Osier, Hoskin & Harcourt LLP

Suite 1900, 340 Albert Street Ottawa, Ontario, Canada K1R 7Y6 613.235.7234 MAIN 613.235.2867 FACSIMILE

OSLER
Barry Fong Direct Dial: 613.787.1097 bfong@osler.com Our Matter Number: 1059568

August 25, 2011

Ottawa Toronto

SENT BY ELECTRONIC MAIL

Montral

URGENT

calgary
New York

Mr. Gilles McDougall Secretary General Copyright Board of Canada Suite 800 - 56 Sparks Street Ottawa, Ontario KlA 0C9 Dear Mr. McDougall: Access Copyright Post-Secondary Educational Institutions Tariff, 2011-2013 I am writing to you on behalf of the Association of Universities and Colleges of Canada ("AUCC") in response to the Ruling of the Board dated August 18, 2011. I am a firstyear associate in the Ottawa office of Osler, Hoskin & Harcourt LLP ("Osler") and have been providing assistance to Mr. Glen Bloom and Mr. Marcus Klee in respect of these proceedings. Accordingly, I also write this letter on behalf of Mr. Bloom and Mr. Klee, both of whom are currently out of the office on vacation. In its August 18 Ruling the Board granted Access Copyright's application for an order allowing Access Copyright to obtain information from institutions that do no avail themselves of the interim tariff (the "opt-out institutions"). The Board then set the following schedule with respect to the opt-out institutions: No later than on Friday, August 26, 2011, AUCC, ACCC and Access Copyright shall agree on A list of opt-out institutions that will be required to answer interrogatories; A letter to be addressed by them jointly to the selected institutions, requiring their participation, and; A timetable to deal with the selected institutions' responses (filing of responses, complaints about deficiencies, etc.).

The list, letter and timetable shall be filed with the Board no later than Monday, August 29, 2011. The Board will advise the parties of any changes it wishes to make to the list, letter or timetable no later than Friday, September 2, 2011.

LEGAL_1:21368486.2

osler.corn

OSLE I Z
Page 2 The letter shall be sent to the head of the institution (or to such other person as Access and the relevant association may agree) no later than Thursday, September 8, 2011. AUCC is not able to comply with the schedule set by the Board in its August 18 Ruling and respectfully asks for an extension of time. In order to agree to a list of opt-out institutions that will be required to answer interrogatories, AUCC must consult with numerous individuals and stakeholders, including its internal and external legal counsel. It is impossible to obtain this input in just one week, let alone to complete negotiations with the Association of Canadian Community Colleges ("ACCC") and Access Copyright to agree on a list of opt-out institutions that will be required to answer interrogatories. I note that it is often difficult to obtain instructions during the summer months due to vacation schedules of various principals. Both Mr. Bloom and Mr. Klee are out of the office on vacation with intermittent communication with our office. Mr. Bloom received the August 18 Ruling of the Board virtually as he was leaving for the airport. He was only able to read the entire Board's Ruling at the airport and briefly speak to the instructing principal, Mr. Steve Wills. Mr. Bloom will be out of the office until after his scheduled return to Canada on Wednesday, September 7, 2011. He is effectively out of telephone and email contact until then, given his inconsistent (and at many times unavailable) access to the Internet. Mr. Klee will not be returning to the office until Wednesday, August 31, 2011. In addition, Mr. Wills, the Manager of Government Relations and Legal Affairs of AUCC, who instructs Osier, is on vacation in Chicago until Monday, August 29, 2011. His absence has magnified the impossibility of complying with the schedule set by the Board in its August 18 Ruling. I wrote to Access Copyright's counsel, explained the situation, and sought its consent to an extension of the Board's schedule. Access Copyright replied that it would only accede to extending the first deadline by four days (to Tuesday, August 30, 2011) and the second deadline by two days (to 12:00 noon on Wednesday, August 31, 2011). This simply does not provide sufficient time to seek instructions and determine how to proceed, in the circumstances. In addition, Access Copyright was not able to provide its initial proposal on the number and identity of (or more accurately its proposed method to select) the opt-out institutions to AUCC and ACCC until Wednesday, August 24, 2011 at 3:30 p.m. This gives AUCC, ACCC and Access Copyright only two days within which to comply with the first deadline of Friday, August 26, 2011 currently set by the Board in its August 18 Ruling. I repeat that it is impossible for AUCC to meet this deadline, even if Mr. Bloom, Mr. Klee and Mr. Wills were available during this period.

LEGAL_1:21368486.2

OSLER
Page 3 AUCC respectfully requests that the schedule be extended such that the first event occurs on Monday, September 12, 2011. The following steps would be as follows: The list, letter and timetable shall be filed with the Board no later than Thursday, September 15, 2011. The Board will advise the parties of any changes it wishes to make to the list, letter or timetable no later than Monday, September 19, 2011. The letter shall be sent to the head of the institution (or to such other person as Access and the relevant association may agree) no later than Monday. September 26, 2011.

There is absolutely no prejudice to Access Copyright should the Board grant AUCC's request for the extension of time set out above. The parties are currently negotiating the design of a survey to measure the copying practices of universities and colleges. The earliest date that the survey will commence is January 1, 2012 and the survey will last one year. The parties respective statements of case will not be due until after the survey is conducted. The amended schedule that we have proposed will give Access Copyright far more than ample time to obtain and review the answers. In fact, this will be more time than a collective will typically have to review interrogatory answers in Board proceedings. Recent proceedings have been scheduled from the interrogatory stage to hearing in around a year (for example, SOCAN Tariff 22.B to G and Re:Sound Tariff 8.A and 8.B, both also inaugural tariffs). In view of the short period of time available, we respectfully request that the Board issue its decision on this request at the earliest possible opportunity. Thank you for your consideration. Yours very truly,

Barry Fong BF:cms

c. Aidan O'Neill and Wanda Noel, ACCC Ariel Katz, Professor at University of Toronto Rick Theis, CASA David Fewer, CAUT and CFS Sean Maguire, Student, Saint Paul University Nancy Brooks and Randall Hofley, Access Copyright

LEGAL_I:21368486.2