Legal Services/Civil Law Branch

500 Phipps McKinnon Building

10020 – 101A Avenue
Edmonton, Alberta T5J 3G2
Telephone: 780-422-9107
Jason.fung@gov.ab.ca

December 17, 2010

SENT BY EMAIL

Mr. Gilles McDougall

Acting Secretary General
Copyright Board of Canada
56 Sparks Street
Suite 800
Ottawa, Ontario K1A oC9

Dear Mr. McDougall:

Re: Objection to an Interim Tariff Decision on the Access Copyright Post-Secondary

Educational Institutions Tariff (2011-2013)(the “Proposed Tariff”)

I am writing to you on behalf of the Government of Alberta (“Alberta”), pursuant to the Notice
of the Board dated November 26, 2010 and the Ruling of the Board dated December 8,
2010 (“Ruling”).

As per the Ruling of the Board dated December 8, 2010, Alberta is now filing its submissions
on the following questions:

A. If the Board decides to issue an interim decision, which form should that decision take?
B. If the Board decides to issue an interim decision, what should the substantive content of
the decision be? Access proposes maintaining what it refers to as the status quo, with
additional, potential uses being allowed at no additional cost. Does the proposal achieve
what it purports to achieve? Is that what the interim decision should indeed achieve? If
not, what else?
C. Once the content or substance of the decision has been determined, does the proposed
text reflect that substance or content and if not, how should it be modified?

It remains the position of Alberta that the Board should not should not grant the application
of Access Copyright (“AC”) for an interim decision. However, the following is offered in re-
spect of the Ruling:

A. If the Board decides to issue an interim decision, which form should that decision
take?

The interim decision should be to decline the granting of the interim tariff. There are clear
reasons why the decision should be to decline the application (which have been discussed
in the previous submission of Alberta).

In the lesser alternative, the Board should, by decision, endorse the provision of an volun-
tary model license reflecting the substantive arrangements of the “status quo”. The rates of
this model license should either nominal or set at rates declining over time (in order to ac-
count for the changes of the marketplace and increasing role of fair dealing discussed in Al-
bertaʼs previous submission). The additional digital uses should not be included. Those
post-secondary institutions that have entered into license agreements which already cover
works within ACʼs repertoire would be thus able to opt-out of the the model license.

In the further alternative, the Board should require AC to reapply for the interim tariff deci-
sion. AC should be required to (a) provide the participants with a reasonable amount of time
to review the proposed interim tariff, (b) provide evidence in support of the application, (c)
provide the participants with the opportunity to provide evidence in response to the applica-
tion and (d) provide the participants with the opportunity test the veracity of the evidence
provided. Doing so would alleviate some of the procedural concerns already raised.

In the last case scenario, if the Board, despite all of the previously stated objections and
procedural issues, decides to grant AC an interim tariff, that tariff should be very limited in
scope and length.

B. If the Board decides to issue an interim decision, what should the substantive con-
tent of the decision be? Access proposes maintaining what it refers to as the
status quo, with additional, potential uses being allowed at no additional cost.
Does the proposal achieve what it purports to achieve? Is that what the interim
decision should indeed achieve? If not, what else?

If the Board issues an interim decision, the substantive content should be clearly that the
application for an interim tariff is declined and the matter should proceed onwards as expedi-
tiously as possible.

In the lesser alternative, the Board could endorse and encourage the post secondary institu-
tions to sign a model license agreement with AC that is truly a maintenance of the status
quo. This model license would be consistent with the terms of the previous license agree-
ments that had been entered into previously between the post secondary institutions and
AC. That is to say, at the very least, the tariff rates would same or less than those previ-
ously agreed to, an indemnity would be included, no new uses would be included. Ideally,
tariffs would be either nominal or set to decrease over time, as the Board should recognize
the increasing role of digital collectives, and fair dealing in the way post-secondary institu-
tions use educational materials.

In the second further alternative, the Board should require AC to reapply for the interim tariff
decision. AC should be provided with one month to provide the Board and the other partici-
pants with the following information:

(a) Further information as to the extent of its repertoire in order to assist post secondary in-
stitutions with ascertaining whether those same works are already covered under other
license agreements.

(b) Evidence should be raised justifying why the tariff rates it has estimated are proper, and
taking into consideration the fact that much copying undertaken at post secondary insti-
tutions may already be exempted from copyright under fair dealing.

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The participants should be entitled to test the veracity of evidence raised and be availed the
opportunity to raise contrary evidence.

If the Board, despite all of the previously stated objections and procedural issues, decides to
grant AC an interim tariff, that tariff should be very limited in scope and length. It should last
no more than one year. AC should be required to reapply for an interim tariff after six
months. The interim tariff should be (a) nominal, or at rates decreasing over time from those
previously agreed to by the licensees, (b) include the indemnity found in the previous license
agreements, and (c) exclude the additional uses proposed by AC. The interim tariff should
expressly exclude post-secondary institutions do not use materials in the AC repertoire or
that warrant that their use of any materials included in the AC repertoire are covered by
other license agreements.

The Board should, in making its decision, consider (a) the negative effects an interim tariff
would have upon the ability of post-secondary institutions to adapt the increasing role of
digital collectives and use of digitized education materials (b) that the current tariff rates
have not been properly adjusted by the fact that much of the copying engaged upon in the
educational context would be covered by fair dealing, (c) the fact that if imposed, many post
secondaries will be paying twice for the use of the same materials, and (d) that the tariff
should not go beyond the bounds of the the scope of the Copyright Act (Canada). That is to
say, the use of hyperlinks, faxing, and mere display should not be uses covered by a tariff or
license agreement. Nor should AC be entitled to invasive and unnecessary compliance
measures.

C. Once the content or substance of the decision has been determined, does the pro-
posed text reflect that substance or content and if not, how should it be modified?

Alberta recognizes and affirms the comments of the AUCC in its submission of todayʼs date
that the proposed Interim Tariff departs significantly from the status quo in the following ways
(a) reduced scope; (b) failure to provide for exempted copies; (c) inclusion of digital copies;
(d) expansion of obligations regarding course collections; (e) exclusion of musical works; (f)
unreasonable attribution requirements; (g) inclusion of a requirement to confirm the status of
a work as repertoire of works; and (h) unreasonable compliance measures.

For for those reasons, and the additional reasons stated in Albertaʼs previous submission,
the proposed text does not reflect a continuance or preservation of the status quo.

Conclusion

Alberta again urges the Board to reject the interim decision for a Proposed Tariff on the
aforementioned grounds. The critical issues pertaining to these proceedings should be ad-
dressed with a full hearing, where the evidence and arguments can be properly considered.

For all of the above reasons, Alberta requests that the interim tariff application be dismissed.

Yours truly,

Jason Fung
Barrister & Solicitor
c.c.: Lisa Fox

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