December 14, 2010

VIA E-MAIL

Mr. Gilles McDougall

Acting Secretary General
Copyright Board of Canada
56 Sparks St.
Suite 800
Ottawa, Ontario K1 0C9

Dear Mr. McDougall:

RE: REPLY TO BOARD’S QUESTIONS

The Board asked intervenors to respond to an overarching question for response by December
10, namely: “Should the Board grant Access Copyright's application for an interim decision?”
Numerous submissions were received by the Board in response.

In its Ruling of December 8, the Board has also asked intervenors to consider the following
follow-up questions, all of which appear to be predicated on the Board granting the request for
Access Copyright for the interim tariff. I will briefly attempt to provide some comments on
these questions. Please note that these responses are without prejudice to my earlier-stated
opposition to the imposition of an interim tariff.

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

The form of the decision could in fact be as an interim tariff, as requested by Access Copyright.

However, the time that it is put in place could be varied by the Board from that requested by
Access Copyright. For example, the storyline presented by Access Copyright is that they
attempted in good faith to negotiate revise current licence agreements with the AUCC, ACCC
and other institutions, only to (generally) be stymied in the negotiation process. If that storyline
is accepted, then it might be appropriate to send the negotiating parties back to the negotiating
table for a year to attempt to arrive at a solution, during which time an interim tariff could be
imposed.

There needs to be a finite time element involved that forces the parties to either negotiate a
solution to the impasse, or, in the alternative, proceed with vigor towards a decision by the Board
on a tariff. The current proposal by Access Copyright creates no incentive to do either - given an
interim tariff, negotiations on a licence regime will almost certainly cease, and the open-ended
nature of the current request will not be conducive to a speedy resolution through the Board’s
processes, based on past experience. From my perspective, it is the worst of the available
solutions.
3) 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?

I will only take on the first of these questions, as it has been amply demonstrated that other
intervenors are far more than prepared to dive into the details associated with the tariff than I.

With respect to the substantive content of a possible future interim tariff, I would suggest to the
Board that if the goal is to place the current situation “in stasis” during the determination of the
actual tariff, then it should actively attempt to do exactly that.

In theory, the “best” solution would be the extension of the current licences on the exact same
terms, or on terms as close as is practically possible to the current licences. This would still be
rejected by most AUCC and ACCC members who have to this point not negotiated renewed
licences, with some going as far as outright rejection of any licence with Access Copyright. I
note that this solution is almost certainly outside of the powers of the Board in any event, as it
does not have the power (nor should it) to force the extension of contracts.

The “next-best” solution would be the imposition of an interim tariff by the Board on the exact
same terms as the current licence scheme. This is less desirable than the forced extension of the
licence scheme because there are some institutions who are not (and do not wish to be) covered
by the licence scheme at present, and who would be caught under a regime which they have
presumably actively avoided to this point. It does at least provide the benefit of familiarity to all
concerned, however.

The least desirable result is the current proposal for an interim tariff. As others have stated, the
current proposed interim tariff is not a continuation of the status quo. In particular, the following
elements should be amended to the proposed interim tariff for it to better reflect the current status
quo:
- the indemnity provided to academic institutions for uses under the current licence should be
added
- the list of additional definitions of “copy” contemplated by the interim tariff should be removed

4) 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?

I shall leave the detailed analysis of the text to the experts.

As an aside, I do note that this is an odd question, since the “content or substance of the
decision” has not in fact been determined, and so it would be impossible to determine whether
the proposed text reflects that substance or content.

Sean Maguire
Public Ethics
Saint Paul University