10feb2014 Letter to G McDougall Re Supplementary Materials | Fair Dealing | Royalty Payment



Nancy Brooks Partner Dir: 613-788-2218 nancy.brooks@blakes.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)

We write on behalf of Access Copyright to seek leave to file supplementary evidence in compliance with Access Copyright’s ongoing obligation to correct or update information that was filed as part of its case on September 13, 2013 and to ensure that the Board has the most up-to-date and comprehensive evidence available. The documents in question contain information that could not be included in the case filed on September 13, 2013 because of the nature of the information and/or when it became available to Access Copyright. Copies of the documents in question are included on the enclosed USB stick. AC-15 – Supplementary Witness Statement Access Copyright seeks leave to file Exhibit AC-15, a Supplementary Witness Statement of Roanie Levy, Kerrie Duncan and Jennifer Lamantia (the “Supplementary Witness Statement”). The Supplementary Witness Statement provides an update regarding certain facts that were referenced in AC-2 Witness Statement of Roanie Levy, Kerrie Duncan and Jennifer Lamantia (the “Levy et al Witness Statement”) that was filed on September 13. The following updated information is addressed in proposed Exhibit AC-15:

The numbers of Association of Canadian Community Colleges (“ACCC”) member institutions and proprietary colleges that had entered into a licence with Access Copyright as of December 31, 2013 (as opposed to August 1, 2013, the reference date used in the Levy et al Witness Statement); Information concerning the current status of the licences between Access Copyright and the University of Toronto and the University of Western Ontario; Reference to the “fair dealing” policy issued by the AUCC in Fall 2013 and a link to the policy;

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Information about a coursepack in use during the Fall 2013 term at Langara College (a member of the ACCC) that came to light after September 13, 2013; and Information about a notice sent in October, 2013 by Simon Fraser University to its faculty regarding the practice of scanning and placing on a server material to be viewed online and the numbers of students viewing the online materials.

New Exhibit AC-15 also refers to the results of the study (the “Study Data”) conducted unilaterally by the ACCC of course management systems (CMSs). Counsel for the ACCC delivered the Study Data to counsel for Access Copyright on August 7, 2013 and (we understand) they filed it with the Board on the same day. The Study Data includes copies of published works that were posted on the CMSs of 13 ACCC member institutions for a sample of course sections offered during the 2013 Winter semester. The ACCC withdrew as an Objector from the proceedings without providing Access Copyright or the Board with an analysis of the Study Data or providing the parties with sufficient information to calculate volume. In particular, the Study Data does not include two essential types of information required to perform a volume calculation: 1) the number of students enrolled in each course, which is needed in order to calculate the total number of exposures; and 2) the total number of course sections for the entire population of ACCC member institutions over a complete year, which is needed in order to project the copying of the study sample to the entire population. Exhibit AC-15 references some examples of works in Access Copyright’s repertoire that were included in the Study Data where the copying exceeded the limits set by the ACCC fair dealing policy. Proposed Exhibit AC-15 is included on the enclosed USB stick for the Board’s information. Exhibit AC-11 – PwC Report (Revised) Exhibit AC-11, the PwC Report,1 included an assessment of the impact of the “fair dealing” policy of the Association of Universities and Colleges of Canada (the “AUCC”) and an analysis of Access Copyright financial information to the end of 2012 relating to the amount received in royalties from post-secondary institutions and the royalties distributed by Access Copyright to publishers and creators (the “Financial Data”). In Fall 2013, after Access Copyright filed its case, the AUCC issued a new “fair dealing” policy. PwC has revised Exhibit AC-11 to include reference to this new AUCC policy and to incorporate Financial Data to the end of 2013. In our submission, it is important that the Board have before it the revised PwC Report in order to have PwC’s analysis carried out in relation to the 2013 financial information and its conclusion regarding the impact on its analysis (if any) of the up-to-date AUCC fair dealing policy.


AC-11: “Access Copyright – Market Impact of Fair Dealing” (the “PwC Report”).


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We propose that, if leave is granted, we would designate the revised document as Exhibit AC-11 (Revised). The enclosed USB stick contains the highly confidential version of Exhibit AC-11 (Revised) plus a blackline that compares the revised report to the original AC-11. 2 Exhibit AC-1 – Statement of Case (Revised) Finally, Access Copyright seeks leave to file a revised Statement of Case, which has been revised to reflect the facts contained in the Supplementary Witness Statement (proposed Exhibit AC-15). We propose that, if leave is granted, we would designate the revised Statement of Case as Exhibit AC-1 (Revised). The enclosed USB stick contains the Exhibit AC-1 (Revised) plus a blackline that compares the revised document to the original AC-1. The Supplementary Evidence is relevant and probative and there is no prejudice to the Objector We submit that the supplementary evidence is relevant and probative of matters to be decided by the Board. In our experience, this type of information is typically updated by witnesses in their oral testimony. The within application has the merit of providing greater procedural fairness and, if the Board grants Access Copyright’s application, we do not believe any party will be prejudiced. As a process ma tter, the objector, Mr. Maguire, could be given an opportunity to respond to the supplementary information with a corresponding right of reply for Access Copyright. ***** We would be pleased to provide further information regarding this application if required by the Board.

Yours very truly,

Nancy Brooks
c: R. Hofley, Blakes S. Maguire


The unredacted version of proposed Exhibit AC-11 (Revised) and a blackline are included on the enclosed USB stick for the Board’s consideration. Mr. Maguire is being provided with a redacted public version of Exhibit AC-11 (Revised) and a blackline comparing to the redacted version filed on September 13, 2013.


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