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Confrontation at the Copyright Board? Big Problems - Proposed Solution

By Howard Knopf, Esq.

Yesterday, on a snowy Sunday afternoon, with a deadline to object looming in five business days as Christmas approaches, AC sent out this new proposal labelled ?Draft Statement of Interim Royalties to Be Collected by the Canadian Copyright Licensing Agency (Access Copyright)?. Here's the covering email.

In other words, this is a proposed supposedly binding interim tariff that will likely last for the SEVERAL years (probably at least four) required to resolve the proposed tariff before the Copyright Board and the Federal Court of Appeal, given the history of previous files at the Board. BTW, the proposed tariff on its face will expire at the end of 2013.

This latest iteration of an ?interim tariff? is substantially different than anything seen to date. It combines some elements of the old expired agreements and some elements of the new proposed tariff. It does not include the ?indemnity? scheme, which, although very controversial,  served a useful purpose by getting around AC?s problem of lack of repertoire for practical purposes.

The Board would be well within its power and arguably is indeed  required  to dismiss this application for an interim tariff outright for any one of the following reasons, amongst others:

?    It is a vague and imprecise moving target, of which inadequate notice has been given. There are only five working days notice to consider the legal and practical ramifications of a brand new document that changes many if not most of the rules and moves the goal posts to unclear new places;
?    It offends the Board?s own precedents because there is no previous tariff in place and AC doesn?t need and doesn?t deserve to get funding from its adversaries; 
?    The Board lacks statutory authority to grant this interim tariff, for several reasons, not least of which is s. 70.13 of the Copyright Act, which requires that any new tariff be filed by March 31 in the year preceding the proposed application of the tariff. To repeat, AC does NOT have a previous tariff in place;
?    It is intended to impose a mandatory regime that will likely last for at least four years on institutions that may well have regarded the previous voluntary arrangement as unsatisfactory and may have been planning in good faith and perfectly legally to do without AC by using internal material, source licencing, open access material, e-reserves, etc., etc.; 
?    Even the new proposed tariff does not purport to go beyond 2013 - and there could be all kinds of problems with eventual retroactive application of a new tariff and/or refunds (although the latter are unlikely, given past history at the Board) if this interim tariff is in place. In fact, if AC?s cash possible flow problems are as dire as it claims in their letter of October 7, 2010, it may be unable to pay any refunds due and there are good arguments that any new tariff should be substantially less than amounts that the recently expired regime imposed (i.e. with the full implications of  CCH v. LSUC duly considered); and,
?    The interim tariff is, in effect, a sweeping mandatory injunction to pay a LOT of money and forfeit a lot of academic freedom through unduly restrictive provisions (post CCH v. LSUC) when NONE of the three required tests for an injunction are met here (serious issue, irreparable harm, and balance of convenience) and AC has created the very problem that it now wants to resolve.  Besides, the Board is not a Court, which has far greater inherent jurisdiction, and even a Court must follow the statute.

There is a solution to this very convoluted situation which is causing considerable stress on post secondary institutions of all shapes and sizes and their administrators, faculty and students at one of the busiest times of the academic and personal year for everyone concerned.
   
The solution is this:

1.    The Board could ?bless? a voluntary licensing scheme under the old rates and conditions for those institutions that may wish to use it, with suitable amendments, such as including the indemnity scheme, etc. The Board would make it clear that institutions that wish to remain outside of this regime are free to ensure that they comply with copyright obligations in any manner that they see fit.  It goes without saying that such compliance could include voluntary transactional licenses with AC, if such licenses are available on reasonable negotiated terms;
2.    AC should withdraw its deeply flawed proposed tariff for 2011 to 2013. It is ridden with problems such as its references to linking, display etc. that can?t be sustained under the legislation, the extraordinarily privacy invasive and arguably illegal reporting arrangements, etc. This tariff, as framed, will likely drag on for years before the Board and the Federal Court of Appeal, and very likely the Supreme Court of Canada at enormous costs to all concerned. Even AC will eventually feel the costs pain; and,
3.    AC should file a new and more reasonable licencing scheme by next March 31, 2011 for a five year period that would reflect what the legislation (possibly new legislation) provides and respects the needs of post secondary institutions. Such a proposed regime should available to institutions that want it and optional for those that don?t. If reasonable and if developed in a consultative manner, it would encounter far less resistance - possibly none - and come into effect much sooner and at much less legal costs for all concerned than the current proposal - which is arguably the most problematic proposed tariff that has ever been filed at the Board. And I say this as a veteran of the private copying wars.

HK

PS - here's the submission of BCAIU dated December 6, 2010.

Full post as published by Excess Copyright on December 06, 2010 (boomark / email).