November 18, 2013 VIA E-MAIL

Nancy Brooks Partner Dir: 613-788-2218 nancy.brooks@blakes.com Reference: 00071273/000007

Copyright Board of Canada 800 − 56 Sparks Street Ottawa, IN K1A 0C9 Attention: Gilles McDougall Secretary General

Dear Mr. McDougall: RE: Access Copyright Post-Secondary Educational Institutions Tariffs, 2011-2013 and 2014-2017 We write concerning the Copyright Board proceeding relating to the proposed tariff filed by Access Copyright on March 28, 2013 for the purpose of having the Board set out by licence royalties for copying of works in Access Copyright’s repertoire by post-secondary educational institutions from January 1, 2014 through December 31, 2017 (the “2014-2017 Proposed Tariff”).1 For the reasons set out below, Access Copyright requests that the Board consolidate the proceedings for Access Copyright Post-Secondary Educational Institutions Tariffs, 2011-2013 (the “2011-2013 Proposed Tariff”) and the 2014-2017 Proposed Tariff, with the hearing scheduled to commence on February 11, 2014 covering both tariffs. In Access Copyright’s submission, the following factors militate in favour of consolidation of the two tariffs: 1. Both tariff proceedings raise virtually the same legal and factual issues; 2. Access Copyright would rely on the evidence and interrogatories from the 2011-2013 Proposed Tariff proceeding, and would only need to file a minimal amount of evidence with respect to the 2014-2017 Proposed Tariff proceeding; and 3. Having both tariff proceedings heard together will enhance the administration of justice and judicial economy and will facilitate the most expeditious and least expensive determination of the issues before the Board.

1

Proposed Statement of Royalties to be Collected by Access Copyright for the Reprographic Reproduction, in Canada, of Works in its Repertoire, Supplement Canada Gazette, Part I, June 20, 2013.
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1.

Factual and Legal Issues In Common

The 2011-2013 Proposed Tariff and the 2014-2017 Proposed Tariff are effectively identical save for the royalty rate that Access Copyright seeks to have set by the Board. A comparison of the two tariffs is attached for the Board’s convenience. The case filed by Access Copyright on September 20, 2013 addressed all of the factual and legal issues needed for it to prove its case in relation to the 2011-2013 Proposed Tariff. Its reply evidence will address issues identified by the Objectors. The same factual and legal issues will arise in the relation to the 20142017 Proposed Tariff. Thus, the evidence of Access Copyright’s fact and expert witnesses will be relevant and probative of the issues in the 2014-2017 Proposed Tariff. 2. A minimal amount of new evidence with respect to the 2014-2017 Proposed Tariff would be filed by Access Copyright

If the Board orders consolidation of the two proceedings, Access Copyright would rely on its existing case and interrogatories in support of both the 2011-2013 Proposed Tariff and the 2014-2017 Proposed Tariff. With the withdrawal of the Association of Canadian Community Colleges (“ACCC”) as an object or in the 2014-2017 Tariff proceeding, the only remaining Objectors are the Canadian Association of University Teachers (“CAUT”) and Canadian Federation of Students (“CFS”). As these parties are also Objectors in the 2011-2013 Proposed Tariff, they have had Access Copyright’s case since September 20, 2013. Access Copyright would seek to adduce a supplemental report by NERA addressing the value of the tariff to be certified for the 2014-2017 tariff period in support of the 2014-2017 Proposed Tariff on a timeline as directed by the Board. 3. Hearing both tariff proceedings together will enhance the administration of justice

At this point in the 2011-2013 Proposed Tariff proceedings, the Board has not been provided with an estimate of the time the parties expect will be required to put in the evidence, including the Objectors’ case in chief and cross-examinations by the parties.2 However, with the absence of the AUCC and the ACCC from both the 2011-2013 Proposed Tariff and the 2014-2017 Proposed Tariff, the Board can expect that, if it orders consolidation, the entire length of the consolidated hearing would likely fit within the time originally set aside for the 2011-2013 Proposed Tariff proceeding. If the proceedings are consolidated, this would permit the Board to deal with these two tariff applications in the most expeditious and efficient manner. The Board will avoid a multiplicity of proceedings and increased expense and inconvenience to the parties, witnesses and the Board. Indeed, it can be expected that CAUT and CFS would welcome the cost savings and convenience to witnesses and counsel that would result from consolidation. Consolidation of the proceedings will also permit greater rate certainty for potential licensees, for example, the decision in the 2014-2017 Proposed Tariff would be issued closer to the start date of the tariff on January 1, 2014.

2

In its Statement of Case, Access Copyright estimated it will require 16 hours to put in its case in chief.

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***** We would be pleased to answer any questions you may have regarding the above.

Yours very truly,

Nancy Brooks

c:

R. Hofley, Blakes D. Fewer A. Katz S. Maguire

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