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Focused on the future of learning.

November 29, 2013

Mr. Gilles McDougall Secretary General The Copyright Board of Canada 56 Sparks Street, Suite 800 Ottawa, Ontario K1A 0C9 Dear Mr. McDougall,

Email: mcdougall.gilles@cb-cda.gc.ca

I am writing on behalf of Athabasca University to support Dr. Ariel Katzs recent request to the Copyright Board of Canada (the Board) to exercise the Boards express power under Canadas Federal Court Act to make a reference to the Federal Court of Appeal (the Court). Such reference would ask the Court to determine whether: a tariff for the reproduction of works within the repertoire of Access Copyright is mandatory and universal in the context of all applicable laws; or such tariff, once set, is applicable to only those educational institutions that have elected to be licensed under Access Copyrights terms and conditions for use of works within its repertoire.

Athabasca University further supports Dr. Katzs additional request to the Board to impose a stay of proceedings currently before the Board towards the determination of a new tariff for the postsecondary educational sector (the Proceedings). Dr. Katzs full request is posted online at http://www.scribd.com/doc/182209272/ReferenceApplicationFinal-Signed. In our view, Dr. Katzs position is based on sound legal and policy arguments for making the reference and staying the current Proceedings. In brief, Dr. Katz submits: The Board no longer enjoys the ability to adequately address the public interest during the course of Proceedings in light of the fact that both the Association of Universities and Colleges of Canada (AUCC) and the Association of Canadian Community Colleges (ACCC) have withdrawn from participation in the Proceedings;

There is a legal void operating in Canada arising from the lack of authoritative interpretation of the legal effect of an approved tariff under section 70.15(1) of the Copyright Act to determine, in effect, whether an approved tariff can apply (and apply retroactively) to all post-secondary institutions, including those which have opted out of the licensing agreement with Access Copyright.
1 University Drive, Athabasca, AB, T9S 3A3 Canada P: 780.675.6782 | Toll-free (CAN/U.S.) 1.800.788.9041 (6782) athabascau.ca | CANADAS OPEN UNIVERSITY

Athabasca University, as one of many opt-out post-secondary institutions in Canada today, seeks guidance on the present state of our laws and how best to comply with these laws. It is clear that important changes to the copyright compliance regime have been brought about by the passage of Canadas Copyright Modernization Act as well as the Supreme Court of Canadas recent majority decisions on the scope of fair dealing. Copyright compliance is a resource-intensive endeavour for all publicly funded educational institutions. We recognize and value the compliance mandate as a means to benefit all participants in the educational enterprise. However, we seek any and all opportunities to better understand the compliance regime itself so that resources may be better deployed. In the result, we respectfully ask that the Board grant Dr. Katzs requests for a reference to be made to the Court and for the current Proceedings to be stayed pending the Courts answer. Thank you for your consideration. Yours truly,

Frits Pannekoek, Ph.D. President