the Universitys Licence with Access Copyright expires on December 31, 2013), the University will need a clear sense of what the risks are if it (or one of its thousands of faculty) inadvertently makes an infringing copy for which the University could be held liable. Access Copyright has already applied for a Tariff commencing January 1, 2014, so the issue would be directly relevant to the University. Moreover, quite apart from the immediate context of the negotiations it has undertaken, the University of Toronto needs clarity regarding the effect of an approved Tariff in order to make long term plans about how it should arrange its affairs to ensure compliance. It is unlikely that the Access Copyright v. York University litigation will provide sufficient guidance within a reasonable time frame. In summary, the University of Toronto respectfully submits that the Reference request made by Prof. Katz affords the best opportunity for rights holders, collective societies, and users such as the University to gain greater clarity about a critical element in the copyright compliance regime, and the University also believes that such guidance would be extremely beneficial to the Board itself in exercising an important statutory mandate affecting (among many others) educational institutions at all levels across Canada. The University of Toronto thanks the Board for its consideration of these submissions. Yours very truly,

Cheryl Regehr Vice-President and Provost c. Access Copyright and its solicitors c. CAUT and CFS through their solicitors at CIPPIC (David Fewer) c. Professor Ariel Katz c. Sean Maguire