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If it were truly interested in judicial economy and the administration of justice, and if it genuinely believed that the two proceedings raise the same legal and factual issues, Access Copyright could have requested to consolidate the proceedings many months ago, rather than waiting until a month before the Objectors have to file their Statements of Case.  If Access Copyright sincerely believed that its existing case and interrogatories from the 2011-2013 Proposed Tariff are sufficient to support of both proposed tariffs, but it only occurred to it that this were the case when it filed its Statement of Case, then it could have requested to consolidate them at least two months ago. Indeed, it is difficult to believe that the notion of consolidation did not occur to Access Copyright in March of 2013, when it filed its proposed tariff for 2014-2017 – or indeed even much earlier.  And as the Board will be fully aware, the schedule of the current hearing, including possible changes to it, has been a live matter before the Board since I filed my request regarding a reference and an adjournment two weeks ago. This would have been an opportune moment for Access Copyright to support an adjournment in order to let it file a proper application to consolidate the proceedings, and it would have allowed the Objectors sufficient time to consider the merit of its request, and presumably would have required a new schedule in order to let the Objectors prepare their case, after reviewing Access Copyright’s full new submissions.  But Access Copyright did not do that. Rather, in two submissions, on November 7 and November 11, it stressed the need to proceed with the 2011-2013 hearing without any delay, urging the Board to decide whether to grant a temporary adjournment quickly and separately from the question of the reference, and without ever mentioning that it had been contemplating filing an application involving a significant change in the current proceedings. Moreover, Access Copyright did not disclose that it would be seeking to adduce new evidence, even though the new evidence is a “supplemental report” by NERA, one of its consultants—not the kind of evidence that would have popped up spontaneously two days ago and out of thin air. This is clearly the kind of evidence that could have been produced long ago.  When Access Copyright made submissions on the question of whether the current proceedings should be temporarily adjourned and possibly rescheduled, it must have already known that it would be seeking to consolidate the cases and file the newly commissioned NERA report, but it chose not to disclose this information to the Board, even though this would have been highly relevant information. It is not difficult to imagine that had Access Copyright disclosed its plans to the Board before it decided not grant even a three-week temporary adjournment, the Board might have been more amenable to make changes to the current schedule.  Since Access Copyright’s request did not attempt to explain the extraordinary delay in filing its unusual request, it would be open for the Board to draw the inference that this unexplained delay has been calculated to gain unfair advantage, and that Access Copyright had
3 waited until the last moment, until after the ACCC withdrew from the case, and until after the Board decided against granting a temporary adjournment, before it filed this surprising request.  The advantages for Access Copyright are rather obvious. The ACCC’s withdrawal and the lack of any filed objection from any other educational institution to the 2014-2017 proposed tariff means that Access Copyright would not be able to rely upon interrogatory responses in order to gather the kind of evidence that forms the basis of its current proposed tariff. As a result, the factual basis for the 2014-2017 proposed tariff would be even thinner and even less reliable than the which it filed for the 2011-2013. The request to consolidate looks like an attempt to obtain a snap approval of an extra tariff on the basis of non-existing record. Granting this request would not only be extremely unfair, but would be an abuse of discretion. II. The 2014-2017 proposed tariff raises new issues of fact
 If Access Copyright sincerely believed that its existing case and interrogatories from the 2011-2013 Proposed Tariff are sufficient to support of both proposed tariffs, it would not have requested to adduce new evidence to address “the value of the tariff to be certified for the 20142017 tariff period.” If the two proposed tariffs raise the same factual issues, no additional evidence would be necessary. Thus, Access Copyright’s request to adduce new evidence addressing the 2014-2017 tariff belies its claim that the two proceedings raise the same factual issues. What actually would have been necessary is an application providing reasons for the delay, and explaining, rather than asserting, why and how its current case supports the 20142017 proposed tariff.  Moreover, despite Access Copyright mere assertions, the two proposed tariffs could not possibly raise the same issues of fact. Access Copyright Statement of Case relies primarily on three factual grounds: (a) course packs reports made by educational institutions between 20052010; (b) the move form printed course packs to digital materials; and (c) the claim that the rates that it negotiated with UofT, Western, and the AUCC, ACCC, and Proprietary Colleges are directly indicative of the fairness of its proposed tariffs. Assuming arguendo that these facts support its current case (and they do not), they cannot possibly support the 2014-2017 proposed tariff.  First, data on printed course packs that is almost ten years old tells very little about the use of digital materials almost a decade later in markets undergoing radical and disruptive changes as markets for published works are.  Second, the licenses the Access Copyright negotiated in early 2012, before Parliament passed the Copyright Modernization Act and before the Supreme Court decided six important copyright cases offer a very poor proxy, even if otherwise they would offer a reliable benchmark (which they do not).
4  Third, UofT and Western are renegotiating their licenses with Access Copyright and have both made it clear that there would be no new license, unless the terms are sufficiently favourable. The fact that both UofT and Western are clearly dissatisfied with their current licenses has not been disclosed by Access Copyright in its Statement of Case. Moreover, a growing number of AUCC and ACCC institutions have already decided that those licenses are no longer valuable for them. At this point, this should be sufficient indication that the factual issues are not the same, and that Access Copyright’s case for the 2011-2013 proposed tariff cannot possibly justify the same rates for the 2014-2017 period.  Moreover, the proposed rates for the 2014-2017 period are even higher that the proposed rates for the 2011-2013 period, as revised in Access Copyright’s Statement of Case. In fact, Access Copyright’s proposal to consolidate the two proceedings is similar to a bank that advertises some short-term benefit (“no legal fees”, or “judicial economy”) to induce nonsuspecting borrowers to lock-in an even higher interest rate, when the bank anticipates very well that interest rates are likely to decrease in the near future. Granting such a request may enhance Access Copyright’s revenue, but not the administration of justice. III. The 2014-2017 proposed tariff raises new issues of law
 It is inconceivable how Access Copyright can assert in good faith that both proceedings raise the same legal issues, when Access Copyright conspicuously fails to mention in its consolidation request letter that the 2014-2017 proposed tariff applies not only to the reproduction right, but to a new and mysterious right of “making available to the public by telecommunication in any material form whatever.” Whether such a right exists, whether it exists independently of other rights and can be the basis of a tariff, and if it does, what does it actually covers, is a serious and novel legal question as the Board is well aware from other concurrent proceedings. Moreover, even if such a right exists, whether Access Copyright’s members and affiliates have ever authorized it to grant licenses covering this right may require some serious factual inquiry. Since the 2011-2013 proposed tariff does not pertain to this right, it cannot be said that both proceedings raise the same issues. IV. Access Copyright’s request offers another opportunity to put these proceedings back on the right track  Granting Access Copyright’s request and consolidating the two proceedings as it requests will not enhance the administration of justice and judicial economy. To the contrary, it demonstrates once again the serious flaws that underlie these proceedings and to which I have referred to in detail in my letter from November 6, 2013.  The upshot of my detailed request was that judicial economy and the administration of justice, especially in light of the public interest involved and the collapse of the adversarial
5 process before the Board, justify determining the effect of an approved tariff, by way of a reference, before the current case proceeds.  Put differently, my request emphasized that proceedings with the current case without making this prior determination about the effect of the approved tariff would not only be wasteful and inefficient, but also jeopardize the ability of the Board to pursue its mandate in the public interest and while preserving the substantive and procedural rights of those before it and those affected by its decision. In short, it would be unreasonable for the Board to proceed with the current hearing under the current schedule.  It should go without saying that if it would be unreasonable for the Board to go ahead with the current flawed process and approve one proposed tariff, it would be exponentially more unreasonable to consolidate the hearing and approve “two tariffs for the price of one”, given the new factual and legal issues that are raised and the apparent ambush tactics.  I note that the Board’s terse notice from November 13 offered no reasons for denying my request for a temporary adjournment. The Board only provided a tautological explanation that the application for an adjournment was denied because in the Board’s opinion the proceeding should not be postponed. In addition, the Board simply declared that “no decision by the Court [if a reference is made] would render the proceedings before the Board moot, without providing any explanation to that assertion, and without explaining why it might disagree with my submission that the outcome of a reference might render the proceedings effectively moot. I would add with some regret that I do not believe that this ruling provided adequate reasoning pursuant to the clear standard that the Federal Court of Appeal set in CAB v. SOCAN.1  It seems to me, however, that if the Board is willing to reconsider its previous ruling, Access Copyright’s current request, surprising and unfair as it is, provides an opportunity to place the current proceedings back on the right track. With all its flaws, this application underscores why rushing to approve the proposed tariff—let alone two proposed tariffs—would be misguided, and shows how a temporary adjournment would allow the Board to devote sufficient time and attention to considering how to proceed in the most effective way to ensure the integrity of these proceedings before the Board, and guarantee that they are conducted in a just and judicially efficacious way.
Canadian Association of Broadcasters v. Society of Composers, Authors and Music Publishers of Canada, 2006 FCA 337, para 11.
6  Finally, I must protest in the strongest possible terms that Board’s decision to allow the remaining objectors and presumably the public, pursuant s. 2 of the Directive On Procedure, only two (2) days to Comment on Access Copyright’s consolidation request. Such a short notice is palpably procedurally unfair, especially in view of the Board’s unreasoned denial of my modest request only a few days ago for an adjournment in all of the circumstances.
Digitally signed by com.apple.idms.appleid.prd.2f4a336634 35624a4d4547656e484c492b7836766e4 13d3d DN: cn=com.apple.idms.appleid.prd.2f4a336 63435624a4d4547656e484c492b783676 6e413d3d Date: 2013.11.21 23:22:07 -05'00'
Ariel Katz CC: Randall Hofley Nancy Brooks David Fewer Sean Maguire