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Nancy Brooks Partner Dir: 613-788-2218 email@example.com Reference: 00071273/000007
Copyright Board of Canada 800 – 56 Sparks Street Ottawa, ON K1A 0C9 Attention: Gilles McDougall, Secretary General
Dear Mr. McDougall: RE: Access Copyright Post-Secondary Educations Institution Tariff (2011 – 2013) (the “Tariff”)
This letter constitutes the reply of Access Copyright in accordance with the Board Notice dated December 16, 2013 concerning Access Copyright’s application (the “Application”) for leave to file evidence (the “Evidence”) relating to the use by the University of Toronto (“U of T”) of Published Works in paper coursepacks and digitally on its course management system (“CMS”). We also address in very brief terms the issues raised in the December 18, 2013 letter to the Board from Mr. Henein, counsel for the U of T. 1. The Objectors’ Submissions
The Canadian Association of University Teachers (“CAUT”) and the Canadian Federation of University Students (“CFS”) do not oppose the filing of the Evidence, subject to a request for a delay in the deadline by which the Objectors may respond to the Evidence. Professor Katz strongly opposes Access Copyright’s application. The remaining Objector, Mr. Maguire, has taken no position. With respect to Professor Katz, he objects on three bases: (1) the timing of the Application; (2) the quality of the Evidence, specifically that Evidence presents Access Copyright’s “own data and its own one-sided analysis, both of which, according to AC, have been contested by U of T”; and (3) granting Access Copyright’s application “would only worsen the procedural deficiencies in this case”.1 On the timing issue, we believe the submissions made in the Application explain Access Copyright’s efforts to file the Application as expeditiously as possible and rebut the submissions made by Professor Katz. The initial analysis of the Study data by Access Copyright and receipt of feedback from the University of Toronto to place from late January until May, 2013. When Access Copyright was to file its case in September, the CMS Study and analysis was still underway. The discussions with the U of T and further analysis of the Study data continued throughout the negotiations with the University until this month. Those negotiations
Email from Professor Katz, December 18, 2013, 3:36 pm, para. 1.
ended last week without resulting in a licence renewal with the U of T. Access Copyright moved to file as soon as possible in these circumstances. With respect to Professor Katz’s complaint that Access Copyright has presented its “own data and its own one-sided analysis”, to be clear, all of the Study data is included in the Evidence. With respect to the Study data analysis, in its Application, Access Copyright fairly alerted the Board to the fact that there were disagreements with the U of T over the analysis of the Study data. Access Copyright is not in a position to provide the Board with any other information given the privilege attaching to the without prejudice negotiations with the U of T. The Board is aware that Access Copyright worked for one and a half years with the Association of Universities and Colleges of Canada (“AUCC”) and the Association of Canadian Community Colleges (“ACCC”) to attempt to reach agreement on the terms of a survey of the CMS’s of the Associations’ member institutions for this tariff proceeding. The parties were unable to reach agreement. As a result, the Board ordered the AUCC and ACCC to answer the interrogatories that had been held in abeyance relating to the matters that would have been covered by a survey. The Board will recall the difficulties presented by the AUCC with respect to obtaining answers to the interrogatories in abeyance from AUCC member institutions, in particular the apparent reluctance of the ‘opt-out’ institutions to provide information about use of digital works posted to their CMS’s. The AUCC and ACCC, which represent virtually all Canadian universities and colleges, have withdrawn from these proceedings, effectively denying the Board and Access Copyright information relevant to the approval of a tariff. As the Board noted in its December 9, 2013 ruling (the “Ruling”) on Professor Katz’s reference application, the withdrawal of the AUCC and ACCC makes it all the more important that the Board fulfill the function entrusted to it under the Copyright Act, in order that both the Board and any reviewing court have available as complete a record as possible under the circumstances. The material Access Copyright seeks leave to file is the only evidence available to Access Copyright that provides data about the volume and nature of digital copying of a university during the Tariff period. The Additional Circum Report analyzes the paper coursepack copying data and the CMS-related data, providing a profile of both paper and digital copying carried out by U of T. The Evidence is directly relevant and probative of the issues before the Board in the Tariff proceedings, as identified in the Ruling. Specifically, the Evidence goes directly to the issue of the extent of post-secondary educational institutions’ digital copying of works in Access Copyright’s repertoire. As such, in Access Copyright’s submission, the Evidence provides a significant facet of the evidentiary base identified by the Board in the Ruling as being important to the Tariff proceeding. 2. The Request by U of T
In Mr. Henein’s letter of December 18, 2013, he objects on behalf of U of T to the Application and requests the Board to permit the U of T to make submissions to the Board no later than January 13, 2014. The U of T is of the view that Access Copyright’s attempt to file the Evidence is contrary t o the terms of its licence agreement with the U of T (the “U of T Licence”).
There is no merit to the U of T’s contention. The Board has received2 a copy of the licence entered into with the U of T in January, 2012 (effective from January 1, 2011). The confidentiality clause (s. 20) and the entire agreement clause (s. 21(d)) are dispositive of the U of T’s contention.3 and 4 3. Process
With respect to U of T’s request, Access Copyright has no objection to the date proposed by U of T for filing its responding submissions on the Application (i.e., no later than January 13, 2014). If the Board decides to grant the request, Access Copyright would undertake to provide its reply by January 15, 2014. CAUT and CFS have requested the Board to permit the Objectors (which have possessed the Evidence since December 13, 2013) to respond to the Evidence by January 24, 2014. Access Copyright has no objection to this proposal. If the Board decides to grant the request, given that January 24, 2014 is the Friday before Monday, January 27, 2014, when Access Copyright’s reply case is due, we respectfully request that the deadline for Access Copyright’s reply case be extended two days, to January 29, 2014. ****** We would be pleased to provide further information or answer any questions the Board may have about the within application.
Yours very truly,
c: R. Hofley, Blakes D. Fewer, Counsel to CAUT and CFS A. Katz S. Maguire P. Henein, Counsel for U of T
Exhibit AC-2L to Access Copyright’s case. We note that in the proceedings relating to the proposed tariff filed by Access Copyright for the Reproduction of Literary Works by Educational Institutions, 2010-2012 and 2013-2015 (the “K-12 Tariff Proceedings”), the raw data from the same U of T Study (on which the Evidence is based) was produced in response to interrogatories by the Council of Ministers of Education of Canada, with the consent of the U of T, provided it was designated as “highly confidential”. The Board has not had to rule on whether such designation is appropriate or not. 4 We, of course, reserve the right to respond further, and in detail, on these issues should they form the basis of any further submission to the Board by the U of T.
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