access

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The Canadian Copyright Licensing Agency

Access Copyright
1 Yonge Street, Suite 800
Toronto, Ontario M5E 1E5
www.accesscopyright.ca

June 16, 2015

BY E-M AI L
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 Educational Institution Tariff (2011-2013)

(the Tariff)

On June 3, 2015, Access Copyright received an Order from the Copyright Board seeking
answers to questions in the above-noted Tariff proceeding. This proceeding was
adjourned, sine die, by the Board, 16 months ago and has remained dormant for the last
year. Since the adjournment, Access Copyright has sought direction as to how this
matter will proceed to certification.
Unfortunately, to date, it has not received such
direction from the Board.
Access Copyright hereby applies to the Copyright Board to: (a) fix the date for the oral
hearing of this Tariff proceeding or, in the alternative, provide the parties some direction
as to how and when the Tariff will proceed to certification; (b) stay or otherwise hold in
abeyance its June 3, 2015 Order; and (c) while the Board is considering this application,
suspend sine die the deadlines to respond to the June 3, 2015 Order.
Access Copyright understands the challenges faced by the Board arising from the
Objectors withdrawal from the Tariff proceedings and the absence of a Chairperson for
a prolonged period. However, as detailed below, Access Copyright is being significantly
prejudiced by the lengthy delay in the certification of the Tariff.
Access Copyright thus makes another formal request for an oral hearing in this Tariff
proceeding. Access Copyright estimates that the hearing would occupy no more than
two days of evidence and one day of oral argument. Pending the availability of the
Board and various witnesses, Access Copyright would be in a position to have a hearing
in the early Fall, 2015.
In addition, Access Copyright respectfully requests that the Board stay or hold in
abeyance its Order dated June 3, 2015, as the questions asked are irrelevant to this

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Tariff and are, at this time, procedurally unfair in the absence of the Boards advice as to
how this proceeding will now proceed.
The Procedural Background
The Board is, of course, well aware of the complicated and lengthy procedural
background to this request. For the purposes of this application, the pertinent details are
as follows:
1.
The Boards Ruling dated September 28, 2012 fixed the schedule for certain prehearing steps and the date of the oral hearing (the Scheduling Ruling).
2.
During the interrogatory process, on April 24, 2012, the Association of
Universities and Colleges Canada (the AUCC) one of the two main Institutional
Objectors - withdrew from the proceedings.
3.
Access Copyright filed its Case on September 13, 2013. Given that the Board
had ordered an oral hearing, that Case consisted of, inter alia, expert reports, responses
to interrogatories and will-says of its witnesses. The content of the Case was never
intended to constitute the entirety of the evidentiary record that Access Copyright was
intending to put before the Board or to substitute for the viva voce evidence that would
be elicited from Access Copyright witnesses in examinations at the hearing and in their
oral exchange with the Board members in response to their questions.
4.
At the time that Access Copyright filed its Case, there was one Objector (the
Association of Community Colleges Canada, (ACCC)) and three Interveners engaged
in the tariff proceedings. After Access Copyright filed its Case, the ACCC withdrew. All
but one Intervener (Sean Maguire) withdrew the day their responding cases were due.
5.
Access Copyright applied on November 18, 2013 to have the Board consolidate
the 2011-2013 and 2014-2017 tariff proceedings and have one hearing on common
evidence. The Board denied that application in a Ruling dated December 4, 2013.
6.
On December 13, 2013, Access Copyright asked for leave to file supplemental
evidence related to digital copying behaviour at the University of Toronto. The University
of Toronto objected to Access Copyrights request and sought injunctive relief from the
Ontario Superior Court on January 9, 2014 to enjoin Access Copyright from filing or
relying on those supplemental reports.
7.
While the U of Ts injunction motion was pending, the Board, of its own motion,
ordered in a Notice dated January 17, 2014, that the oral hearing scheduled to begin on
February 11, 2014 be adjourned sine die. At the time, the Board stated that it would
decide when to reschedule the hearing or proceed on paper once it had received and
analyzed all answers and replies to its January 17 questions. Despite the adjournment,
since the Scheduling Ruling was still in place, Access Copyright filed its Reply Case on
January 27, 2014.

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8.
The Ontario Superior Court dismissed the U of Ts request for injunctive relief on
February 4, 2014. Access Copyright advised the Board of the Courts Order on the same
day. Pleadings in that proceeding were closed no later than February 10, 2014. The U
of T has not advanced the court proceeding.
9.
After the dismissal of U of Ts injunction motion, and after considering the U of
Ts additional submissions to the Board, the Board granted leave to Access Copyright to
file the supplemental reports that concerned the digital copying behaviour at the
University of Toronto on March 6, 2014. After some final submissions, the pre-hearing
Case was completed on April 22, 2014.
11.
Access Copyright formally requested the Board to schedule an oral hearing of
the tariff proceeding on March 14, 2014 and in its letters dated April 22, 2014 and
October 6, 2014. Informal requests were also made of the Board by Access Copyrights
external counsel. The Board has, to date, failed to respond to any of these requests.
The Boards effective stay of the oral hearing remains in place.
12.
On June 3, 2015, the Board asked questions of Access Copyright relating to
certain events that occurred in December 2014: events that occurred a year after the
period to which the Tariff applies.
The Prejudice to Access Copyright Resulting from the Delay in the Proceeding
As the Board is aware, Access Copyright licensed post-secondary institutions under
consensual agreements in the period 1991 to 2010. Beginning in 2011, a number of
post-secondary educational institutions chose not to renew their licences with Access
Copyright. Some institutions paid royalties under the Interim Tariff approved by the
Board but have since stopped making those payments.
Access Copyright has a number of licences in place in the post-secondary sector that
are due to expire at the end of December 2015. Some of those institutions have
already given notice that they will not renew their licences upon expiry. Access
Copyright projects that its royalty flow from the post-secondary sector will be virtually
eliminated as of January 2016.
The major reason for this cessation of royalty payments is the legal uncertainty that
relates to fair dealing as it applies to educational institutions and the absence of a final
certified Tariff rate.
The continuing delay in that determination incentivizes the
majority of users to refrain from negotiating consensual agreements and thus irreparably
harms Access Copyright and the publishers and authors it represents.
While the Boards decision not to proceed with the Tariff hearing was undoubtedly
impacted by the absence of an appointed Chairperson, that issue has now been
resolved. Any continuing failure of the Board to move this matter forward toward the
certification of a final Tariff will severely undermine Access Copyrights ability to
collectively administer the copyright interests of those it represents.

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An Oral Hearing is Necessary

Access Copyrights submissions dated March 14, 2014 set out in detail the need for an
oral hearing:
Central issues in this proceeding include not only the volume of compensable
copying undertaken by the post-secondary institutions that are subject to the
tariff and the appropriate resulting royalty rates, but also the extent and
applicability of the fair dealing exception. The Board will be required to make
findings of fact based on the evidentiary record in order to determine whether
the institutions dealings during the term of the tariff was fair, including in
relation to the purpose, character and amount of the dealing, alternatives to the
dealing, the nature of the work and the effect of the dealing on the work. Each
of these elements of fair dealing engages and requires a fact-driven, factspecific inquiry.
The Supreme Court of Canada in Alberta (Education) v. Canadian Copyright
Licensing Agency (Access Copyright)1 emphasized the importance of an
evidentiary basis in relation to the fairness factors. While the onus is on the
person invoking fair dealing to satisfy all aspects of the test,2 nonetheless,
Access Copyright should not be precluded from adducing all of the evidence it
believes is necessary to support its Case including, importantly, the evidence of
Access Copyrights fact witnesses. These fact witnesses include publisher and
creator representatives who are directly and adversely affected by the
copying policies and fair dealing guidelines implemented by institutions that are
members of the Association of Universities and Colleges of Canada (AUCC)
and the Association of Canadian Community Colleges (ACCC). They also
include witnesses from Access Copyright who will explain, among other things,
the findings of the repertoire analysis they have carried out and on which
Circum Network Inc. (Circum) bases its volume analysis.
The witness statements filed are summaries of each witnesss testimony and
were not written to contain each witnesss entire testimony. They were drafted
in the knowledge that the Boards schedule called for a hearing where Access
Copyrights fact witnesses could give their evidence. Viva voce evidence is a
crucial component of Access Copyrights Case and is absolutely necessary in
order to put into evidence all of the facts Access Copyright requires (and is
entitled) to place before the Board. In addition, the expert reports filed by
Circum, NERA Economic Consulting (NERA) and PricewaterhouseCoopers
LLP (PwC) deal with complex issues. Access Copyright believes having its
experts testify is necessary to enable them to summarize and explain their
evidence in a manner that informs the Board and is supportive of Access
Copyrights case.

Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 at 33
and 35 [Alberta v. AC]
2
Ibid., at 12.

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Changing the parameters of the proceeding part-way through, after Access

Copyright filed its case, and in particular removing the opportunity to adduce
evidence at a viva voce hearing, would be a serious denial of procedural
fairness. It is not only Access Copyright that could be adversely affected by
such a denial of procedural fairness, but so could every publisher and creator
Access Copyright represents.
Nothing has changed since those representations were made.
The Board is required by section 70.15 of the Copyright Act to certify tariffs as approved,
having regard to any objections to the tariffs. Access Copyright is merely asking the
Board to exercise its jurisdiction and take the next step in the process by rescheduling
the oral hearing, adjourned by the Board in January, 2014 of its own motion, as soon as
reasonably practicable.
The June 3, 2015 Questions are Irrelevant to the Tariff Period Under Consideration
On June 3, 2015, the Board issued an Order asking that Access Copyright answer
certain questions. The questions relate to post-secondary licence offers that Access
Copyright made in December 2014, and which apply prospectively only, that is, to the
period starting July 1, 2015.
Though the questions asked may be relevant to the next tariff (that is, the 2014-2017
tariff), that tariff is not currently under consideration by the Board. Given the Boards
December 4, 2013 refusal to consolidate the 2011-2013 Tariff with the 2014-2017 Tariff,
information relating to the time period beyond December 31, 2013 is irrelevant to the
Tariff. Moreover, requiring Access Copyright to take a position now on these questions
would effectively pre-empt or harm its ability to put in an expert valuation report and full
case in the next tariff proceeding. Access Copyright could be significantly prejudiced if
it is required to provide its position on valuation for the 2014-2017 tariff when that
proceeding is not currently under consideration. Therefore, Access Copyright requests
that the Board stay, or hold in abeyance, its June 3, 2015 Order.
Alternative Way Forward
Alternatively, if the Board is prepared to revisit its December 4, 2013 procedural ruling
that denied Access Copyrights application to consolidate the hearing of the 2011-2013
and 2014-2017 tariff proceedings, Access Copyright is prepared to have the Board fix a
schedule for completion of pre-hearing steps in the second tariff proceeding that would
allow any remaining participating Interveners to submit their Cases; allow Access
Copyright to supplement its Case with additional information that relates to the second
tariff period, including relevant information that would be responsive to the questions
asked by the Board on June 3, 2015; and have a date fixed for hearing both tariff
proceedings at the earliest practicable date. If this alternative way forward is adopted,
Access Copyright estimates that an oral hearing of the consolidated tariff proceedings
could be scheduled for early 2016.

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Access Copyright submits that this alternative manner of proceeding would be the most
just, expeditious and least costly manner of proceeding for all participating parties and
the Board.
Direction is Required
As set out above, Access Copyright filed its Case under the rubric of the Scheduling
Ruling that notified the parties of the date upon which an oral hearing would commence.
Beyond the prejudice to Access Copyright outlined above that strongly supports an oral
hearing, proceeding in person with live testimony permits an interactive dialogue
between Access Copyright, its witnesses and the Board members and the unique ability
to address questions of the witnesses unfiltered by counsel. Such a dialogue is
impossible to replicate in the absence of an oral hearing.
If, despite the Boards Scheduling Ruling, the Board decides not to proceed with an oral
hearing in this matter, Access Copyright requests that the Board provide the parties with
clarity and direction as to how this matter will now proceed to certification prior to being
asked to answer any further questions from the Board. This proceeding was
adjourned, sine die, 16 months ago and has remained dormant for the last year.
Without prejudice to the submissions above, it is procedurally unfair to Access Copyright
to be required to answer questions without knowing what opportunities it will have to
supplement the record, including, for example, whether Access Copyright will be entitled
to introduce viva voce evidence in an oral hearing. If it would assist the Board, we would
be pleased to attend a tariff conference with the Board or staff to explore the most
expeditious and just ways to proceed to certification.
Lastly, while the present application remains pending, and without prejudice to all of
Access Copyrights rights and remedies, Access Copyright seeks an interim decision
that suspends sine die the deadline to respond to the June 3, 2015 Order.

Yours truly,

Arthur B. Renaud
Litigation Counsel
cc. Sean Maguire, Intervener