Ariel Katz Submission Reapplication For Interim Tariff (Full)

ARIEL KATZ
ASSOCIATE PROFESSOR
INNOVATION CHAIR, ELECTRONIC COMMERCE
December 10, 2010 - BY EMAIL -
Mr. Gilles McDougall

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

Re: Access Copyright’s Post-Secondary Educational Institutions Proposed Tariff (2011-
2013); Application for an Interim Decision Imposing an Interim Tariff
Pursuant to the Copyright Board Notice and Ruling, dated Dec. 3 and 8, 2010 respectively, I
hereby make this submission regarding Access Copyright’s Application for an interim decision
imposing an interim tariff. As per the Board’s suggestion, this submission focuses mainly on the
preliminary question of whether the Board should grant the Application, although I note that this
question cannot be fully separated from the other questions suggested by the Board.
I will begin by protesting the fundamental procedural unfairness surrounding this application,
which I pointed out in my earlier two submissions of Nov. 30, 2010 and Dec. 6, 2010.
Exceptionally tight deadlines such as those imposed by the Board, during an extremely busy and
stressful period in the life cycle of the academic year, would cast doubt on the procedural fairness
of any hearing. Those difficulties were compounded by the constant modifications to its
application made by Access Copyright, with the result that it is not even clear which document
filed by Access Copyright constitutes the application. Therefore, it is my position that at this
point, any decision by the Board other than one dismissing the application would violate the
“general responsibility of the Board to act in accord with the principle of fairness.”1
In addition, and without prejudice to my right to further oppose or challenge the validity of an
interim tariff imposed by the Board, and without limiting or waving any argument that I may
raise against the approval of the (final) Approved Tariff, I am of the opinion that that the Board
has no power to grant the application and approve an interim tariff, or issue any other order
having similar effect. In the present case, an interim tariff would contravene the express
language of the Copyright Act and the legislative scheme created by Parliament, would exceed
1
Society of Composers, Authors & Music Publishers of Canada v. Canada (Copyright Board), 47 C.P.R. (3d) 297,
61 F.T.R. 141 (1993) at para. 41.
Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

Tel: 416-978-8892 Fax: 416-978-2648 ariel.katz@utoronto.ca www.law.utoronto.ca/faculty/katz
2
the powers vested by the Board as an administrative tribunal and would contradict the Board’s
own prior ruling on similar issues.
In the present case, an interim tariff would impose what would, in effect, be an enormously
invasive and expensive mandatory injunction, whose legality and constitutional validity is
questionable. The tariff would impose enormous costs and restrictions on the entire post-
secondary educational framework in Canada (outside of Quebec), against the will of academic
institutions and other individuals affected by such tariff, and in clear deviation from the status
quo.
Even if the Board had the power to mandate such an extreme measure—and it does not—Access
Copyright presented not a shred of evidence that such measure, which will benefit a private
organization to the detriment of academic institutions, their teachers, staff and students, is
necessary or even desirable. The Board should refrain from doing so and dismiss the application.
Furthermore, even if the Board is convinced that an interim measure in the form of a tariff such
as the one requested by Access Copyright is necessary or justified, there is no evidentiary basis
on which the Board can approve such a tariff, even if on an interim basis. A tariff must relate to
a specific repertoire and there is not a single piece of evidence before the Board about the works
to which the proposed tariff will apply. The Board cannot set a fair tariff without knowing what
it is that the tariff would apply to. Proceeding to a determination of this kind, in the absence of
such evidence, would be arbitrary and unreasonable.2 The Board should refrain from making
such a decision.
I elaborate on these issues in the following sections.
I. The Proposed Draft Interim Tariff is a New Licensing Scheme

The Copyright Act specifies very clearly the procedure for filing and approving tariffs in cases
when previous tariffs exist and in cases of tariffs applied for the first time. According to s.
70.13(2),
“A collective society referred to in subsection (1) in respect of which no tariff has been
approved pursuant to subsection 70.15(1) shall file with the Board its proposed tariff,
in both official languages, of all royalties to be collected by it for issuing licenses, on
or before the March 31 immediately before its proposed effective date.”3
S. 67.1(5), via s. 70.14, provides that,
“As soon as practicable after the receipt of a proposed tariff filed pursuant to
subsection (1), the Board shall publish it in the Canada Gazette and shall give notice
that, within sixty days after the publication of the tariff, prospective users or their
representatives may file written objections to the tariff with the Board.”4
A collecting society cannot file a proposed tariff by the statutory deadline and then propose a
different licensing scheme for the same effective date. This is what Access Copyright is trying to
do in the present case. The application should therefore be denied.
2
Society of Composers, Authors & Music Publishers of Canada v. Bell Canada, 2010 FCA 139 at para. 27.
3
Copyright Act, R.S.C. 1985, c. C-42, s.70.13(2).
4
Ibid.

3
Access Copyright filed the Proposed Tariff on March 31, 2010 with an effective date of January
1, 2011. The Proposed Tariff was published in the Canada Gazette on June 12, 2010 and
objections were filed by August 11, 2010. The Proposed Tariff did not contemplate any
obligation on prospective users on an interim basis. Instead, as we learned from Access
Copyright’s letter of October 7, 2010 and its appendices, Access Copyright sought to secure
continued funding for itself as of January 1, 2011 by means of an “Interim Agreement”. The plan
did not work; only a very limited number of institutions signed this Interim Agreement.5
Therefore, on October 7, 2010 Access Copyright asked to Board to issue an interim decision,
which is in effect an interim tariff. Access Copyright modified the terms of the tariff several
times, most recently on December 5, 2010. By requesting that the Board approve an interim
tariff effective January 1, 2011, Access Copyright proposes a new Licensing Scheme within the
meaning of s.70.1. It sets out new classes of uses that it seeks to authorize, with new royalties
and new terms and conditions for the effective date of the Proposed Tariff. Given the anticipated
length of the proceedings (which by Access Copyright’s own estimate make take more than five
years),6 and given that this period will exceed the period of the Proposed Tariff, in practice, the
interim tariff might well be that only tariff with additional payment imposed sometime in the
future on a retroactive basis. This cannot be done: the statutory deadline has elapsed; the
language requirements were not followed; and no notice and opportunity to object as mandated
by the Act were given. Granting the application would circumvent the clear framework created
by the Act.
II. The Power to Make an Interim Decision Does Not Extend to Ordering an
Interim Tariff
It is well established that an administrative tribunal cannot issue an order or directive unless it is
expressly authorized to do so by its empowering legislation.7 Further, since express powers
cannot be implied, the power to make a particular kind of order cannot be read into or inferred
under the Act, even if a tribunal thinks such a power is necessary to fulfill its mandate.8
5
Unlike all the other documents that it mentioned in its Application, Access Copyright did not attach a copy of this
“Interim Agreement”. A copy of what I believe to be this proposed “Interim Agreement” is attached to this
submission as Appendix A. It is easy to understand why very few institution signed this agreement, why many other
rescinded their signatures, and why Access Copyright’s current solicitor advised the Board in an email sent on Nov.
30, 2010 at 2:39 pm that Access Copyright decided to treat some of these signed agreements as null and void (see
Appendix B). The Interim Agreement would require the signing institution to continue paying as before, continue
reporting as before, but for nothing. Clause 3(i) made it clear that Access Copyright did not grant any license in
return.
6
Access Copyright, “Application for an Interim Decision on the Access Copyright Post-Secondary Educational
Institutions Tariff (2011-2013) [AC Application], Appendix C, at p. 4
7
Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722
at para. 50 [Bell Canada]; Curly Posen and Motion Picture Theatres Association of Canada v. Minister of Consumer
and Corporate Affairs Canada, [1980] 2 F.C. 259 at paras. 5-7; Matthews v. Canada (Attorney General), [1996]
F.C.J. No. 1077 at paras. 27-31, aff’d [1999] F.C.J. No. 830, leave to appeal. denied [1999] S.C.C.A. No. 412.
8
Nova Scotia Construction Safety Assn. v. Nova Scotia (Human Rights Commission), [2006] N.S.J. No. 210 at
para.143.

4
A. The Board’s Power to Issue an Interim Decision is Limited to Matters for which
the Board has Jurisdiction
Section 66.51 provides that “[t]he Board may, on application, make an interim decision.” The
power to make interim decision is limited to matters for which the Board has jurisdiction, and its
scope is limited to issues that are necessary and inexorably linked to the exercise of the Board’s
function.9 The Board’s function in the present case, filed under s. 70.13 is to determine whether
to approve Access Copyright’s Proposed License. Fulfilling this function does not require
issuing an interim tariff.
Moreover, the Board does not have jurisdiction to approve a tariff unless and until the procedural
and substantive conditions for such approval are fulfilled. A temporary tariff is a tariff for the
period in which it is in force. The Board cannot circumvent the procedural and substantive
requirements for approving it by cloaking it in the guise of an “interim decision.” The objections
to the Proposed Tariff are not limited to the amount of royalties sought and to some of the
adjacent conditions. Some of the objections to the Proposed Tariff are fundamental, and are
based on the argument that no tariff should be approved at all. The Board cannot circumvent the
duty to fully hear and consider all these objections. The hearing has not even started.
Furthermore, the express language and structure of the Act, and the broader statutory context
confirm that the Board’s powers with regard to the determination of royalties and terms and
conditions are specific, enumerated and limited, and do not extend to the imposition of an interim
tariff. The Act contains clear provisions for the filing of a tariff where previous tariffs have been
approved (e.g., s. 67.1(1); s. 70.13(1)), and for the filing of new tariffs when no previous tariff
has been approved (e.g., s. 67.1(2); s. 70.13(2)). The Act also addresses the issue of continuation
that may arise when an old tariff has expired and a new one has not been approved yet (e.g., s.
68.2(3); s. 70.19). Nowhere does the Act mention the power to approve a temporary tariff, and
this power cannot be inferred.
Nor ought this power be inferred. An approved tariff is law. Not only de jure,10 but also de
facto,11 because upon its approval, the collecting society is entitled, according to s. 68.2(1) of the
Act, to collect the royalties specified in the tariff and, in default of their payment, to recover them
in a court of competent jurisdiction. When a tariff is approved, it becomes mandatory upon any
person to which the tariff pertains. It is binding even on parties that took no part in the
proceeding for its approval. Once approved, “it is no longer open to a user to dispute the validity
of the approved tariff.”12 Nor can the collecting society rescind the license.13 An approved tariff
modifies the standard rules of copyright. The user becomes licensed by law,14 but has an
9
CTV Television Network Ltd. v. Canada (Copyright Board), [1993] 2 F.C. 115 at para. 16.
10
A tariff is a “regulation” under the Interpretation Act, R.S.C. 1985, c. I-21, s.2.
11
I am setting aside for the moment the likelihood that a tariff that specifically targets educational institutions is a
law in relation to education, and therefore falls under the exclusive jurisdiction of the provinces, according to s. 93 of
the Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3, s. 93. I will return to this issue in due course.
12
John S. McKeown, Fox Canadian Law of Copyright and Industrial Designs, 4th ed. (Toronto: Carswell, loose-leaf.
2005 – Rel. 2), at 27-11. Even so, the author overstates the inability to dispute the validity of the tariff. For
example, an approved tariff will be invalid if the Board acted ultra vires in approving it, just as an Act of Parliament
will be invalid if unconstitutional.
13
Ibid.
14
Ibid.

5
obligation to pay, while the collecting society is entitled to collect, but is barred from suing a user
who pays or offers to pay.
That is why a tariff cannot be approved unless all the procedural and substantive requirements as
set by the Act were met, including the obligation of the Board, in s. 70.15, to hear and consider all
objections. Before hearing and considering all objections, the Board cannot issue any order that
has the same effect of a tariff, and cannot use its power to make a decision that has the same
effect as a tariff, by calling it an interim tariff. The question is not whether the tariff is final or
not, but whether it is mandatory or not. If it is mandatory, looks like a tariff and has the effect of
a tariff, it is a tariff. If it is not mandatory, then it is not a tariff. At most, it can be a template for
a license, recommended by the Board, that the collecting society and prospective licensees might
use if they wish to enter into contractual relations.
A footnote in Access Copyright’s Application suggests that an interim tariff may not have the
same effect as an approved tariff. Access Copyright maintains that the prohibition on
enforcement under s. 70.17 applies only in the case of an approved tariff, but will not apply in the
case of interim decision.15 If Access Copyright’s assertion is correct, it means that it will be able
to have its cake and eat it too. But that cannot be right. The bar on proceedings for infringement
in s. 70.17 is the quid pro quo for the collecting society’s entitlement to collect under s. 68.2(1),
without proving infringement. The two provisions are what distinguish a tariff from a contractual
license. The one cannot go without the other. If s. 70.17 does not apply, then Access Copyright
cannot be entitled to collect the interim tariff. If Access Copyright asks the Board to issue a
decision that looks like a tariff but does not have the power of a tariff, it is not clear what it is
asking for, and what is the Board’s jurisdiction to grant it. This reinforces the conclusion that
there is no such thing as an interim tariff.
In sum, Parliament created a cohesive scheme for the approval of tariffs such as the Proposed
Tariff. This scheme includes no provision for the approval of an interim tariff. This is not a
lacuna. The Board cannot use its power to make an interim decision to circumvent this scheme.
B. The Act provides continuation of tariffs, not of contracts

Access Copyright spends much of its Application describing its contractual relations with some
of the prospective users of the Proposed Tariff and argues that these contractual relationships
justify an interim tariff “to avoid disruption to the regime built up by the parties over the last 16
years.”16 Essentially, the entire Application boils down to the following proposition: Access
Copyright has had contractual relationships with many of the parties to this proceeding over the
last 16 years. The contracts, after several renewals and extensions are about to expire. The
parties are unwilling to enter into new contracts. Access Copyright’s revenue will decline. The
Board should prevent that from happening. This argument is based on a fundamental mistake.
While the Act addresses the issue of continuation of tariffs, it grants the Board no power to force
upon an unwilling user the continuation of a voluntary agreement when the agreement expires.17
Nor could the Act grant this power, because the governance of contractual relationships is not a
matter over which Parliament has jurisdiction.
15
AC Application, Appendix C, at 7 note 13.
16
Ibid., at p. 5.
17
The reverse is not true. A monopolist can be compelled under some circumstances to deal with its customers or
rivals, and the regulation of copyright collectives is just one example of that.

6
Indeed, the Act demonstrates in several ways that Parliament was very careful to distinguish the
mandatory tariff regime from the voluntary regime of collective administration of copyrights.
First, section 70.12 provides that a collective society may, for the purpose of setting out by
licenses the royalties and terms and conditions relating to classes of uses: (a) file a proposed tariff
with the Board; or (b) enter into agreements with users.18 By operation of section 70.191, the
Act does not allow for the simultaneous application of tariffs and licenses: the collective must
choose between a mandatory or voluntary regime.
Second, s. 70.18 provides for continuation of rights only when a tariff that has been previously
approved expires and a new one has not been approved yet. The Act clearly states that there is no
continuing right to receive royalties in the case of a tariff filed for the first time. This Board
affirmed this interpretation in Re Public Performance of Musical Works (July 9, 2010), when it
stated in respect of s. 70.18: “Those [continuation] provisions apply only once a tariff has been
certified. The collectives' remedy for copies made before a tariff takes effect is either to negotiate
a licence or to sue broadcasters for copyright violation.”19
There is no previous tariff in place for this application. The relationship between Access
Copyright and academic institutions were based hitherto on a voluntary regime of license
agreements. Access Copyright’s entitlement to collect royalties is therefore subject to the
ordinary rules of contract law, and expires on the date specified in the agreement. Access
Copyright’s remedy in the interim, between the expiration of its voluntary agreement and until
the Board decides to approve its Proposed Tariff, if one exists, must therefore be found in private
law, and granted by a court of competent jurisdiction, not the Board.
The existence of section 70.18 shows that Parliament expressly directed its attention to the
question of when it is appropriate for the Board to grant a continuing right to a royalty on an
interim basis.20 The Copyright Act only grants such a right where there is an existing tariff
regime. Had Parliament intended for the Board to permit a continuing right to royalty payments
under the licensing regime, it would have codified these powers in the Act as it did for a
continuing right to royalty payments under the tariff regime.
Further, “[i]t is a well accepted principle of statutory interpretation that no legislative provision
should be interpreted so as to render it mere surplusage.”21 Legislative schemes are presumed to
be coherent and effective.22 Accordingly, Parliament could not have intended section 66.51 to
include a right to grant an interim tariff in the absence of an existing tariff regime, since this
would negate the need for section 70.18 and render the provision mere surplus.
In sum, the legislative scheme of the Act precludes the Board from granting an interim tariff.
While Access Copyright is entitled to file a new tariff proposal, the Act does not entitle it to
collect any royalties unless and until the Board, according to s. 70.15, approves the new tariff.
18
Copyright Act, supra note 3 at s.70.12.
19
Re Public Performance of Musical Works, 2010 CarswellNat 2295 at para. 166.
20
CTV Television Network Ltd. v. Canada (Copyright Board), [1990] 3 F.C. 489 at para. 13 (T.D.), aff’d [1993]
F.C.J. No. 2, leave to appeal denied [1993] S.C.C.A. No. 74 (“Parliament is presumed to know the law and to be
legislating with regard to the state of the law as it exists at the time the legislation is adopted.”).
21
R. v. Proulx, [2000] 1 S.C.R. 61 at para. 28, per Lamer C.J.; Ruth Sullivan, Sullivan on the Construction of
Statutes, 5th ed. (Markham: Lexis Nexis, 2008) at 210.
22
Sullivan, supra note 21 at 206.

7
III. Granting an Interim Tariff would be Inconsistent with the Board’s own
Prior Decisions
Even if the Board does have the jurisdiction to impose an interim tariff as sought by AC, the
Board’s own precedents militate strongly against such a tariff. Past instances in which the Board
has granted interim tariffs arose only under the arbitration regime and where continuation-of-
rights provisions existed. These situations are entirely inapplicable to the present case. The only
case whose facts are similar to the present ones resulted in the Board refusing to grant an interim
tariff, as discussed below.
1. The Prior Rulings that Access Copyright Relies On offer no Persuasive Reasons
for Granting the Application in the Present Case.
a. The Cases Concerning Section 70.2 Deal with a Separate Arbitration

Regime in Which the Board has Additional Power to Impose Interim
Decisions.
Most of the interim decisions cited by the Applicant were made pursuant to an application under
section 70.2.23 These decisions involve the Board fixing royalties and related terms when the
parties are already subject to an existing licence, or wish to enter into one, but are unable to agree
on the desired rates. In this sense, the Board’s authority to impose interim tariffs is derived from
the will of the parties who choose to let the Board arbitrate their dispute.
The present case is not about the arbitration of disputed rates. The universities do not merely
object to the terms and rates of Access’s interim offer; they desire not to renew a license with
Access altogether, as discussed below. The universities are legally entitled to decline a new
offer. Neither Access nor the Board can force the universities to renew a contract or enter into a
licensing agreement with a collective society. Access made an offer, and it was rebuffed. This is
not a dispute about royalties and their related terms and conditions.
Even if the issue could be characterized as a dispute over rates, these authorities still prove
inapplicable. Access brings an application for a tariff under s. 70.13. It has not filed a request to
fix rates pursuant to s. 70.2. Any power the Board may have to arbitrate a dispute and fix rates is
therefore irrelevant to the present case.
Notably, in the case of AUCC v. CanCopy24, which is cited by Access Copyright in its
application, the Board granted the request of two universities for the setting of an interim fee,
when the universities believed that they needed a license but CanCopy (Access Copyright’s
previous trade name) refused to grant it unless the universities agreed to a substantial fee hike.
This was a classic example of a monopolist that was attempting to use its market power to set an
unreasonably high price, and precisely the kind of case for which the Board was given the power
to set rates. In the present case, it would be a perverse result if the Board were to allow the
monopolist to use the very same tool to impose itself upon parties who do not wish to deal with it.
23
AUCC and Wilfred Laurier University and Canadian Copyright Licensing Agency (CANCOPY), [1996] C.B.D.
No. 7 [AUCC]; SODRAC 2003 Inc. v. CBC, [2009] C.B.D. No. 3; SODRAQ v. ADISQ, [1999] C.B.D. No. 4;
SODRAQ v. MusiquePlus Inc., [1999] C.B.D. No. 6.
24
AUCC, supra note 23..

8
b. The Cases Concerning Sections 67 and 71 Deal with Non-Voluntary

Collective Administration Regimes that Do Not Apply in This Case
Access Copyright also relies on prior decisions concerning the continuation of rights under
sections 67 and 71 of the Act..25 These decisions are inapplicable for two reasons. First, the
cases concern the continuation of rights where tariffs are already in place, or involve applications
to vary previous decisions pursuant to section 66.52.26 These are not issues presently before the
Board. Second, and more fundamentally, all of these decisions deal with non-voluntary
collective administration regimes and involve the continuation of previously approved tariffs.
They are therefore inapplicable to the present case, which involves a voluntary regime (under
s. 70.1) and where the Act contains no provisions dealing with continuation of earlier contracts.
2. The Only Decisions Analogous to the Present Case did Not Result in the
Granting of an Interim Tariff.
In Reproduction of Sound Recordings (29 FEB 2008),27 the Board considered and rejected an
application for an interim decision pursuant to a tariff application filed under section 70.13(2).28
This is the only case the Board has heard on the question of an interim tariff where no previous
tariff was in place.
The facts in Reproduction of Sound Recordings (29 FEB 2008) are parallel to the present case
and compel the same outcome. Like Access Copyright, the collectives in that case sought to
collect royalties prior to the approval of a proposed tariff and in the absence of any prior tariff.29
The Board stated that the test for granting an interim decision is two-fold. First, the main
application must not be plainly without merit. Second, granting the application must relieve the
application from deleterious effects caused by the length of the proceeding.30
The Board rejected the application on the grounds that the collective society had failed to meet its
burden of persuasion on the question of deleterious effects.31 While it is true that “interim
decisions are made in an expeditious manner on the basis of evidence which would often be
insufficient for the purposes of the final decision,”32 the Board affirmed that the burden of
showing cause for interim relief rests with the applicant and cannot be disposed of by arguments
that are irrelevant, inapplicable to the collectives, or just plain wrong.33
The Board dismissed the collectives’ argument that they had no tariff income to fund themselves
throughout the approval process. The Board found this to be untrue, noting that the collectives
25
Retransmission of Distant Radio and Television Signals, [1994] C.B.D. No. 1 [Retransmission]; Public
Performance of Musical Works 2003-2007 and Public Performance of Sound Recordings 2003-2007, [2006] C.B.D.
No. 8 [Collective 2006]; Collective Administration in Relation to Rights Under Sections 3, 15, 18 and 21,[2008]
C.B.D. No. 5; Interim Tariffs for the Retransmission of Distant Radio and Television Signals During 2002, [2001]
C.B.D. No. 9.
26
Retransmission, supra note 2510; Collective 2006 supra note 25.
27
Online Music 2008, supra note 25.
28
Ibid.
29
Ibid.
30
Ibid.
31
Ibid.
32
Bell Canada, supra note 5 at para. 51.
33
Online Music 2008, supra note 25 at 1.

9
“are quite capable of supporting the financial burden of these proceedings.”34 Regardless, the
Board affirmed the view in CMRRA v. SODRAC Inc. that “cost recovery is not a supporting
argument for an interim tariff, at least for a collective society with significant income.”35
The Board also made clear that “any analysis of the potentially deleterious effects of the length of
the proceedings requires looking at the balance of convenience.”36 This balance favours the
copyright users where: (1) the setting of an interim tariff imposes payments that will necessarily
need to be recalculated; (2) the users are not legion fly-by-night operations from whom
retroactive collection creates significant difficulties; and (3) the risk of the collectives not getting
their money is non-existent.37 These are precisely the facts in the present case. The universities
are large public institutions from which Access can collect later if retroactive payment is deemed
to be necessary.
Finally, in Reproduction, the Board affirmed that it was under no obligation to impose a
mandatory interim tariff since the collectives are not obliged to pursue proceedings before the
Copyright Board in order to collectively administer their rights: “These collectives are subject to
the general regime. They are entitled to pursue licensing deals with individual users. In the
general regime, such agreements trump the tariff.”38 This is an accurate reading of the Board’s
jurisdiction under section 70.1 and should apply with equal force to the present case.
It should also be mentioned that this Board has denied two other applications for an interim
decision for an inaugural tariff on the grounds that to do so would set “a policy precedent on a
substantive matter not yet properly heard by the Board.”39 The Board ruled that such issues
should “be fully addressed at a hearing.”40 That reasoning is equally applicable here.
3. Bell Canada v. Canada Does Not Grant a General Power to Administrative
Tribunals to Prevent the Deleterious Effects of Lengthy Proceedings
In its Application, Access Copyright relies on several Board decisions citing Bell Canada41 to
suggest that the Board has a wide and general jurisdiction to grant interim decisions in order to
prevent the deleterious effects of lengthy proceeding. Bell Canada cannot be read so broadly.
The case itself stands for the proposition that interim rates can be varied retrospectively where a
tribunal possesses sufficient jurisdiction.42 It does not endow administrative tribunals with a
general power to prevent the deleterious effects of lengthy legal proceedings. The Supreme
Court's comments about the CRTC’s powers to remedy the impact of an interim order must be
seen in light of the CRTC’s particular functions and cannot be applied blindly to the Copyright
Board, whose mandate is totally different.43
34
Ibid at 2.
35
Ibid. at 3.
36
Ibid.
37
Ibid.
38
Ibid. at 4.
39
Ruling on CBRA's Application for an Interim Tariff, May 3, 2001 at 1; Ruling on CBRA's Application for an
Interim Tariff (Commercial 2000-2005 and Non-Commercial 2001-2005), June 11, 2003 at 1;
40
Ibid.
41
Bell Canada, supra note 5.
42
Bell Canada, supra note 5 at para. 11.; see also Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn.,
[1993] S.C.J. No. 114 at para 26.
43
EnCana Corp. v. Alberta (Energy and Utilities Board), [2004] A.J. No. 852, 2004 ABCA 259 at para.18.

10
The CRTC was given comprehensive and continuous jurisdiction over the regulation of telephone
tolls, which indirectly also made it responsible for Bell’s financial viability.44 Bell was a
regulated monopoly, operating a critical piece of Canadian infrastructures, over which the CRTC
had considerable power, much broader than that of the Board. The Supreme Court’s decision
should not be read as an articulation of a general indiscriminate power accorded to all
administrative tribunals. To the extent that such a power might be applicable in the context of the
Copyright Act, the proper analogy would be cases of continuation of tariffs, not inaugural ones.
IV. Regime Change: An Interim Tariff will Radically Change the Status
Quo
Access Copyright asks that the Board “preserve the status quo.”45 There is nothing more further
from the status quo than an interim tariff. Granting an interim tariff is not a continuation of the
status quo; it is a regime change, and a radical one as that.
A. The Status Quo is a Scheme of Voluntary Contractual Arrangements

Until December 31, 2010, the relationships between Access Copyright and some of the
prospective users will be based on contractual and voluntary agreements. This is the regime that
Access Copyright chose, and the one that its licensees agreed to. The parties have considered
their legal rights and bound themselves to contracts defining payment, reproduction rights,
reporting requirements and indemnification. Moreover, these contracts contain express
provisions defining their duration, contemplating their renewal and the dealing with conditions
for their termination. As with many other contractual relations, these contracts are reaching their
end. All of this has been known, contemplated and expected. The nature of voluntary relations is
that they depend on volition. The status quo, even in the face of a monopoly, has been one of free
will. Preserving the status quo means only one thing: allowing academic institutions to decide
whether they want to be licensed by Access Copyright, and allowing those who wish to be
licensed by Access Copyright to negotiate those licenses freely.
A tariff, by virtue of its mandatory nature, even if on an interim basis, is an entirely different
regime. Even if theoretically an academic institution may be permitted to claim that it is not
bound by the tariff because it does not use any repertoire work (or does not use any works
beyond lawful unauthorized uses) the burden of proving such a negative renders this option
meaningless. A tariff, therefore, even an interim one, introduces a radical regime change.
Nothing is more antithetical to the status quo than that.
B. The Evidence Shows that Academic Institutions are Not Interested in Continuing
their Prior Relationships with Access Copyright
In sections 2 and 3 of its Application, Access Copyright describes in great length the history of its
contractual relationships with many parties to this proceeding, and how they are coming to an
end. The only conclusion from this description is that vast majority of Canada’s academic
44
Railway Act, R.S.C. 1985, c. R-3, s. 335-340; Michael H. Ryan, Canadian Telecommunications Law and
Regulation, looseleaf (Scarborough: Carswell, 1993) at §300 and §600.
45
AC Application, Appendix C, at 4

11
institutions have come to the conclusion that going forward, they do not consider payments to
Access Copyright to be the best method of securing usage rights for published works in Canada.
The number of objections to the Proposed Tariff, the content of the objections, and some
universities’ express pronouncements of their desire to sever their ties with Access Copyright,46
support the conclusion that Canada’s academic institutions are not interested in being compelled
to deal with Access Copyright. Access Copyright’s own admission that only a small fraction of
post-secondary institutions have accepted its Interim Offer47 further affirms this point.
The reasons for that change in the institutions’ attitude are numerous and most likely will be
discussed extensively during the main proceeding. But in a nutshell, more competitive and
vibrant models for lawfully accessing works are thriving and growing, to the benefit of authors,
publishers, readers, students, scholars and Canadians as a whole. As described below, many
institutions are taking advantage of these benefits. At the same time, Access Copyright’s
response to this changing environment, and to the change in the academic institutions’
understanding of their legal rights and obligations following the Supreme Court ruling in CCH48
has been to increase the price of its product, encumber it with even more onerous restrictions, and
rescind the only real benefit it offered to academic institutions: the indemnity (an outrageous and
unlawful scheme as it may be).49
The status quo consists of a series of voluntary contractual arrangements. Imposing an interim
tariff on users against their will would be a radical departure from this status quo, whose
voluntariness is its salient feature.
V. No Deleterious Effect—The Sky is not Falling

Access Copyright dedicates section 7 of its Application to arguing that the sky would fall on it
and its members in the absence of an interim tariff, and that an interim tariff—in essence an
equitable remedy—should be granted to relieve it from the deleterious effects caused by the
length of the proceeding.
It should be noted at the outset that the Board has no jurisdiction to grant any order for this
purpose. The Board is not a court, let alone one of inherent jurisdiction, and guaranteeing the
financial wellbeing of obsolete monopolies such as Access Copyright is far beyond its limited
jurisdiction. Nor do the members of Access Copyright have any vested right to continue
collecting royalties through Access Copyright or any other collective society. The Act permits
them to administer their rights collectively under some conditions, when doing that serves the
public interest, but it does not follow that maintaining the financial wellbeing of Access
Copyright is presumed to be in the public interest. It is not.
Moreover, even if the Board has such jurisdiction to grant this type of an equitable relief, an
analogy to the standards used by courts of equity in such petitions reveals that the Application is
46
See e.g., Media Release, University decides not to renew Access Copyright licence, Athabasca University, Dec. 9,
2010, online: <http://www2.athabascau.ca/aboutau/news/news_item.php?new&id=60>, a copy of which is attached
as Appendix D.
47
48
CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 S.C.R. 339 [CCH].
49
See Howard P. Knopf, “Copyright Collectivity in the Canadian Academic Community: An Alternative to the
Status Quo?”? (1999) 14 I.P.J. 109, at 121.

12
without merit.50 There can be no presumption that Access Copyright has made a prima facie case
that a final tariff would be approved, when no previous tariff exists, and where the very notion of
the tariff is being contested; the balance of convenience does not favour Access Copyright; and
as shown below, there is not a shred of evidence for any likelihood of irreparable harm, and the
claimed deleterious effect—loss of revenue—is not irreparable;51 Lastly, Access Copyright’s
unlawful scheme, as described below, raises a serious question as to whether it has the necessary
clean hands that an equitable remedy requires.
It should be emphasized that no evidence supports Access Copyright’s claims with respect to the
alleged deleterious effect. Assertions made in a letter signed by Access Copyright’s former
solicitor do not and cannot provide even the minimal evidentiary basis required by a tribunal. If
Access Copyright’s claims about its financial hardship have merit, it should have had no problem
providing evidence. The Board should draw an inference against Access Copyright from its
failure to furnish the evidence it must have.
Furthermore, while Access Copyright failed to provide any evidence to support its claims about
deleterious effects for it or its members, publicly available evidence that is available, such as the
evidence discussed below, indicates the opposite.
A. Access Copyright is Not Behaving Like an Organization on the Verge of

Financial Collapse
According to its own announcements, Access Copyright paid out “[f]ifteen percent of all
available revenue” 52 to its writer and visual artist members on November 15, 201053 as part of its
annual “Payback”. We estimate that the amount distributed was at least $4,000,000.54 While
Access Copyrights submission repeatedly refers to the weak financial position it would be in
50
For court to grant an interlocutory injunction, three requirements must be met: (1) the applicant must demonstrate
a prima facie case, showing that its claim is not frivolous or vexatious and there is a serious question to be tried; (2)
the applicant must suffer irreperable harm, in the sense that the refusal to grant relief could so adversely affect the
applicant’s own interests that the harm could not be remedied if the eventual decision on the merits does not accord
with the result of the interlocutory application; and (3) a determination that of the two parties the applicant will suffer
the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits. RJR-
MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at paras. 44-75; American Cyanamid Co. v.
Ethicon Ltd., [1975] A.C. 396; Robert J. Sharpe, Injunctions and Specific Performance (Aurora Ont: Canada Law
Book, 2000).
51
RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at para. 59 (“"Irreparable" refers to the
nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms
or which cannot be cured, usually because one party cannot collect damages from the other.”)
52
Access Copyright, “Frequently Asked Questions”, online: Access Copyright
<http://www.accesscopyright.ca/docs/Payback_FAQs_Final.pdf>.
53
Access Copyright, “Payback for Writers and Payback for Visual Artists”, online: Access Copyright
<http://www.accesscopyright.ca/Default.aspx?id=308>.
54
This estimate is based on the following calculation: assuming Access Copyright has 9000 writer members, each of
whom was paid a base amount of $175.26, representing 40% of the payback, while the other 60% supplementary
payment was paid on some internal formula. The total can be calculated as ($175.26X9000)/0.4=$3,943,350. The
number of 9000 writer members is based on Brief to the Ministers of Industry and Heritage, on behalf of Canadian
Authors Association Canadian Society of Children’s Authors, Illustrators and Performers League of Canadian Poets
Literary Translators’ Association of Canada Playwrights Guild of Canada Professional Writers Association of
Canada The Writers’ Union of Canada, Nov. 9, 2010, attached as Appendix E. To the extent that the number
reported in this brief refers only to writers and excludes visual artists, the sum distributed would be higher.

13
absent an interim tariff, these payouts of several millions dollars, equivalent to at least half of the
organization’s operating expenses,55 made just a few weeks after its Application, cast serious
doubts on the credibility of Access Copyright’s assertions, which were not supported by any
evidence whatsoever.
B. The Canadian Publishing Industry Has the Resources to Support Access

Copyright in the Event of Financial Hardship
Even if one accepts that without an interim tariff Access Copyright would face financial
hardship, this is hardly a valid reason for granting the relief it requests. Many businesses face
such hardships over their lifetimes. Usually, to overcome hardships, businesses will do one or
more of the following: they may ask their owners to inject additional capital; they may ask the
bank or other lenders for bridge financing; or they may simply make their product more attractive
or lower its price. Access Copyright, instead, chose to offer an even less attractive product, at an
elevated price, and then asked the Board to force its former customers to finance it. If Access
Copyright truly faces the alleged financial hardship, there is no reason why its members, at least
the commercial publishers among them, could not provide it with the necessary liquidity for its
continued operation.
Statistics Canada’s most recent available data show that the Canadian book publishing industry
has revenues of over two billion dollars per year, a figure that has remained relatively stable over
the last five years, and a profit margin of approximately 10%, which has similarly remained
stable.56 There is no reason why these publishers would not be able to fund an organization
whose operating expenses were only $6.2 million (in 2008).57 The graph below reflects these
data.58
C. Loss of revenue by a monopolist is not a recognizable harm in a market system

The preamble to Bill C-32, An Act to amend the Copyright Act, emphasizes that “the
Copyright Act is an important marketplace framework law and cultural policy instrument...”59
There is nothing new about that. As a tribunal charged with operating under this “marketplace
framework law”, the Board should be concerned with preserving a free market in creative works
where parties are free to negotiate voluntary agreements instead of imposing a mandatory tariff,
unless it is unequivocally clear that a free market cannot function. The Board should be even
more careful not to create impediments to the operation of the market and to the development of
competitive licensing regimes by adopting interim measures to preserve an obsolete monopoly.
55
Access Copyright, “Annual Report 2009”, online:
<http://www.accesscopyright.ca/docs/AnnualReports/Annual_Report_2009_Final.pdf > at 8 [Annual Report 2009]
56
Statistics Canada, “Book Publishers 2008”, online, Statistics Canada:
<http://www.statcan.gc.ca/pub/87f0004x/87f0004x2010001-eng.pdf>
57
Annual Report 2009, supra note 53 at 8
58
Ibid.
59
Bill C-32, An Act to Amend the Copyright Act, 3rd Session, 40th Parliament, 59.

14
VI. Post-Secondary Education Will Continue to Function Without an

Interim Tariff
Access Copyright’s submissions make several references to “uncertainty” and “anxiety”60 among
its licensees as to their legal rights during the interim period. More telling than Access
Copyright’s perception of the needs of academic institutions is the fact that not a single
institution asked the Board to issue an interim tariff or initiated an arbitration proceeding under s.
70.2. As far as we know at this point, most if not all of the parties to this proceeding oppose the
Application.
A. In the Absence of an Interim Tariff, Universities Will Operate Under the Normal
Copyright Act Regime
Academic institutions have already shown, by their positions and actions, that they are willing
and able to operate without Access Copyright. The University of British Columbia, for example,
has already begun to prepare for the expiration of its agreement with Access Copyright by
building a library database that clearly shows which library materials are licensed for copying
and which are not.61 The University of Alberta has announced the measures that it is taking in
preparation for the expiry of the current license.62 If there had been any doubt, these actions
indicate that Canadian universities are quite capable of complying with the Copyright Act without
a license or a tariff from Access Copyright.
Universities are increasingly using materials that are licensed to them directly, without the
intermediation of Access Copyright. 20% of the world’s peer-reviewed journals are now freely
available online and the Canadian Resource Knowledge Network has purchased licensed access
to thousands of journals.63 The extremely short period given for responding to the Application
prevents me from providing more detailed evidence, but it will be presented in due course during
the main proceeding. In any event, Access Canada’s repertoire and the holdings of Canadian
university libraries are far from coterminous. To illustrate, for the 2008-09 academic year, books
published in Canada represented only 3.6% of the titles acquired by University of Toronto
Libraries.64 There is no reason to assume that Access Copyright’s repertoire covers even most of
the new acquisitions, let alone the millions of works that are out of print yet still under copyright.
With respect to digital reproductions, by its own admission in section 8 of its Application, and by
its three-week-old and quite possibly invalid attempt to secure digital rights by negative option,65
Access Copyright concedes that its digital repertoire is unimpressive.
60
AC Application at 5
61
UBC Library News, Media Release, “UBC Library launches licence database” (22 November 2010) online:
<http://blogs.ubc.ca/librarynews/2010/11/24/ubc-library-launches-license-database/>
62
University of Alberta ExpressNews, Media Release, “Expiration of Access Copyright license looms” (22
November 2010), online:
<http://www.expressnews.ualberta.ca/en/NewsArticles/2010/11/ExpirationofAccessCopyrightlicenselooms.aspx>.
63
Michael Geist, “Struggling students could pay more in copyright battles”, Ottawa Citizen (14 September 2010),
online:
http://www.ottawacitizen.com/technology/Struggling+students+could+more+copyright+battle/3520730/story.html.
64
University of Toronto Libraries, “Annual Statistics May 1, 2008 – April 30, 2009”
<http://discover.library.utoronto.ca/general-information/about-the-library/annual-statistics/2008-2009> at Table 6
[Library Statistics].
65
Access Copyright, “Important lnformation - A Recent Change to our Licensing Policies” (15 November 2010),
Appendix F.

15
If university libraries immediately begin illegally copying the Applicant’s repertoire on January
1, 2011, as insinuated in Access Copyright’s submissions, copyright owners are perfectly capable
of taking legal action against such copying. It would not be a deleterious effect for copyright
owners to have to go to court to enforce their legal rights; in fact, this is exactly the regime set
out by the Copyright Act.
B. As a matter of law, the Board cannot presume that universities will infringe
copyright
In section 7 of its Application, Access Copyright insinuates that academic institutions will
immediately begin illegally copying its repertoire works on January 1, 2011. While post-
secondary institutions have large collections of protected works, the Board cannot presume that
they will authorize infringing behaviour in the absence of an interim tariff. The Supreme Court
has clearly stated that “a person does not authorize infringement by authorizing the mere use of
equipment that could be used to infringe copyright. Courts should presume that a person who
authorizes an activity does so only so far as it is in accordance with the law”66 (emphasis added).
While this presumption can be rebutted by evidence, there is no such evidence before the Board.
Nor should such evidence be admitted, because even if such evidence exists, it is irrelevant to the
current proceeding. The Board is not the “copyright police.” Its role is limited to the
determination of fair and reasonable royalties and license terms when the public interest justifies
a tariff. The Board cannot approve tariff for the purpose of preventing infringement under the
assumption that academic institutions are presumptive infringers.
The role of preventing infringement, or compensating for the damages resulting therefrom, is
within the jurisdiction of the courts, upon a complaint filed by the copyright owner, and on the
basis of full judicial hearing. The Board is not a court and it has no jurisdiction to grant
injunction or award damages. Even if it were, Access Copyright is not the owner of the majority
of works under its limited repertoire. Therefore, Access cannot sue and in any event presented no
evidence that would allow a court to do anything other than dismiss its claim.
Under such circumstances, invoking s. 66.52 to make an order that is, in effect, an extraordinary
interlocutory injunction that no court would grant would clearly exceed the Board’s limited
jurisdiction and would constitute an error in law.
C. Legal voids
Access Copyright’s submissions refer to the “legal void”67 that would occur in the absence of an
interim tariff. To refer to the general operation of the Copyright Act, where creators are accorded
intellectual property rights and can ask courts to enforce these rights, as a legal void is a serious
error.
If “a person uses a collective society’s repertoire without authorization”68, as Access envisions,
the creator of those infringed works can sue the infringing person. This is not a legal void or
vacuum; it is the very regime set out by the Copyright Act. Simply because the Act allows for
tariffs to be imposed in some circumstances that does mean that the absence of a tariff constitutes
a legal void.
66
CCH, supra note 46, at para. 38.
67
68
Ibid.

16
VII. There is no Basis Upon Which to set a Tariff

Any interim decision must fundamentally be predicated on an understanding of the exact scope of
AC’s repertoire. AC has advanced no evidence regarding the size or content of its repertoire, let
alone verifiable evidence, and so there is no basis upon which to determine an interim pricing
structure or to assess whether an interim tariff is necessary in light of the copying which occurs at
post-secondary institutions.
Moreover, approving a tariff without knowing and without allowing users to know exactly which
are the works to which the tariff applies, would run afoul fundamental principles of legality and
the rule of law.
A. The Previous AUCC Model License is Not an Adequate Benchmark Upon Which to
Base an Interim Decision
The AUCC Model License states that it encompasses all works published in 21 listed countries,
with a short closed (three-page) list of exceptions.69Access Copyright has provided no evidence
to support the suggestion that its repertoire encompasses all non-excepted works published in any
of the listed countries.
However, in practice, the Model License did not need to contain such assurances, because Access
Copyright explicitly undertook to indemnify licensees for any damages relating to their exercise
of rights under the license, provided they adhered to the short list of exceptions.70 Setting aside
the questionable legality and validity of such indemnity scheme (both as a matter of insurance
law and as a matter of copyright law), effectively, what academic institutions were interested in,
and what Access Copyright was happy to provide, was the indemnity. Because an interim
decision would not contain a similar indemnity provision, it would be fundamentally different
from the AUCC Model License, and this license cannot serve as an adequate benchmark for
determining the tariff.71
Further, the draft interim tariff proposed by Access Copyright contains no restrictions or
exceptions at all. It simply defines “Repertoire Work” as any work protected by copyright in
Canada of which copies have been made available to the public, and for which Access Copyright
administers the rights.72 Access Copyright does not even attempt to clarify the list of works for
which it administers the rights, and it must not be left to the Board or to the users to try and guess
at what those works might be.
While it may be acceptable for contracting parties to sign agreements without knowing their
exact scope, and while it may be perfectly rational for them not to be interested in this
information where the agreement promises to indemnify them for costs arising from the use of
works outside of the licensed repertoire, the Board cannot legally approve a tariff without first
identifying the works to which the tariff will apply.
69
See AUCC Model License, Appendix G, at 17-19.
70
Ibid. at 12.
71
Access Copyright, “The Draft Statement of Interim Royalties to be Collected by the Canadian Copyright Licensing
Agency”, Appendix H, contains no indemnity provision.
72
Ibid at s. 2.

17
B. The Repertoire Question is Real, Fundamental and Acute
The question of the scope of Access Copyright’s repertoire is not an academic one. It is areal,
fundamental and acute question. Of the 95,526 newly-published books purchased in 2008-2009
by the University of Toronto Libraries, 3.6% (3,449) were Canadian titles.73 Of these titles, and
of the other international titles whose use is authorized by the AUCC Model License, it is unclear
what proportion is, in fact, covered by AC’s repertoire. The uncertainty is even more pronounced
for periodicals, given the larger set of publishers and writers. Moreover, as the party asking the
Board to approve a tariff, and even more so to approve an inaugural tariff, as an interim decision
that significantly departs from the status quo, Access Copyright bears the burden of resolving this
question by disclosing its repertoire.
The discrepancy between the large universe of works under copyright and the substantially
smaller subset of those which are actively managed by their copyright owner has grown to
become a well-known problem, especially since the launch of the Google Books Project. With
respect to this Project, researchers predicted in 2005 that the proportion of the print book
collection which was still in copyright fell somewhere between 66% and 82%.74 An EU report
predicted that approximately 13% of the total UK books in copyright were orphaned works.75 If
such figures can be roughly applied in a Canadian context, then there exists a pronounced
uncertainty regarding the scope of Access Copyright’s repertoire. This uncertainty is added to
that identified in the previous section, namely the uncertainty regarding the exact list of authors
who have authorized Access Copyright to license the rights to their works.
Absent any evidence from Access Copyright regarding the ambit of its repertoire, it is impossible
to determine an adequate price for any interim tariff, and it will be impossible for users to
determine which are the works which they can use but need to comply with the terms of the
tariff, and which are the works they need to license separately or bear the risk of liability. For
digital works and digital copying, the scope of AC’s repertoire is even less certain.
C. Absent any Benchmarks or Reliable Evidence on Which to Base an Interim

Decision, No Interim Decision Can Be Made
In Re Public Performance of Musical Works, the Copyright Board held that SOCAN was entitled
to compensation for any use of its repertoire works. However, with respect to a tariff item
respecting certain websites for which SOCAN – like Access Copyright in the present case – had
provided no evidence regarding its repertoire, the Federal Court of Appeal concluded that “…in
the absence of proper and reliable evidence, it would be irresponsible to certify a tariff that could
potentially have such a broad scope of application.”76 The Court also found that “…it would
have been unreasonable for the Board to certify this impugned Item of the proposed Tariff … in
73
Library Stastics, supra note 61 at 24.
74
Brian Lavoie et al., “Anatomy of Aggregate Collections: The Example of Google Print for Libraries”, 11 D-Lib
Magazine 2005. Available online: <http://www.dlib.org/dlib/september05/lavoie/09lavoie.html.>
75
Anna Vuopala, “Assessment of the Orphan Works Issue and Costs for Rights Clearance” (May 2010), European
Commission DG Information Society and Media Unit 34 Access to Information online: <
http://ec.europa.eu/information_society/activities/digital_libraries/doc/reports_orphan/anna_report.pdf>
76
Public Performance of Musical Works, Re (2008), [2008] C.B.D. 7 at para. 117, aff’d 2010 FCA 139.

18
the absence of the necessary probative evidence, on mere guesses, speculations and
approximations…”Similarly, in the present application, Access Copyright has advanced no
evidence regarding the value or content of the repertoire upon which it asks the Board to impose
an interim tariff. The Board should not impose such an overbroad, indeterminate tariff.
VIII. The Board Should not Endorse a Scheme of Infringement

Over the last 15 years or so, Access Copyright knowingly and willingly authorized the
reproduction of works that it knew were not and could not be part of its repertoire. Moreover, by
offering an indemnity, it actively encouraged and induced such reproduction for the financial
gain of its members.
The evidence is laid open before the Board: the Model License, Schedule A, purports to license
broadly the reproduction of works published in the 22 listed countries and excluding works other
countries (and a tiny list of additional exclusions). It is very unlikely that Access Copyright has
been authorized by the owners of all of these works to license their copying. If so, then arguably,
Access Copyright authorized their reproduction without the consent of the copyright owners.77
Access Copyright now seeks to get the imprimatur of the Copyright Board for its overbroad,
infringement-based scheme. The fact that this scheme has enriched some copyright owners,
helped a few others, and for a short while provided a makeshift pragmatic short-term solution for
academic institutions does not make it more legal or justified.
The Copyright Board of Canada should not endorse such a scheme of questionable legality and
doubtful constitutionality.
Yours respectfully,
Ariel Katz
77

Appendix A
Interim Agreement
This INTERIM AGREEMENT is between ACCESS COPYRIGHT, THE CANADIAN COPYRIGHT

LICENSING AGENCY ("Access Copyright") located at 800-1 Yonge Street, Toronto, Ontario, M5E lE5, and
_ _ _ _ _ _ _ _ _ _ _ (the "Institution") located at _ _ _ _ _ _ _ _ _ __
WHEREAS:
A. Access Copyright and the Institution entered into a blanket reprography licence agreement, which
terminates on August 31, 2010 and a licence extension agreement (which terminates on December 31,2010
(together, the "Existing Agreement").
B. Access Copyright filed the Access Copyright Post-Secondary Educational Institution Tariff, 2011-
2013 (the "Proposed Tariff') with the Copyright Board of Canada (the "Copyright Board") on March 30, 2010,
which once celiified will permit the Institution to make reproductions of copyright-protected works.
C. The Institution and Access Copyright wish to agree that the Institution will make certain interim
payments to Access Copyright covering the period between January 1,2011 to the date the Proposed Tariff is
certified by the Copyright Board (the "Celiification Date").
For good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the
paIiies agree as follows:
1. Interim Payments and Reporting. For the period between January 1,2011 and the Certification Date (the
"Interim Period"), the Institution agrees to make interim payments to Access Copyright equal to the amounts the
Institution is obligated to pay Access Copyright under the Existing Agreement. For such period the Institution will
also comply with the record keeping and repOliing requirements in the Existing Agreement.
2. Payment Adjustments. The Institution acknowledges that the tariff will have an effective date of January
1, 2011 and that a payment of fees back to such date may be necessary under the tariff celiified by the Copyright
Board. The pmiies agree to be bound by any tariff celiified by the Copyright Board regarding payments for any
prior or future periods covered by such tariff.
3. Acknowledgement. The parties acknowledge and agree that: (i) the agreement in Section 1 (Interim
Payments and Reporting) is not an agreement between Access Copyright and the Institution authorizing the
Institution to do any act mentioned in the Copyright Act; and (ii) this Agreement contains interim measures and is
not a reflection or admission of the value or volume of uses that may become licensed under the Tariff.
4. Governing Law. This Agreement and its construction will be govemed by the laws of the Province of
Ontario and the laws of Canada applicable herein.
5. Effectiveness; Date. This agreement will become effective when both paIiies have signed it. The date this
agreement is signed by the second party to sign it (as indicated by the date associated with that paIiy's signature)
will be deemed to be the date of this agreement.
Appendix A
Interim Agreement
6. Entire Agreement. This is the entire agreement between the parties related to the subject matter hereof.
There are no other tenns or conditions other than as set out herein including any express or implied tenns. The terms
and conditions contained in this Agreement supersede all prior oral or written understandings between the parties,
and will constitute the entire agreement between them, concenling the subject matter of this Agreement. There are
no other terms or conditions, whether express or implied, other than as set out herein. This Agreement may only be
amended by a writing signed by both parties.
IN WITNESS WHEREOF the undersigned, on behalf of and authorized by Access Copyright and the Institution,
have executed this Interim Agreement.
ACCESS COPYRIGHT, THE CANADIAN COPYRI LICENSING

Date: dAR q ! 2 0 ...:::::::::::::~ ~
'?
r/" I By:
THE INSTITUTION
Date:
By:
Name:
Title:
2
Appendix B
From: "Mike Laskey" <michael.laskey@utoronto.ca>

Subject: FW: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013)
Date: December 10, 2010 5:47:38 PM GMT-05:00
To: <nick.vanexan@utoronto.ca>
4 Attachments, 68.2 KB
 
 
From: "HOFLEY, RANDALL" <RANDALL.HOFLEY@blakes.com>
Date: Tue, 30 Nov 2010 14:20:11 ‐0500
To: "Gilles.McDougall@cb‐cda.gc.ca" <Gilles.McDougall@cb‐cda.gc.ca>, "gbloom@osler.com" <gbloom@osler.com>,
"BROOKS, NANCY" <NANCY.BROOKS@blakes.com>, "MClarke@ACCC.ca" <MClarke@ACCC.ca>, "ruth.wittenberg@ufv.ca"
<ruth.wittenberg@ufv.ca>, "gailb@athabascau.ca" <gailb@athabascau.ca>, "rideau3@gmail.com" <rideau3@gmail.com>,
Ariel Katz <ariel.katz@utoronto.ca>, "smagu039@uottawa.ca" <smagu039@uottawa.ca>, "mccutcheon@athabascau.ca"
<mccutcheon@athabascau.ca>, "nair@sfu.ca" <nair@sfu.ca>, "pardoe@siast.sk.ca" <pardoe@siast.sk.ca>,
"jayrahn@yorku.ca" <jayrahn@yorku.ca>, "gov@casa.ca" <gov@casa.ca>, David Fewer <dfewer@uottawa.ca>,
"jason.fung@gov.ab.ca" <jason.fung@gov.ab.ca>, "brad.neufeldt@stmu.ab.ca" <brad.neufeldt@stmu.ab.ca>,
"sayer@ambrose.edu" <sayer@ambrose.edu>, "lfultonlyne@ytced.ab.ca" <lfultonlyne@ytced.ab.ca>, O'Neill_Aidan
<AONeill@fasken.com>, Wanda Noel <wanda.noel@sympatico.ca>
Cc: Erin Finlay <efinlay@accesscopyright.ca>, Claire Gillis <cgillis@accesscopyright.ca>
Subject: RE: Access Copyright Post‐Secondary Educational Institutions Tariff (2011‐2013)
 
Dear Mr. McDougall,

As directed by the Copyright Board in its Notice of November 26, 2010, below, we set out below our reply to the Board’s request
for "the precise amounts that, in [Access Copyright's] view, are payable by the targeted institutions and ought to
be included in section 14 of the model licence (or any other provision where such figures may be relevant) if the
Board were to issue an interim decision as requested." Access Copyright requests that the institutions targeted in its
application of October 13, 2010 pay the following amounts if the Board were to issue an interim decision:
(i) section 14(a)(iv) -- the FTE multiplied by $3.38;
(ii) section 14(b)(iv) – Except for newspapers (see section 14(d)), $0.10 for each page or printed sheet copied for use in a
coursepack. (This section references section 2(b) of the model licence which refers to the ‘coursepacks’ that are created
and sold by the institutions.);
(iii) section 14(c) – a maximum of $10.00 for each out of print work copied; and
(iv) section 14(d) -- $0.05 for each page or printed sheet of newspaper that is included in a coursepack.
These are the amounts that the targeted institutions have historically paid to Access Copyright.
Since Access Copyright filed its application on October 13, 2010, Appendices A and A.1 have been updated. Some of the
institutions were mistakenly included on Appendix A.1 as having signed the interim agreement. At the time Access Copyright
discovered this error, we wrote directly to those institutions to advise them that they would be affected by the application. A
sample of that correspondence is attached. Also, since Access Copyright filed the application with the Copyright Board, some
institutions have now signed the interim agreement. They have therefore been added to Appendix A. 1. In addition, some of the
institutions that had initially signed the interim agreement subsequently advised that they had signed the agreement in error.
Access Copyright has agreed to treat those institutions’ agreements as null and void, and we have removed those institutions
from Appendix A.1. Some typos have also been corrected. Attached is a revised Appendix A and A.1, along with a blackline to
the appendices originally filed with the Board, that highlights these changes.
We trust this is satisfactory for the Board's purposes - please let me know if you have any questions.
Regards,
Randall
▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀▀
Blake, Cassels & Graydon LLP
Barristers & Solicitors
Patent & Trade-mark Agents
45 O'Connor Street
Suite 2000, World Exchange Plaza
Ottawa ON K1P 1A4 Canada
Tel: 613-788-2200 Fax: 613-788-2247
blakes.com
This e-mail communication is CONFIDENTIAL AND LEGALLY PRIVILEGED. If you are not the intended recipient, please notify me at the telephone number shown
above or by return e-mail and delete this communication and any copy immediately. Thank you.
Appendix B
L'information apparaissant dans ce message électronique est légalement PRIVILÉGIÉE ET CONFIDENTIELLE. Si ce message vous est parvenu par erreur, vous êtes
en conséquence prié de nous aviser immédiatement par téléphone ou par courriel. De plus, veuillez détruire ce message immédiatement. Merci.
From: Gilles.McDougall@cb-cda.gc.ca [mailto:Gilles.McDougall@cb-cda.gc.ca]

Sent: Friday, November 26, 2010 9:56 AM
To: gbloom@osler.com; HOFLEY, RANDALL; BROOKS, NANCY; MClarke@ACCC.ca; ruth.wittenberg@ufv.ca; gailb@athabascau.ca;
rideau3@gmail.com; ariel.katz@utoronto.ca; smagu039@uottawa.ca; mccutcheon@athabascau.ca; nair@sfu.ca;
pardoe@siast.sk.ca; jayrahn@yorku.ca; gov@casa.ca; dfewer@uottawa.ca; jason.fung@gov.ab.ca; brad.neufeldt@stmu.ab.ca;
sayer@ambrose.edu; lfultonlyne@ytced.ab.ca
Subject: Access Copyright Post-Secondary Educational Institutions Tariff (2011-2013)
NOTICE OF THE BOARD
On October 13, 2010, Access Copyright filed an application, dated October 7, for an interim tariff. The
application and relevant documents are attached. Participants are asked to respond to the application (and to
copy all other participants) no later than Monday, December 6, 2010. Access Copyright may reply to these
comments no later than Monday, December 13, 2010. The response of the Canadian Association of University
Teachers and the Canadian Federation of Students to the application is attached.
Access Copyright shall indicate forthwith the precise amounts that, in its view, are payable by the targeted
institutions and ought to be included in section 14 of the model licence (or any other provision where such
figures may be relevant) if the Board were to issue an interim decision as requested.
Gilles McDougall
A/Secretary General | Secrétaire général par int.
Copyright Board of Canada | Commission du droit d'auteur du Canada

56 Sparks, Suite| Bureau 800
Ottawa ON K1A 0C9
Telephone | Téléphone 613.952.8624
Gilles.mcdougall@cb-cda.gc.ca
10-10-26 U…ocx (22.4 KB) Appendix A …ocx (19.5 KB) Appendix A …ocx (20.7 KB)
Appendix C
Appendix C
Appendix C
Appendix C
Appendix C
Appendix C
Appendix C
Appendix C
News : About AU : Athabasca University
Appendix D
Call toll free: 1-800-788-9041
MyAU | Library | Questions? Contact Us | A-Z Enter search term(s)
Index
News and Events

Home
Courses
University decides not to renew Access Upcoming Events
Programs
Students
Copyright licence There are currently no events.
Faculties & Centres December 09, 2010

Administrative Offices
Publications
Research In order to protect students from a more than ten-fold increase in copyright Open Magazine
About AU fees, Athabasca University, like the majority of universities in Canada, has
decided not to renew its licence with Access Copyright, a Canadian copyright
AU at a Glance
licencing agency. The current agreement will expire on December 31, 2010.
Accreditation
Access Copyright has applied to the Copyright Board of Canada for
Collaborations & Partnerships
permission to increase its annual fee to $45 per full time student from the
Distance Education current fee of $3.38. In addition, the agency is asking the Copyright Board
Open University to impose an interim tariff on Canadian universities in advance of its final
ruling on the new application.
Governance
History "We cannot afford such an exorbitant increase, nor do we want to pass it on
Initiatives to our students," said Dr. Rory McGreal, Associate Vice-president of
Research. "And the idea that the Copyright Board is considering an order to See all publications
News and Events
pay Access Copyright an advance in order to cover their exorbitant salaries
Events and to pay for their legal actions against us is outrageous."
Publications Contact
McGreal said the university also objects to several provisions in the
Media proposed new licence put forward by Access Copyright, including reporting AU Media Relations
Subscribe requirements that would impose huge costs upon the university. In addition,
John O'Brien
he said the agency is under no obligation to disclose its repertoire to licence
Contact Manager, Media Relations
holders, so the university cannot even be sure what it is buying under
licence. Phone: 403-298-2931
New to AU?
Fax: 403-298-2922
Become a Student "It's of absolutely no benefit to us, as our cost will remain the same even if
we use none of the content in their repertoire," he said. jobrien@athabascau.ca
Register for a Course
Login to MyAU With the expiration of the deal with Access Copyright, the university will
move quickly to make more extensive use of open educational resources
(OERs), material such as lectures, texts, lessons and podcasts produced by
Online Calendar
other universities and made freely available for use. Where the use of OERs
How does distance education isn't possible, the university will approach copyright holders directly for
work? permission to make use of their work.
Athabasca University is also committing to opening its learning content

online for free access to OERs, the first Canadian university to do so.
For more information, contact:
John O'Brien
Manager, Media Relations
Athabasca University
403-298-2931
403-990-1131 (cell)
jobrien@athabascau.ca
Contact AU | Library < back to news

Feedback | Privacy Policy Updated December 16, 2009
Copyright © 2010
Athabasca University
http://www2.athabascau.ca/aboutau/news/news_item.php?new&id=60[10/12/2010 5:25:55 PM]

Appendix E
BRIEF
To the Ministers of Industry and Heritage Regarding

The Copyright Modernization Act (Bill C-32)
Who Are We?
A coalition of English-language national writers’ organizations, including the

Canadian Authors Association and the Canadian Society of Children's Authors,
Illustrators and Performers, the League of Canadian Poets, the Literary Translators’
Association of Canada, the Playwrights Guild of Canada, the Professional Writers
Association of Canada and The Writers’ Union of Canada has come together to make
our views known about the Copyright Modernization Act currently before
Parliament. We do not speak for Quebec francophone writers but we share concerns
about Bill C-32.
Our Position on Copyright
Professional writers strongly support copyright reform. It is essential that Canada’s

copyright law reflects the new technological developments that are transforming the
way that writing and other forms of cultural expression are created and distributed.
However, Canadian writers have deep concerns about the impact of the long list of
new exemptions in Bill C-32, particularly the expansion of fair dealing to include
education, the exception for non-commercial “mash-ups”, digital delivery of
“interlibrary loans” and copying for “private purposes”.
It is our view that these changes, in the current, rapidly changing digital
environment in which new business models are evolving, encroach too much on the
exclusive rights of authors – exceeding the limitations permitted by the Berne
Convention. The Berne “3-step test” restricts permissible exceptions in national
legislation to “certain special cases that do not conflict with a normal exploitation of
the work and do not unreasonably prejudice the legitimate interests of the author”.
There is a similar provision in NAFTA, in the TRIPs (the agreement on Trade-
Related Aspects of Intellectual Property annexed to the WTO Agreement), and also
in Article 10 of the WIPO Copyright Treaty concluded in 1996, which Canada signed
but has so far failed to implement and ratify. Although Bill C-32 would implement
important requirements of the WIPO Copyright Treaty, it will put Canada in breach
Writers on Bill C-32 Page 1 of 11

Tuesday, November 9, 2010
Appendix E
of its international obligations if it is passed without deletion or amendment of these

four proposed changes to the Copyright Act.
Background
Until the 1960s the vast majority of books and poetry read by Canadians and plays
performed in this country were authored by American or British writers, and the
small numbers of Canadian writers who were writing at that time found it very
difficult to reach an audience. Then, in the ’60s, things began to change. A new
generation of writers emerged, and book publishing houses, magazines and theatre
companies were founded to bring the works of many more Canadian writers to the
public. By the 1990s thousands of books were being published every year. Dozens of
original Canadian plays were performed in every part of the country, and
documentary and feature films were finding an audience. Today Canadian writers
are recognized as being among the most creative voices and are being read around
the world – Canadian works are being studied in other countries and Canadian
writers contribute to the international discussion of issues of global concern. Even
Canadian prime ministers have bragged about our authors.
There are many reasons for this, including the talent of Canadian authors and the
strong support of writers, book and magazine publishers and theatre companies by
the federal and provincial governments, and an essential factor has been copyright
legislation that has provided protection for writers’ works. It has been this creative
mix of writers, publishers, producers, government support and copyright that has
provided the foundation for the thriving publishing industry in this country.
But though writing has flourished in this country, it is still a risky and marginal
business for those engaged in it. Most independent professional writers cannot live
on the earnings from their writings. As a result, writers and the organizations that
represent them are very concerned about protecting their income. Strong, clear
copyright laws are an essential element of an environment that encourages writing.
Collective Societies
Writers are paid by upfront fees or by royalties when they write for publication in
books, magazines and other periodicals. They also are paid for secondary uses of
their works when these works or excerpts from them appear in subsequent
publications. An important development over the past two decades has been the
establishment of copyright collective societies with a mandate to license or set tariffs
and collect payment for some new secondary uses of literary and artistic works and
to distribute those funds to copyright holders.

Appendix E
Collective administration is authorized by the Copyright Act for two fundamental

reasons:
 The copying and distribution of copyright works violates Canadian

law unless those who hold the rights give permission and are paid.
 Collective administration by rights holders’ collective societies is the

only practical way for rights holders to obtain payment.
SOCAN, the music performing rights collective, is by far the oldest and largest
collective society in Canada. SOCAN collects money from radio stations, bars,
restaurants and a huge number of other organizations when copyright-protected
music is played in public. For the past twenty years Access Copyright in English-
speaking Canada and Copibec in Quebec have been fulfilling a similar role for
writers, visual artists and publishers whose publications are copied, mostly by
photocopying. They license the copying of published works and collect revenue for
this secondary use, which they distribute to the rightsholders. Writers and
publishers cannot respond to every query from a teacher or university professor who
may wish to copy a poem or article to be distributed to students or stand at every
photocopying machine in the country to give permission and receive payment.
Unlike an individual rights holder, a collective society can monitor the use of
copyright works, encourage users to comply with copyright and, if necessary,
undertake enforcement proceedings to ensure that rights holders will be paid for the
reproduction of their work.
Collective societies exist in many countries around the world. This means that some
money flows to Canadian copyright holders when their works are reproduced in
other countries, because Canadian collective societies have agreements with similar
societies in other countries for the exchange of royalties.
To give a brief explanation of how collective administration works in the education

sector: teachers and professors often ask students to study a poem, short story, well
researched article from a periodical, or excerpt from a play or book. In elementary
and high schools the teacher will photocopy this material and distribute it to
students for study in the classroom or at home. In colleges and universities,
“coursepacks” of readings selected by the professor are frequently assembled and
sold to students as an alternative to having students borrow from the library or
purchase the original publications from which this material is copied. Students also
make their own copies of articles and other material recommended by their
professors.
Under current Canadian copyright law this is legal as long as the provincial ministry
of education, school board, college or university has a license from a collective
society that has been filed with the Copyright Board or it copies under a tariff

Appendix E
certified by the Copyright Board. After the collective society deducts its
administration costs, the money it collects from the license or tariff flows to the
publishers and writers, and educational institutions save money because it costs less
to photocopy excerpts than to purchase books and subscriptions to newspapers,
magazines and journals.
Today most educational institutions in the country are covered by tariffs or signed
licenses and the system works smoothly. Access Copyright collects more than $30
million per year. Copibec operates a similar system in Quebec and collects about $13
million per year. About 85% of the money collected by Access Copyright comes from
the educational sector and the rest from government and corporations.
Collective Administration in the Digital Economy
We have entered the digital age. The book and periodical industry is undergoing
enormous changes, but the most fundamental aspect of it remains unchanged.
Writers continue to write articles, poems, plays, novels and other works, regardless
of whether intended for publication in traditional forms or digital publication
through the Internet or other new media. But digital copying is rapidly replacing
photocopying, and digitized works are being disseminated on the Internet. When
teachers want students to read material, it can be distributed digitally to students
who will read it either on a computer screen or an electronic reader.
But what about the writers and publishers who own the copyright in these works that
are copied and made available digitally? Will they be bypassed and lose significant
income, just as the songwriters, music publishers and record companies are often
being bypassed because of peer-to-peer copying, or will they and other rights holders
be paid for the use of their work?
The answer lies with collective societies. If copyright legislation remains strong, a
collective society can set tariffs or negotiate licenses under the supervision of the
Copyright Board, much as they do today for photocopying, and payment for the use
of works copied and communicated by new media will continue to flow to the rights
holders just as it does now.
This is the promise of the new digital age. However, Bill C-32 on the one hand
extends photocopying tariffs and licenses specifically to cover digital copying in
educational institutions, but on the other hand leaves it to the courts to determine if
or how these new exceptions are compatible with the expansion of fair dealing to
cover education purposes. The bill needs to be amended in such a way as to
recognize and respect the economic model for copying that has been developed over
two decades and to allow it time to adapt. As it is, Bill C-32 fails to meet the objective

Appendix E
of technological neutrality it purports to uphold and threatens to cut short the

development of new ways to do business in the digital environment.
Issues and Recommendations
1. Expansion of “Fair Dealing” to education
Issue Bill C-32 as drafted would expand the current purposes of “fair
dealing” to include “education”. This appears to be an
enormously broad exemption of uncertain scope, added to an
existing “fair dealing” exemption in the current Copyright Act
that already allows educators and students, as well as others
outside educational institutions, to reproduce copyright material
for research and private study. There are also many specific
exemptions for educational institutions in the existing legislation
– cost-saving provisions that permit the copying of materials
that educational institutions might otherwise need or want to
purchase. If this new, unstructured educational “fair dealing”
exemption were to become law, educators would claim that most
of the massive widespread copying that takes place in
educational institutions is “fair dealing”. Business corporations
would also benefit at the expense of rights holders, as “fair
dealing” for the purpose of education is not restricted to non-
commercial users, and there will be no lack of newly, self-styled
“educators”. If courts were to interpret this proposed provision
as broadly as its wording invites, Canada would be in breach of
the Berne Convention and similar international obligations.
Potential Impact  Because neither users nor rights holders will know the
bounds of what can be copied as “fair dealing” for the
purpose of “education”, the new fair dealing provision for
education will encourage litigation to determine what can be
copied without a license.
 Because educational uses represent approximately 85% of

the revenues collected by Access Copyright, Canadian
English-language writers will no longer receive significant
payments from Access Copyright. Currently almost 9,000
writers are signed up with Access Copyright. In 2009,
affiliated writers received about $600 each, with a few
receiving considerably more, for copying during 2008.
Quebec writers affiliated with Copibec will also receive much
less. This new free use would represent a significant loss to

Appendix E
independent professional writers, whose average annual

income from their writing is under $20,000.
 Because of reduced sales of their books as a result of

widespread uncompensated copying, the educational
publishing sector in Canada will contract dramatically.
Educational publishers will receive less revenue and will cut
back on the number of titles they produce. Lower revenues
will make it impossible for some publishers to stay afloat and
others will be forced to reduce their publishing programs.
This will mean a significant loss of income for the writers
whose work is included in books published for educational
markets.
 Publishers of trade books, such as novels, poetry and non-

fiction will also see their market shrink because of
widespread copying. These publishers will lose income, make
smaller royalty payments to writers and cut back on both
staff and their lists of new books. Trade book publishing
houses will shrink in size and some may not survive.
 Layoffs across the publishing sector in Canada will reduce

Canadian-created content in schools, colleges and
universities.
 Writers will see their markets for existing works shrink, and
it will be more difficult to get new works published because
of publisher cutbacks. This will detract from their
professional contribution to Canadian society.
 Universities, colleges, ministries of education, school boards

and other educational institutions will save a relatively tiny
percentage of their annual expenditures but will be faced
with a significant reduction in the number and quality of
Canadian publications that reflect Canada’s citizens and
culture.
Recommendation Delete “education” from the list of purposes of “fair dealing”. Any
exceptions should be clearly delineated to reduce uncertainty for
both users and rights holders and the likelihood of prolonged
and costly litigation.

Appendix E
2. Non-commercial user-generated content or “Mash-ups”
Issue Bill C-32 as drafted allows anyone to incorporate entire existing

works into a “new” work without permission or payment as long
as the use is non-commercial, but there is nothing to ensure that
any such new use will be fair. Professional writers may not object
in principle to others incorporating reasonable excerpts from
their works into new creative works as long as they are credited
and the use is truly non-commercial and if the new work does
not interfere with the market for the original work. However,
distribution of these so-called “mash-ups” by commercial
disseminators such as Facebook or YouTube without payment
encroaches peremptorily and unfairly on writers’ rights. Whether
there is “a substantial adverse effect” on the original work, which
would result in an infringement, will not be known until too late
and may depend on how many others create “mash-ups” using
the same work. This feature of C-32 represents an erosion of
rights that does not exist anywhere else in the world and that
would certainly put Canada in breach of the Berne Convention
and similar international obligations.
Potential Impact  Without clear rules to ensure fairness to the creators of the
works incorporated in “mash-ups”, the market for existing
works and for sequels, films, games and other derivative
works based on those existing works may be destroyed. For
example, “fan fiction”, if widely disseminated on the Internet,
could deter a publisher from subsequently publishing an
author’s own sequel to his or her own novel. Or, a teacher
could develop and post course materials on a website, such as
a collection of articles or an anthology of poems, which other
teachers could access freely and use in preference to a
coursepack licensed by Access Copyright or an anthology
made available commercially by a publisher.
 Writers will not be paid for these uses which piggyback on

their work.
Recommendation Delete the “mash-up” provision and engage in consultation with

authors on how such a provision might be structured to allow
reasonable use of another author’s work in a new work while
ensuring “fairness” to that author whose work is used.

Appendix E
3. “Interlibrary Loans”
Issue Bill C-32 expands the existing exception for “interlibrary loan” to
allow digital delivery directly to the computer of a reader. One
copy of a book, magazine, journal or newspaper purchased and
held by a single library can be the source of material delivered
directly to the computer of every library patron in Canada. It is
already possible for a single library to provide material digitally
to another non-profit library, archive or museum, but the copy
must not be given to the person who has requested it in digital
form. Free electronic delivery by these institutions will pre-empt
rights holders’ sale of electronic books, magazines and other
electronic materials that are in the holdings of a library and can
be obtained without charge anywhere in Canada and also would
preclude Access Copyright from ever authorizing electronic
delivery to library patrons as part of its license or tariff for
libraries, archives and museums. We are not aware of any other
country that has a similar provision for legalized “sharing” of
materials held by libraries, archives and museums that are open
to the public and we believe it would breach Berne and other
similar treaties.
Potential Impact  A source of revenue for writers and publishers will evaporate
before other, long-overdue revisions to the Copyright Act are
enacted to make the digital distribution by libraries more
secure.
 Royalty income from photocopying in libraries, now licensed

by Access Copyright, is very modest but will decline as digital
delivery becomes the norm, unless Access Copyright can
license digital delivery.
Recommendation Delete the amendment to the “interlibrary loan” exception that

permits direct digital delivery to library patrons and allow
collective societies an opportunity to offer a license to libraries,
museums and archives that will include digital uses. The
principle of copyright payment for reproduction of published
works – formerly almost exclusively by photocopying and soon
almost exclusively by electronic or digital means – must remain
intact.

Appendix E
4. Reproduction for Private Purposes
Issue Professional writers do not object in principle to reproduction of

their works, if legally obtained, for the truly private use of
individuals. There is not and has never been any problem with
the lending of a work as embodied in a physical object. But when
works are in digital form and downloaded or reproduced to make
additional copies without payment for unspecified “private
purposes”, writers are deprived of income. We are not aware of
any other country that has such a broad provision for
uncompensated use by individuals and believe that it will violate
the Berne Convention if implemented without substantial
amendment.
Potential Impact The impact of this broad exception for reproduction for private
purposes is unpredictable, but it will certainly deprive writers of
income and result in greater use of technological protection by
rights holders. More technological protection of works will
further exacerbate the frustration of users and ultimately
encourage “hacking” and a general disrespect for intellectual
property.
Recommendation Engage in consultation with rights holders and users specifically

on the exception for reproduction for private purposes. It is
premature to enact a broad exception that includes format
shifting prior to ensuring adequate compensation for rights
holders. Consider a copyright levy on Internet Service Provider
(ISP) accounts.
Conclusion
The choices for parliamentarians are clear.
• If you support the exemption in Bill C-32 that extends “fair dealing”
to education you will eliminate some financial obligations of school
boards, colleges and universities, but at the same time you will
damage the rights and reduce the incomes of Canadian novelists,
non-fiction writers and freelance journalists, children’s authors,
playwrights, poets and translators.
• If you support the exemption that allows “mash-ups” without some

controls to ensure fairness to the creators of the works they
incorporate, you may be destroying the market for existing works

Appendix E
and for sequels, films, games and other derivative works that
authors of those existing works have written or authorized.
• If you support the exemption that allows digital delivery of

“interlibrary loans”, you are depriving writers of a revenue stream
from expanded collective licensing of libraries.
• If you support the exemption for reproduction for private purposes,

you are supporting systems that will pay nothing to the creators of
these materials.
For each of these issues, the current wording of Bill C-32 creates a new exception
that will hurt those who use our works, not just Canadian writers and our
international writing colleagues, because these exemptions from copyright will
adversely affect Canada’s writing and publishing industry and Canadian culture. We
believe that Canada will be seen to be in breach of its international obligations by its
trading partners because these exemptions violate the Berne Convention, NAFTA
and the TRIPs agreement, which restrict permissible exceptions in national
legislation.
We have been waiting too long for revisions to the Copyright Act. Bill C-32 presents
an opportunity to modernize Canada’s copyright policies to keep pace with advances
in technology, and we respect the Government’s efforts to address the difficult
copyright issues of the global digital economy, but its impact on the writing and
publishing industry, if it is passed without amendments, will be severe. In the
process of reviewing and amending Bill C-32, we respectfully urge you to address our
concerns.
Respectfully Submitted by the Following:
Canadian Authors Association

Canadian Society of Children’s Authors, Illustrators and Performers
League of Canadian Poets
Literary Translators’ Association of Canada
Playwrights Guild of Canada
Professional Writers Association of Canada
The Writers’ Union of Canada
The Canadian Authors Association is national arts service organization

providing resources, professional development, information, support services,
networking opportunities and community to writers at all stages of their careers
since 1921.

Appendix E
The Canadian Society of Children’s Authors, Illustrators and Performers

is a group of professionals in the field of children's culture with members from all
parts of Canada. As a National Arts Service Organization (NASO), CANSCAIP
supports and promotes children's literature through newsletters, workshops,
meetings and other information programs for authors, illustrators, performers,
parents, teachers, librarians, publishers and others.
Founded in 1966, the League of Canadian Poets is the national association of

professional poets in Canada. Its purpose is to nurture a professional poetic
community to facilitate the teaching of Canadian poetry at all levels and to develop
the audience for poetry by encouraging recognition of Canadian poetry nationally
and internationally.
The Literary Translators' Association of Canada / Association des

traducteurs et traductrices littéraires du Canada represents professional
literary translators throughout Canada.
Playwrights Guild of Canada is a national association mandated to advance the

creative rights and interests of professional Canadian playwrights, promote
Canadian plays nationally and internationally, and foster an active, evolving
community of writers for the stage.
The Professional Writers Association of Canada represents freelance non-

fiction writers who are published in newspapers and magazines across the country.
We support professional development, standards and ethics and the economic and
social interests of Canadian writers who contribute to diversity of opinion, freedom
of expression and literacy for all Canadians.
The Writers' Union of Canada is a national organization representing

professional authors of books. Founded in 1973, the Union is dedicated to fostering
writing in Canada, and promoting the rights, freedoms, and economic well being of
all writers.

Appendix F
äccesso"
Thç Ç¡r*adian CopyrTght Licen*ing ¡^gânçy
November 15,2010
lmportant lnformation - A Recent Ghanqe to our Licensins Policies
Access Copyright's board of directors has made an important policy decision relating to
licensing that you need to know about.
Scanning and electronic distribution is now common practice in both educational and business
sectors as licensees are increasingly choosing to scan published works. After consultation with
creators and publishers serving both the K-12 and post-secondary sectors, Access Copyright's
board of direclors approved the filing of tariffs that, once certified by the Copyright Board of
Canada, will better reflect current practices by licensing the scanning and posting of works that
happens every day in classrooms across the country. (For a copy of these tariffs, please visit
http://www.cb-cda.qc.ca/tariffs-tarifslproposed-proposes/201012009-06-1 1-1 .pdf and
http://www.cb-cda.qc.ca/tariffs-tarifslproposed-proposesi2009/20090509-pb.pdf.)
Access Copyright's board of directors also approved a change in the way we license works for
digital uses. We will now license the scanning and posting of works from a paper source the
same way we currently license photocopying; on an exclusions basis. This means that, unless
vou tell us otherwise. we will license users to scan, post and distribute portions of vour works.
All licensed copying will be subject to the same copying limits and restrictions already in
place under photocopying licences.
This change to our licensing practice was made in response to the evolving ways in which
licensees are using your works and to ensure that you receive fair compensation when your
works are used. Please note that this change does not apply to born digital works; it only
applies to the scanning, posting and distribution of works from a paper source.
lf you have excluded any of your works from our photocopying licences, those works will remain
on our exclusions list for these digital uses. Also, you may exclude your works from these uses
at any time. lf you wish to exclude any of your works from these uses, please contact
aff rli4så@årsç"ssçepyrish!.ça
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix G
Appendix H
DRAFT STATEMENT OF INTERIM ROYALTIES TO BE COLLECTED BY THE CANADIAN COPYRIGHT

LICENSING AGENCY (ACCESS COPYRIGHT)
For the reproduction and authorization to reproduce in Canada, in 2011, 2012 and 2013, the works in Access Copyright’s
repertoire by post-secondary educational institutions and persons acting under their authority.
1. Short title
This interim tariff may be cited as the Access Copyright Interim Post-Secondary Educational Institution Tariff, 2011-
2013.
2. Definitions
In this interim tariff,
“Academic Year” means the twelve-month period from September 1 to August 31. (“Année Scolaire”)
“Authorized Person” means:
(a) a Student; or
(b) a Staff Member. (“Personne Autorisée”)
“Authorized Purposes” means all purposes within or in support of the mandate of the Educational Institution. (“Fins
Autorisées”)
“Copy” means any reproduction, in any material form whatever, including a Digital Copy, that is made by or as a
consequence of any of the following activities:
(a) reproducing by a reprographic process including reproduction by photocopying and xerography;
(b) scanning a paper copy to make a Digital Copy;
(c) printing a Digital Copy;
(d) transmission by electronic mail;
(e) transmission by facsimile;
(f) storage of a Digital Copy on a local storage device or medium;
(g) posting or uploading a Digital Copy to a Secure Network or storing a Digital Copy on a Secure Network;
(h) transmitting a Digital Copy from a Secure Network and storing it on a local storage device or medium;
(i) projecting an image using a computer or other device;
(j) displaying a Digital Copy on a computer or other device; and
(k) posting a link or hyperlink to a Digital Copy.
(“Copie”)
“Copying” means making a Copy. (“Copier”)
“Course Collection” means, for use by an Authorized Person as part of a Course of Study, and whether for required or
recommended reading for the Course of Study or otherwise:
(a) assembled paper Copies of Published Works; or
(b) Digital Copies of Published Works that are:
(i) emailed, linked or hyperlinked to; or
(ii) posted, uploaded to, or stored, on a Secure Network. (“Recueil de Cours”)
“Course of Study” means a course or unit of academic, continuing, professional, or vocational study administered or
hosted by the Educational Institution. (“Cours”)
“Digital Copy” means a reproduction in any digital form including optical or electronic format. (“Copie Numérique”)
“Educational Institution” means an institution located in Canada (except in the Province of Quebec) that provides post-
secondary, continuing, professional, or vocational education or training. (“Établissement d’Enseignement”)
“Full-time-equivalent Student” means a full-time Student or the equivalent of one full-time Student of the Educational
Institution. (“Élève Équivalent à Temps Plein”)
“FTE Determination Date” means the date as of which the number of Full-time-equivalent Students is calculated for any
given Academic Year. (“Date de Determination de l’ETP”)
“Musical Work” means any work of music or musical composition, with or without words, and includes any compilation
thereof. (“Œuvre Musicale ”)
“Published Work” means a literary, dramatic or artistic work protected by copyright in Canada, of which copies have been
made available to the public with the consent or acquiescence of the copyright owner, but excludes a Musical Work.
(“Œuvre Publiée”)
1
Appendix H
“Repertoire Work” means a Published Work for which Access Copyright collectively administers the rights as authorized
by the copyright owner or by another collective management organization, by assignment, licence, agency or otherwise.
(“Œuvre du Répertoire”)
“Secure Network” means a network that is operated by the Educational Institution, or for the Educational Institution with
Access Copyright’s consent, and which is only accessible by an Authorized Person who is approved by the Educational
Institution by means of a process of authentication which, at the time of login, identifies the user as an Authorized Person,
whether by user name and password or by some other equally secure method. (“Réseau Sécurisé”)
“Staff Member” means, in respect of an Educational Institution:
(a) an instructor, lecturer or sessional lecturer;
(b) an assistant, associate, full, visiting, replacement or seconded professor;
(c) a teaching or research assistant, tutor, or fellow;
(d) a demonstrator, proctor, invigilator, or marker;
(e) a librarian or library assistant;
(f) a lab monitor, clinical instructor or clinician;
(g) a counsellor;
(h) an academic administrator;
(i) administrative support staff for any of the above positions; or
(j) any other person in an essentially comparable position to those listed above. (“Membre du Personnel”)
“Student” means a person engaged in a Course of Study. (“Étudiant ”)
“Subcontractor” has the meaning set out in section 10. (“Sous-Traitant”)
“Year” means a calendar year. (“Année”)
Application
3. Subject to compliance with each of the conditions in Sections 4 and 5, this interim tariff entitles an Authorized Person
for Authorized Purposes only, to:
(A) make a Copy of up to ten per cent (10%) of a Repertoire Work;
(B) make a Copy of up to twenty per cent (20%) of a Repertoire Work only as part of a Course Collection; or
(C) make a Copy of a Repertoire Work that is:
(i) an entire newspaper or periodical article or page;
(ii) a single short story, play, poem, essay or article;
(iii) an entire entry from an encyclopaedia, annotated bibliography, dictionary or similar reference work;
(iv) an entire reproduction of an artistic work (including a drawing, painting, print, photograph and reproduction of
a work of sculpture, an architectural work of art and a work of artistic craftsmanship); and
(v) one chapter, provided it is no more than twenty per cent (20%) of a book.
General Conditions Applicable to all Repertoire Works
4. (1) No Copies of Repertoire Works shall be made available, distributed, or transmitted to a person who is not an
Authorized Person.
(2) There shall be no repeated, systematic or cumulative Copying of the same Repertoire Work beyond the limits set out
in section 3 for one Course of Study in one Academic Year.
(3) Copies of Repertoire Works shall not be stored or indexed with the intention or result of creating a library of
published works.
(4) Copies shall only be made from Repertoire Works that are lawfully obtained by the Authorized Person making the
Copies, but without violating any licensing or other contractual terms with any person which prohibit such Copying under
a collective licence.
(5) Copies of Repertoire Works shall be faithful and accurate reproductions of the Repertoire Works.
(6) Copies of Repertoire Works shall not be made or used in a manner that would infringe the moral rights of any
author.
2

Appendix H
Additional Conditions Regarding Digital Copies of Repertoire Works

5. (1) Digital Copies of Repertoire Works shall not be transmitted to, made available from, posted or uploaded to, or
stored on, any computer network other than a Secure Network.
(2) Digital Copies of Repertoire Works stored on Secure Networks shall be segregated by individual Course of Study
and made available and accessible only to Authorized Persons.
(3) Digital Copies of Repertoire Works shall not be transmitted to, made available from, posted or uploaded to, or
stored, on any device or medium, computer or computer network in such a manner that makes them publicly available or
accessible including available or accessible over the Internet or other public network.
(4) Where the Educational Institution is no longer covered by this interim tariff, the Educational Institution and all
Authorized Persons shall immediately cease to use all Digital Copies of Repertoire Works, delete from their hard drives,
servers and networks, and make reasonable efforts to delete from any other device or medium capable of storing Digital
Copies, those Digital Copies and upon written request from Access Copyright shall certify that it has done so.
(5) Nothing in this interim tariff authorizes any person to descramble a scrambled work or decrypt an encrypted work or
to otherwise avoid, bypass, remove, deactivate, impair, or otherwise circumvent a technological measure that restricts or
controls access to, copying of, retention of, distribution, or transmission of a Repertoire Work.
Reporting
6. (1) For each Course Collection made or made available under this interim tariff, the Educational Institution shall
establish and maintain records of each Copy of a Published Work made, excluding a Digital Copy, which records shall
specify for each such Copy made, the title, publisher, author or authors (where known), the ISBN/ISSN number (where
known), material onto which such Copies were made and the total number and page numbers of the pages reproduced,
and, where reasonably available, the total number of pages in the Published Work from which the Copies are directly
made. In addition, the Educational Institution shall establish and maintain records of the total number of Copies made by
the Licensee. The Educational Institution shall submit, together with each payment made under section 7 of this interim
tariff, copies of such records to Access Copyright covering the period for which such payment is being made.
(2) Any records that the Educational Institution shall be obliged to maintain and provide under section 6(1) shall be
maintained in electronic form. In the event that the Educational Institution is unable to maintain such records in electronic
form or Access Copyright is unable to access or process such records in the electronic form adopted by the Educational
Institution, the parties shall negotiate a mutually acceptable alternative form of record keeping.
Royalties
7. The Educational Institution shall pay to Access Copyright the following interim royalties:
(1) For an Educational Institution that has signed the Proprietary College Licence:
(a) an annual royalty calculated by multiplying the number of its Full-time-equivalent Students by the
royalty rate of $3.58 CAD;
(b) $0.11 CAD for each Copy of a page or printed sheet of a Published Work for each Course Collection,
excluding a Digital Copy and a page or printed sheet of newspaper;
(c) a maximum of $10.00 CAD for each entire out of print Copy of a Published Work ; and
(d) $0.055 CAD for each Copy of a page or printed sheet of a Published Work that is a newspaper made for
a Course Collection, excluding a Digital Copy;
(2) For an Educational Institution that has not signed the Proprietary College Licence:
(a) an annual royalty calculated by multiplying the number of its Full-time-equivalent Students by the
royalty rate of $3.38 CAD;
(b) $0.10 CAD for each Copy of a page or printed sheet of a Published Work for each Course Collection,
excluding a Digital Copy and a page or printed sheet of newspaper;
(c) a maximum of $10.00 CAD for each entire out of print Copy of a Published Work ; and
(d) $0.05 CAD for each Copy of a page or printed sheet of a Published Work that is a newspaper made for
a Course Collection, excluding a Digital Copy;
3

Appendix H
(3) The interim royalties payable and paid under this interim tariff are without prejudice to the amount of royalties
Access Copyright is seeking or an Educational Institution may be liable to pay pursuant to the final tariff
ultimately certified by the Board and are without prejudice to any objections made by an Educational Institution,
or other objector to, the Post-Secondary Educational Institutions Tariff (2011-2013).
Payment
8. (1) The Educational Institution shall deliver to Access Copyright a written report specifying the number of Full-time-
equivalent Students as of the FTE Determination Date in the prior Academic Year by no later than November 30 of each
Year during the term of this interim tariff.
(2) Access Copyright shall issue to the Educational Institution an invoice setting out the amount payable by the
Educational Institution.
(3) The Educational Institution shall remit the total amount payable in accordance with the Educational Institution’s
previous licence agreement(s) with Access Copyright as follows:
(a) for an Educational Institution that signed the 2003 AUCC Agreement – Annual Licence, or the 2003 College
Agreement – Annual Licence the amounts payable: (i) under section 7(2)(a) shall be paid within 60 days of September 30
of each Year; and (ii) under section 7(2)(b) through (d) shall be paid within 60 days of August 31 of each Year;
(b) for an Educational Institution that signed the Proprietary College Licence, the amounts payable: (i) under section
7(1)(a) shall be paid within 30 days of January 1 of each Year; and (ii) under section 7(1)(b) through (d) shall be paid
within 60 days of June 30 and December 31 of each Year;
(c) for an Educational Institution that signed the 2003 AUCC Agreement – Trimester Licence, or the 2003 College
Agreement – Trimester Licence or the British Columbia 2003 College Agreement – Trimester Licence the amounts payable
under section 7(2) shall be paid in three equal instalments within 60 days of September 30, January 31 and May 31 of each
Year; and
(d) for an Educational Institution that signed the AUCC Agreement – Quarterly Licence, or the 2003 College Agreement
– Quarterly Licence the amount payable under section 7(2) shall be paid in four equal instalments within 60 days of March
31, June 30, September 30 and December 31 of each Year; or
(e) as otherwise previously agreed to between Access Copyright and the Educational Institution.
(f) any amount that would have been payable before [insert date of certification of this interim tariff] under an
agreement shall be paid by no later than February 28, 2011.
(4) Together with each payment made pursuant to sections 7(1)(b) through (d) and 7(2)(b) through (d) of this interim
tariff, the Educational Institution shall submit to Access Copyright a detailed statement in a form agreed upon between
Access Copyright and the Educational Institution showing the data upon which such payment is based and a copy of the
records made pursuant to sections 6(1) and 6(2).
(5) The annual royalty payable under this interim tariff is exclusive of any federal or provincial taxes.
Interest
9. Late payments shall be subject to interest charges from the due date, calculated at a rate equal to the prime rate of the
Bank of Nova Scotia (as it exists on January 1 of the year in which the payment was due) plus one per cent per annum,
compounded monthly.
Attribution
10. Copies made pursuant to this interim tariff shall include, on at least one page:
(a) a credit to the author, artist or illustrator, and to the source; and
(b) a notice stating “Copied under the Access Copyright Interim Post-Secondary Educational Institution Tariff, 2011-
2013. Further reproduction, distribution or transmission is prohibited, except as otherwise permitted by law.”
Notification of the Terms and Conditions of Copying
11. The Educational Institution shall ensure there is affixed, within the immediate vicinity of each machine or device
used for making, viewing or transmitting copies in a place and manner that is readily visible and legible to persons using
such machine or device, a notice of the terms of this interim tariff and of the tools available to the Educational Institution to
confirm a Published Work’s status as a Repertoire Work.
Audit and Sampling

12. (1) To verify the accuracy of payments made pursuant to section 7, and not more than once within each calendar year,
Access Copyright shall have the right, at any reasonable time during business hours and upon 21 days written notice to the
4

Appendix H
Educational Institution, by an independent chartered accountant (or accountant of similar standing) approved in writing by
the Educational Institution, which approval shall not be unreasonably withheld, to inspect and audit the obligations of the
Educational Institution under this interim tariff and accounts and records of the Educational Institution relating to the
number of Copies, excluding Digital Copies, made pursuant to this interim tariff and the calculation of the payments due
under this interim tariff. The costs of such inspection and audit shall be borne by Access Copyright.
(2) Access Copyright shall keep all information obtained as a result of any inspection or audit referred to in clause
12 of this interim tariff confidential to itself and to its professional advisors and shall not use such information for any
commercial purposes other than to verify the accuracy of the payments and compliance with the terms of copying.
(3) In the event that any inspection and audit referred to in section 12 of this interim tariff shall reveal an error
between the amount paid by the Educational Institution pursuant to this interim tariff and the amount actually due in
respect of the period for which such inspection and audit shall have been made, any such error shall, if an underpayment by
the Educational Institution, be made good within 30 days of receipt of notice of such error from Access Copyright. If such
an inspection and audit reveals an error of more than 10% of the amount owed for that period, then the Educational
Institution shall reimburse Access Copyright for its costs of such inspection and audit. The Educational Institution shall be
held liable for audit costs relating to adequacy of payment only and not its general obligations. In the event that any
inspection and audit referred to in section 12 of this interim tariff shall reveal an error between the amount paid by the
Educational Institution pursuant to this interim tariff and the amount actually due in respect of the period for which such
inspection and audit shall have been made, any such error shall, if an overpayment by the Educational Institution, be
reimbursed within 30 days of notice of such overpayment by the Institution.
(4) Access Copyright has the right to conduct a survey designed to gather bibliographic information and volume data
on Copies made pursuant to clause 3 of this interim tariff and conducted in accordance with the sampling protocol to be
agreed upon between Access Copyright and the Educational Institution (a “Sampling Survey”) upon reasonable notice and
no more than once each calendar year during the term of this Agreement. The costs, reasonably incurred, of carrying out
such a Sampling Survey, shall be borne by Access Copyright. In particular, at the request of the Institution, Access
Copyright shall provide and/or train staff required to undertake the Sampling Survey.
(5) Access Copyright acknowledges that the amount of payment made by the Educational Institution pursuant to
clause 7 of this interim tariff is based upon agreement between the parties and that such payment has no relationship to
either the volume of material copied pursuant to such clause or the nature of the material copied. Access Copyright shall
refrain from using any information obtained as a result of the conduct of the Sampling Survey for any purpose other than to
assist it in making distribution of the Institution's payments to copyright owners including to its affiliates. In particular,
Access Copyright shall not use any of such information in an attempt to justify the increase in future of the amount
payable for such a licence and shall not disclose any of such information to the Copyright Board, a court, an arbitrator or a
mediator for any purpose whatsoever.
Compliance
13. The Educational Institution shall take steps to ensure that the conditions in sections 4 and 5 are complied with and
that no Copying by Authorized Persons or Subcontractors takes place in contravention of the conditions set out in sections
4 or 5.
Addresses for Notices and Payment
14. (1) Anything that the Educational Institution sends to Access Copyright shall be sent to:
Executive Director, Access Copyright
The Canadian Copyright Licensing Agency
One Yonge Street, Suite 800, Toronto, Ontario, M5E 1E5
Telephone: (416) 868-1620
Fax: (416) 868-1621
Email: tariffs@accesscopyright.ca
(2) Anything that Access Copyright sends to an Educational Institution shall be sent to the last address of which Access
Copyright has been notified in writing.
Delivery of Notices and Payment
15. (1) A notice may be delivered by hand, by postage paid mail, by fax or email. A payment may be delivered by hand,
by postage paid mail or by electronic bank transfer.
(2) Anything mailed in Canada shall be presumed to have been received three (3) business days after the day it was
mailed.
(3) A notice or payment sent by fax, email or by electronic bank transfer shall be presumed to have been received on the
first business day following the day it is transmitted.
5


Ariel Katz Submission Reapplication For Interim Tariff (Full)

Diunggah oleh

Informasi Dokumen

Deskripsi Asli:

Judul Asli

Hak Cipta

Format Tersedia

Bagikan dokumen Ini

Bagikan atau Tanam Dokumen

Opsi Berbagi

Apakah menurut Anda dokumen ini bermanfaat?

Apakah konten ini tidak pantas?

Hak Cipta:

Format Tersedia

Ariel Katz Submission Reapplication For Interim Tariff (Full)

Diunggah oleh

Hak Cipta:

Format Tersedia

ARIEL KATZ

December 10, 2010 - BY EMAIL -

Mr. Gilles McDougall

Dear Mr. McDougall,

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

I elaborate on these issues in the following sections.

I. The Proposed Draft Interim Tariff is a New Licensing Scheme

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

B. The Act provides continuation of tariffs, not of contracts

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

a. The Cases Concerning Section 70.2 Deal with a Separate Arbitration

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

b. The Cases Concerning Sections 67 and 71 Deal with Non-Voluntary

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

A. The Status Quo is a Scheme of Voluntary Contractual Arrangements

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

V. No Deleterious Effect—The Sky is not Falling

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

A. Access Copyright is Not Behaving Like an Organization on the Verge of

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

B. The Canadian Publishing Industry Has the Resources to Support Access

C. Loss of revenue by a monopolist is not a recognizable harm in a market system

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

VI. Post-Secondary Education Will Continue to Function Without an

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

VII. There is no Basis Upon Which to set a Tariff

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

B. The Repertoire Question is Real, Fundamental and Acute

C. Absent any Benchmarks or Reliable Evidence on Which to Base an Interim

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

VIII. The Board Should not Endorse a Scheme of Infringement

Faculty of Law, 78 Queens Park, Toronto, ON, Canada M5S 2C5

This INTERIM AGREEMENT is between ACCESS COPYRIGHT, THE CANADIAN COPYRIGHT

ACCESS COPYRIGHT, THE CANADIAN COPYRI LICENSING

From: "Mike Laskey" <michael.laskey@utoronto.ca>

Dear Mr. McDougall,

From: Gilles.McDougall@cb-cda.gc.ca [mailto:Gilles.McDougall@cb-cda.gc.ca]

NOTICE OF THE BOARD

Copyright Board of Canada | Commission du droit d'auteur du Canada

News and Events

Faculties & Centres December 09, 2010

Athabasca University is also committing to opening its learning content

For more information, contact:

Contact AU | Library < back to news

http://www2.athabascau.ca/aboutau/news/news_item.php?new&id=60[10/12/2010 5:25:55 PM]

To the Ministers of Industry and Heritage Regarding

Who Are We?

A coalition of English-language national writers’ organizations, including the

Our Position on Copyright

Professional writers strongly support copyright reform. It is essential that Canada’s

Writers on Bill C-32 Page 1 of 11

of its international obligations if it is passed without deletion or amendment of these

Writers on Bill C-32 Page 2 of 11

Collective administration is authorized by the Copyright Act for two fundamental

 The copying and distribution of copyright works violates Canadian

 Collective administration by rights holders’ collective societies is the

To give a brief explanation of how collective administration works in the education