Copyright Board Canada
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NOTICES AND RULINGS

Please note that, in general, Notices and Rulings are issued in the language of the file.


Access Copyright - Provincial and Territorial Governments Tariff (2005-2014)


July 21, 2014up arrow

NOTICE OF THE BOARD

Please find attached the Board’s Order with respect to page calculations.

Attachment: Order of the Board – Page Calculations – 2014 07 21.pdf


May 13, 2014up arrow

NOTICE OF THE BOARD

Access’ request to extend the deadlines to respond to the Board’s questions is granted.

Parties shall provide their answers no later than Friday, June 6, 2014 and their replies to each other no later than Friday, June 13, 2014.


May 6, 2014up arrow

NOTICE OF THE BOARD

Please see attached an Order of the Board in the above mentioned file.

Attachment: Order of the Board – May 6, 2014.pdf


July 11, 2013up arrow

RULING OF THE BOARD

Access' request is granted. Access shall file its response and identification of non-affiliates' works Access considers to be in repertoire no later than Monday July 22, 2013. The Objectors shall file their reply no later than Tuesday, August 6, 2013.


June 4, 2013up arrow

RULING OF THE BOARD

On May 6, 2013, the Board ordered Access and the Objectors to prepare a sample corresponding to Groups 1, 2, and 3 and to analyze the data from this sample with respect to compensability and repertoire.

On May 27, the Consortium wrote to the Board, informing it that there remained a discrepancy of four copying events between the sample prepared by it and by Access. While this discrepancy was being resolved, the Board suspended the timetable for analysis of the sample. Filings with the Board by Access and the Consortium later that week evidenced an agreement between them that the sample consists of 291 copying events.

The revised timetable is as follows:

  • Consortium/BC provision of sample survey data and reasons why each event is not compensable: no later than Monday, June 17, 2013;
  • Access Copyright response and identification of non-affiliates' works Access considers to be in repertoire: no later than Monday, July 15, 2013;
  • Consortium/BC reply: no later than Monday, July 29, 2013.

May 28, 2013up arrow

NOTICE OF THE BOARD

Access can reply to the Consortium and BC's submissions by no later than Thursday, May 30, 2013. The timetable for the rest of this matter, as set in the Board's Order of May 6, 2013, no longer applies as a result of parties taking issues with some part of the Order. The Board will rule on the new timetable in due course.


May 6, 2013up arrow

NOTICE OF THE BOARD

Please see the attached Order of the Board.

Attachment: Order of the Board - May 6, 2013.pdf


March 27, 2013up arrow

NOTICE OF THE BOARD

As agreed by the parties, the Board sets the following timetable in respect of the issue of "Compensability" described in its Notice of March 14, 2013:

  • Access comments on the division of copying events on p. 35 of Exhibit Consortium-3: no later than Monday, April 8, 2013
  • Consortium/BC response: no later than Monday, April 22, 2013
  • Access Copyright reply: no later than Monday, April 29, 2013

[Board Ruling]

The remaining timetable will be determined at the time of the Ruling, as per the following:

  • Consortium/BC provision of sample survey data and reasons why each event is not compensable: no later than four weeks after Board Ruling
  • Access Copyright response: no later than four weeks after Consortium/BC submissions
  • Consortium/BC reply: no later than two weeks after Access Copyright response

March 14, 2013up arrow

NOTICE OF THE BOARD

Please see the attached Notice of the Board and related documents.

Attachment: 1) Notice of the Board.pdf 2) The Board Staff's Calculations.pdf 3) Difference in means v1d.xls


January 11, 2013up arrow

NOTICE OF THE BOARD

Access Copyright's attached request in the file mentioned above, agreed upon by the objectors, is granted. Parties shall now file their replies in respect of the questions from the Board by no later than Friday, February 1, 2013.


December 10, 2012up arrow

NOTICE OF THE BOARD

As agreed between the parties (please see below), legal briefs in this matter shall be filed no later than Friday, January 25, 2013. Replies can be filed no later than Friday, February 22, 2013.

Dear Gilles,

Pursuant to the Board's Notice of December 4 below, the parties have discussed a possible schedule for the exchange of legal briefs in the matter under reference, and have agreed that the first round of submissions should be due by no later than Friday, January 25, 2013, and that the replies should be due by no later than Friday, February 22, 2013.

If you have any questions about this matter, please feel free to contact any one of us. Thank you.

Aidan


December 4, 2012up arrow

NOTICE OF THE BOARD

The parties are asked to address the following issues:

  • fair dealing, and more specifically, (a) how to account for situations where more than one purpose was indicated, one of which is not an allowable fair dealing purpose, and (b) the extent to which answers to questions 43 to 53 of the questionnaire were taken into account in assessing the fairness of the dealing;
  • insubstantial copying, including whether (a) the page (as opposed to the chapter, paragraph, percentage or other measure) is the smallest unit of a work and (b) whether "at a minimum insubstantial copying has to be the smallest unit of a work". [Tr. Vol. 9 at 2064/19-21] In this respect, the parties' attention is drawn to the Board's decision in Breakthrough Films & Television Inc., Toronto (Ontario), http://www.cb-cda.gc.ca/unlocatable-introuvables/licences/156r-b.pdf
  • "users rights" in general, including whether there are such rights other than those listed in the Copyright Act and if so, what they are;
  • any other relevant legal issue.

The parties are also asked to state whether (and if not, why) they agree with the following propositions.

  1. What is in the repertoire of Access is
    • what rights holders bring to it through the process of affiliation, and
    • what foreign collectives and COPIBEC ask Access to administer for them in Canada outside Quebec.
  2. Not all works for which Access distributes royalties are in its repertoire. Not all works in repertoire generate royalties. Works in repertoire that are not captured during a distribution survey generate no royalties but are in the repertoire. Works not in repertoire that are captured during a distribution survey receive a share of royalties but remain out of the repertoire.
  3. The owner of a non-repertoire work that is captured during a distribution survey and who cashes the royalty cheque received from Access does not bring that work into the repertoire. However, by virtue of agency by ratification, the owner of the non-repertoire work no longer can complain of copyright violation by the user on account of the copy associated to the cashed cheque. The author can still complain of copyright violation for any other copy, even of the same work and by the same user, because the work remains a non-repertoire work.
  4. The indemnity clause is not a licence to use non-repertoire works. It is a promise that Access will indemnify the user if the owner of a non-repertoire work demands compensation for the use of that work. The user still infringes copyright and the owner of the non-repertoire work is entitled to seek compensation for that infringement.

Parties are to provide the Board with agreed deadlines for both submissions and replies no later than Friday, December 7, 2012.


December 4, 2012up arrow

NOTICE OF THE BOARD

Parties are asked to provide answers to the attached Board's questions in the above-referenced file by no later than Friday, December 21, 2012. Parties are allowed to provide replies no later than Friday, January 18, 2013.

Attachment: Access Government - Questions from the Board.pdf


October 18, 2012up arrow

NOTICE OF THE BOARD

Access shall file forthwith the documentation referred to in its application of October 18, 2012. Access shall also file the equivalent documentation for the reports of its own expert.


September 25, 2012up arrow

ORDER OF THE BOARD

On September 20, Access Copyright (Access) applied for an order directing the Consortium to provide certain computer codes. Alternative remedies which need not be repeated here were proposed. Access also requested the right for Mr. Gauthier to file an amendment to his supplementary report.

The Consortium responded that it is willing to supply anything the Board orders, as long as Access is also ordered to respond to similar inquiries. The response describes at length the Consortium's perception of what happened and counsel's irritation with the process.

The reply of Access consists mostly of a reaction to the assertions found in the Consortium's response.

No purpose would be served by listing the questions at issue or providing further details of the documents filed by the parties.

The following seems clear. First, had it known the questions Access intended to ask, the Consortium would have addressed other, undetermined questions to Mr. Gauthier. Second, the Consortium wants Access to show as much of its hand as it asks. Third, Access answered all the questions of the Consortium concisely, but satisfactorily. Fourth, nothing would be served by an attempt to determine precisely what happened or the source of counsel's mutual frustration. Fifth, the Board must break the existing stalemate. Sixth, the parties' experts need to understand what the others did if they are to comment intelligently on their vis-à-vis' evidence. Seventh, it is out of the question to allow any further information exchange to postpone the start of the hearings.

Consequently, the Board orders as follows.

  1. Each party is entitled to receive all documents supporting the other party's expert report. That includes computer codes. A party is also entitled to reasonable particulars if its expert is unable to understand what another expert is saying.
  2. The parties' experts are in a better position than anyone to determine what they need of each other in order to understand their respective reports. Furthermore, to paraphrase counsel for the Consortium, these experts can bang this out between them without any further involvement from counsel. Consequently, Mr. Gauthier and Professors Whitehead and Wilk shall forthwith discuss the matter among themselves. Given the absence of counsel from these discussions, they will take place on a without prejudice basis.
  3. Experts shall then exchange lists of what they require in order to understand their respective reports. The requested information shall be provided as soon as possible, unless a motion is brought to the Board to the effect that the request is unreasonable or excessive or that the requested information is irrelevant.
  4. The schedule for the remainder of the proceedings shall remain unchanged. Necessary adjustments to the experts' evidence can be made on application, in due course, or in the course of the experts' testimony.
  5. To the extent experts are satisfied they understand what the others did, there will be no need to file with the Board the information exchanged as a result of this order. To the extent disagreements subsist as to what an expert means, the parties may file the documents necessary for the Board to deal with such disagreements.

September 20, 2012up arrow

NOTICE OF THE BOARD

The Consortium shall provide a response to Access request, by no later than Monday, September 24, 2012. Access can provide a reply no later than Tuesday, September 25, 2012 at noon.


September 18, 2012up arrow

NOTICE OF THE BOARD

Access's request described below is granted.

Dear Mr. McDougall:

In its case filed in these tariff proceedings on May 4, 2012, Access Copyright included as Exhibit AC-2 the joint witness statement of Maureen Cavan and Roanie Levy dated May 3, 2012. Ms. Cavan has recently announced that she will be retiring from Access Copyright and, accordingly, Access Copyright is seeking the Board's permission to have Ms. Levy testify as the sole witness as to the matters described in Exhibit AC-2.

Please do not hesitate to contact me if you have any questions about the above.

Yours truly,

Nancy Brooks


September 11, 2012up arrow

NOTICE OF THE BOARD

Objectors may provide comments on Access request reproduced below by no later than Tuesday, September 11, 2012. Access may reply by no later than Wednesday, September 12, 2012.


August 17, 2012up arrow

NOTICE OF THE BOARD

Following the Consortium and the government of British Columbia's request of August 16, 2012 (attached), as well as Access Copyright's consent to the request, the Board grants the request and sets the remainder of the schedule of proceedings for the above-noted proceedings as follows:

Filing of Consortium's and the government of British Columbia's Statement of Case by no later than Friday, August 31, 2012;

Filing of Access Copyright's reply Case by no later than Friday, September 28, 2012;

Beginning of hearing: Tuesday, October 23, 2012, at 10:00 a.m., Copyright Board's hearing room.

Attachment: Letter to G. McDougall requesting Filing extension.pdf


May 17, 2012up arrow

NOTICE OF THE BOARD

Access Copyright is asked to provide a copy of the consent of the government of Ontario referred to in the second paragraph of its letter of today to the Board.

Attachment: Access Copyright - Provincial and Territorial Governments\17may2012 Letter to G McDougall.pdf (Attachment to the letter is not attached as it contains confidential information)


May 8, 2012up arrow

NOTICE OF THE BOARD

Access Copyright is asked to confirm the following in respect of its Case filed on May 4, 2012:

  • - the only information Access asks be treated as confidential is the list of affiliates, information relating to the Ontario licence and some responses of foreign RROs (Switzerland, Honk Kong, South Africa) found in Exhibit AC-5; and
  • - the text highlighted in yellow in Exhibit AC-4, Appendix D, Letter 3 is not confidential.

None of the information Access Copyright claims to be confidential appears to be. Access has until Monday, May 14, 2012 to convince the Board otherwise. Unless the Board is so convinced, the information will be made part of the public record.


May 2, 2012up arrow

The requested permission is granted.

Access Copyright's request:
In accordance with the Board's Ruling on this matter, Access Copyright is required to file its case by this Friday, May 4, 2012. I write to request permission from the Board for Access Copyright to file and serve the electronic version of its case on Friday, with the 10 paper copies to be filed with the Board on Monday, May 7, 2012.

Please do not hesitate to contact me if you have any questions about this request.


March 15, 2012up arrow

NOTICE OF THE BOARD

The reasons of the Board with respect to the preliminary application in the above-mentioned file is available on our website at the following address: http://www.cb-cda.gc.ca/home-accueil-e.html.

AVIS DE LA COMMISSION

Les motifs de la Commission à l'égard de la requête préliminaire déposée dans le dossier en rubrique est disponible sur notre site web à l'adresse : http://www.cb-cda.gc.ca/home-accueil-f.html.


February 7, 2012up arrow

NOTICE OF THE BOARD

Access Copyright's request below is granted.

Access Copyright's request: 
I am writing further to the Board's order dated June 4, 2010 regarding the treatment of confidential information in the Provincial/ Territorial Tariffs proceeding. The Board's order restricts disclosure of confidential documents to five representatives of each recipient. Access Copyright is seeking leave of the Board to designate four additional Access Copyright employees to whom the confidential information may be disclosed. Access Copyright is in the process of preparing its case for filing with the Board, including analysis and organization of interrogatory responses and, given the task to be accomplished, it requires four more employees to get involved in that preparation.

Please do not hesitate to contact me if you have any questions about this request.


January 27, 2012up arrow

NOTICE OF THE BOARD

The objectors are asked to respond to Access Copyright's request below by no later than Tuesday, January 31, 2012. Access may reply by no later than Thursday, February 2, 2012.

Access Copyright's request:
Dear Mr. McDougall:

I am writing further to the Board's order dated June 4, 2010 regarding the treatment of confidential information in the Provincial/ Territorial Tariffs proceeding. The Board's order restricts disclosure of confidential documents to five representatives of each recipient. Access Copyright is seeking leave of the Board to designate four additional Access Copyright employees to whom the confidential information may be disclosed. Access Copyright is in the process of preparing its case for filing with the Board, including analysis and organization of interrogatory responses and, given the task to be accomplished, it requires four more employees to get involved in that preparation.

Please do not hesitate to contact me if you have any questions about this request.


January 12, 2012 up arrow

NOTICE OF THE BOARD

The decision of January 5, 2012 with respect to the above-mentioned file contained grammatical errors. A revised version of the decision correcting these errors is attached. This new version is also available on the Board's website at the following address: http://www.cb-cda.gc.ca/home-accueil-e.html. We apologize for any inconvenience this might have cause.

Attachment: Access copyright - Crown Immunity application.pdf


January 6, 2012up arrow

NOTICE OF THE BOARD

The Decision of the Board in respect of the above-mentioned file is available on our website at the following address: http://www.cb-cda.gc.ca/home-accueil-e.html.

AVIS DE LA COMMISSION

La décision de la Commission à l'égard du dossier en rubrique est disponible sur notre site web à l'adresse : http://www.cb-cda.gc.ca/home-accueil-f.html.


October 7, 2011up arrow

NOTICE OF THE BOARD

Parties should take for granted that the Board has consulted or may consult:

Royal Commission on Patents, Copyright and Industrial Designs, Report on Copyright (1957)
A.A. Keyes and C. Brunet, Copyright in Canada: Proposals for a Revision of the Law (1977)
B. Torno, Crown Copyright in Canada: a Legacy of Confusion (1980)
J Erola and F. Fox, From Gutenberg to Telidon: a Guide to Canada's Copyright Revision Proposals (1984)
A Charter of Rights for Creators, Report of the Sub-Committee on the Revision of Copyright (1985)
Michel Côté and Marcel Masse, Government Response to the Report of the Sub-Committee on the Revision of Copyright (1986)

Parties should also take for granted that the panel will not rely on anything contained in these reports without first affording parties the opportunity to comment on the relevant passages.


October 5, 2011up arrow

ORDER OF THE BOARD

During the course of the hearing, the Chairman raised the question of whether there were documents which existed at the time the Copyright Act was amended that indicated the context in which the issue of Crown Immunity was considered.

Mr. O'Neill, on behalf of the Consortium, interpreted the Chairman's remarks as a request to file further documentation, if any existed, and as a consequence filed a letter dated September 30, 2011 which contained excerpts of a document prepared in 1985, which spoke to the issue of Crown Immunity.

Prior to the receipt of the letter, the Board itself became aware of certain public documents bearing on this issue.

The Board permits the filing of this letter and documents.

Access Copyright has leave to file a response and any documents relevant to this issue no later than Tuesday, October 11, 2011. There will be no oral hearing on this issue unless the Board so decides.


August 12, 2011up arrow

RULING OF THE BOARD

Based on the arguments and comments filed by the Consortium and British Columbia ("the Objectors") on July 25, 2011 and by Access Copyright on July 25 and August 8, the only remaining issue that the Board needs to address relating to the design of the proposed survey is the question identified as C.3 in the Board's ruling of December 17, 2010: Should the anchor questions be included in the full survey?

The Board agrees with Access Copyright that, at this stage, its only burden is to demonstrate that the information sought, while potentially relevant, does not undermine the survey process. The Objectors do not dispute the statement that no respondent left the questionnaire on the anchor questions and that only 4% of respondents chose not to answer them. Furthermore, based on the Board's understanding of the purpose and design of anchor questions in general, and its experience with such questions in the private copying tariff files in particular, there is nothing inherently unsound in the approach Access proposes. Whether and to what extent these questions should be used as anchors in this instance is best left for argument after the parties file their statement of case.

Consequently, the anchor questions relating to vacation days shall be included in the full survey.

The Board's preliminary view is that the conduct and results of the pre-test remain relevant to these proceedings even though the parties have come to an agreement on the conduct of the survey in all save one aspect. Parties are therefore asked to retain all information relevant to the conduct and results of the pre-test for the duration of the present tariff process.


July 6, 2011up arrow

NOTICE OF THE BOARD

The hearing for the above-cited matter, originally scheduled to start on Tuesday, October 2, 2012, is now rescheduled to start on Tuesday, October 23, 2012. The remainder of the schedule is unchanged.


May 11, 2011up arrow

The parties' request is granted.

The parties' request:
I am writing to request a slight change to the Board's schedule -- which was approved in the Board's ruling dated December 17, 2010 -- with respect to Access Copyright's provincial and territorial government tariff proceeding.

In this regard, the Consortium has recently requested the consent of Access Copyright to changing the date for the filing with the Board of the parties' respective submissions relating to survey design from Monday, July 18 to Monday, July 25. Access Copyright and British Columbia have both consented to this change.

This extra week will allow the parties to analyze the results of the pre-test more fully and, hopefully, assist them in preparing more informed submissions to the Board relating to the final survey design.

The date set in the Board's ruling of December 17 for the filing of reply submissions, August 8, 2011, will remain unchanged -- although the time provided to the parties in order to prepare their replies will, of course, be reduced from three to two weeks.

We would ask that the Board agree to this requested change to the existing schedule. If you have any questions about this matter, please let either Wanda or me know. Thank you.


May 2, 2011up arrow

All responses to interrogatories referred to in the April 21, 2011 Board's Ruling, attached for convenience [See below for the Board's Ruling], should be provided by no later than Monday, May 30, 2011 with the exception of Interrogatory 5 with respect to Newfoundland and Labrador, Northwest Territories, Saskatchewan and Yukon, for which the deadline remains as previously set.


April 21, 2011up arrow

RULING OF THE BOARD 

In regards to the issues raised concerning the non-immunity interrogatory deficiencies, the Copyright Board rules as follows:

Interrogatory 5

With respect to Newfoundland and Labrador, Northwest Territories, Saskatchewan and Yukon: 
The agreements that Access has received to date from the province or territory shall be deemed to be the only ones that are responsive to this question, that exist and that are in the possession and control of the province or territory. The province or territory shall be precluded from producing any document that would be responsive to this question without leave of the Board. This order will not apply if the province or territory provides a sample of agreements as per the Board's May 18, 2010 ruling no later than by Friday, May 20, 2011

With respect to Alberta G2: 
Answered. Access is entitled to what exists. If the answers are not in documents, Access is not entitled to a further answer. 

With respect to Manitoba G17, Newfoundland and Labrador G2, G5-4 OCIO and G14-1: 
The province shall provide what exists in the form it exists. 

With respect to New Brunswick G3: 
The province shall provide what exists in the form it exists. The reference by Access to "unidentifiable" documents is unclear. As long as the province has provided what they have without any edition or redaction, Access is entitled to nothing more. 

With respect to New Brunswick G22: 
Answered. 

With respect to Nunavut:  
The territory shall confirm whether there are documents that would be responsive to b) or d) if Access was correct in stating that the agreements authorize the territory to copy published works. If the answer is no, the matter is settled. If the answer is yes and if the territory still resists providing the documents to Access, then Access shall send to the Board the agreements it says authorize the territory to copy published works. On that basis, the Board will decide whether it should order the territory to provide additional documents. 

With respect to Saskatchewan G1:  
The province shall provide what it has that is responsive to the question, other than any licence, existing or expired, with Access.

With respect to Saskatchewan G5: 
Confidentiality is not a valid reason to withhold a document. The province shall provide what it has that is responsive to the question. 

With respect to Saskatchewan G6:  
The province shall provide what it has that is responsive to the question. As stated in the Board's ruling of November 12, 2010, Access is only entitled to what exists, which needs not be organized in any specific fashion, or come from any particular source. A government is a single entity. The answer can come from any source. However, an answer must be provided. 

With respect to Saskatchewan G7: 
To the extent documents are incomplete, the province shall provide complete documents. 

With respect to Saskatchewan G8:  
The province shall provide any agreement mentioned in a response as well as any document responsive to paragraph b) or d), in the form it exists. 

With respect to Yukon G4:  
The agreements referred to clearly allow some form of copying. The territory shall provide the documents offered as well as any other agreement that authorizes any form of analogue or digital copying. The territory shall also provide any document responsive to paragraph b) or d), in the form it exists. 

With respect to Yukon G6: 
The territory shall provide all specifications, terms and conditions referred to in the document provided, to the extent they exist and in the form they exist.

Interrogatory 21

With respect to Manitoba G6:  
The province shall provide the documents mentioned in the original response. 

With respect to Yukon G11:  
The response found in the table provided by the objectors is prima facie satisfactory, as long as the documents it refers to have been provided. If not, the territory shall provide them.

Interrogatory 25

With respect to Saskatchewan G6:
The province shall provide what exists in the form it exists. A statement that the answer may be held by another government unit is not a proper answer. Each province answers for all of the province.

Interrogatory 26

With respect to Saskatchewan G6: 
Answered.

Interrogatory 27

With respect to Alberta G4:
The province shall answer the question.

With respect to Alberta G7:
Permission letters and e-mails authorizing posting are licences targeted in paragraph f). The province shall answer the question. 

With respect to Alberta G8:  
The province shall provide what it has that is responsive to the question. As stated in the Board's order of November 12, 2010, Access is only entitled to what exists, which need not be organized in any specific fashion, or come from any particular source. A government is a single entity. The answer can come from any source. However, an answer must be provided. 

With respect to Alberta G13:  
The province shall comply with its most recent undertaking. 

With respect to Manitoba G6, New Brunswick G3:  
The province shall provide what exists in the form it exists. 

With respect to Saskatchewan G3:  
Answered. 

With respect to Saskatchewan G6:  
The province's answer to Interrogatory 26 shows that there are relevant documents on the intranet. The province shall provide what exists in the form it exists. 

With respect to Yukon G4:  
The territory need only provide what exists in the form it exists. The response is prima facie satisfactory.


April 6, 2011up arrow

Following the Consortium and Access Copyright's request of March 31, 2011, the Board sets the following schedule of proceedings for the Crown immunity application.

Filing of Consortium's legal arguments by no later than Wednesday, June 15, 2011;

Filing of Access Copyright's response by no later than Tuesday, August 30, 2011;

Filing of Consortium's reply by no later than Wednesday, September 14, 2011;

Beginning of hearing: Tuesday, September 27, 2011, at 10:00 a.m., Copyright Board's hearing room.


March 22, 2011up arrow

NOTICE OF THE BOARD

The Board grants the parties' request to hear the issue of Crown immunity by way of a preliminary and separate hearing.

The closest date available to the Board for conducting such a hearing is Tuesday, July 19, 2011. Parties are asked to indicate if they are available on that date, and if so, to provide a proposed schedule for the filing of legal briefs.


January 27, 2011up arrow

RULING OF THE BOARD

The January 18, 2011 application for re-consideration of the Board's ruling of December 17, 2010 by the Consortium, the Government of Ontario and the Government of British Columbia ("the Objectors") is dismissed.  

The application requests that the Board change the wording of the answers to two questions in the pre-test relating to the number of copies a respondent has made in a particular period. Specifically, the answers to questions 3 and 4 in the pre-test, as specified in the ruling of December 17, were "zero," "number of times," and "don't know/no response." The application requests that the answers be "zero," "one or more times," and "don't know/no response."

There are two overriding reasons for dismissing the application. First, asking respondents to specify how many times they made a copy over the two most recent 30-day periods is not much more demanding than asking them whether they made one or more copies during the same period. Second, using the wording proposed by Access allows collapsing the data into the wording proposed by the Objectors; the converse is not true.

The Board's ruling of December 17 does not specify how data from Phase I and Phase II are to be used. As such, arguments about the avowed purposes of parties or the possibility of prejudicial response categories are not relevant. All parties are free to use the data from the survey as they wish and to present interpretations of the data. The Board will decide how much credence to give to such interpretations only after they are presented, not beforehand.


December 17, 2010up arrow

Access Copyright and the Consortium's request to extend to the end of February 2011 the date for completion of a Statement of Agreed Fact on Crown Immunity is granted.


December 17, 2010up arrow

RULING OF THE BOARD

The Governments of Ontario and British Columbia and a Consortium of other provincial and territorial Governments (collectively, "the Objectors") and Access Copyright ("Access") have asked the Board to resolve a number of issues relating to the design of the copying survey to be conducted jointly by them in the above-referenced proceedings. The purpose of the survey is to allow the parties to collect data on which the Board may rely in determining how much protected, compensable copying of works requiring a licence from Access takes place in provincial and territorial governments. The following ruling relies on all submissions made by the parties on this matter, with particular emphasis on the submissions made on November 1 and November 15, 2010, answering questions posed by the Board.

(A) The firm retained to conduct the survey shall conduct a comprehensive pre-test. Half of the pre-test sample will be asked questions 1 through 12 (the brief Phase I); the other half will be asked questions 1 through 54 (the full Phase I). All participants in the pre-test shall be invited to participate in Phase II. A pre-test of Phase II shall be conducted with those who accept to participate. Except as specified further below, the questions shall correspond to the text dated October 28, 2010 and filed with the Board by Access, and the protocol shall correspond to Appendix A filed by the Objectors on November 1.

Questions dealing with uploading shall be included in the pre-test as written. The Objectors' concerns regarding uploading appear misplaced; they seem to misunderstand what Access is requesting by inserting the uploading questions. That being said, including the question in the pre-test should allow the Board to assess any problems that may result from asking participants to upload documents when completing the survey.

Anchor questions also shall be included in the pre-test as written. Their inclusion raises no issue of survey fatigue. Furthermore, it is a truism that uncollected data cannot be used, whereas collected data can be discarded. The pre-test will allow the Board to assess the utility of these questions as well.

(B) The data from the pre-test shall be analyzed, together with interviews of some of the respondents, to answer the following questions:

  1. Are there different rates of agreement to participate in Phase II depending on whether survey participants are exposed to a brief or a full Phase I?
  2. Are the quality and quantity of the data collected in Phase II affected by a brief or full Phase I?
  3. Is there a different quantity of reporting as the survey period unfolds (e.g. in the first seven days relative to the second seven days)?
  4. What are the rates of initiation and completion of Phase I?
  5. What is the rate of acceptance to participate in Phase II?
  6. What are the rates of initiation and completion of Phase II?
  7. Do any uploaded documents raise privacy or other concerns?
  8. Are there any reports of accommodating strategies to complete the required tasks [from the interviews]?
  9. Are the instructions for uploading well-understood?
  10. Does uploading discourage participation or compliance?

(C) Submissions on these ten questions shall be made according to the schedule below. The Board will then rule on the following questions, on which submissions shall be filed at the same time as the answers to the preceding ten questions.

  1. Should there be a brief Phase I or a full Phase I in the full survey?
  2. Should uploading be included in the full survey?
  3. Should the anchor questions be included in the full survey?
  4. Should any questions be reworded for the full survey?

(D) The schedule for the preliminary portion of the process shall be as follows.

Step

Dates

Board ruling on study issues

December 2010

MOUs, Access and Objectors

January 4 - January 21, 2011

Development of sampling frame

January 24 - February 4, 2011

Development of RFP

January 24 - February 11, 2011

Competition and selection of supplier

February 14 - March 14, 2011

Contract initiation and project set-up

March 15 - March 29, 2011

Electronic programming of questionnaire

March 29 - April 13

Pre-test communication

April 14 - April 21
(April 22 is Good Friday)

Implementation of pre-test

April 26 - May 31, 2011

Analysis of pre-test

June  1 - June 17, 2011

Discussion among the parties about final survey design and other issues

June 17 - July 15, 2011

Submissions to the Board

July 18, 2011

Reply submissions

August 8, 2011

Ruling of the Board

August, 2011

(E) Field work shall take place from September 19, to December 16, 2011, unless the parties agree on different starting and ending dates.  Access shall supply the raw data to the Objectors on a continual basis.

(F) For the purposes of the pre-test and the survey, all sampling shall be done "with replacement": persons without a valid government email address or an email address that does not work at the time of the pre-test or survey shall be excluded from the sampling frame and a new respondent shall be drawn randomly from the remaining unsampled respondents in accordance with the stratification scheme, where the stratification scheme is the one on which Access and the Objectors agree.

People who cannot be contacted by email, either because they do not have one or the address they have does not work, can be treated in one of several ways. These include counting them as participants and (a) assigning them zero copies (b) assigning them an average number of copies or (c) remove them from the final calculations. Another is to exclude them from the sample altogether by substituting someone else.

Each method requires assumptions about the copying behaviour of those who are not or cannot be contacted. The first supposes that they never make copies, the other three that they copy no more, no less than other employees. The Board is more comfortable with the second assumption than with the first. Once that assumption is made, reducing the sample size also reduces its reliability. Accordingly, we prefer sampling with replacement.

We do not know how many potential respondents will be affected by this part of the ruling. Consequently, we do not know whether this is a real issue. In an attempt to remedy this, those who will determine the sample used to conduct the pre-test and the actual survey shall track, for each jurisdiction and in total, the number of persons of each category that had to be replaced pursuant to this part of the ruling.

This element of the ruling may be revisited in light of the results of the pre-test.

(G) For the purposes of the pre-test, the introduction shall read "it will take you 5 to 10 minutes to complete the survey" for recipients receiving the brief Phase I and "it will take you 15 to 20 minutes to complete the survey" for those receiving the full Phase I. Appropriate adjustments will be made once the final form of the full survey is decided.

(H) For the purposes of questions 3 and 4, the answers shall be "zero", "number of times", and "don't know/no response". Data on number of times a copying event has occurred can be collapsed into binary data indicating whether or not any copying event has occurred. The reverse is not true.

(I) For the purposes of questions 6 and 7, the focus of the question shall be vacation days, not sick days. At least 8 jurisdictions can produce aggregate data for vacation days; the Objectors did not report which jurisdictions can produce aggregate data for sick days. Access is indifferent as to whether questions 6 and 7 reference sick or vacation days.

(J) Access shall file its case on Friday, May 4, 2012. The Objectors shall file their case on Friday, August 24, 2012. Access shall file its reply case Friday, September 21, 2012. Hearings shall begin on Tuesday, October 2, 2012.

These timelines allow Access 20 weeks (as proposed) from the end of the filed work to file its case and the Objectors 16 weeks (instead of the requested 26) from the time Access files its case to file theirs. The Objectors' request is excessive. Since they will receive raw data at the same time as Access, they too will have more than seven months to conduct any parallel or additional analysis they wish, including the so-called double payment analysis. Fourteen weeks is more than enough for them to look at Access' final results, analysis and conclusions and react in any fashion they please.


November 12, 2010up arrow

RULING OF THE BOARD

On October 12, 2010, Access Copyright (Access) provided to the Consortium of governments (Consortium) and to the province of Ontario (Ontario) a list of alleged deficiencies in their responses to interrogatories seeking information on the issue of Crown immunity. The Consortium and Ontario responded on October 25. On November 3, the Consortium asked the Board to reconsider its order of May 18, which is at the centre of the controversy this order intends to address. Access responded to the application on November 8.

The alleged deficiencies must be assessed in the very specific (and unusual) context of what the Board stated in its order of May 18, 2010 in relation to Crown immunity:

[...] While the request is no doubt onerous, this has to be balanced against the fact that the immunity claim is central to the governments' argument. The courts' admonitions to gather a detailed factual background before dealing with such claims must be complied with.

Sampling is not an obvious option. We do not know whether we are dealing with standard contracts (collective affiliation, recording deals, etc.) or whether each contract is one-of-a-kind. Under those circumstances, the risk that self-sampling would provide insufficient information to determine whether the claim of immunity waiver is valid is simply too high. Therefore the request is not unreasonable.

Furthermore, most or all of the information requested would be available under access to information legislation irrespective of burden. The governments are using their status as governments to attempt to avoid tariff liability. The extent of their obligation of disclosure should be informed by their status as governments.

The alleged deficiencies in the responses of members of the Consortium are numerous. The provinces have not supplied everything they have; some may even be unresponsive. The provinces had enough time to seek, obtain and provide the relevant information. The fact that the information was not centrally available is not an excuse.

Yet, it would be unnecessarily time consuming and impractical to attempt to respond to each complaint individually. Instead, this order sets out a number of propositions intended to allow the parties to settle these issues among themselves once and for all.

Access suggests that the Consortium be prevented from advancing the Crown immunity defence if its members do not provide fuller answers. On occasion, the Board has ruled that the party who fails to answer interrogatories is not allowed to address certain issues at the hearing. In this instance, this solution may not be possible and certainly is not advisable. For one thing, the ability of one province to advance an issue should not be prejudiced by the alleged misconduct of another. For another, the legal issues raised by the claim of Crown immunity cannot be simply set aside.

Crown immunity issues cannot be addressed without a detailed factual background, especially where it is claimed that immunity has been waived. And yet, it seems no longer practical to insist that the governments comply fully with the interrogatories. This would require significant time and effort well beyond any practical purpose served by adding to the evidence. As Access stated, some finality is needed if the file is to move forward.

Some other means must be found to allow Access to obtain and provide the evidence it needs to make its case. One such means is to tailor the fact base to account for the failure of the Objectors to respond. Inferences, combined with a prohibition on the Objectors filing additional evidence responsive to interrogatories, can achieve this.

Therefore, a more practical solution is to allow Access to treat the information supplied in response to interrogatories as complete if it so wishes, presumably if the information tends to support its position. Access will be able to proceed on the basis of what it has instead of chasing additional evidence that, in all probability, is only of marginal utility. Furthermore, since the burden of proving a claim of Crown immunity should rest with the provinces, and since the purpose of the Crown immunity interrogatories is to allow Access to determine whether any immunity has been waived, it would not be unfair to decide now that unless a province provides new information requested in interrogatories, Access will be entitled to draw inferences that are favourable to it. The provinces will have until the date set below to cure deficiencies to supply any information asked for in interrogatories that may tend to support their immunity claim or to prove that immunity has not been waived. After that date, provinces will be not allowed, without leave from the Board, to supply any further evidence in support of their immunity claim that was asked for in the interrogatories.

The application of the principles stated earlier results in the following propositions.

1) If a province files no document that would be responsive to an interrogatory, it may be deemed that no such document exists. For example, if a province provides no document in which it asserts its immunity, it may be inferred that the province never asserts its immunity.

2) Unless information to the contrary is supplied, it may be deemed that a province's responses to interrogatories would establish that the province always complies with the Copyright Act and other intellectual property legislation when it uses the intellectual property of others. For example, a province shall be deemed to acquire software licences on normal terms unless it provides evidence to the contrary in response to the relevant interrogatories.

3) A province that does not provide evidence (as opposed to a mere statement) that it does not assert copyright may be deemed to assert copyright.

4) Where answers are inconsistent, answers that support the position of Access may be preferred over answers that do not, unless the province provides a satisfactory explanation for the inconsistency.

5) A standard form agreement or template may be deemed to be consistently used unless a province provides evidence to the contrary. If evidence to the contrary is provided, the province shall specify the number of relevant agreements and the proportion that deviate from the form or template.

Access is free to develop further, similar propositions based on the main principle outlined above. The Board will rule on the validity of each proposition in due course.

Several times, Access stated that a document offered in response to an interrogatory was, in fact, not provided. What was offered but not provided should be provided. What is referred to in a response but not provided should also be provided. Where a clarification is requested, it should be provided.

Objectors shall file additional responses to interrogatories no later than Friday, December 3, 2010.

No later than on Friday, November 26, 2010, parties may apply for further clarification of this Order or for a further order dealing with issues which they consider this order does not resolve.

A few more issues warrant some clarification.

A) Access claims to be entitled to receive a single, government-wide answer to each interrogatory, adding that the whole point of interrogatories is "to ascertain the position of the government of the provinces or territories in question in response to each and every interrogatory." This is incorrect. The purpose of interrogatories is to ascertain facts, not positions. Furthermore, Access is only entitled to what exists, which need not be organized in any specific fashion, or come from any particular source. More importantly, since there is only one Crown in each province, each response provided by a "sub-unit" can presumptively be treated as a response from the Crown.
On the other hand, Access is justified in complaining about any lack of candour in communicating the nature and extent of the alleged burden imposed by the interrogatories and about the lack of indication of the extent to which responses were incomplete. A more proactive stance in this respect would have made things easier for Access.

B) Access asked several questions with respect to trade-marks, without specifying whether or not that should include official word marks. Official word marks are not trade-marks. It is now too late to widen the information request. Furthermore, Access can determine on its own which provinces "own" such marks, as they are all published on the website of the Canadian Intellectual Property Office. And if a province has a mark, it is reasonable to infer, without further evidence, that the province intends to defend the mark. Nothing more is required for the purposes of these proceedings.

C) The direction given by counsel to the Consortium to stop compiling responses while the Board is deliberating on the deficiency motions was inappropriate. The Board's orders are to be complied with until and unless they are rescinded.

This Order disposes of the deficiency motions of Access. As a result, the Consortium's application for reconsideration of the Board's order of May 18, 2010 is moot.


October 13, 2010up arrow

La Commission accepte la requête du Consortium. [Objet :Demande de prorogation de délais.]


October 8, 2010up arrow

This is acceptable to the Board.

Re: Scheduling request:
Mr. McDougall:

In response to the below, I write with the agreement of all of the parties, to propose that the submissions of all parties on the points set out in the below Notice be due on or before November 1, 2010 and that submissions in reply thereto (if deemed necessary by a party) be due on or before Nov. 15, 2010.

I trust that this responds to your request.


October 5, 2010up arrow

NOTICE OF THE BOARD

Before a pre-hearing can take place in this matter, the Board requires the parties to provide written answers and replies to a series of questions, as listed hereunder. The Board requests that an agreed schedule for such answers and replies be filed no later than Friday, October 8, 2010.

1) Parties are asked to supply in writing evidence and argument in support of or against every statement of fact made by them to date, including those listed in point 1 of the Board's notice of September 1, 2010, attached for your convenience [See September 1, 2010 entry for Notice of the Board].

2) If the last event remembered is more likely to be a larger copying activity than a small one, what sorts of biases does this introduce into Phase I responses?

3) Please confirm in writing the methodological issues on which the parties agree, and those on which they disagree. With respect to the latter, please provide written evidence and argument in support of your positions. Please pay special attention to the proposed confidence interval, the estimated variance of 400,000 copies per respondent and the way to deal with employees without an email address.

4) Parties should also provide a detailed timetable for all activities, including pre-tests, analysis of pre-tests, testing, analysis of data, and sign-offs by various government officials that has been agreed to by all parties.

5) Please outline any remaining privacy concerns you have left, given that Access Copyright has confirmed it is not asking for the uploading of anything other than published documents and stratification of the sample will be by province and territory only.

6) Provinces are asked to confirm whether vacation days are collected as an aggregate or whether the data can be readily generated.

7) Please indicate any progress on the question of interlibrary loans and lack of comprehension of the survey by respondents.

8) Could any pre-testing procedure be used to help validate the choice between an abbreviated Phase I and a full Phase I? If so, please comment on the following list of factors that may be used to determine the choice of an abbreviated Phase I or a full Phase I:

(i) the propensity to complete Phase II;

(ii) the amount of time taken to complete Phase I;

(iii) information about the quality of responses to Phase II collected from follow-up interviews, with a randomly selected subset of respondents for each survey design;

(iv) any other factor.

9) B.C. suggests that a pre-test could remove the need for a ruling in advance on the nature of Phase I. In light of this suggestion, parties are asked to provide their positions on whether the pre-test should or not be conducted before the pre-hearing. 


September 22, 2010up arrow

This is further to Mr. Hofley's letter of September 1, 2010 on the above-mentioned matter.

I have been asked to inform you that if the parties are able to come to an Agreed Statement of Facts on Crown immunity issues by the end of the year, the Board will consider hearing and ruling on Crown immunity claims prior to dealing with the remaining issues. Whether this will be done and if so, according to which timetable, will be decided once the agreed statement has been provided. 


September 16, 2010up arrow

RULING OF THE BOARD

The Board rules as follows with respect to incomplete responses to interrogatories.

1) Interrogatory 2, Alberta, G1: The detailed explanation provided in the document dated May 26, 2010, answers the question.

2) Interrogatory 5, Yukon, G11: Yukon shall provide the relevant agreement with the corporate response.

3) Interrogatory 21, Nunavut: The question has been answered.  Access has sufficient information to put forward its arguments concerning Nunavut's "policies". Nunavut shall provide the Patrons' Guide, upon publication.

4) Interrogatory 38, Nova Scotia, G9 :The questions have been answered. The Department of Finance does not produce media monitoring packages.


September 15, 2010up arrow

With respect to the first matter, the relevant reference for the statement in point 6) of the September 1, 2010 Notice of the Board staff (identifying issues to consider) is the following:

Porter, Stephen, Michael Whitcomb, and William Weitzer. (2004) "Multiple Surveys of Students and Survey Fatigue" New Directions for Institutional Research. No. 121, pp. 63-73. 
https://www.ohio.edu/studentaffairs/upload/Survey%20Fatigue.pdf (See especially the section on panel surveys on pp. 64-5)

The relevant reference for the statement in point 10)(c) of the same notice is:

Asiu, Bernhard W., Fultz, Miriam L., and Antons, Christopher M., "Undergraduate Perception of Survey Participation: Improving Response Rates and Validity", AIR 1998 Annual Forum Paper.
http://eric.ed.gov/PDFS/ED422805.pdf (See especially page 8)

With respect to the second matter, please provide the detailed calculations used in the estimation of the confidence interval. In particular, please explain the reasons why a survey with a sample of 13,000 respondents leads to what appears to be a large confidence interval (+/- 20%).


September 7, 2010up arrow

NOTICE OF THE BOARD

The Board requires the Consortium to provide the following documents, by end of business day, Thursday September 9, 2010:

1) the May 20, 2010 description provided by legal counsel to the Consortium as response from Alberta, G1 to Interrogatory 2d);

2) the corporate response mentioned in the Consortium's reply to the deficiency claim respecting the response from Yukon, G11 to Interrogatory 5;

3) Nunavut's response to Interrogatory 5, referred to in the deficiency claim and the Consortium's reply respecting the response from Nunavut to Interrogatory 21.


September 3, 2010up arrow

NOTICE OF THE BOARD

The Board staff has set the following agenda for the upcoming meeting of September 7, 2010, 1:00pm (EDT):

1.    Introductions and context of this meeting
2.    Questions 8a, 10f  - month versus 30 days
3.    Question 11 - uploading files
4.    Question 12 - Access to Information Requests
5.    Question 2 - identifying methodology elements that have yet to be determined
6.    Question 9 - anchor questions
7.    Question 5c - sample selection bias and the Heckman correction
8.    Questions 10c, 10d, 10e - number and type of questions in Phase I
9.    Questions 13 through 25 - issues of question wording.
10.   Question 3 - questions included at the request of the objectors
11.   Other issues, whether or not identified in the September 1 informal list of comments and questions, that may be helpfully addressed in this informal meeting.
12.   Dates of availability for the pre-hearing.
13.   Adjournment.

Please note that the question numbers in the agenda refer to the informal list of comments and questions attached to the Board's email of September 1, 2010.

Parties who wish to address issues under item # 11 are asked to notify the Board accordingly and identify such issues, by no later than Tuesday September 7, 2010 at 10:00am.

Parties wishing to attend the meeting via teleconference should, a     few minutes prior to the starting time of the meeting, call the dial-in number 1-877-XXX-XXXX (from North America) or 1-613-XXX-XXXX (from overseas) and enter the Conference ID number, which is XXXXXXX, followed by the pound (#) key.

Please note that if at any time you require operator assistance, you may press the * (star) key and the number 0 key i.e. *0.


September 2, 2010up arrow

Further to the Board's notice of September 1, the meeting with the Board staff will be on Tuesday, September 7, 2010 at 1:00 p.m. The date for the pre-hearing will be discussed at that time.

Please confirm whether you and your experts will participate by teleconference or be in attendance in the Board's meeting room (located on the 6th floor at 56 Sparks Street). For those participating by teleconference, the relevant information will be provided in due course.

We also ask Mr. Green to let us know who will be the alternate to Mr. Don McRae.

Thank you.


September 1, 2010up arrow

NOTICE OF THE BOARD

RE: Survey - Access Copyright Provincial and Territorial Government Tariffs (2005-2009 and 2010-2014)


Having read the parties' comments and replies, the Board concludes that two meetings should be held with the parties and their experts.

The first will be of an informal and technical nature. In attendance should be the parties' counsel and experts as well as the Board's General Counsel, Mario Bouchard and one of the Board's Economic Analyst, Raphael Solomon. The starting point for discussions will be the informal list of comments and questions prepared by the Board staff which is attached to this email. The object of the meeting will be to allow the Board staff to better understand some of the issues raised by the parties and to seek the parties' input on some of the questions and comments raised in the informal list. This will allow the Board staff to better brief the Board in preparation for the second meeting.

At the second meeting, a pre-hearing, the Chairman will be in attendance. The object of the meeting will be to allow parties to provide evidence and arguments on disputed issues relating to the content and conduct of the survey and on the timetable leading to the hearings, so as to allow the Board to make a final ruling on these issues.

The Board staff is available to meet with the parties any time on September 3 and 7 and on the morning of September 8. The Board's meeting room is equipped with teleconferencing facilities for those who cannot attend in person. Parties are asked to advise of their availability forthwith.

With respect to the pre-hearing, parties are asked to advise the Board, as soon as possible, of their availability on the weeks of September 27 and October 4.
Attachment: Comments and Questions.pdf


August 31, 2010up arrow

NOTICE OF THE BOARD

Re: Alleged Deficiencies of Consortium's Responses to Access Interrogatories 

Further to the Consortium's letter of August 30, please explain the references to G1 (Alberta), G11 (Yukon), GN (Nunavut), CLEY (Nunavut) and G9 (Nova Scotia).  The Board would also appreciate a copy of any document referred to in the Consortium's letter. 


August 5, 2010up arrow

ORDER OF THE BOARD

Following up on Mr. O'Neill's letter of August 3, 2010, this order sets the timelines to deal with the remaining issues concerning the survey to be conducted in this matter and the schedule for this proceeding.

Parties shall file written submissions on these issues no later than by 5 p.m. (Eastern Time) on Monday, August 9, 2010.

Parties shall file their reply submissions no later than by 5 p.m. (Eastern Time) on Wednesday, August 18, 2010, and not on August 21 as requested. This will allow the Board to deal with potentially conflicting priorities.

The Board will advise the parties shortly thereafter whether it will decide the matter based on these filings or whether it wishes to hear further from the parties or their experts.

Ontario is reminded that the object of the process set out in this order is to finalize the survey questionnaire, its methodology and mode of implementation in all respects and to all possible extent.


August 4, 2010up arrow

Unless the parties in general, and Ontario in particular, file additional comments no later than by 10 a.m. tomorrow, Thursday, August 5, 2010, the Board will take for granted that all parties agree that the only issues in dispute remaining with respect to the survey are those outlined in Mr. O'Neill's letter of August 3, 2010 and that the procedure outlined in that same letter to resolve these disputes, as well as disputes concerning scheduling issues, is acceptable.


July 6, 2010up arrow

ORDER OF THE BOARD

This Order deals with the matters raised by counsel to Access in a letter dated June 17, 2010 and subsequent correspondence.

With respect to paragraph 1 of Access' letter, authorization of the copyright holder is not required. There is no prima facie reason to treat the Canwest Interactive documents differently. The Board knows of no principle of law that allows a person, once ordered to produce a document, to postpone such production until notice may have been given to a person to whom a duty of confidentiality (explicit or not) may be owed. Furthermore, any such obligation, if it exists, would probably lie with the person being ordered to produce the document, not with the person who is to receive the document pursuant to the Order. The earlier Order to produce the documents to Access is confirmed.

With respect to paragraph 2 of Access' letter, the Board notes the concerns of Access which, if real, are serious. They will be addressed in due course.


June 21, 2010up arrow

ORDER OF THE BOARD

Objectors are asked to respond by no later than Tuesday, June 22, 2010 at noon.

The request:
Please find attached a letter (and attachments referenced therein) - [letter not attached as it contains confidential information] requesting the Board's urgent attention to certain issues related to the responses of the Provinces/Territories to Access Copyright's Interrogatories. I would be pleased to discuss these matters, should you believe that of assistance.


June 4, 2010up arrow

ORDER OF THE BOARD

Attached is the Board's Order dealing with information requested during the interrogatory exchange process for which confidential treatment may be claimed. 

Attachment: Confidentiality Agreement.pdf


May 18, 2010up arrow

RULING OF THE BOARD

Further to the objections on interrogatories, the Board rules as follows:

OBJECTIONS OF PROVINCIAL GOVERNMENTS TO ACCESS COPYRIGHT INTERROGATORIES

Definition of "You" or "Your" (Consortium): there is no need to rule on the matter, subject to what follows about the definition of "FTE".

Definition of "You" or "Your" (BC): BC shall answer using the definition proposed in Access' reply.

Definition of "Copy" (BC): the objection is dismissed. The interpretation Access proposes is not clearly incorrect. BC shall answer using the definition of "projection" as modified by Access.

Definition of "FTE" (Consortium): the parties shall attempt to agree on a definition of FTE. The Board's preliminary view is that FTE should include full-time, part-time, term and casual employees as well as agency personnel.

Definition of "FTE" (BC): settled.

Definition of "Sub-Unit" (all): "Sub-Unit" is redefined as proposed by Access in its reply to the objections.

Overlap between the notions of "intranet" and "repository or library of digital Copies" (all): The objectors shall provide the relevant information as part of one or the other set of questions.

Questions 2, 3 (BC): the objection is dismissed. 2004 data is relevant for the reasons set out in Access' reply.

Questions 5 (all), 36 (BC): copies of works that are not in the repertoire of Access are not relevant. That being said, if a work is in the repertoire, the burden of establishing that the Access licence is not needed should be on the user. At this stage, since Access does not carry the ultimate evidentiary burden on this issue, it only needs to get an idea of the extent to which governments actually source-licence works in its repertoire. A sample of several hundred licences, to be agreed upon by the parties, will suffice. The objectors shall answer Q.5(b) as rephrased.

Questions 6 to 20 (BC): the Board's assumption is that BC does not and will not claim Crown immunity or participate in the debate on this issue. Based on that assumption, BC need not answer questions 6 to 20.

Questions 6, 7, 13, 14, 15, 17, 18, 19, 20, 23 (Consortium: Crown immunity): On the whole, the objection is dismissed. While the request is no doubt onerous, this has to be balanced against the fact that the immunity claim is central to the governments' argument. The courts' admonitions to gather a detailed factual background before dealing with such claims must be complied with.

Sampling is not an obvious option. We do not know whether we are dealing with standard contracts (collective affiliation, recording deals, etc.) or whether each contract is one-of-a-kind. Under those circumstances, the risk that self-sampling would provide insufficient information to determine whether the claim of immunity waiver is valid is simply too high. Therefore the request is not unreasonable.

Furthermore, most or all of the information requested would be available under access to information legislation irrespective of burden. The governments are using their status as governments to attempt to avoid tariff liability. The extent of their obligation of disclosure should be informed by their status as governments.

Since the attempt to draw parallels with other areas of intellectual property is not plainly wrong, the information needed to sustain it shall be provided, with one proviso. Since the Patents Act already provides that it binds the provincial Crowns, the argument cannot be made in respect of patents and patents-related information is irrelevant.

That being said, the parties are asked to discuss ways in which the disclosure burden on governments could be lightened. The parties should consider at least two scenarios: governments stipulating to certain facts/agreed statement of certain facts; developing a sampling methodology that provides Access with what it needs.

Questions 8, 12, 19 (Consortium): the objection is dismissed. Making a judgment on the issue would be premature. The Consortium shall answer Q.12 as rephrased.

Question 23 (BC): settled.

Questions 26, 27, 31 (BC): the objection is dismissed. Questions 27 and 31 shall be answered as re-drafted in Access' reply.

Question 31, 33 (Consortium: burden): the question is not whether there will be a survey if Access wants it, but how and when. The matter shall be held in abeyance until the survey issue has been disposed of. In any event, governments will not be asked, as part of the interrogatories process, to generate lists that do not exist.

Questions 33, 34 (BC: conducting survey): the objection is dismissed. BC shall respond as per Access' reply.

Question 44 (all): the objection is dismissed for the reasons given in Access' reply. The objectors shall supply a sample, to be agreed upon by the parties, of non-privileged communications. 


OBJECTIONS OF ACCESS COPYRIGHT TO BC INTERROGATORIES

Questions 3, 4, 7, 8, 23, 24, 27, 28: the objection is dismissed. Access only need provide what it has in the form that it exists. The response shall provide the information at a sufficient number of time points to allow the objectors to trend the evolution in the repertoire.  With respect to the list of affiliate authors and publishers, if the records do not exist, Access shall provide the lists of those who received a cheque in each distribution made during the relevant period, without the amounts.

Questions 16, 17, 36, 37: Access shall provide anything that is responsive to the questions and is not covered by litigation privilege.

Questions 18, 38: the objection is dismissed. Access shall respond for the last three years. If the number of requests is more than 50 a year, Access shall provide a representative sample of 50 instances per year.

Questions 42, 43, 44: there is no need to rule on this issue at this time. 

May 18, 2010

The Board needs to obtain more information on the nature of the disagreement that the parties have with respect to the methodology to be employed in the survey. The parties should submit the information as soon as possible.


March 2, 2010up arrow

NOTICE OF THE BOARD 

The Directive on Procedure for the file mentioned above is attached. I draw your attention to the fact that both the electronic version of evidence (in email attachments or on CD-ROM, DVD or USB key) and the hard copies must be filed with the Board at the same time, on the date set for that purpose. Other participants must also receive their hard copy and electronic version on the same day the documents are filed with the Board. Please ensure that the electronic version allows the Board to import the text, in whole or in part, into a word processing software.

Also attached is a notice of the Board sent to the parties in other current files, in which it expresses its dissatisfaction with the way the parties currently deal with the confidential treatment and the relevance of the documents. The notice also states principles the Board expects parties to follow with respect to the confidential treatment and the relevance of the information, as well as the Board's intention to return to the parties any document that does not comply with these principles. Parties in this file are also expected to abide to the same principles.

The Board adopts the following schedule of proceedings which has been agreed upon by all interested parties:

Exchange of interrogatories: no later than Monday, March 22, 2010

Exchange of objections to interrogatories: no later than Monday, April 12, 2010

Filing, with the Board, of replies to objections to interrogatories with respect to any remaining issues: no later than Monday, April 26, 2010

[Board ruling]

Exchange of responses to interrogatories: no later than Monday, June 7, 2010

Motions with respect to incomplete/unsatisfactory responses to interrogatories: no later than Monday, June 28, 2010

Filing, with the Board, of replies to motions with respect to any remaining issues: no later than Monday, July 12, 2010

[Board ruling]

Exchange of complete/satisfactory responses to interrogatories: no later than Monday, August 23, 2010

Filing of Access Copyright case: no later than Monday, April 11, 2011

Filing of Objectors' cases: no later than Monday, June 20, 2011

Filing of Access Copyright reply case: no later than Monday, July 4, 2011

Beginning of hearing: Tuesday, September 13, 2011 at 10:00 a.m., Copyright Board's hearing room.

Attachment: DIRECTIVE ON PROCEDURE AC.pdf; SODRAC v SRC CBC et Astral SODRAC Tarif 5 etc.pdf


January 28, 2010up arrow

RULING OF THE BOARD

The Board has heard and considered the parties' submissions dealing with the issue of splitting the above-referenced matter to address the question of Crown immunity separately. Given the complexity of the evidence required to adequately deal with the question, the Board concludes that no purpose would be served by examining the question on its own. On the contrary, splitting the matter would only serve to complicate and delay the efficient disposition of all the issues raised in these proceedings.

The application to hear the question of Crown immunity separately is denied. As a result, no purpose would be served to now hear the question raised by British Columbia, that is whether Access is prevented from filing a tariff by reason of having entered into agreements with some provinces.

The matter will therefore proceed according to the schedule on which the parties have already agreed. The parties are still asked to file their proposed wording of the question or questions they would wish the Board to eventually address with respect to Crown immunity.


January 26, 2010up arrow

The Chairman will hear the parties' submissions on the issues identified below on Thursday, January 28, 2010 at 11 a.m. (Eastern Time). Ms. Noel and Messrs. Hofley and O'Neill will attend at the Board's offices (6th Floor). Ms. Rush and Messrs. Petersen and Green will participate by teleconference. Instructions on how to join the teleconference will follow.

AGENDA

1. Identification of questions the objectors intend to raise and that, if the objectors are correct, could prevent the Board from certifying a tariff altogether. (Crown immunity, others)

2. Can the questions identified in 1. be addressed separately from the tariff determination or are they inextricably bound up with the overall issue?

  1. Is it necessary to create a factual backdrop or context in order to decide the questions?
  2. If the answer to a. is yes, how can the factual backdrop or context be best created?
  • An agreed statement of facts
  • A hearing with the usual procedural rules to apply including interrogatories, etc. (with or without adaptations)
  • Other

3. Matters to be addressed if the Board decides to deal separately with the questions identified in 1.

    • Wording of question(s)
    • Scheduling of questions(s)
    • Impact on scheduling of other issues
      • Everything else is postponed
      • The survey methodology is set but everything else is postponed
      • The survey proceeds but the tariff examination hearings are postponed
      • Other scenarios

4. Other issues


November 13, 2009up arrow

Ruling of the Board

The application to extend the date set in the Board's order of September 8, 2009 is granted. The parties shall report to the Board and propose a schedule of proceedings no later than Friday, January 15, 2010.

The Board is concerned by the time it has taken for the objectors to retain and instruct counsel. The indication that the Province of Ontario might require several more weeks to conclude this process is not reassuring in the least. Lengthy and complex internal approval processes may be a reality that provincial administrations must contend with, but the Board will not allow these issues to control the agenda.

Failure to comply with this order might lead the Board itself to set a schedule shortly thereafter.


September 8, 2009up arrow

NOTICE OF THE BOARD

The Objectors have received the reply of Access Copyright to the objections filed with respect to the Provincial/Territorial Tariff 2010-2014. The reply of Access Copyright indicates a willingness on its part to enter into discussions with the provinces and territories on virtually all issues for which objections have been filed. If undertaken by all parties in good faith, such discussions would, at a minimum, help focus and reduce the issues to be examined in any subsequent hearing.

The Board however intends to proceed with the examination of the proposed tariffs for 2005-2009 and 2010-2014 diligently. While it wishes to encourage and facilitate discussions between parties, the Board must ensure that the proceedings leading to a hearing are not unreasonably delayed. Consequently, parties are encouraged to engage in substantive and scheduling discussions with a view to reporting to the Board, in writing, no later than Friday, November 13, 2009



Access Copyright - Post-Secondary Educational Institutions Tariff (2011-2013)


April 10, 2014up arrow

NOTICE OF THE BOARD

Access' request below is granted. Access Copyright is to provide its reply to the ACCC's submissions no later than Tuesday, April 22, 2014. Please note that the Board has extended the delay of one day since April 21, 2014 is a federal statutory holiday.

In addition, please find attached a copy of SFU's representations filed with the Board on April 3, 2014. Access may request additional time to adequately reply to SFU's submissions if required.

De : BROOKS, NANCY
Envoyé : Wednesday, April 09, 2014 05:22 PM Eastern Standard Time
À : McDougall, Gilles
Cc : AONeill; wanda.noel; Glen.Bloom; CSeto; S. Maguire; HOFLEY, RANDALL;
Objet : RE: Access Copyright Post-Secondary Educational Institutions Tariff, 2011-2013 - Ruling of the Board - Access Request of Feb. 10, 2014

Dear Mr. McDougall:

Pursuant to the Board's Ruling of March 7, 2014, attached, Access Copyright is to provide its reply to the ACCCs submissions no later than Monday, April 14. In light of the fact that Access Copyright's Reply Case is due to be filed in the K-12 tariff proceedings by April 16, we are requesting an extension of one week, i.e., to Monday, April 21, to respond to the ACCC's submissions.

Please do not hesitate to let me know if you have any questions about this request.

Yours truly,

Nancy Brooks

Attachment: SFU commentary on AC Evidence re PSE Tariff.pdf


March 7, 2014up arrow

NOTICE OF THE BOARD

Attached is the Board's Ruling dealing with Access Copyright's request of February 10, 2014 to seek leave to file supplementary evidence.

Attachment: Ruling - Access Copyright - Post-Secondary (2011-2013) - Feb. 10, 2014 Request - March 7, 2014 Ruling.pdf


March 6, 2014up arrow

NOTICE OF THE BOARD

Access' request is granted. Access shall provide answers to the Board's questions of February 18, 2014 no later than Friday, March 28, 2014. Mr. Maguire can provide a response no later than Monday, April 7, 2014.

De : BROOKS, NANCY
Envoyé : 6 mars 2014 10:07
À : McDougall, Gilles: CB-CDA
Cc : HOFLEY, RANDALL; Sean Maguire
Objet : RE: Access Copyright Post-Secondary Educational Institutions Tariff, 2011-2013 - Questions from the Board

Dear Mr. McDougall:

I am writing with respect to the Board's Notice of February 18, 2014 asking Access Copyright to provide answers to the attached Board questions by Tuesday, March 18, 2014. Given the intervention next week of the school March break in Ontario (which affects some counsel), our client's unavoidable unavailability from March 14-19 and the complexity of the issues raised in the Board's questions, we write to request an extension of the deadline to Friday, March 28, 2014.

Please do not hesitate to let me know if you have any questions about this request.

Yours truly,

Nancy Brooks


March 6, 2014up arrow

NOTICE OF THE BOARD

Attached is the Board's Ruling dealing with Access Copyright's request of December 13, 2013 to seek leave to introduce new evidence.

Attachment: Ruling - Access Copyright - Post-Secondary (2011-2013) - Dec. 13 2013 Request - March 6, 2014 Ruling.pdf


March 5, 2014up arrow

NOTICE OF THE BOARD

In its Notice of February 18, 2014, the Board addressed a number of questions to Access Copyright. These questions are attached.

The beginning of Question 6 is revised as follows:

6. The Board's preliminary view is that the copying of a few pages or a small percentage from a book that is not a collection of short works, such as poems, is not substantial. Assuming that two pages or less of such a book is not a substantial part thereof, the Board would be of the preliminary view that, based on the coursepack copying dataset supplied to the Board, less than 3 per cent of the copying would not be compensable.

Attachment: Questions from the Board - Access Copyright - Post-Secondary (2011-2013) - Feb. 18, 2014.pdf


February 18, 2014up arrow

NOTICE OF THE BOARD

Access Copyright is asked to provide answers to the attached Board's questions no later than Tuesday, March 18, 2014. Mr. Maguire is allowed to provide a response no later than Friday, March 28, 2014.

Attachment: Questions from the Board - Access Copyright - Post Secondary (2011-2013) - Feb. 18, 2014.pdf


February 13, 2014up arrow

NOTICE OF THE BOARD

Please see the attached Ruling of the Board.

Attachment: Ruling - Access Copyright - Post Secondary (2011-2013) - Feb 13 2014.pdf


February 13, 2014up arrow

NOTICE OF THE BOARD

M. Maguire can respond to the attached Access request no later than Monday, February 17, 2014. Access can reply no later than Wednesday, February 19, 2014.

Attachment: 10feb2014 Letter to G McDougall RE Supplementary materials.pdf


February 7, 2014up arrow

NOTICE OF THE BOARD

Following the February 4, 2014 decision of the Ontario Superior Court in relation to the University of Toronto's motion, the Board establishes new deadlines to its December 20, 2013 Notice: the University of Toronto may respond to the attached application of Access for leave to file additional evidence by no later than Tuesday, February 18, 2014. Access may reply no later than Friday, February 21, 2014.

In order to ensure that the answers provided by Access to the Board's questions are as complete as possible, the Board also establishes new deadlines in respect to its January 17, 2014 Notice: Access is asked to respond to Board's Questions no later than Friday, March 14, 2014. Mr. Maguire should inform the Board no later than Monday, March 17, 2014, whether he wishes to provide a response to Access' answers and provide the Board with an estimate of time needed to provide such response.

Attachment: 13dec2013 Letter to G McDougall - Access Post Secondary (2011-2013).pdf


January 17, 2014up arrow

NOTICE OF THE BOARD

Access is asked to supply as soon as possible all raw data, in Excel format, used to generate the report it filed as Exhibit AC-5 (Analysis of the Volume and Nature of the Copying of Published Works Documented in the Post-Secondary Coursepack Data Delivered to Access Copyright between 2005 and 2012).

Access is also asked to respond to the attached Board's questions no later than Friday, February 28, 2014. Mr. Maguire should inform the Board no later than Monday, March 3, 2014, whether he wishes to provide a response to Access' answers and provide the Board with an estimate of the time needed to provide such response.

The nature of the questions addressed by the Board are such that Access cannot realistically provide full answers before the start of the hearing currently scheduled for February 12, 2014. In addition, depending on whether the additional evidence filed by Access in respect of the University of Toronto is included in the file or not, the Board may well have additional questions to which Access could probably not respond before the scheduled starting date.

Furthermore, the staff is also currently analysing the legal issues at stake in this file, which will likely lead to a number of legal questions to Access.

Finally, the withdrawal of CAUT and CFS as well as Mr. Katz implies that the Board staff needs to play a more active role in the file.

For these reasons, and because of the additional drain on Board's resources this implies, the Board postpones sine die the hearing in this matter. After having received and analysed all answers from Access, and replies from Mr. Maguire, the Board will either decide when to reschedule the hearing or proceed on paper.

Attachment: Questions - Access Copyright - Post Secondary (2011-2013) - Jan. 17, 2014.pdf


January 13, 2014up arrow

NOTICE OF THE BOARD

The Board grants U of T's request, agreed to by Access Copyright, to temporarily suspend the deadlines established in the Notice of the Board dated December 20, 2013, and defer any final ruling on the evidence to which this Notice relates until further notice.


December 20, 2013up arrow

NOTICE OF THE BOARD

In his letter of December 20, 2013, Ariel Katz requests that the Board order that the following information be placed on the public record:

  • the agreements between Access and other Reproduction Rights Organisations obtained in the context of Ariel Katz interrogatories to Access (AK-7), designated by Access as confidential information;
  • exhibit AC-2H (Access list of affiliates), also designated by Access as confidential information; and
  • a non-redacted version of his letter of December 20, 2013 and its Appendix.

Access may respond to Ariel Katz's requests by no later than Wednesday, January 8, 2014. Mr. Katz may reply by no later than Friday January 10, 2014.


December 20, 2013up arrow

NOTICE OF THE BOARD

The University of Toronto may respond to the attached application of Access for leave to file additional evidence by no later than Monday, January 13, 2014. Access may reply by no later than Wednesday, January 15, 2014.


December 16, 2013up arrow

NOTICE OF THE BOARD

The Board preliminary view is that the new evidence submitted by Access in the attached documents should be allowed in the record, and that the objectors should be allowed to respond to this new evidence no later Friday, January 10, 2014. No other remaining deadlines would be changed in the existing schedule.

The objectors can provide comments on the Board's preliminary view no later than Wednesday, December 18, 2013. Access can reply no later than Thursday, December 19, 2013.

Attachment: 13dec2013 Letter to G. McDougall.pdf


December 11, 2013up arrow

NOTICE OF THE BOARD

To accommodate the schedule of another matter before the Board, the hearing in the above-noted matter will start on Wednesday February 12, 2013, at 10:00 am, and not on Tuesday, February 11, 2013 as originally planned.


December 9, 2013up arrow

NOTICE OF THE BOARD

Please see the attached Ruling of the Board.

Attachment: Ruling - Access Copyright - Post-Secondary (2011-2013) - Dec. 9, 2013.pdf


December 4, 2013up arrow

RULING OF THE BOARD

The November 18, 2013 application by Access Copyright to consolidate the examination of the above-referenced tariffs is denied. The examination of the proposed tariff for 2011-2013 will proceed as scheduled, subject to what the Board may decide when ruling on the November 7, 2013 application of professor Katz for a reference. The reasons for this ruling are as follows.

First, the proposed tariff for 2014-2017 purports to licence the so-called making available right. Notwithstanding the arguments of Access Copyright, the Board concludes that this raises significant new factual and legal issues. Both proposed tariffs suppose that posting a link or a hyperlink to a digital copy is a protected use. To support the conclusion, Access Copyright argues that such posting triggers both the making available right (mentioned in the 2014-2017 tariff) and the reproduction right (mentioned in the 2011-2013 tariff). Access Copyright does not comment on what may happen were the Board to conclude that such posting triggers the first right but not the second. The making available right, if it exists here, apparently is a form of the right to communicate a work "to the public": see s. 2.4(1.1) of the Copyright Act. If so, presumably the Board would then have to decide a mixed question of fact and law, i.e. what constitutes a "public" in the context of post-secondary education, a task that was not made simpler by Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37: see para. 27.

Adding these to the issues already raised by the 2011-2013 proposal would disrupt the current proceedings, slated for a hearing set to begin a mere two months hence. This, of itself, would be sufficient to justify denying the application.

Second, if any of the assertions of the objectors concerning past and continuing changes in the copying practices of potentially targeted institutions are correct, then certifying now, for 2014-2017, a tariff structured as Access Copyright proposes supposes far too great an ability to predict future copying practices. In such a potentially unstable market as this one, certifying tariffs based on what occurred, to the extent that this is indeed ascertainable, is (at least for the time being) preferable to certifying tariffs on the basis of what may happen. The continuation of the 2013 tariff on an interim basis pursuant to section 70.18 of the Act will provide sufficient certainty in the relevant market from January 1, 2014, until a tariff for the years 2014 and beyond is certified (assuming that the Board has the jurisdiction to certify such a tariff).

We note that some of the parties' pleadings in this application as well as in the related application seeking a reference to the Federal Court of Appeal have adopted a tone and aggressive style that is not appropriate in matters before this Board and fail to deal with the issues in an objective manner. The parties are requested to show greater respect and equanimity.


November 29, 2013up arrow

NOTICE OF THE BOARD

The Board has received the attached letter. The Board does not wish to receive any comments on it.

Attachment: fp to McDougall, Copyright Board Nov. 29, 2013.pdf


November 22, 2013up arrow

NOTICE OF THE BOARD

Given the specific circumstances of counsel to CAUT and CFS, and the consent of Access Copyright, the attached request by CAUT and CFS is granted.

CAUT and CFS may respond to Access' request of November 18, 2013 no later than Tuesday, November 26, 2013. Access Copyright may reply no later than Friday, November 29, 2013.

Attachment: 1) LT McDougall re extension for response to AC merger request - 21 Nov 13.pdf; 2) Hofley Email re merger motion - 21 Nov 2013


November 19, 2013up arrow

NOTICE OF THE BOARD

Objectors in the files mentioned above can respond to the attached Access request no later than Thursday, November 21, 2013. Access can reply no later than Monday, November 25, 2013.

Attachment: 1) Comparaison Statement of Royalsties to be collected.pdf; 2) Ottawa #40300040-v2-18nov2013 Letter to G McDougall.pdf


November 13, 2013up arrow

ORDER OF THE BOARD

The following order deals with three issues: the submission filed by Professor Katz on November 12, 2013 outside the process established by the Board; the request by Professor Katz to adjourn the proceedings in the above-mentioned file; and, the request by Professor Katz for a reference to the Federal Court of Appeal.

Professor Katz's submission of November 12, 2013 is clearly out of order and the Board rejects it outright. The Notice of the Board of November 7, 2013 is clear and unequivocal as to the timing of responses and replies the Board required in this instance. Where the Board issues timelines to be abided to by the parties, any deviation therefrom may only be made with prior leave from the Board.

The application for the adjournment of the proceedings before the Board is denied. It is the Board's opinion that, regardless of the Board's ruling on the application for a reference to the Federal Court of Appeal, the proceedings should not be postponed.

In the event that the Board decides to refer the matter to the Federal Court of Appeal as proposed by Professor Katz, no decision by the Court would render the proceedings before the Board moot. The existing timetable for the proceedings is therefore maintained. Parties are expected to govern themselves accordingly.

With respect to the application for a reference to the Federal Court of Appeal made by Professor Katz, the following timetable is hereby established:

The Canadian Association of University Teachers (CAUT), the Canadian Federation of University Students (CFUS) and Mr. Maguire may provide additional comments on Professor Katz' application of November 6, 2013 by no later than Monday, November 18, 2013 at noon;

Access Copyright may respond to all objectors' submissions by no later than Friday, November 22, 2013;

Professor Katz may reply to all submissions by no later than Friday, November 29, 2013.


November 07, 2013up arrow

NOTICE OF THE BOARD

With respect to Access Copyright's attached suggestion on the timelines to deal with Professor Ariel Katz's request dated November 6, 2013, Objectors may respond no later than Friday, November 8, 2013. Access Copyright can reply no later than Monday, November 11, 2013.

Attachment: Ottawa-#-v1-07nov2013 Letter to G. McDougall.pdf


September 5, 2013up arrow

NOTICE OF THE BOARD

Objectors can respond to the attached Access' request no later than Monday, September 9, 2013, at noon. Access can reply no later than Tuesday, September 10, 2013, at noon.

Attachment: 05sept2013 Letter to G. McDougall.pdf


July 16, 2013up arrow

NOTICE OF THE BOARD

ACCC can respond to Access Copyright's application referred to in the email reproduced below no later than Friday, July 19, 2013. Access can reply no later than Wednesday, July 24, 2013.


May 31, 2013up arrow

RULING OF THE BOARD

ACCC requests leave to file the CMS study as evidence of the volume and nature of copying on course management systems. Access opposes this request.

ACCC's request is granted. The Board believes that the information to be collected by ACCC through the CMS study is potentially useful. In addition, notwithstanding Access' request to the contrary, there will be no a priori limit on how the CMS study may be used.

Access will be allowed to challenge any aspect of the study, including the methodology and the conclusions drawn by ACCC or its experts.


May 28, 2013up arrow

RULING OF THE BOARD

Deficiencies 1, 3, 4, 5, 6, 7: Institutions shall remedy forthwith the deficiencies claimed by Access or explain why they cannot do so.

Deficiency 2: The institution shall explain forthwith the discrepancy between the answers to Q105 and Q107, remedy the deficiencies claimed by Access or explain why it cannot do so.

Deficiencies are due to ACCC's failure to adequately respond to the Interrogatories. Given however that the schedule of proceedings is tight, the Board only partly grants Access' request for a time extension. Access shall file its statement no later than Friday, September 13, 2013.


May 17, 2013up arrow

NOTICE OF THE BOARD

ACCC can respond to the attached Access Copyright's request no later than Wednesday, May 22, 2013.

Attachment: Access Postsecondary - 17may2013 Letter to G McDougall.pdf


May 15, 2013up arrow

NOTICE OF THE BOARD

ACCC's letter of May 10, 2013 is not responsive to the questions posed by the Board on May 3, 2013 in at least two respects.

ACCC's response to question (c) [the nature of the random selection process of course sections] does not indicate either the statistical type of randomization (Gaussian distribution, recto-linear distribution, etc.) or the mechanical type of randomization. It does not indicate how many of the 50 courses sections received from each institution will be selected for the purposes of analysis. It does not explain why a two-step randomization process is advantageous or necessary.

Also, the fact that ACCC did not file any document responsive to question (f) [documents relating to the pre-test of the data] seems incompatible with the existence of extensive discussions with member institutions and the Technical Advisory Committee over a lengthy period of time mentioned in ACCC's response.

Furthermore, the Board is at a loss to understand certain of the issues or obstacles ACCC invokes to justify various aspects of the design of its proposed CMS study.

1) Academic freedom is mentioned several times in the letter. How would academic freedom be jeopardized by telling Access or the Board that professor A, who teaches course B, uses documents C and D during that course?

2) How does giving assurances that data collected will be anonymized help "to meet the challenges of respecting academic freedom and the intellectual property rights of professors and instructors"?

3) ACCC claims that the content of CMS sites is confidential, without further qualification. How does ACCC justify such a claim with respect to materials posted by a professor or instructor to be accessed by all course participants?

4) What makes the lists of all course sections offered in the Winter 2013 term confidential? Presumably, these lists are available at a minimum to all students eligible to register for each course. How can it be confidential that professor X delivers course Y in institution Z?

5) How can the intellectual property rights of those who create a CMS justify restraining access to relevant information used in a proceeding before the Board?

ACCC is asked to respond to the above no later than on Tuesday, May 21, 2013. The Board would prefer that other parties react to ACCC's response on Friday, May 24, 2013 at the same time as they will comment on ACCC's letter of May 10, but will entertain an application for a short delay if necessary.


May 3, 2013up arrow

NOTICE OF THE BOARD

ACCC shall supply to the Board and to other parties a description of the methodology ACCC intends to use in gathering, collating, analyzing and presenting the data, including:

  • (a) the names of the experts retained by ACCC;
  • (b) a description of how the data set will be created and the methods used to sort through the various types of information found on the CMS sites.
  • (c) the nature of the random selection process by which course sections are selected for analysis in this data gathering exercise;
  • (d) the plans for the data gathering exercise, including a description of the methods used to gather the information, the list of variables to be gathered and how they will be analyzed;
  • (e) how ACCC proposes that Access and the Board be allowed to test the reliability of a data set that will not contain the name of the institution, name of the professor, the name, course number, or section number of the course.
  • (f) If readily available, any documents relating to the pre-test of the data gathering exercise, including but not limited to
    1. which quantitative variables were collected;
    2. which qualitative or descriptive variables were collected;
    3. which variables were changed, dropped, or added as a result of the pre-test;
    4. any documents that analyze the pretest itself

ACCC shall supply this information no later than Friday, May 10, 2013. Other parties may respond to any documentation filed no later than Friday, May 24, 2013. ACCC may reply no later than Friday May 31, 2013.

Attachment: Letter to the Board re CMS Study April 30, 2013.pdf


April 16, 2013up arrow

ORDER OF THE BOARD

Attached is the Board's Order dealing with Replies to Motions re: incomplete/unsatisfactory responses to interrogatories in abeyance.

Attachment: Order - incomplete unsatisfactory response to interrogatories in abeyance - Access - Post-Secondary.pdf


December 21, 2012up arrow

NOTICE OF THE BOARD

Taking into consideration the Easter holidays, the following schedule is set for the interrogatory process in the file mentioned above:

Responses to interrogatories in abeyance: no later than Friday, January 25, 2013

Motions re: incomplete/unsatisfactory responses to interrogatories in abeyance: no later than Friday, March 15, 2013

Filing, with the Board, of replies to motions: no later than Tuesday, April 2, 2013

[Board Ruling]

Complete/satisfactory responses to interrogatories in abeyance: no later than Friday, May 10, 2013

The remainder of the calendar is unchanged.


October 23, 2012up arrow

NOTICE OF THE BOARD

The Board notes the withdrawal of the application of Access Copyright dated September 17, 2012.

At this stage, the Board does not expect that it will require any further evidence from or about the unlicensed AUCC institutions in these proceedings. Were this to change, parties will be afforded sufficient time to determine their course of action.


October 23, 2012up arrow

RULING OF THE BOARD

ACCESS INTERROGATORIES TO ACCC

Sampling

ACCC shall ask the 64 unlicensed institutions to provide the following information:

a) number of course-sections offered in one semester;

b) number of published documents in the CMS, if any;

c) number of published documents in the e-reserve system, if any.

A sample of one-quarter of unlicensed institutions, that is 16 institutions, shall be asked to answer the interrogatories in abeyance.

The fact that all institutions will supply a minimal amount of information will allow for the results of the sample to be put in statistical perspective. The sample was brought down from one-third (what ACCC suggested) to one-fourth so as to balance out the burden imposed on all the institutions. The answer to a) will be useful for scaling the information that will be obtained in response to Q. 105 to Q. 108. The answers to b) and c) will be useful for scaling the information that will be obtained in response to Q. 71 and Q. 81.

Otherwise, parties are reminded that institutions need only provide what they have, in the form they have it.

Q. 53: Access has confirmed that a general description of the equipment or devices where copies are stored is sufficient. The question as reformulated shall be answered.

Q. 71: If the information requested can be accessed and copied with reasonable efforts from a limited number of central folders, the question shall be answered for every work copied, unless Access agrees with the institution to limit this interrogatory to a representative sample of copies of published works drawn from the pool of documents. Otherwise, the question shall be answered for a sample of 10% of the courses up to a maximum of 75. Access may elect to let the institutions select the courses. If not, ACCC shall provide to Access a list of all the courses offered in each institution. Access shall then randomly select the sample from that list.

ACCC has not substantiated its claim that answering the interrogatories may trigger privacy or union issues. The interrogatory does not per se seek personal information. As such, if an institution has privacy or union concerns, is up to it to address them or to take appropriate arrangements with Access.

As offered by Access, institutions need not provide information as it pertains to hyperlinks or to copying done by students.

Q. 81: The information shall be provided as of September 30, 2012. If the information is not available as of that date, it shall be provided as of a date to be agreed upon by Access and the institution. If an institution does not have copies of published works on the digital library management system, it shall simply say so. Institutions that have e-reserve systems shall answer as described in Q. 71.

Q. 105, Q. 107: The interrogatories shall be answered in respect of one semester, between January 1, 2011 and September 30, 2012, the choice of which is left to Access. The semester need not be the same for all institutions.

If the information requested can be accessed and copied with reasonable efforts from a limited number of central folders, the interrogatory shall be answered for every course, unless Access agrees with an institution to limit the interrogatory to a representative sample of courses drawn from the pool of courses. Otherwise, the question shall be answered for a sample of 10% of the courses up to a maximum of 75. Access may elect to let the institutions select the courses. If not, ACCC shall provide to Access a list of all the courses offered in each institution. Access shall then randomly select the sample from that list. In answering Q. 107, an institution may supply a list instead of the works themselves if the list allows Access to determine which works are in its repertoire as well as the extent to which the work was copied.

The interrogatory shall be answered only with regards to (a), (d), (e) and (f). The rest of the requested information is irrelevant.

Q. 106: An answer shall be provided for those courses for which an answer was supplied in response to Q. 105. The interrogatory need not be answered with respect to students.

Q. 108: The interrogatory shall be answered in respect of each published work provided or listed in response to Q. 107.

Q. 117, Q. 119: Institutions shall make reasonable enquiries and provide what they have in the form they have it, as offered by ACCC.


October 16, 2012up arrow

NOTICE OF THE BOARD

Further to the Board's Notice of September 28, 2012, attached is the Directive on Procedure. We draw your attention on the following points:

  1. The electronic version of the evidence (on CD, DVD or USB key) should be filed with the Board, along with the hard copies on the date set for that purpose. You must also ensure that other participants receive their hard copy and electronic version on the same date the documents are filed with the Board;
  2. As a general rule, responses to interrogatories are NOT filed with the Board. Parties should only file as evidence those responses to interrogatories to which they know they intend to refer;
  3. When filing documents with the Board, confidential and highly confidential information should be highlighted in yellow and blue, respectively. The cover page of the document should indicate whether it includes confidential or highly confidential information.

________________________________________________________

AVIS DE LA COMMISSION

En référence à l'avis de la Commission en date du 28 septembre 2012, vous trouverez ci-joint la directive sur la procédure. Nous attirons votre attention sur les items suivants :

  1. La version électronique de la preuve (sur CD-ROM, DVD ou clé USB) doit être déposée auprès de la Commission en même temps que les copies papier à la date fixée pour ce faire. Vous devez aussi vous assurer que tous les participants reçoivent les versions papier et électronique le même jour que les documents sont déposés auprès de la Commission;
  2. En règle générale, les réponses aux demandes de renseignements ne sont PAS déposées auprès de la Commission. Les participants devraient déposer en preuve uniquement les réponses aux demandes de renseignements auxquelles ils entendent faire référence;
  3. Lorsque les participants déposent des documents auprès de la Commission, les renseignements confidentiels et hautement confidentiels doivent être surlignés en jaune et bleu, respectivement. La page titre du document doit indiquer si le document contient des renseignements confidentiels ou hautement confidentiels.

Attachment: Access Post-Secondary - Directive on Procedure and Appendices new.pdf


October 12, 2012up arrow

NOTICE OF THE BOARD

AUCC's request for an extension of time to Friday, October 19, 2012 to respond to Access Copyright application dated September 17, 2012 is granted. Access is allowed to file, if necessary, a short reply no later than on Wednesday, October 24, 2012.

Attachment: Access Copyright Tariff 2011-2012 - AUCC - letter to Board.pdf


September 28, 2012up arrow

RULING OF THE BOARD

As noted by Access, with respect to the above-referenced file, the deadline for filing replies to objections to interrogatories in abeyance in the Hearing schedule set by the Board on September 27, 2012, should have been Tuesday, October 2, 2012 (and not Friday, September 28, 2012). We apologize for any inconvenience this might have caused. The corrected schedule is as follows:

Filing, with the Board, of replies to objections to interrogatories in abeyance: no later than Tuesday, October 2, 2012

[Board Ruling]

Responses to interrogatories in abeyance: no later than Friday, December 21, 2012

Motions re: incomplete/unsatisfactory responses to interrogatories in abeyance: no later than Friday, February 8, 2013

Filing, with the Board, of replies to motions: no later than Friday, March 1, 2013

[Board Ruling]

Complete/satisfactory responses to interrogatories in abeyance: no later than Friday, April 26, 2013

Filing of Access' Case: no later than Friday, September 6, 2013

Filing of Objectors' Case: no later than Friday, December 20, 2013

Filing of Access' Reply: no later than Monday, January 27, 2014

Beginning of hearing: Tuesday, February 11, 2014 at 10:00 a.m., Copyright Board's hearing room.

Access Copyright is granted 7 weeks to prepare deficiency complaints. ACCC is granted 3 weeks to respond. Access proposed 8+2 weeks. ACCC proposed 6+4 weeks. Access needs more time to analyze all responses than ACCC to respond to deficiency complaints. The Board's original schedule proposed 7+3. That is what the Board adopts.

Access is granted 18 weeks from the date set to provide full responses to the interrogatories in abeyance to file its case. ACCC is granted 16 weeks from the time Access will file its case to file its response. Access proposed 20+14 weeks, ACCC 17+17 weeks. Access can start its case preparation with the information it already has. However, the time allotted to Access should be longer if only because it includes the Summer.

The period between the filing of the reply of Access and the beginning of the hearing shall be 2 weeks, not 10 days as Access proposed or 17 days as proposed by ACCC. This should be sufficient to account for the Christmas season.

The indulgence requested by counsel for Access in her letter of September 21 is denied. Accordingly, the section of that letter dealing with the schedule leading up to the hearing is struck from the record.


September 27, 2012up arrow

RULING OF THE BOARD

The schedule in the above-referenced proceedings shall be as follows:
Filing, with the Board, of replies to objections to interrogatories in abeyance: no later than Friday, September 28, 2012
[Board Ruling]
Responses to interrogatories in abeyance: no later than Friday, December 21, 2012
Motions re: incomplete/unsatisfactory responses to interrogatories in abeyance: no later than Friday, February 8, 2013
Filing, with the Board, of replies to motions: no later than Friday, March 1, 2013
[Board Ruling]
Complete/satisfactory responses to interrogatories in abeyance: no later than Friday, April 26, 2013
Filing of Access' Case: no later than Friday, September 6, 2013
Filing of Objectors' Case: no later than Friday, December 20, 2013
Filing of Access' Reply: no later than Monday, January 27, 2014
Beginning of hearing: Tuesday, February 11, 2014 at 10:00 a.m., Copyright Board's hearing room.
Access Copyright is granted 7 weeks to prepare deficiency complaints. ACCC is granted 3 weeks to respond. Access proposed 8+2 weeks. ACCC proposed 6+4 weeks. Access needs more time to analyze all responses than ACCC to respond to deficiency complaints. The Board's original schedule proposed 7+3. That is what the Board adopts.
Access is granted 18 weeks from the date set to provide full responses to the interrogatories in abeyance to file its case. ACCC is granted 16 weeks from the time Access will file its case to file its response. Access proposed 20+14 weeks, ACCC 17+17 weeks. Access can start its case preparation with the information it already has. However, the time allotted to Access should be longer if only because it includes the Summer.
The period between the filing of the reply of Access and the beginning of the hearing shall be 2 weeks, not 10 days as Access proposed or 17 days as proposed by ACCC. This should be sufficient to account for the Christmas season.
The indulgence requested by counsel for Access in her letter of September 21 is denied. Accordingly, the section of that letter dealing with the schedule leading up to the hearing is struck from the record.


September 25, 2012up arrow

NOTICE OF THE BOARD

Access's request described below is granted.

Dear Mr. McDougall:

I am writing in respect of the Board's order dated September 7, 2012 in which it ordered Access Copyright to file the ACCC objections and its reply thereto with the Board by Friday, September 28, 2012. We are working through the ACCC's objections to the interrogatories in abeyance. However, given the volume of this task, we write to request a short extension of the deadline - to Tuesday, October 2, 2012 - to respond to the objections .

If you have any questions about the above, please do not hesitate to contact me.

Yours truly,

Nancy Brooks


September 19, 2012up arrow

ORDER OF THE BOARD

This order follows up on the September 17, 2012 application of Access Copyright, a copy of which is attached.

To the extent this has not already been done, Access shall supply forthwith to AUCC and to the institutions mentioned in Appendix A to the application of Access a copy of every document referred to in the application.

AUCC and the institutions are reminded that, pursuant to paragraph E) of the Board's Order of September 7, 2012, they may respond to the application no later than on Monday, October 1, 2012.

Access will be allowed to a short reply, to be filed no later than on Friday, October 5, 2012.

Attachment: Access Copyright Sept. 17, 2012 application - Access Copyright - Post Secondary . .pdf


September 7, 2012up arrow

ORDER OF THE BOARD

Attached is the Board's Order dealing with the Interrogatories held in abeyance.

Attachment : Access Post Secondary - Order - Interrogatories in abeyance


September 7, 2012up arrow

RULING OF THE BOARD

ACCESS COPYRIGHT INTERROGATORIES ADDRESSED TO ACCC

Q21: (Lethbridge Community College, University College of the North) the institutions shall provide the additional information offered in response to the first and second parts of the question. Concerning the interim tariff, answered. The interrogatory asks whom the Institution believes is subject to the tariff. Although the answer may be wrong (there is no opt-out clause in the interim tariff), the institutions have indicated who they believe is covered.

Q24: Lethbridge Community College, University College of the North: however surprising it may seem that the contracts referred to do not address at all the copying of copyrighted material, answered.

Q33: Holland College: permission letters shall be provided in response to c) if they have not already been provided in response to Q121. Tracking is not limited to counting of copies. Requiring that permission letters be provided to the central copying facility and that copies of permission letters be kept by departments is a form of tracking.

Q45: University College of the North: if the Institution has documentation, policies or agreements relating to works placed on reserve that address Access' questions (e.g., a document that explains how faculty are expected to show that the policy is being followed), it shall provide them in response to d). Otherwise, answered.

Q110: Answered. The documentation or information requested does indeed pertain to the procedure to obtain permission and not the permission itself. That being said, the issue is moot. To the extent the Institution is not already required to provide permission letters pursuant to this Ruling in response to Interrogatory 33, they shall be provided pursuant to Q121 as offered by ACCC.

Q129: Answered. An institution that does not produce any licensing contracts may be deemed not to have obtained any licences and as such, may almost certainly be deemed to "need" the tariff.


August 10, 2012up arrow

ORDER OF THE BOARD

The Objectors and AUCC are asked to comment on the attached correspondence by no later than Wednesday, August 22, 2012.

Access Copyright may reply to ACCC's correspondence by the same date.

Attachment: 1) Letter from R. Hofley to G. McDougall dated August 8, 2012.pdf;
2) Letter from W. Noel to G. McDougall dated August 8, 2012.pdf


June 7, 2012up arrow

NOTICE OF THE BOARD

ACCC's request for an extension of the deadline to Friday, August 10, 2012 to provide a status report on the survey discussions, to which Access Copyright does not oppose, is granted.


June 4, 2012up arrow

NOTICE OF THE BOARD

ACCC shall respond to Access Copyright's request (attached) by no later than Tuesday, June 5, 2012. Access can provide a reply no later than Wednesday, June 6, 2012.

Attachment: 04june2012 Letter to G McDougall.pdf; ACCC MODEL LICENCE.pdf


May 7, 2012up arrow

NOTICE OF THE BOARD

Access Copyright and ACCC's request for an extension of the deadline to June 4, 2012 to provide a status report on the survey discussions is granted.


May 1, 2012up arrow

RULING OF THE BOARD

ACCESS COPYRIGHT INTERROGATORIES ADDRESSED TO ACCC (Northern Lights College)

Q21, Q22: The motions are dismissed. ACCC has provided every way in which Copies are made with reference to the activities identified in the definition of "Copy".

26: The motion is granted. ACCC shall provide a description of the uses of "open access" materials in and by the institution. The Board notes that the web site of the institution's library contains numerous references to materials available through the Directory of Open Access Journals. This makes uses of open access materials "in" the institution highly likely. Failure to provide a satisfactory answer may well result in the Board concluding that the institution makes little or no use of open access materials.


April 26, 2012up arrow

NOTICE OF THE BOARD

The schedule proposed by Access Copyright and ACCC (attached for convenience) - [Schedule is reproduced below in the April 20, 2012 entry] applies to the sample of ACCC opt-out institutions.


April 20, 2012up arrow

NOTICE OF THE BOARD

AUCC shall provide a response to ACCC and Access Copyright request described below by no later than Tuesday, April 24, 2012 at noon. ACCC and Access Copyright shall reply by no later than Wednesday April 25, 2012 at 5pm.

ACCC and Access Copyright's request: 
We write concerning completion of the interrogatories process with respect to the sample of Opt-Out Institutions, which is required as a result of the decision of the Federal Court of Appeal dismissing the application for judicial review brought by the AUCC et al.

Opt-Out Institutions Sample

Please note that, due to errors in the original sample pool, the sample of AUCC opt-out institutions has changed since the list was filed with the Board on September 27, 2011. As now agreed by the parties, the representative sample of Opt-Out Institutions required to respond to Access Copyright's interrogatories is as follows:

ACCC

Group

Institution

A

Holland College

A

Lethbridge College

A

University College of the North

B

Northern Lights

AUCC

Group

Institution

A

Brandon University

A

Campion College (affiliate of U of Regina)

A

University of Guelph

B

Athabasca University

B

Mount Royal University

B

Nova Scotia College of Art & Design

B

Royal Roads University

B

University of Alberta

B

University of British Columbia

B

University of Saskatchewan

B

University of Waterloo

B

York University

Letter to Opt-Out Institutions:

The Board's August 25, 2011 Ruling provided that the letter to the Opt-Out Institutions should be sent on September 27, 2011. We expect that the letter to the Opt-Out Institutions (version as attached to the Board's September 20, 2011 Order) can be sent immediately.

Schedule for Opt-Out A Institutions

Applying the same time periods as set by the Board in its September 20, 2011 Order, we propose the following schedule for completion of the interrogatories process by Opt-Out A Institutions:

  1. Answers to interrogatories: no later than Tuesday, June 19, 2012
  2. Notice with respect to unsatisfactory/incomplete responses: no later than Monday, July 23, 2012
  3. Filing with the Board of replies to notices of the grounds with respect to any remaining issues: no later than Tuesday, August 7, 2012
  4. Filing of complete/satisfactory responses: no later than six weeks following the decision of the Board on deficiency claims

Schedule for Opt-Out B Institutions

With respect to the Opt-Out B Institutions, these Institutions have already completed steps 1 and 2, above. The AUCC and ACCC have been provided with Access Copyright's claimed deficiencies with respect to the Opt-Out B Institutions. Applying the same time periods as set by the Board in its September 20, 2011 Order, the following schedule is proposed for the process for Opt-Out B Institutions:

  1. Notice with respect to unsatisfactory/incomplete responses: Already completed
  2. Filing with the Board of replies to notices of the grounds with respect to any remaining issues: no later than Thursday, April 26, 2012
  3. Filing of complete/satisfactory responses: no later than six weeks following the decision of the Board on deficiency claims

Requested Ruling

Counsel for the ACCC has agreed to the schedule set out above. Mr. Bloom has been given notice of the above but has not responded on behalf of the AUCC.

The ACCC and Access Copyright respectfully request that the Board issue an order setting the schedule as set out above.

I note that the first deadline under the proposed schedule occurs on April 26, 2012. We respectfully request that the Board seek the AUCC's position as soon as practicable so that the interrogatories process regarding these institutions may be completed in a timely manner.


April 17, 2012up arrow

NOTICE OF THE BOARD

The parties' request for an extension until Monday, May 7, 2012 to provide a status report in response to the January 31, 2012 Notice of the Board is granted.


January 31, 2012up arrow

NOTICE OF THE BOARD

AUCC's, ACCC's and Access Copyright's request of January 30, 2012 (see below) that parties be allowed to provide a further progress report on the negotiations of a survey design is granted. Parties shall provide such progress report on or before Monday, April 16, 2012.

ACCC’s, AUCC’s and Access Copyright’s request:
Mr. McDougall, I am writing to you pursuant to the Notice of the Board dated November 24, 2011 on behalf of AUCC and with the consent of ACCC and Access Copyright to provide a progress report on the negotiations of a survey design.  The parties met on January 25, 2012 and discussed in detail a survey design proposed by AUCC and ACCC earlier this month.  The parties will continue to meet to discuss a survey design.  The parties have scheduled February 29, 2012 and April 10, 2012 (if required) for further meetings.  The parties request that the Board issue a further notice requiring them to provide a further progress report on the negotiations of a survey design by April 15, 2012.


January 25, 2012up arrow

NOTICE OF THE BOARD

The attached documents are sent to you as per the Order of the Board of today. [Documents not attached as they are confidential]


January 25, 2012

ORDER OF THE BOARD

On November 18, 2011, the Board issued a ruling dealing with the grounds for deficiencies regarding the answers provided by the parties in the context of Interrogatories.

In Section VIII of the Board’s ruling pertaining to Prof. Katz’ Interrogatories addressed to Access Copyright, the Board ruled that Access should not redact documents based on what it considers to be irrelevant.

On December 20, 2011, through a motion for clarification, Access asked that it be allowed to redact from certain documents information that it considers not relevant to the proceedings. Access provided the Board with the redacted version of the documents supplied to Prof. Katz as well as its unredacted version.  

Prof. Katz submits that the Board’s ruling of November 18, 2011 is unequivocal and does not require a clarification or ruling of any kind.

The application of Access is essentially dismissed for the following reasons.

The principle that governs Interrogatories is that if a document contains information that is responsive to the Interrogatory, it should be supplied in an unredacted form.

That being said, an application to prevent the disclosure of confidential information is not per se illegitimate. Under certain circumstances, it is perfectly normal for a collective (or an objector, for that matter) to seek to limit the circulation of confidential information to what is necessary. Such would be the case, for example, where the potential prejudice resulting from disclosure far outweighs the (non-existing) advantage to the recipient from receiving clearly irrelevant, yet sensitive information. The non-redaction principle, therefore, is open to exceptions.

However, an exception to the principle supposes that the person seeking the exception should display the utmost diligence in limiting redactions to what is clearly, inherently irrelevant and leaving unredacted anything that may be even marginally relevant, or even merely helpful in supplying context to clearly relevant information. In this instance, a comparative analysis of the redacted and non-redacted versions of the documents Access supplied to Prof. Katz makes it clear that the proposed redactions are excessive, to the point that clearly relevant information was removed. For example:

-        Access redacted the document entitled “Board of Directors II” almost entirely, except for some information pertaining to an indemnity provision that the New-Zealand RRO provides for in its licences and the impact of this provision on the bilateral agreement between Access and the New-Zealand collective. Access did not, as it should have, leave unredacted the whole section pertaining to this issue, thereby omitting information that is responsive to the interrogatory (i.e., impact of such indemnification scheme on rights holders in Canada) as well as contextual information without which is it is difficult to understand the answer.

-        The same can be said of the document entitled “Licensing Committee Meeting, June 10, 2005”, Sections 4 (Copyright Board Proceedings Update) and 5 (Digital Coursepack Pilot Project). Redactions make it difficult to understand the context of the answer in the case of section 4 and omit elements that are responsive to the Interrogatory in the case of section 5.

With respect to the document entitled “Negotiation Notes Minutes of meeting of AUCC and Access Copyright - April 23, 2003”, Access argues that the document is privileged because it pertains to a “settlement which led up to the signing by AUCC members of the licence in 2005.” This is a mischaracterisation. The document does not discuss the settlement of a dispute between the parties; it only summarizes what was discussed at a meeting between Access and a party other than Prof. Katz in the context of negotiations intended to lead to the conclusion of a licence.

The redaction proposed by Access is not satisfactory. The case has not been made to justify derogating from the non-redaction principle. Therefore, the only valid course of action is to revert to the principle and dismiss the application of Access, subject to what follows.

1) Some information that is clearly of no benefit to Prof. Katz and likely to be prejudicial to Access if it were disclosed should be redacted.

2) The “Summary of Board Motions 1987 to 2010” is of a different nature than other documents and calls for a different approach. The document is an open book into the corporate history of Access. Furthermore, it is structured by themes. Section 1 lists all the motions that pertain to Administration, Section 2, Finance, Section 3, Staffing/Consultants, Section 4, Board and Committee, etc. Given the structure, it makes sense to assimilate each section to a stand-alone document and supply only those sections that contain elements that are responsive to Prof. Katz’ interrogatories, namely Sections 8 (Data Collection and Processing), 10 (Licensing), 12 (Repertoire) and 13 (International Repertoire).

Passages which the Board concludes should be redacted have been underlined in red in the relevant documents, a copy of which Access will receive, by separate email. No later than on Thursday, February 2, 2012, Access shall supply to Prof. Katz the documents for which the application for redaction was made, in a form that reflects the Board’s redactions. The delay in making this Order enforceable will allow Access to take any course of action it may find justified under the circumstances before final disclosure is made to Prof. Katz.


November 24, 2011up arrow

NOTICE OF THE BOARD

AUCC's and ACCC's request of November 15, 2011 (attached) that parties be allowed to provide a progress report on the negotiations of a survey design on or before January 30, 2012 is granted.

Attachment: access copyright letter to Board from AUCC and ACCC - survey design.pdf


November 18, 2011up arrow

Attached is the Ruling of the Board with respect to unsatisfactory/incomplete responses to Interrogatories. The new deadline for the filing of complete/satisfactory responses to Interrogatories, is set at no later than Wednesday, December 21, 2011.

Attachment: Ruling - Access Post Secondary - Deficiencies.pdf


October 24, 2011up arrow

The Participants' request, as described below, is granted.

The Participants request: 
Mr. McDougall, I am writing to you on behalf of AUCC, ACCC and Access Copyright (the “Participants”).

The participants have met in person with their experts to discuss the design of a survey of copying behaviour.  The Participants have scheduled another in person meeting with their experts on November 10, 2011 to discuss the design of the survey.  In view of the impending meeting, the Participants request an extension to November 15, 2011 to respond to the Notice of the Board dated October 19, 2011.


October 18, 2011up arrow

NOTICE OF THE BOARD

On March 11, 2011, the Board set a partial schedule (later revised) for the purpose of the interrogatories. The remainder of the schedule leading to the hearing, that could or could not include a study of copying behaviour, was to be set once participants had agreed on whether such study will be conducted.

The Board would like to receive from participants, by no later than Friday, October 28, 2011, a status report (jointly, if possible) on the study.


October 10, 2011up arrow

The September 20, 2011 ruling only concerns opt out institutions. The timelines set out in the August 18 order for dealing with interrogatories apply to other participants, except for AUCC and ACCC which have requested and obtained a one week extension.


October 6, 2011up arrow

AUCC and ACCC's request, as described in the attached letter, is granted.

Attachment: LETTER to Board joint extension request 6 October 2011 with revised date .pdf


September 23, 2011up arrow

NOTICE OF THE BOARD

The Copyright Board of Canada has rendered its decision in the above-noted matter. It is posted on the Board’s web site under the heading "What’s New - Recent Decisions" at http://www.cb-cda.gc.ca/home-accueil-e.html.


September 20, 2011up arrow

ORDER OF THE BOARD

AUCC, ACCC (jointly the associations) and Access have failed to agree on two of the three issues the Board ordered them to discuss on August 18, 2011.

The parties failed to agree on a list of opt-out institutions that will be required to answer interrogatories. Access proposes that the parties’ survey experts jointly select two-thirds of institutions who opted out of the tariff on January 1, 2011 and two-thirds of those who did so on September 1, 2011, some of which have already provided answers to interrogatories. Alternatively, Access proposes choosing itself half of the institutions considered together according to size and type. The associations argue that one-third of opt-outs is a reasonable number to meet the information requirements of Access.

The Board accepts that a sample made up of one-third of opt-out institutions is not sufficient to generate statistically significant results. Nevertheless, the Board considers such a sample acceptable for three reasons. First, any random sample drawn from a small universe, regardless of the relative size of that sample to the universe, is problematic. Put differently, a two-thirds sample would suffer from many of the same difficulties as one half that size. Second, the goal of asking questions to the opt-out institutions is not to produce statistically significant results; rather it is to serve as a basis for comparison with the non-opt-out institutions. Third, experience teaches that it is sometimes better to ask for what a party offers and insist that it be provided than to ask that same party for more and deal with the inevitable excuses that will follow.

Splitting opt-out institutions into two groups makes no sense and only serves to further whittle away the reliability of the data so obtained. Therefore, a single selection shall be made out of the whole group. Selected institutions that have already provided information shall be required to continue to participate in the existing interrogatories process. Those that have not will be required to answer the interrogatories of Access pursuant to the timetable below.

The parties’ survey experts shall provide a sample that complies with the above no later than Tuesday, September 27, 2011, according to any method they may agree to. If by that date, an agreement has not been reached, Access shall determine the sample no later than Tuesday, October 4, 2011 and justify its choices. Subject to the Board’s review of that sample, those institutions will be asked to answer the interrogatories.

The parties agreed on the text of a letter to be addressed by them jointly to the selected institutions, requiring their participation. That text, however, appears too convoluted. The attached letter should be used instead, unless parties submit comments, by no later than Tuesday, September 27, 2011. Given what is ordered in the previous paragraph, it is no longer possible for the parties to write to the institutions that will be asked to answer the interrogatories by September 26, 2011 as provided earlier. The Board will set that date at the same time as it will rule on its review of the sample to be provided pursuant to the previous paragraph.

The parties failed to agree on a timetable to deal with the selected institutions’ responses. The associations proposed a timetable ending on March 20, 2012. According to them, institutions that have responded to interrogatories to date had two months and 23 days to answer. Opt-out institutions should have as much time to comply. Access proposed a timetable ending on January 30, 2012, for reasons that need not be repeated here.

The timetable the associations propose is for six months, not three. On the other hand, two facts must be taken into account. First, institutions cannot know they will be asked to respond until they are so told. Second, because of the parties’ failure to agree on a sample, selected institutions will not know this until at least two weeks, maybe three. Realistically, therefore, time to answer cannot start counting until Tuesday, October 11, 2011. Consequently, the associations’ proposal that answers be provided by December 19, 2011 makes sense. The timetable could be somewhat tightened to account for the fact that the associations have already gone through the interrogatory process with other institutions. This, however, would result in no significant gain. Here again, the Board prefers to accept what the associations propose and insist that it be complied with than tighten the process and deal with the excuses that will follow.

Consequently, the schedule shall be as follows:

Answers to interrogatories: no later than Monday, December 19, 2011

Notice with respect to unsatisfactory/incomplete responses: no later than Friday, January 20, 2012

Filing with the Board of replies to notices of the grounds with respect to any remaining issues: no later thanFriday, February 3, 2012

Filing of complete/satisfactory responses: no later thanTuesday, March 20, 2012

The associations ask that opt-out institutions not be required at this time to answer interrogatories that were held in abeyance pending the negotiation of a survey. The August 18, 2011 ruling ordered that those questions be answered. The associations now inform us that some opt-out institutions may be asked (and accept) to participate in the survey. They also point out that the Board has yet to deal with the objections the associations raised with respect to these interrogatories. Since the interrogatories are meant to provide information in the absence of a survey, it would be premature to ask that institutions answer them. To the extent that opt-out institutions, irrespective of when they decided to opt-out of the tariff, accept to participate in the survey, the matter will become moot. If not, the matter can be revisited in due course.

Attachment: Letter - Post-Secondary (2011-2013).pdf


September 13, 2011up arrow

RULING OF THE BOARD

On August 18, 2011, the Board issued a ruling providing in part that Access would be allowed to obtain information from institutions that do not avail themselves of the interim tariff (the "opt-out institutions"). On September 12, ACCC asked that the Board reconsider this ruling for two reasons. First, opt-out institutions have severed their licensing relationship with Access. They do not currently intend to be "prospective users" of the repertoire of Access; therefore, as a matter of law, they should not be required to comply with the Board’s ruling. Second, since 68 of 77 institutions have responded to interrogatories, Access already has in its possession more than a reasonable amount of relevant information from a reasonable number of institutions. There is no information in the possession of the opt-out institutions which could affect the Board’s consideration of the tariff under examination.

The first argument misses the point. The reference to "prospective users" in subsection 67.1(5) of the Copyright Act, which section 70.14 incorporates by reference in the general regime, is to users of the final tariff. Opt-out institutions do not know whether they may now be making protected uses requiring their compliance with a final tariff that does not yet exist. They can sever their relationship with Access if, and only if, they make no unauthorized, protected use of the repertoire of Access; that relationship is governed by facts and law, not intentions. More importantly, the Board’s power to order someone to provide relevant information is not limited to prospective users.

The second argument is misplaced. Access has no information from opt-out institutions. And as stated in the August 18 ruling, "[t]he June 6, 2011 ruling is clear: information concerning these institutions is relevant." The August 18 ruling required Access and ACCC to agree on which opt-out institutions should be approached precisely in order that only a reasonable number of these institutions be required to respond to the questions of Access.

The application for reconsideration is dismissed.


September 8, 2011up arrow

NOTICE OF THE BOARD

Please note that the Decision of the Board with respect to the above-referenced matter is posted on the Board's website under the heading "What's New/Recent Decisions" at http://www.cb-cda.gc.ca.


August 25, 2011up arrow

RULING OF THE BOARD

The Board grants AUCC's request, and adopts it's proposed schedule, as described in the attached letter.

Attachment: AUCC letter to Board Aug 25 2011.pdf


August 23, 2011up arrow

RULING OF THE BOARD

Twice in these proceedings, Alberta sought to obtain a status that would allow it to intervene without having to answer interrogatories. Both times the Board refused.

Alberta is now declining to respond to some questions on two accounts.

Alberta claims that it is not responsible for establishing copyright policies for the institutions targeted in the proposed tariff and has no direct responsibility, nor direct knowledge of copyright arrangements made by them. Institutions are autonomous agencies responsible for establishing their own policies and procedures. As a result, Alberta is unable to provide "substantial information" for a number of questions. However, Alberta relies on its strategic interest in these proceedings, due to its role as the primary funding source for these institutions, to ask that it remain as an active intervenor. Access responds that if Alberta can offer no useful information that will assist the Board in setting a fair tariff, its participation as intervenor serves no useful purpose. Alberta replies that its participation is a settled matter, that it has a clear interest and that the perspective of the primary funder is crucial and useful.

Alberta has little relevant information to provide, given its role within the educational system. It wants to provide the "perspective" of the "primary funder" of targeted institutions. It does not intend to file evidence or cross-examine witnesses. This is precisely what the Board would expect of a person acting as commentator pursuant to the Directive on Procedure. The application of Access is granted. Alberta’s status as intervenor is terminated.

Alberta relies on its freedom of information and privacy protection legislation to decline providing documents it claims are privileged or confidential. Access counters that the legislation does not apply, that nothing is personal information and that the Board’s confidentiality order settles the issue. Alberta replies that the legislation either allows or compels it to refuse disclosure.

On the one hand, Access’ comment on personal information is besides the point: Alberta is not claiming that Access seeks to disclose personal information. On the other, Alberta’s non-disclosure claim fails on three accounts. First, paragraph 3(d) of the Freedom of Information and Protection of Privacy Act (Alberta) provides that it "does not affect the power of any court or tribunal in Canada to compel a witness to testify or to compel the production of documents." Second, the exceptions to disclosure on which Alberta relies are for the purposes of dealing with access to information requests and are therefore irrelevant. Third, it is difficult to conceive that provincial legislation could prevent a federal agency from either gaining access to information or at least making the continued participation of a province to a proceeding contingent on gaining such access.

Had Alberta retained its status as intervenor, the Board would have ordered that it answer the questions. Had Alberta wished to prevent disclosure of certain documents, it would have had to rely on the Canada Evidence Act and convince the Board that a relevant privilege or some form of specific public interest justified that the information not be provided to Access Copyright. However, since Alberta hereby ceases to be an intervenor, the issue is moot.


August 18, 2011up arrow

RULING OF THE BOARD

This ruling is in regards to the applications made by Access Copyright in its letter dated July 20, 2011.

The application for an extension of time to deal with interrogatories is granted. The schedule is modified as follows:

  • Deadline for exchanges of notices of the grounds for deficiencies with respect to unsatisfactory/incomplete responses to interrogatories: Friday, September 16, 2011.
  • Deadline for filing replies to notices of the grounds with respect to any remaining issue: Friday, October 7, 2011.
  • [Ruling of the Board]
  • Deadline for filing of complete/satisfactory responses to interrogatories: Friday, November 18, 2011.


The application for an order preventing objectors to file supplementary responses is denied. If better information exists, it should be provided. Adding to a response is the very purpose of dealing with deficiencies, which the Board will be asked to address after October 7. That being said, parties should not respond in a manner that forces the recipient to unnecessarily reanalyse that which has already been scrutinised. Any supplementary response should clearly indicate what is changed from the original response.

The application for an order allowing Access to obtain information from institutions that do not avail themselves of the interim tariff (the "opt-out institutions") is granted. The June 6, 2011 ruling is clear: information concerning these institutions is relevant. AUCC and ACCC shall provide complete answers to the interrogatories, including (for the reasons set out by Access) interrogatories that were held in abeyance pending the negotiation of a survey, from a representative sample of opt-out institutions. The matter shall be dealt with as follows.

  • 1) 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.).

  • 2) The letter to the selected institutions shall mention the following:

    • It is pursuant to an Order of the Board that the institution is required to answer the questions addressed to it;

    • An institution that does not respond as required may be compelled by way of subpoena to do so;

    • Objectors may be prohibited from adducing evidence about an institution that does not respond as required. If such an order is made, Access will still be allowed to adduce evidence about the institution, but objectors will not be allowed to refute such evidence except with leave of the Board;

    • An institution that does not avail itself of the interim tariff cannot take for granted that it will bear no liability under the final tariff, that its liability will not be retroactive or that it will not be compelled, pursuant to the final tariff, to provide information about its copying habits during the period between January 1, 2011 and the date on which the final tariff is certified, unless it is certain that neither the institution nor its agents make any protected use of the relevant repertoire during the relevant period or periods to be set out in the final tariff.

  • 3) The list, letter and timetable shall be filed with the Board no later than Monday, August 29, 2011.

  • 4) 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.

  • 5) 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.

  • 6) Access may file with the Board an application prohibiting any objector from adducing evidence about an institution that does not provide responses by the date provided to do so, or that does not remedy a deficient response by the date provided to do so. Once such order has been issued, Access will be allowed to adduce evidence about the institution, but objectors will not be allowed to refute such evidence except with leave of the Board.

  • 7) A lack of information concerning copying habits at opt-out institutions might tend to increase any FTE royalty the Board may decide to certify. This would happen if the average volume of copying of works from Access Copyright’s repertoire by opt-out institutions was less than by other institutions. This will not prevent the Board from certifying such a royalty based on an imperfect record.

  • 8) The Board reminds the objectors that an institution’s decision not to avail itself of the interim tariff in no way guarantees that it will bear no liability under the final tariff, that its liability will not be retroactive or that it will not be compelled, pursuant to the final tariff, to provide information about its copying habits during the period between January 1, 2011 and the date on which the final tariff is certified, unless it is certain that neither the institution nor its agents make any protected use of the relevant repertoire during the relevant period or periods to be set out in the final tariff. Indeed, the absence of evidence on the copying practices of opt-out institutions can only make it more difficult for the Board to design the final tariff so as to respond to any legitimate concerns of these institutions.


July 21, 2011up arrow

NOTICE OF THE BOARD

The Copyright Board acknowledges the receipt of Access Copyright’s letter dated July 20, 2011 in which it requested an extension to deadlines currently set for the completion of the interrogatories process as well as various orders from the Board.

The Board has reviewed the letter and the requests therein and directs the parties to file responding submissions with respect to the letter by close of business on Tuesday, August 2, 2011. Access Copyright may reply by close of business on Monday, August 8, 2011.

The current deadlines provided in the Board’s Notice of March 11, 2011 are hereby suspended until all submissions are received.


June 28, 2011up arrow

Please find attached the Decision of the Board with respect to the above-referenced matter. The decision is also posted on the Board's website under the heading "What's New/Recent Decisions" http://www.cb-cda.gc.ca/decisions/2011/20110628

Attachment:
Access Post-Secondary Decision - Application to Vary - Academic Year.pdf


June 17, 2011up arrow

ORDER OF THE BOARD

The June 15, 2011 "encouragement" from professor Katz that the Commissioner of Competition be asked to participate in the examination of the June 8, 2011 application by the Association of Universities and Colleges of Canada for the addition of a transactional licence in the Access Copyright Interim Post-Secondary Educational Institution Tariff, 2011-2013 is noted.

The Board is aware of section 125 of the Competition Act. Any resort to this provision in these proceedings would have to be at a much later stage, such as once the evidence and arguments of the parties have been filed. Asking the Commissioner to participate in the examination of an application to amend an interim tariff would be both unhelpful and disruptive.

It would be unhelpful because the Board’s policy with respect to interim tariffs in general, and this interim tariff in particular, is first and foremost to extend the status quo unless convinced to do otherwise. Some may wish to argue that the very state of affairs existing before the interim tariff was put in place raised competition issues. To the extent this is even relevant at this stage of the process, it can be addressed on the basis of the parties’ submissions.

It would be disruptive because interim matters should be dealt with "in an expeditious manner on the basis of evidence which would often be insufficient for the purposes of the final decision." [Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission) [1989] 1 S.C.R. 1722] The participation of the Commissioner would achieve the opposite.

Considering the above, parties will refrain from commenting in any way on the above-referenced encouragement.


June 16, 2011up arrow

NOTICE OF THE BOARD

Mr. Katz's request of June 15, 2011 to extend the time for responding to the AUCC application regarding transactional licences is granted. Accordingly, today's deadline to reply to AUCC's application is extended in the following way:

Objectors' response on the AUCC's application: by no later than Monday, June 27, 2011. ACCC will be allowed to add to its response of today.

Access Copyright's response to objectors' submissions and AUCC's application: by no later than Friday, July 8, 2011.

AUCC and other objectors' reply: by no later than Tuesday, July 19, 2011.


June 10, 2011up arrow

The Canadian Federation of Students and the Canadian Association of University Teachers' request is granted.

The CFS’ and CAUT’s request:
Dear Mr. McDougall,

I write to apply for a variance of the Board's notice of March 11, 2011.  As you will recall, the parties will have to exchange their responses to the interrogatories no later than June 13, 2011.  My clients' members are having difficulty completing their responses to Access Copyright's interrogatories by that deadline and my clients accordingly seek a short extension.  Access Copyright's counsel has generously agreed to an extension not later than June 23, 2011 provided that Access is granted the same extension for responding to my interrogatories.  My clients consent to Access Copyright's extension request.  While June 23 is later than all parties would prefer, given the complexity of the issues, the resource capacities of my clients' members, and their unfamiliarity with the contents of the interrogatories, it is a realistic date. 

Therefore, I respectfully request that the Board grant the requested variance.  


June 9, 2011up arrow

NOTICE OF THE BOARD

Parties have until Thursday, June 16, 2011 to reply to AUCC's application. AUCC can file a response by no later than Thursday, June 23, 2011.


June 9, 2011

Mr. Katz's request is granted.

Mr. Katz’s request:
Dear Mr. McDougall,

I am writing to apply for a variance of the Board's notice of March 11, 2011.  As you will recall, the parties will have to exchange their responses to the interrogatories no later than June 13, 2011.  I may have some difficulty completing my response to Access Copyright's interrogatories by that deadline and I would like to seek a short extension.  Access Copyright's counsel has generously agreed to an extension not later than June 17, 2011 provided that Access is granted the same extension for responding to my interrogatories.

Therefore, I request that the Board grant an extension accordingly.  


June 6, 2011up arrow

NOTICE OF THE BOARD

The Board thanks the parties for their comments, some of which are reflected in the attached order dealing with information requested during the interrogatory exchange process for which confidential treatment may be claimed. A ve
rsion that compares the final order with the previous draft is also attached.

Please note the following:
1) The wording of the order has been adjusted to allow an unrepresented party to both provide and receive confidential information.

2) The order still provides that only external counsel are entitled to retain information supplied on a confidential basis once the proceedings have ended. The person who supplies information in response to an interrogatory "owns" that information, not the recipient. If information is claimed to be confidential and the person who received it does not file it as evidence, the information is not relevant to the proceedings. The argument that a party should be allowed to keep a copy of the record is irrelevant, since information supplied during interrogatories and which is not filed with the Board is not part of the record. There is no reason to treat any unrepresented party, whether or not a member of the Bar, differently than the others.

3) Parties are reminded that all information, confidential or not, that is supplied in the course of interrogatories and not made part of the record is subject to a deemed undertaking that it shall be used only for the purposes of these proceedings. It is up to the parties to familiarize themselves with the ambit of that undertaking and to govern themselves accordingly.

Attachments:Confidentiality Order - Access Post Secondary.pdf; Confidentiality Order Compare.pdf


June 6, 2011

RULING OF THE BOARD

AUCC/ACCC INTERROGATORIES TO ACCESS

Q. 14, 15, 16:
Access shall provide what it has, in the form it has it. If the list of 220,000 or more works alluded to in the associations’ reply does not exist, Access shall provide any document on which the claim made on the web site was based.

Q. 34, 35, 36, 38, 39: the objection is dismissed. The fact that information requested is in the possession of the other party is not in itself relevant. This is all the more true when, as is the case here, information may or may not be in the possession of someone else than the party itself. With respect to Q. 39, it is not the Board’s practice to require a party to provide information beyond the date on which a question is addressed, even if the information is highly relevant.

ACCESS INTERROGATORIES TO ACCC/AUCC

General comment: the volume of information Access requests is largely a result of the breadth of issues raised by the objectors. That being said, parties are reminded that the Board does not need all existing relevant information to set fair tariffs. The associations should provide a reasonable amount of relevant information, from a reasonable number of institutions, preferably identified with the concurrence of Access. The institutions will in turn be required to make reasonable inquiries from staff.

Q. 3/3: the objection is dismissed. Information concerning institutions that do not avail themselves of the interim tariff is relevant and shall be provided, subject to the general comment above. Institutions who resist providing information should be reminded of the Board’s powers pursuant to subsection 66.7(1) of the Copyright Act.

Q. 10/10, 49/50, 88/89, 103/104: the questions as reformulated shall be answered. The objectors made the issues relevant. Questions about the use of licensed databases are relevant to determine the extent to which institutions can credibly operate without the Access repertoire.

Q. 63/64, 64/65, 78/79, 79/80, 98/99, 99/100: since all Access wants to know is if these systems make copies and if so how, the questions shall be answered accordingly.

Q. 70/71, 80/81: given the reply of Access, the question shall be answered by identifying the platforms and by providing information concerning copies made for mobile devices operation and how they differ from non-mobile counterparts.

Q. 87/88, 125/126: the objection is dismissed, for the reasons given by Access.

Q. 121/122: the objection is dismissed.

Q. 129/130, 130/131: the question as reformulated shall be answered. Again, institutions are only required to make reasonable inquiries and to provide a reasonable amount of relevant information.

Q. 21/22, 22/23, 23/24, 25/26, 28/29, 31/32, 32/33, 36/37, 44/45, 47/48, 48/49, 50/51, 62/63, 65/66, 66/67, 67/68, 83/84, 84/85, 95/96, 96/97, 101/102, 111/112, 113/114, 114/115: AUCC, ACCC and their members are ordered to respond to the interrogatory.

Q. 38/39, 54/55, 55/56, 57/58, 59/60, 60/61, 72/73, 73/74, 74/75, 76/77, 85/86, 89/90: AUCC, ACCC and their members are ordered to respond to the interrogatory. If a contract specifies that information may only be disclosed with the consent of the contractor, AUCC and ACCC shall identify the existence of the contract and supply the names of the parties to the contract. Access will hold the interrogatory in abeyance until it can determine whether it considers that other contracts supplied in response to the interrogatory contain a representative sample of the information requested. If so, no further answer shall be required. If not, Access shall apply to the Board for directions.

Q. 53/54, 71/72, 81/82, 105/106, 106/107, 107/108, 108/109, 117/118, 119/120: the interrogatory shall be held in abeyance pending negotiation of a survey.


May 30, 2011up arrow

Parties are asked to reply to Access Copyright's request by no later than Friday, June 3, 2011.

Attachment: Letter to G. McDougall.pdf; 20110511172600.pdf


May 18, 2011up arrow

RULING OF THE BOARD
  
GENERAL COMMENT

In several instances, Access Copyright's questions to individuals, CAUT and CFS are relevant. Strictly speaking, they should be answered. However, the Board doubts the usefulness of ordering individuals, CAUT or CFS to disclose or seek from students or staff information that is either anecdotal or more easily available through the educational institution represented by ACCC or AUCC. That being said, if Professor Katz, CAUT or CFS do not respond to the questions which are subjected below to this general comment, they shall be precluded later on from leading evidence that would have been responsive to the relevant interrogatory unless the Board so allows.

CAUT/CFS QUESTIONS TO AUCC

Q4, Q5: The objection is dismissed. As mentioned in the reply of CAUT/CFS, academic freedom and privacy are squarely in issue in this proceeding.

CAUT/CFS QUESTIONS TO ACCESS

Q4, Q8: Access shall provide what it has, in the form it exists. The request in reply that Access demonstrate how new works join the repertoire and how that information is available to the public is premature unless a document that is responsive to the question exists. That being said, since the Board will expect Access to offer such demonstration and since early disclosure of such demonstration would undoubtedly assist objectors and intervenors in preparing their case, Access is asked to make reasonable efforts to offer such demonstration by the date set to respond to interrogatories.

PROFESSOR KATZ QUESTIONS TO ACCESS

Q1: Access shall provide what it has, in the form it exists. There is no need to address the legal issues raised in reply at this stage. Access need not explain what is missing from the databases or why, unless existing documents provide such explanation. If there is documentation linked to the databases, Access shall supply it.

Q5, Q12: Litigation privilege attaches only to documents acquired or created in contemplation of these proceedings. Access shall provide anything else, whether or not it may "disclose a significant aspect of" its case. Access is asked to make reasonable inquiries of its publisher members or affiliates and of other RROs.

Q6: Access is expected to provide what it has, in the form it exists. For the time being, it shall provide the description offered in its objection.

Q15: Access shall provide what it offered in its objection.

ACCESS QUESTIONS TO ALBERTA

General objection: The relevant test is whether Alberta is allowed to file evidence, not whether it intends to. Alberta shall forthwith inform Access and the Board whether it intends to answer interrogatories. If the answer is no, then Alberta shall be deemed to have abandoned its intervention. It will remain free to file comments on the proceedings, as the Directive on Procedure provides.

Q5, Q21: Subject to the ruling on the general objection, Alberta shall answer as per the reply of Access.

Q7: Alberta shall provide what it has, in the form it exists.

ACCESS QUESTIONS TO PROFESSOR KATZ

General objection with respect to the personal use patterns of Professor Katz: Subject to the general comment, the objection is dismissed.

General objection with respect to the copying of non-repertoire works: Subject to the general comment, the objection is dismissed, for the reasons offered in Access’ reply. Furthermore, what is or not in the repertoire of Access is a matter for the Board, not Professor Katz, to decide.

General objection with respect to substantial takings, definition of copy and definition of digital copy: Subject to the general comment, the objection is dismissed. Furthermore, these are matters for the Board, not Professor Katz, to decide.

General ruling with respect to the course management system(s) Professor Katz has used since January 1, 2008: Without regard to the general comment, Professor Katz shall provide what he has, in the form it exists.

Q3, Q4, Q5, Q6: Professor Katz shall provide what he has, in the form it exists.

Q7, Q10, Q13, Q16, Q18, Q21, Q34, Q40, Q41, Q42, Q45, Q49, Q54, Q55: Subject to the general comment, Professor Katz shall answer as per Access’ reply.

Q15: The question is relevant only to the extent that Professor Katz uses copy shops. If so, subject to the general comment, Professor Katz shall provide what he has, in the form it exists.

Q17, Q20, Q23, Q24, Q25, Q26, Q30, Q31, Q35, Q36, Q37, Q38, Q39: Subject to the general comment, Professor Katz shall provide what he has, in the form it exists.

Q32: Subject to the general comment, Professor Katz shall provide what he has, in the form it exists. The definition Access offers of a mobile device is acceptable.

ACCESS QUESTIONS TO CAUT/CFS

Q2, Q4, Q5, Q6, Q7, Q8, Q9 (CFS), Q9 (CAUT), Q10 (CFS), Q11 (CFS): The Associations shall answer as per Access' reply.

ALL OTHER QUESTIONS ADDRESSED TO CAUT OR CFS

Subject to the general comment, the Associations shall answer as per Access' reply.


May 5, 2011up arrow

NOTICE OF THE BOARD

Parties are asked to review and comment the attached draft Order of the Board with respect to the treatment of confidential information (a clean version and a version tracking the changes are attached for convenience). Their attention is drawn to the following points.

1) The definition of "confidential information" provided by Access proposed an objective test. At this stage, the supplier’s belief ought to be sufficient.

2) The proposed order does not contemplate two categories of confidential information. Therefore, there is no need to include any reference to highly confidential information. Paragraph 15 of the order is sufficient for the time being.

3) References to information to be supplied as part of the parties’ case have been removed. Filing of confidential information into the record of the proceedings is to be addressed pursuant to the directive on procedure.

4) The proposed order would have required that confidential information be supplied only to external counsel, making it impossible for in-house counsel to act on behalf of a party. The Board does not see the need for this. In-house counsel are allowed to deal with confidential information as a matter of course. Compulsory resort to external counsel is necessary only with respect to highly confidential information, which is not contemplated in this order. On the other hand, it would appear that only external counsel should be allowed to retain confidential information in their files pursuant to paragraph 13 of the order.

5) Paragraph 10 has been adjusted to make it clear that confidentiality issues relating to information to be filed into the record of the proceedings must be addressed pursuant to the directive on procedure.

6) The order as worded does not make it possible to supply confidential information to unrepresented parties. At this stage, the Board is willing to proceed on the assumption that no claim to confidentiality will be made in respect of information to be supplied to such parties. It is up to those who have received interrogatories from unrepresented parties to confirm whether that assumption is correct and if not, whether confidentiality would be sufficiently preserved by asking an unrepresented party to execute a confidentiality agreement.

Parties shall provide their comments no later than on Friday, May 13, 2011. They may respond to comments made by others no later than on Friday, May 20, 2011.

Attachments: confidentiality order draft.pdf;confidentiality order draft - track changes.pdf


April 18, 2011up arrow

The parties' request for an extension to April 19, 2011 to file their replies to objections to interrogatories with respect to any remaining issues is granted.


April 7, 2011up arrow

Please note that the Reasons of the Board with respect to the amendments of the Interim Tariff in the above-referenced matter is now posted on the Board's website under the heading "What's New/Recent Decisions" (http://cb-cda.gc.ca/home-accueil-e.html), along with the amended Interim Tariff. 


April 6, 2011up arrow

The attached, March 31, 2011 application by the Government of Alberta (Alberta) to limit its participation to the above-referenced proceedings to receiving and commenting upon the information and arguments presented to the Board is denied. In an order dated November 25, 2010, the Board, in response to a similar application by the same person, stated that given the number of participants in these proceedings, it did not intend to treat some of them differently unless absolutely necessary. Alberta has offered no demonstration of this necessity. Furthermore, Alberta can achieve what it seeks even if it withdraws as intervenor: Access to the public record of the proceedings remains open to it and it will remain entitled to file comments in writing on any aspect of the proceedings. As a general rule, comments received later than the date by which participants must present or file oral or written arguments, will not be considered. In due course, the Board will forward these comments to participants.

The Board notes Alberta’s concerns over potential interactions between any confidentiality order the Board may issue on the one hand, and provincial and federal access to information and privacy legislation on the other, to the extent that such legislation may indeed apply to proceedings before the Board. Such concerns can be addressed if and as they arise.

Attachment: 11301 Letter to Gilles McDougall.pdf


April 1, 2011up arrow

Participants have until Wednesday, April 6, 2011 to provide comments with respect to the attached documents. Access Copyright can provide a reply by no later than Friday, April 8, 2011.

Attachments: Letter to G McDougall re Confidentiality Order.pdf; OTTAWA-#40277866-v1-Draft_Confidentiality_Order.PDF; OTTAWA-#40277842-v2-Draft_Confidentiality_Order.DOC


April 1, 2011

Granted.
[Extension request from Access Copyright]


April 1, 2011

The request is granted.
[Extension request from CFS and CAUT]


March 16, 2011up arrow

Further to the Board's notice of March 11, 2011, attached is the Directive on Procedure. We draw your attention on the following points:

a) The electronic version of the evidence (on CD, DVD or USB key) should be filed with the Board, along with the hard copies on the date set for that purpose. You must also ensure that other participants receive their hard copy and electronic version on the same day the documents are filed with the Board.

b) As a general rule, responses to interrogatories are NOT filed with the Board. Parties should only file as evidence those responses to interrogatories to which they know they intend to refer.

c) When filing documents with the Board, confidential and highly confidential information should be highlighted in yellow and blue, respectively. The cover page of the document should indicate whether it includes confidential or highly information.

Attachment: DIRECTIVE ON PROCEDURE-AC-POSTSEC.pdf


March 16, 2011

Please note that the Board's Reasons with respect to the interim decision (issued on December 23, 2010) on the above-referenced matter, are now posted on the Board's website under the heading "What's New/Recent Decisions" (http://cb-cda.gc.ca/home-accueil-e.html).

The Board's decision with respect to the requests for amendments to the Interim Tariff, for which parties' replies were received on February 11, 2011, will be issued at a later date.


March 11, 2011up arrow

NOTICE OF THE BOARD

The Board adopts the following schedule for interrogatories in the above-captioned file:

Exchange of interrogatories: no later than Monday, March 21, 2011

Exchange of objections to interrogatories: no later than Monday, April 4, 2011

Filing, with the Board, of replies to objections to interrogatories with respect to any remaining issues: no later than Monday, April 18, 2011

[Ruling of the Board]

Exchange of responses to interrogatories: no later than Monday, June 13, 2011

Exchange of notices of the grounds with respect to unsatisfactory/incomplete responses to interrogatories: no later than Tuesday, August 2, 2011

Filing, with the Board, of replies to notices of the grounds with respect to any remaining issues: no later than Monday, August 22, 2011

[Ruling of the Board]

Filing of complete/satisfactory responses to interrogatories: no later than Monday, October 3, 2011 

The remainder of the schedule leading to the hearing, that could or could not include a study of copying behaviour, will be set once participants have agreed on whether such study will be conducted.

The Directive on Procedure will follow shortly.


February 22, 2011up arrow

The Board is of the preliminary view that the following, partial schedule proposed by Access Copyright and agreed upon by AUCC, ACCC and Mr. Sean Maguire, should be adopted for the above-captioned file. Participants have until Thursday, February 24, 2011 to indicate whether they agree with the schedule. Those who do not respond by the due date will be deemed to have agreed.

The remainder of the schedule leading to the hearing, that could or could not include a study of copying behaviour, will be set once the participants have agreed on whether such study will be conducted.

Proposed schedule for interrogatories

Exchange of interrogatories: no later than Monday, March 21, 2011

Exchange of objections to interrogatories: no later than Monday, April 4, 2011

Filing, with the Board, of replies to objections to interrogatories with respect to any remaining issues: no later than Monday, April 18, 2011

[Ruling of the Board]

Exchange of responses to interrogatories: no later than Monday, June 13, 2011

Exchange of notices of the grounds with respect to unsatisfactory/incomplete responses to interrogatories: no later than Tuesday, August 2, 2011

Filing, with the Board, of replies to notices of the grounds with respect to any remaining issues: no later than Monday, August 22, 2011

[Ruling of the Board]

Filing of complete/satisfactory responses to interrogatories: no later than Monday, October 3, 2011


December 23, 2010up arrow

Please note that the decision of the Board with respect to the above-referenced matter is now posted on the Board's website under the heading "What's New/Recent Decisions" (http://cb-cda.gc.ca/home-accueil-e.html), along with the Interim Tariff. 

In addition, a version of the Interim Tariff highlighting the differences with the AUCC's (Association of Universities and Colleges of Canada) model licence is also posted on the Board's website. The text in red corresponds to additions and the strikeout text corresponds to deletions.


December 15, 2010up arrow

In view of the circumstances, the Board grants Access Copyright's request.
[Extension request]


December 13, 2010up arrow

NOTICE OF THE BOARD

The Board reminds participants that the deadlines for responding to questions 2), 3), and 4) set in the December 8 Board's ruling are not dependant upon the Board issuing a decision on question 1). Decisions on all questions will be issued in due course.


December 8, 2010up arrow

RULING OF THE BOARD

The December 6, 2010 request of Mr. Katz for a "temporary moratorium" is denied. AUCC’s application of the following day to extend the deadline for responding to the application for an interim decision is also denied.

Both applications proceed from a common misconception. The draft interim tariff is not a new proposal. The only proposal of which the Board is seized is the application filed on October 13, 2010. Access Copyright has not changed the relief requested; nor would the Board allow this to happen without giving other participants additional time to respond, unless the proposed change clearly favours users. The purpose of the Board’s requests for additional information, including the draft interim tariff and tables correlating that draft with the model licence, is not to help the Board understand the terms of the application or "to accommodate the inadequacy of Access Copyright’s material". It is to make it easier for other participants to understand the relationship between the proposed text of Access Copyright and its application for an interim decision. The Board could have left participants to respond to the application on the sole basis of the documents filed with it, which are sufficient for anyone to respond to the application and adequate for the purposes of making a decision.

The application of Mr. Katz for an oral hearing is also denied. The application relies on alleged complexities that cannot be assessed until the Board has read the submissions of all participants. In these matters, the Board’s practice is to hold oral hearings only if the panel seized of the matter finds it necessary to decide the issue. Participants will be informed of this if need be. If not, the matter will be addressed as usual, without a hearing.

The application of Mr. Katz raises a number of other issues that need not be addressed in this order. These matters will be dealt with in the Board’s reasons for its decision whether or not to issue an interim decision.

To help participants focus on relevant issues, the Board would like to remind them that, in order to deal with the application for an interim decision, the Board will have to address, at a minimum, four questions or sets of questions that logically flow from any such application.

1) Should the Board grant Access Copyright's application for an interim decision?

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

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?

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?
AUCC’s alternative request is granted in part. Participants still have to file their submissions no later than on Friday, December 10, 2010, but only with respect to the application for an interim decision (question 1 above). Participants shall file their submissions on questions 2 to 4 above, or on any other issue, no later than on Friday, December 17, 2010.

Access shall reply no later than by noon (EST) on Wednesday, December 15, 2010 to the submissions filed on December 10 and no later than by noon (EST) on Wednesday, December 22, 2010 to the submissions filed on December 17.


December 7, 2010up arrow

ORDER OF THE BOARD

The attached letter from the Canadian Library Association has been received by the Board.

The comments of the Canadian Library Association with respect to the application for an interim tariff are noted.

The application by the Association for leave to intervene is denied. In its Notice dated November 15, 2010, the Board asked the Association to indicate its intentions with respect to its participation. The Association failed to respond to the Board's Notice. Given the number of participants, timely responses to Board's rulings are essential to maintain an orderly process.

Since some librarians have already been granted intervenor status, the Association cannot simply rely on the fact that it represents other librarians to establish that its participation would be helpful.

The Board will however consider a new application for intervenor status from the Association if a significant number of participants officially ask the Association to act on their behalf in these proceedings.
Attachment: CLA interim tariff letter to CB dec10 final.pdf


December 6, 2010up arrow

Please note that in the Order below [See other December 6, 2010 entry below], which was just released, the first line of paragraph 1) should have read:

1) Access shall file, no later than by 5 p.m. (EST) on Wednesday, December 8, 2010 (and not Wednesday, December 6, 2010):
  
We apologize for any inconvenience this might have created.


December 6, 2010

ORDER OF THE BOARD

Further to Access Copyright filing a draft interim tariff pursuant to the Board's notice of December 3, last, the Board further orders as follows.

1) Access shall file, no later than by 5 p.m. (EST) on Wednesday, December 6, 2010:

    (a) a table indicating precisely the source for each provision of the proposed interim tariff. If any provision in the interim tariff is new, its purpose shall be explained.
   
    (b) a table correlating the model licence with the provisions of the proposed interim tariff. Where a provision of the licence is not in the interim tariff, an explanation shall be provided.

Any question Access may have in this regard should be directed to the Board's General Counsel.

2) Access shall also file at the same time any existing French version of the model licence or any other licence.


December 3, 2010up arrow

NOTICE OF THE BOARD

The Board has received from Access Copyright the royalty rate information it requested in its order of November 26, 2010. Whether the application for an interim decision will be granted remains an open issue. However, if the application is granted, it is probable that the decision will take the form of a tariff, not a licence. For this reason, the Board would appreciate receiving forthwith from Access Copyright a draft interim tariff that reflects the terms of the model licences, with such modifications as necessary.


December 3, 2010

RULING OF THE BOARD

The November 30, 2010, motion that Colleges Ontario be allowed to act as objector in these proceedings is denied. ACCC filed a timely objection as representative of certain institutions, including those Colleges Ontario now purports to represent. These institutions are not now entitled to split up from ACCC and continue to claim status as autonomous objectors, either individually or in groups. ACCC, not the institutions, is an objector in these proceedings.

Colleges Ontario remains free to apply for intervenor status in these proceedings. Given the number of participants, any application will need to state very clearly how its participation will be useful in this matter. The model directive on procedure provides more information on applications for intervenor status. It can be found at http://www.cb-cda.gc.ca/about-apropos/directive-e.html.

For reasons already explained in today's earlier Notice of the Board, the application of December 2, 2010 of Mr. Neufeldt on behalf of St. Mary's University College for a seven-week extension to the deadline to respond to Access Copyright's application for an interim tariff is denied.

December 3, 2010

NOTICE OF THE BOARD

On Friday, November 26, 2010, participants were asked to respond no later than Monday, December 6, 2010 to the application of Access Copyright for an interim tariff.

On November 29, the Board was advised that ACCC had retained counsel with respect to the application for an interim decision. Counsel for ACCC asked a one week extension until Monday, December 13 to provide "meaningful written representations". That same day, AUCC informed the Board that it supported ACCC’s application and that it intended to co-ordinate its response to the application with ACCC. The following day, Access Copyright submitted that since both ACCC and AUCC had been provided with a copy of the application on or about October 13, 2010, the extension sought was unwarranted. Access Copyright did suggest a somewhat shorter extension, with a view to the Board receiving "meaningful written representations" that are coordinated as between the Objectors to the greatest extent possible, as proposed by AUCC.

The November 30, 2010 application by Mr. Katz that all participants be granted a period of at least 7 weeks to respond to the application is denied. Under the amended timelines, participants have two weeks to respond. This is not unreasonably short, when compared to the time allowed to deal with interim issues before other jurisdictions. The fact that two of the participants received early notice is not relevant. Access has now provided the precise amounts of royalties it believes should be inserted in an interim decision, as requested in the Board’s order of November 26, 2010. As a result, the issue raised by Mr. Katz in this respect is now moot. In any event, such a short delay in providing that information is not reason enough to postpone the examination of this matter. The relevant amounts can be derived from the documents already sent to all participants. The Board asked for that information out of an abundance of caution and to avoid unnecessary debates on the issue. Participants were therefore perfectly able to prepare their argument for or against an interim tariff even though they only got the information today. 

The November 30, application of Colleges Ontario will be addressed separately.

Participants have until Friday, December 10 to respond to the application for an interim tariff. Access Copyright may reply to these comments no later than Wednesday, December 15.


December 1, 2010up arrow

Alberta will remain as intervenor with full participatory rights and obligations. A participant is always entitled to withdraw from a proceeding before the Board. The Board does not award costs.


November 26, 2010up arrow

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.

Attachment: Application for interim tariff.pdf; response to application.pdf


November 25, 2010up arrow

[Le français suit l'anglais]

RULING OF THE BOARD

In its Notice of November 15, 2010 (the "Notice"), the Board acknowledged as objectors the Association of Universities and Colleges of Canada, the Association of Canadian Community Colleges, Athabasca University and the British Columbia Association of Institutes and Universities.

The purpose of this Ruling is to identify those who may participate to the examination process of the above-referenced proposed tariff as intervenors with full participatory rights.

1) In its Notice, the Board stated that it was inclined to grant to certain persons intervenor status with full participatory rights, in effect allowing them to act in these proceedings as if they were objectors. No one is challenging the participation of these persons. These persons were informed of the rights and obligations of such intervenors and were asked to confirm whether they wished to remain as participants. The following persons, who provided the confirmation the Board requested, are granted status as intervenor with full participatory rights: Mr. Sean Hunt, Mr. Ariel Katz, Mr. Sean Maguire, Mr. Mark McCutcheon, Ms. Meera Nair, Ms. Nancy Pardoe, Mr. Jay Rahn, the Canadian Alliance of Student Associations, the Canadian Association of University Teachers (CAUT) and the Canadian Federation of Students (CFS).

2) Alberta was one of the persons to whom the Board was inclined to grant intervenor status with full participatory rights. The province now asks that its participation be limited to receiving copy of evidence and arguments, filing a statement of case, calling witnesses and presenting oral or written arguments. Given the number of participants, the Board does not intend to treat some of them differently unless absolutely necessary. Alberta is asked to confirm by no later than Tuesday, November 30, 2010, whether it wishes to remain as intervenor with full participatory rights and obligations. If not, Alberta will not be granted intervenor status.

3) In its Notice, the Board expressed the preliminary opinion that the participation of certain persons would not be of assistance in these proceedings. These persons were invited to indicate the extent and nature of any association they may have with any post-secondary educational institution outside of the Province of Quebec targeted in the proposed tariff if they wished to be granted intervenor status in these proceedings. Only Mr. Pat Donovan and Mr. Jason Koblovsky responded to the Board’s Notice. Both failed to disclose any association with a targeted institution. Neither did they offer any evidence that they may be prospective users or reasons that would lead the Board to conclude that their participation may be of assistance. A mere statement that one is "covering" the public interest or that the proposed tariff’s terms are unfair are insufficient to establish a person’s status or to explain the contribution she may make. Consequently, these persons will not be granted intervenor status.

4) In its Notice, the Board asked three persons to clarify whom they intended to represent. Ms. Liz Fulton-Lyne stated that she intended to represent Yellowhead Tribal College, Mr. Sandy Ayer, Ambrose University College and Mr. Brad Neufeldt, St. Mary’s University College. All asked to remain as intervenors with full participatory rights. The Board grants their request.

5) As stated in the Notice, notices of objections filed by any person other than those to whom this Ruling grants intervenor status will be treated as letters of comment and will be made part of the official record of these proceedings. The Board members who will hear the matter will consider them before reaching their decision. These persons are still permitted to consult the public record and to comment in writing on any aspect of the proceedings until the date set for the filing of final arguments, as are all members of the public.

6) Anyone even remotely familiar with how the Board proceeds knows that as a matter of course, the Board treats all participants equally, be they collectives, objectors or intervenors: they enjoy the same rights and are required to comply with the same obligations. Indeed, in the few instances where the Board has treated an intervenor differently, it has been usually, if not always, at the request of the concerned intervenor.

In these proceedings, intervenors and objectors will be treated identically unless circumstances dictate otherwise and being identified as one or the other will be of no practical consequence. As a result, and as was stated in the Notice, it is not necessary to rule on whether persons who filed notices of objection and who are allowed to participate as intervenors are proper objectors. Furthermore, since all participants who complied with the Notice are in effect being granted everything they asked for, there is no need to either afford them the opportunity to further comment or for the Board to provide reasons for its ruling. The only possible exceptions are Messrs. Donovan and Koblovski. In their case, they were afforded an opportunity to explain why they should remain as participants, and the reasons why they are not being allowed to so remain are clearly outlined above.
____________________________________________________________

DÉCISION DE LA COMMISSION

Dans son avis du 15 novembre 2010 (l'« Avis »), la Commission reconnaissait le statut d'opposant à l'Association des universités et collèges du Canada, à l'Association des collèges communautaires du Canada, à Athabasca University et à la British Columbia Association of Institutes and Universities.

La présente décision a pour but d'identifier les personnes qui pourront participer au processus d'examen du projet de tarif mentionné en rubrique en tant qu'intervenants avec plein droit de participation.

1) Dans son Avis, la Commission disait tendre à accorder le statut d'intervenant avec plein droit de participation à certaines personnes, leur permettant ainsi d'agir dans la présente affaire comme si elles étaient des opposants. Personne ne remet en cause la participation de ces personnes. La Commission les a informées des droits et obligations de tels intervenants et leur a demandé de confirmer si elles désiraient ou non demeurer au dossier à titre de participant. Les personnes suivantes, qui ont fourni à la Commission la réponse demandée, auront le statut d'intervenant avec plein droit de participation : M. Sean Hunt, M. Ariel Katz, M. Sean Maguire, M. Mark McCutcheon, Mme Meera Nair, Mme Nancy Pardoe, M. Jay Rahn, l'Alliance canadienne des associations étudiantes, l'Association canadienne des professeures et professeurs d'université (ACPPU) et la Fédération canadienne des étudiantes et étudiants (FCEE).

2) L'Alberta fait partie des personnes auxquelles la Commission disait tendre à accorder le statut d'intervenant avec plein droit de participation. La province demande que sa participation se limite à recevoir la preuve et l'argumentation, à déposer un énoncé de cause, à convoquer des témoins et à présenter une argumentation orale ou par écrit. Compte tenu du nombre de participants, la Commission n'entend pas accorder un traitement différent à certains d'entre eux sauf si c'est absolument nécessaire. Elle demande à l'Alberta de confirmer au plus tard le mardi 30 novembre 2010 si elle souhaite demeurer au dossier à titre d'intervenant avec plein droit de participation et obligations. Sinon, la Commission n'accordera pas le statut d'intervenant à l'Alberta.

3) Dans son Avis, la Commission disait tendre à conclure que la participation de certaines personnes ne serait pas utile en l'espèce. Elle les invitait à indiquer la portée et la nature de leurs liens avec une institution postsecondaire hors Québec visée par le projet de tarif si elles désiraient intervenir dans la présente affaire. Seuls MM. Pat Donovan et Jason Koblovsky ont donné suite à l'Avis. Ils n'ont pas indiqué quelque lien que ce soit avec une institution visée, pas plus qu'ils ont offert de preuve tendant à établir qu'ils étaient des utilisateurs éventuels ou des motifs permettant à la Commission de conclure que leur participation pourrait être utile. Le simple énoncé qu'on entend « couvrir » l'intérêt public ou que les modalités du projet tarif sont injustes ne suffit pas à établir le statut d'une personne ou à expliquer la contribution qu'elle pourrait apporter. Par conséquent, la Commission ne leur accordera pas le statut d'intervenant.

4) Dans son Avis, la Commission demandait à trois personnes de préciser les institutions pour le compte desquelles elles comptaient agir. Mme Liz Fulton-Lyne a dit représenter le Yellowhead Tribal College, M. Sandy Ayer, l'Ambrose University College et M. Brad Neufeldt, St. Mary's University College. Tous ont demandé le statut d'intervenant avec plein droit de participation. La Commission fait droit à leur demande.

5) Comme le prévoyait l'Avis, les avis d'opposition déposés par les personnes à qui la présente décision n'accorde pas le statut d'intervenant seront traités comme des lettres de commentaire, versées au dossier public de l'instance. Les commissaires qui entendront l'affaire en tiendront compte avant de rendre leur décision. Ces personnes conservent, comme tout autre membre du public, le droit de consulter le dossier public et de formuler des observations écrites sur l'un ou l'autre des aspects de la présente affaire jusqu'à la date fixée pour la présentation des plaidoiries finales.

6) Les personnes un tant soit peu informées de la façon dont la Commission procède savent qu'elle traite tous les participants sur le même pied, qu'il s'agisse de société de gestion, d'opposant ou d'intervenant : tous ont les mêmes droits et obligations. Bien plus, le peu de fois où la Commission a traité un intervenant différemment, ce fut habituellement, sinon toujours, à la demande de l'intéressé.

Dans la présente affaire, sauf par la force des choses, intervenants et opposants recevront un traitement identique et le fait d'être affublé de l'un ou l'autre titre n'aura aucun effet pratique. Par conséquent, comme le prévoyait l'Avis, il n'est pas nécessaire de décider si les personnes ayant déposé une opposition et autorisées à participer en tant qu'intervenants sont des opposants en règle. Qui plus est, puisque les participants qui se sont conformés à l'Avis obtiennent dans les faits tout ce qu'ils ont demandé, il n'est pas nécessaire de leur donner l'occasion de déposer d'autres commentaires ou pour la Commission de motiver sa décision, sauf peut-être en ce qui concerne MM. Donovan et Koblovski. Or, ils ont eu l'occasion d'expliquer pourquoi ils devraient pouvoir participer à l'affaire et les motifs pour lesquels ce statut leur est refusé sont clairement énoncés ailleurs dans la présente décision.


November 15, 2010up arrow

[Le français suit l'anglais]

NOTICE OF THE BOARD

On September 22, 2010, after having examined notices of objection filed in this matter, Access Copyright agreed that the Association of Universities and Colleges of Canada (AUCC) and the Association of Canadian Community Colleges (ACCC) qualify as objectors in these proceedings. It argued that Athabasca University and the British Columbia Association of Institutes and Universities (BCAIU) were duplicating the representations of AUCC and ACCC and should not be qualified as objectors. Finally, it requested that all other persons who filed notices of objection not be given objector status by reason that since they are not targeted by the proposed tariff, they are not "prospective users" within the meaning of subsection 67.1(5) of the Copyright Act.

The Board finds that AUCC, ACCC and, setting aside for the moment the issue of duplicative representation, Athabasca University and BCAIU, being targeted by the proposed tariff, are proper objectors. Having read all the notices, the Board is also of the preliminary opinion that the participation of the government of Alberta and of teachers, students and staff from the targeted institutions in the proposed tariff would enrich the record of these proceedings and assist the Board's deliberations. As such, the Board is inclined to grant them, if they so wish, intervenor status with full participatory rights, in effect allowing them to act in these proceedings as if they were objectors. To the extent that the contemplated status is granted, it is not necessary to rule on whether these persons are proper objectors.

Access Copyright, AUCC, ACCC, Athabaska University and BCAIU may make their views known on the participation of the potential intervenors no later than Tuesday, November 23, 2010. They are asked not to deal with issues of duplicative representation or overlapping argumentation at this stage. These matters will be addressed later, when the intentions of all participants are more fully ascertained.

Intentions of Participants

Potential intervenors who filed a notice of objection only to ensure that their point of view would be taken into account may find it unnecessary to be further involved in these proceedings. The Board will treat their notices as letters of comment. As such, they are part of the official record of these proceedings. Access Copyright has received a copy of them. The Board members who will hear the matter will consider them before reaching their decision. Those persons are still permitted to consult the public record and to comment in writing on any aspect of the proceedings until the date set for the filing of final arguments.

Those who wish to remain as intervenors with full participatory rights will be treated as any objector. They will be entitled to receive a copy of all the evidence and arguments to be filed by all participants. They will also be entitled to address questions to other participants (in the form of interrogatories) and will be required to answer questions addressed to them, as long as they are relevant. They will have to file a statement of case, and will be entitled to call witnesses, file evidence and present oral argument at the end of the hearings.

All participants will be required to comply with the timetable that will be set for these proceedings and with the directive on procedure that will be issued in due course. A model directive is available on the Board's website at the following address: http://www.cb-cda.gc.ca/about-apropos/directive-e.html.

Those who wish to remain as participants in these proceedings are asked to inform the Board no later than Tuesday, November 23, 2010.

Request for information

The following institutions have sent notices of objection on behalf of both a post-secondary institution and its library. The Board needs to obtain, by no later than Tuesday, November 23, 2010, clarification and confirmation as to which one of the two is being represented.

Ambrose University College and the Library
St. Mary's University College and the Library
Yellowhead Tribal College and the Library 

Possible Exclusions

The Board is of the preliminary opinion that the participation of the following persons would not be of assistance:

Aburto, Juan
Akrigg, Mark
Bannerman, Sara
Bouchard, Paul
Caswell, James
Cooper, Alan
Creighton, Angus
de Alwis, Brian
Donovan, Pat
Finney, Nik
Gilbert, David
Guy, David
Harris, Sandy
Heesen, Erika
Humphries, Graeme
Kittredge, Rob
Koblovsky, Jason
Konefal, Tomasz
Lam, David
Lavender, Graham
Liota, Cohen
McMullen, Greg
Mitchell, Pauline
Neufeld, Ryan
Neufeld, Jacqueline
Pitt, Richard
Raby, Olier
Schigas, Marnie
Schigas, Roland
Schopf Loach, Cassandra
Scott, Steven
Solman, Grayden
Stevenson, Adrienne
Thompson, Kyle
Vu, Tom
Wall, Darren
Watt, Seth
Weber, Stephen Paul

Persons named above who wish to be granted intervenor status in these proceedings are asked to indicate the extent and nature of any association they may have with any post-secondary educational institution outside of the Province of Quebec targeted in the proposed tariff, also no later than Tuesday, November 23, 2010. The Board will then rule on these applications after giving other participants in these proceedings the opportunity to comment on the applications. Notices of objections filed by persons who are not granted intervenor status will be treated as letters of comment and will be made part of the official record of these proceedings.

Finally, Mr. Degen's letter in support of the proposed tariff will be treated as a letter of comment.

Application to Bifurcate Hearings

In their joint notice of objection, the Canadian Association of University Teachers (CAUT) and the Canadian Federation of Students (CFS) requested that the examination of the proposed tariff be bifurcated into a legal phase and an evidentiary phase. CAUT and CFS challenge the validity of certain definitions as well as the right of Access to impose certain terms and conditions or to prevent certain uses. They contend the proposed tariff targets unprotected uses and ignores certain exceptions or users' rights. They do not specify which questions, in their opinion, would justify splitting the process leading to the certification of a tariff.

The application is premature at best. Furthermore, based on the information currently available it is highly doubtful that splitting the examination of the legal questions from the substance of the tariff makes sense in this instance. Some of the issues raised by CAUT and CFS will require not, as they suggest, a minimal evidentiary record, but extensive evidence, most of which will in all likelihood also be relevant to the determination of the amount of the tariff. Finally, many of the issues raised deal with the terms and conditions of the tariff. Nothing will be gained by dealing with those issues before having some idea of how the core of the tariff will be structured.

For the time being, the application is denied. These matters can be revisited, if needed, in due course.

_______________________________________________________________

AVIS DE LA COMMISSION

Le 22 septembre 2010, après avoir examiné les avis d'opposition déposés en l'instance, Access Copyright convenait que l'Association des universités et collèges du Canada (AUCC) et l'Association des collèges communautaires du Canada (ACCC) se qualifient comme opposantes dans la présente affaire. Elle demandait qu'on refuse ce statut à Athabasca University et à la British Columbia Association of Institutes and Universities (BCAIU) parce qu'il en découlerait un dédoublement de représentation. Finalement, elle a demandé de refuser le statut d'opposante à toutes les autres personnes ayant déposé un avis d'opposition au motif qu'elles ne sont pas visées par le projet de tarif et donc, pas des « utilisateurs éventuels » au sens du paragraphe 67.1(5) de la Loi sur le droit d’auteur.

La Commission conclut que AUCC, ACCC et, laissant de côté pour l'instant la question du dédoublement de représentation, Athabasca University et la BCAIU sont des opposantes puisqu'elles sont ciblées par le projet de tarif. Après avoir lu tous les avis, la Commission a aussi tendance à conclure que la participation du gouvernement de l'Alberta ainsi que des enseignants, des étudiants et du personnel des institutions ciblées dans le projet constituerait une addition utile au dossier de l'instance et éclairerait les délibérations de la Commission. Elle est donc portée à leur accorder, s'ils le désirent, le statut d'intervenant avec plein droit de participation, leur permettant ainsi d'agir dans la présente affaire comme si elles étaient des opposantes. Dans la mesure où ce statut leur serait accordé, il ne serait pas nécessaire de trancher sur leur statut d'opposantes.

Access Copyright, l'AUCC, l'ACCC, Athabasca University et la BCAIU peuvent faire valoir leur point de vue sur la question de la participation des intervenants potentiels, au plus tard le mardi 23 novembre 2010. Elles s'abstiendront de traiter du dédoublement de représentation ou du chevauchement de l'argumentation. Ces questions seront abordées plus tard, lorsque les intentions de tous seront mieux connues.

Intentions des participants

Les intervenants potentiels qui ont envoyé un avis d'opposition uniquement dans le but de s'assurer que leur point de vue soit pris en compte pourraient conclure qu'ils n'ont pas à s'impliquer davantage dans le reste de la présente instance. La Commission traitera leur avis comme une lettre de commentaire, versée au dossier public de l'instance. Access Copyright en a reçu copie. Les commissaires qui entendront l'affaire en tiendront compte avant de rendre leur décision. Ces personnes conserveront le droit de consulter le dossier public et de formuler des observations écrites sur l'un ou l'autre des aspects de la présente affaire jusqu'à la date fixée pour la présentation des plaidoiries finales.

Les personnes qui désirent demeurer à titre d’intervenant avec plein droit de participation seront traitées comme des opposantes. Elles auront droit de recevoir copie de la preuve et de l'argumentation de chacun des participants. Elles auront aussi l'occasion de poser aux autres participants des questions écrites (demandes de renseignements) et devront répondre aux questions qui leur seront adressées, pour autant qu'elles soient pertinentes. Elles devront également déposer un énoncé de cause, et pourront appeler des témoins, déposer de la preuve et présenter une plaidoirie orale à la fin des audiences.

Tous les participants seront tenus de se conformer à l'échéancier qui sera établi dans la présente affaire et à la directive sur la procédure que la Commission émettra en temps opportun. Une directive modèle est disponible sur le site de la Commission à l'adresse suivante : http://www.cb-cda.gc.ca/about-apropos/directive-f.html.

Les personnes souhaitant demeurer à titre de participant en l'instance doivent en informer la Commission au plus tard le mardi 23 novembre 2010.

Demande d'information

Les avis d'opposition suivants ont été envoyés à la fois au nom d’une institution postsecondaire et de sa bibliothèque. La Commission désire savoir, au plus tard le mardi 23 novembre 2010, laquelle de ces deux institutions est représentée, et en recevoir une confirmation.

Ambrose University College and the Library
St. Mary’s University College and the Library
Yellowhead Tribal College and the Library

Exclusions possibles

La Commission tend à conclure que la participation des personnes suivantes ne serait pas utile :

Aburto, Juan
Akrigg,Mark
Bannerman, Sara
Bouchard, Paul
Caswell, James
Cooper, Alan
Creighton, Angus
de Alwis, Brian
Donovan, Pat
Finney, Nik
Gilbert, David
Guy, David
Harris, Sandy
Heesen, Erika
Humphries, Graeme
Kittredge, Rob
Koblovsky, Jason
Konefal, Tomasz
Lam, David
Lavender, Graham
Liota, Cohen
McMullen, Greg
Mitchell, Pauline
Neufeld, Ryan
Neufeld, Jacqueline
Pitt, Richard
Raby, Olier
Schigas, Marnie
Schigas, Roland
Schopf Loach, Cassandra
Scott, Steven
Solman, Grayden
Stevenson, Adrienne
Thompson, Kyle
Vu, Tom
Wall, Darren
Watt, Seth
Weber, Stephen Paul

La personne susnommée qui désire intervenir dans la présente affaire doit indiquer la portée et la nature de ses liens avec une institution postsecondaire hors Québec visée par le projet de tarif, également au plus tard le mardi 23 novembre 2010. La Commission décidera par la suite de ces demandes, après avoir donné aux autres participants l'occasion de les commenter. Les avis d'oppositions de personnes n'ayant pas obtenu le statut d'intervenant seront traités comme des lettres de commentaire et versés au dossier public de l'instance.

Enfin, la lettre de M. Degen qui soutient le projet de tarif sera traitée comme une lettre de commentaire.

Demande de scission de l'audience

Dans leur avis d'opposition conjoint, l'Association canadienne des professeures et professeurs d’université (ACPU) et la Fédération canadienne des étudiants (FCÉ) demandent que la Commission procède à l'examen des questions de droit que soulève le projet de tarif avant de traiter du fond. Ces opposantes doutent du fondement de certaines définitions et du droit d'Access d’imposer certaines modalités ou d'empêcher certaines utilisations. Elles soutiennent que le projet de tarif vise des utilisations protégées et ne tient pas compte de certaines exceptions et droits des utilisateurs. Elles ne précisent pas les questions qui, selon elles, justifieraient de scinder le processus menant à l'homologation du tarif.

Au mieux, la demande est prématurée. Qui plus est, compte tenu des renseignements disponibles à ce stade du processus, il est fort peu probable qu'il soit utile de scinder l'examen du droit et du fond dans la présente affaire. L'ACPU et la FCÉ soutiennent qu'on peut trancher les questions qu'elles soulèvent avec fort peu de preuve; la Commission croit au contraire que la preuve nécessaire sera abondante et, sans doute, en grande partie pertinente à l'établissement du montant du tarif. Enfin, plusieurs des questions soulevées portent sur les modalités du tarif; il ne sert à rien d'en traiter avant de comprendre davantage le montage du fond du tarif.

La demande est rejetée pour l'instant. On pourra aborder la question à nouveau en temps et lieu, si nécessaire.



Access Copyright - Elementary and Secondary School Tariff (2010-2012, 2013-2015)


August 12, 2014up arrow

NOTICE OF THE BOARD

Please note that the above-noted hearing will resume on Friday, September 12, 2014 @ 9:00 a.m.

In addition, could you please inform the Registry by no later than Thursday, September 4, 2014 should you require the following:

- Interpreters/simultaneous translation;
- Equipment (projector, screen, flipchart, etc …);
- Special needs/other matters.

Should you require producing additional material at the hearing, please provide 8 copies for the Board (1 public copy and 7 confidential copies) as well as enough copies for the other parties. An electronic copy of the additional exhibits will also be required.

Regards,


July 10, 2014up arrow

RULING OF THE BOARD

The schedule for providing responses to the Board’s technical questions will be as follows:

Questions 1, 3, 4 and 5

    Access Copyright and the Objectors will answer these questions by no later than     Monday, September 29, 2014.

    The parties shall respond to the others’ submissions by no later than Monday October     27, 2014.

Question 2

    The parties shall answer the question by no later than Friday, November 14, 2014.

    The parties shall respond to the others’ submissions by no later than Friday, November     28, 2014.


July 9, 2014up arrow

NOTICE OF THE BOARD

The Board intends to set the schedule for providing responses to the technical questions as proposed by the objectors (and attached, for convenience) unless Access Copyright provides a compelling reply no later than Thursday, July 10, 2014.

Attachment: Letter to the Board re Technical Questions – July 9, 2014.pdf


July 7, 2014up arrow

NOTICE OF THE BOARD

Parties are asked to provide a reply to each other’s proposal (attached for convenience) on the time required to answer the technical questions by no later than Wednesday, July 9, 2014.

Attachment: 87) Email from C. Gillis (2014-07-04).pdf; 88) Email from A. O’Neill (2014-07-04).pdf


July 3, 2014up arrow

NOTICE OF THE BOARD

Please find enclosed a Ruling of the board in the above-referenced matter.

Attachment: 2014-07-02 – Ruling and Question from the Board – Access Copyright K-12.pdf


June 13, 2014up arrow

RULING OF THE BOARD

On June 11, 2014, Drs. Paul Whitehead and Piotr Wilk, experts for the Objectors, addressed the attached question to the Director of Research in accordance with the Board’s Notice of June 6, 2014, also attached (for convenience). The question goes beyond the scope of technical questions insofar as it asks the Board to make a finding with respect to the type of analysis the parties should use to answer its questions.

Accordingly, the Board wishes to address the following question to the parties:

Please indicate the data set or sets that should be used to answer the Board’s technical questions of June 6. In particular, please consider whether the transactions “not analyzed by Access Copyright” from the 2005-2006 Volume Study should be analyzed for the purpose of answering the technical questions.

Parties may submit their responses no later than Friday, June 20, 2014 and their replies no later than Friday, June 27, 2014.

The deadline for indicating how much time parties would need to answer the technical questions is suspended. The Board will issue further directions following these submissions.

Attachment: 2014-06-05 – Notice of the Board and Questions from the Board – Access Copyright K-12.pdf


June 5, 2014up arrow

NOTICE OF THE BOARD

Please find enclosed a Notice in regards to the Final Arguments along with Questions from the Board in the above-referenced matter.

Attachment: 2014-06-05 – Notice of the Board and Questions from the Board – Access Copyright K-12.pdf


March 11, 2014up arrow

NOTICE OF THE BOARD

The Objectors' request described below is granted. The schedule of proceedings is revised accordingly:

Filing of Objectors' Case: no later than Wednesday, March 19, 2014;

Filing of Access' Reply: no later than Wednesday, April 16, 2014.


September 18, 2013up arrow

RULING OF THE BOARD

Interrogatory 46

Prince Rupert School District #52: The Board already ruled on the issue of access to the hard drives of photocopiers in its rulings of May 2 and August 29, 2013. Access' motion of September 11, 2013 is dismissed. The Objectors have answered the question.


September 12, 2013up arrow

NOTICE OF THE BOARD

The Objectors may reply to the attached Access Copyright's motion by no later than Friday, September 13, 2013.

Attachment: Access Copyright Motion re Deficiencies (Sept. 11, 2013).pdf


September 9, 2013up arrow

RULING OF THE BOARD

As per the August 29, 2013 Ruling, Access has not filed any correspondence demonstrating that the additional information from responses to interrogatories not received so far would be distinguishable from what has already been received. Consequently, the Objectors shall not provide responses to interrogatories for which no responses have been provided so far. The Objectors are precluded from tendering into evidence responses not provided so far that would have been responsive to any of the unanswered interrogatories, absent leave from the Board. In addition, both the Objectors and Access Copyright will be precluded from arguing that the responses obtained as of July 24, 2013 from the Objectors do not form a representative sample.


August 29, 2013up arrow

NOTICE OF THE BOARD

Attached is the Ruling of the Board dealing with Motions re: Incomplete/Unsatisfactory Responses to Interrogatories in respect of the above-mentioned file.

Attachment: Ruling - Access Copyright - Grounds for Deficiencies EN.pdf


August 14, 2013up arrow

NOTICE OF THE BOARD

Included in the material filed by the Objectors is a request by Access Copyright for a Ruling of the Board (page 3 and 4 of the attached document). The Objectors have already provided a response to this request in their submissions of August 9, 2013. Access Copyright shall provide a reply no later than Monday, August 19, 2013.

Attachment: Access Copyright Motion re Defiencies (July 26, 2013).pdf


June 21, 2013up arrow

NOTICE OF THE BOARD

Attached is the Board's Order dealing with information for which confidential treatment may be claimed.

Attachment: Access Copyright K-12 2010-2015 - Confidentiality Order.pdf


June 19, 2013up arrow

RULING OF THE BOARD

On June 3, 2013, the Objectors wrote to the Board requesting that Access Copyright be ordered to:

  1. complete the unfinished repertoire analysis of the subject material of the previous tariff;
  2. conduct a full repertoire analysis on the new subject material in the proposed tariff: music, consumables and reproducibles; and
  3. make the results of these repertoire analyses available to the Objectors by July 31, 2013.

On June 6, 2013, Access wrote to the Board, opposing the requests by the Objectors.

For the reasons that follow, the requests are denied.

With respect to the first request, there is no need to complete the unfinished repertoire analysis. Statistical theory suggests that the 6 per cent of exposures that were not analyzed should be broadly similar to the 94 per cent of exposures that were analyzed by Access in 2006. Furthermore, since the 6 per cent of exposures were already treated proportionally in the 2006 analysis, the maximum possible decrease in compensable transactions is approximately one percentage point. The costs and imposition of conducting the additional study would far outweigh any benefit from the additional precision that may be gained. The argument raised by the Objectors relating to the distribution of transactions analyzed is irrelevant to whether or not the repertoire analysis should be completed, since repertoire analysis proceeds on a per-exposure basis, not a per-transaction basis.

That being said, and largely for the reasons given by the Objectors, the Board disagrees with Access' contention that its lookup tool can be used to undertake a proper repertoire analysis. This does not leave the Objectors without the means of conducting an analysis of the remaining 6 per cent of exposures, if they feel this is absolutely necessary. They could negotiate with Access for the use of its internal repertoire analysis tools or even, hire Access to conduct that analysis.

With respect to the second request, Access has promised to conduct a repertoire analysis pertaining to music, consumables and reproducibles. The second request is denied on the expectation that this analysis will be conducted. While Access is not obliged to file this analysis prior to the deadline for filing its case in December, it would be of considerable help to the Board, let alone the objectors, if the analysis were filed beforehand.

Since the first and second requests are being denied, the third request is moot.


June 3, 2013up arrow

NOTICE OF THE BOARD

Access Copyright can respond to the attached objectors' request no later than Thursday, June 6, 2013. The objectors are to reply no later than Tuesday, June 11, 2013.

Attachment: Letter to Board re: completion of 2006 repertoire analysis Final 3 June 2013.pdf


May 30, 2013up arrow

NOTICE OF THE BOARD

The Copyright Board of Canada has rendered an interim decision in the above-noted matter in regards to Access Copyright's application for an interim decision. The decision is posted on the Board's web site under the heading "What's New - Recent Decisions" at: http://www.cb-cda.gc.ca/home-accueil-e.html.


May 6, 2013up arrow

NOTICE OF THE BOARD

Access Copyright is asked to provide, no later than Tuesday, May 7, 2013, the following information:

- the number of educational institutions for which the royalty instalment payable on April 30, 2013 pursuant to the Access Copyright Elementary and Secondary School Tariff, 2005-2009 has been received as of today, May 6, 2013;

- the number of educational institutions for which the royalty instalment payable on April 30, 2012 pursuant to the Access Copyright Elementary and Secondary School Tariff, 2005-2009 had been received as of May 6, 2012.

The Objectors may provide any information they have to the contrary no later than Friday, May 10, 2013.


May 2, 2013up arrow

NOTICE OF THE BOARD

Attached is the Ruling of the Board dealing with objections to interrogatories.

Attachment: Ruling - Access Copyright K-12 - Objections to Interrogatories EN.pdf


April 30, 2013up arrow

NOTICE OF THE BOARD

The Objectors are asked to respond by no later than Monday, May 6, 2013, to comments made by Access Copyright in its covering letter of April 26, 2013 to the Board (attached), in respect of a proposed sample size of 120 schools and 36 school boards for the purpose of directing interrogatories.

Attachment: 2013-04-26 Cover letter re Access Replies to Objections.pdf


April 9, 2013up arrow

NOTICE OF THE BOARD

The Objectors are asked to reply to the attached Access Copyright Application by no later than Monday, April 15, 2013. Access Copyright can reply by no later than Friday, April 19, 2013.

Attachment: 2013-04-08 Interim Tariff Application (K-12).pdf


April 8, 2013up arrow

NOTICE OF THE BOARD

Further to the Board's Notice of March 15, 2013, attached is the Directive on Procedure.


AVIS DE LA COMISSION

En référence à l'avis de la Commission en date du 15 mars 2013, vous trouverez ci-joint la directive sur la procédure.

Attachment: Access Copyright - K-12 - Directive on Procedure and Appendices.pdf


March 25, 2013up arrow

NOTICE OF THE BOARD

Having perused the interrogatories exchanged between the parties, the Board is of the preliminary view that certain questions are not relevant, in whole or in part, to the issues identified to date, while the relevance of others ought to be better asserted from the outset.

The following comments are, again, preliminary and indicative. They do not aim to be necessarily exhaustive. A questioning party is free to explain why a question is relevant even though the Board is of the preliminary view that it is not. A responding party is free to argue that a question not mentioned in this notice is irrelevant or otherwise that it should not have to respond to it as per the usual reasons. The principle according to which parties are required to provide only what they have in the form they have it continues to apply. The Board expects these issues to be raised, if necessary, in the context of objections to interrogatories.

Burden of proof

The Board wishes to review some of the guidelines it uses when dealing with burden of proof.

  1. Rules dealing with the burden of proof are not applied rigidly before the Board.
  2. The person who challenges the status quo is generally asked to demonstrate why the status quo either (a) no longer holds or (b) should be questioned.
  3. The status quo can be challenged on the basis of indirect, reliable (even hearsay) evidence. For example, if reliable sources point to a consensus that the copying habits of certain persons have changed, direct evidence may not be necessary to conclude that such change has occurred. However, other evidence may be required to demonstrate the extent of the change.
  4. Where relevant evidence is available to one party but not the other, the party with access to the evidence may be asked to provide the information.
  5. Users seeking to invoke an exception or "right" have the burden of establishing, on the basis of evidence, that they may avail themselves of that exception or right. In the context of a tariff (a general measure of prospective application), it may be difficult to prove each instance involving such a claim. Sufficiency of the evidence is a matter to be decided by the panel.

Agreed Statement of Facts

The parties should attempt to prepare and file, early in these proceedings, an agreed statement of facts. To the extent possible, this should be done no later than on Friday, April 26, 2013, the date by which interrogatory disputes are to be submitted; this will allow the Board to take the parties' agreement into account in its subsequent ruling. The agreed statement need not be complete or be filed all at once. Parties may file a partial statement as soon as agreement is reached on certain issues, while continuing discussions on the possibility of reaching further agreements.

Document Entitled Copyright Matters

Objectors' counsel apparently prepared the above-referenced document. Prima facie, the document may be of crucial importance in these proceedings. This raises the issue of counsel participation in proceedings when counsel was involved in the preparation of a document that constitutes evidence. Parties are urged to come to an understanding of how the document, if it is to be used, may be addressed or challenged without requiring counsel's participation as a witness. The Board does not wish that these proceedings be derailed solely because counsel no longer can participate in this role and must be replaced.

Relevant Period

Access and publishers are not required to answer for any period before January 1, 2010 unless objectors consent to provide information for that same period, or unless objectors convince the Board that disclosure over a longer time period is required from Access than from the objectors.

With respect to Q52 to 64 (Access to objectors) and Q37, 41 (objectors to Access): parties' attention is brought to point 5) under "Burden of Proof", above. As regards the effect of putatively fair dealings on the work, trending data may prove especially helpful. Consequently, the Board may ask objectors (and, to a more limited extent, Access) to produce such data relating, for example, to the purchases of works by educational institutions over a longer period of time.

Access Questions to Objectors

The statement of issues filed by Access, while still wide-ranging, is of some help in focussing the issues. Cross-references from Q2 to 64 to the stated issues is appreciated.

The Board notes the overlap between Q1 to 64 and Q65 to 102. The burden on individual schools of responding to Q65 to 102 probably will be lightened significantly if Ministries and school boards provide sufficient information or if parties agreed to certain facts. That being said, if Q65 to 102 are, in whole in part, the subject of an agreed statement of facts, parties should expect that the Board will wish to have direct evidence from a representative sample of individual schools.

Objectors' Questions to Access

General information (1 to 3, 5, 6), financial or business information (30) [except information relating to the possibility of Access acting as an agent of non-members (31)], information pertaining to collection and distribution of royalties (27, 29) [except to the extent such questions relate to the value Access ascribes to various types of copies (28)], 34 [except to the extent required to identify the 20 publishers who may be asked to respond to Q36 to 41]: these questions are not relevant.

Q32 asks for information which, to a large extent, should be disclosed in the statement of case of Access. However, in the interest of expediting the proceedings, Access is asked (but not required) to answer the question.

Objectors are asked to explain the relevance of Q11, 18, 23 and 33.

Reasonableness

Parties are reminded that the amount of information sought must remain reasonable, taking into account the importance of the issues at hand. Also, if party A requests extremely detailed information from party B, A may be ordered to provide relevant information in equally painful detail. Prima facie, to the extent affiliated publishers are required to provide all the information set out in Q35 to 46, objectors may be asked to prove that every copying instance for which they claim fair dealing effectively meets the conditions set out in the Act.


March 15, 2013up arrow

NOTICE OF THE BOARD

Please see the attached Notice of the Board.

Attachment: Notice of the Board (15-03-2013) EN .pdf



Application to fix royalties for a licence and its related terms and conditions (SODRAC v. Astral) 2013


April 17, 2014up arrow

NOTICE OF THE BOARD

The parties, Bell Media Inc., Corus Entertainment Inc. and Astral Media Inc., may respond to the attached application by SODRAC for interim licences (Bell Media Inc. and Corus Entertainment Inc.) by no later than Friday, April 25, 2014. SODRAC may reply by no later than Friday, May 2, 2014.

Attachment : Licences provisoires chaînes Astral - 1er avril 2014 Lettre à Gilles McDougall.pdf


April 17, 2014up arrow

NOTICE OF THE BOARD

Further to the Federal Court of Appeal's Judgment dated March 31, 2014 in files A-516-12 and A-527-12, the Board has revised the SODRAC v. CBC/SRC and SODRAC v. Astral licences. The revised licences are available on our website at the following address: http://www.cb-cda.gc.ca/decisions/arbitration-arbitrage-e.html.


July 24, 2013up arrow

AVIS DE LA COMMISSION

Astral peut répondre à la requête ci-jointe au plus tard le mercredi 31 juillet 2013. SODRAC pourra répliquer, si nécessaire, au plus tard le lundi 5 août 2013.

Attachment : 22 juillet 2013 Lettre à Gilles McDougall.pdf


February 11, 2013up arrow

Please see the attached Notice of the Board (Making Available Right).

AVIS DE LA COMMISSION

Astral peut répondre à la requête de la SODRAC ci-jointe au plus tard le vendredi 22 février 2013. La SODRAC pourra déposer une réplique au plus tard le vendredi 8 mars 2013.

Attachment : 4 février 2013 - Demande d'arbitrage - SODRAC c. ASTRAL.pdf



Application to fix royalties for a licence and its related terms and conditions (SODRAC v. CBC - SRC, Explora)


April 17, 2014up arrow

NOTICE OF THE BOARD

Further to the Federal Court of Appeal's Judgment dated March 31, 2014 in files A-516-12 and A-527-12, the Board has revised the SODRAC v. CBC/SRC and SODRAC v. Astral licences. The revised licences are available on our website at the following address: http://www.cb-cda.gc.ca/decisions/arbitration-arbitrage-e.html.


January 16, 2013up arrow

AVIS DE LA COMMISSION

La décision provisoire de la Commission à l'égard du dossier en rubrique est disponible sur notre site web à l'adresse suivante: http://www.cb-cda.gc.ca/home-accueil-f.html.


November 8, 2012up arrow

AVIS DE LA COMMISSION

SRC/CBC peut répondre à la requête de la SODRAC ci-dessous au plus tard le vendredi, 16 novembre 2012. La SODRAC peut répliquer au plus tard le vendredi, 23 novembre 2012.

M Mc Dougall,

Le 30 avril 2012 , la Commission avait établi une licence provisoire pour SRC/CBC se terminant à la date de la décision finale dans la demande d'arbitrage de la SODRAC du 14 novembre 2008.

Cette décision finale ayant été rendue hier, la SODRAC demande qu'à compter d'aujourd'hui 3 novembre 2012, la licence permanente émise en date du 2 novembre 2012 s'applique à titre provisoire dans la demande d'arbitrage de la SODRAC déposée le 26 mars 2012 pour la période 2012-2016 (dossier 70.2-2012-01). Cette licence représente maintenant le statu quo

Respectueusement soumis

Colette Matteau


April 30, 2012up arrow

AVIS DE LA COMMISSION

Les motifs de la décision disposant des demandes de décision provisoire à l'égard des bornes interactives, d'Explora et d'une licence générale applicable du 1er avril 2012 au 31 mars 2016 sont disponibles sur notre site web à l'adresse : http://www.cb-cda.gc.ca/home-accueil-f.html.

L'examen de la licence finale pour les bornes interactives attendra que la Commission tranche dans l'arbitrage en délibéré. On devrait alors pouvoir procéder par écrit, en limitant le débat pour tenir compte du caractère modeste du montant en jeu.

L'examen de la licence finale pour les activités du service Explora avant le 1er avril 2012 se fera en même temps que celui de la licence générale pour 2012-2016.

L'examen de la licence finale pour 2012-2016 est suspendu jusqu'à ce que la Commission rende une décision dans l'arbitrage en délibéré.


March 27, 2012up arrow

AVIS DE LA COMMISSION

La SRC peut déposer une réponse à la demande ci-jointe de la SODRAC au plus tard le mardi 3 avril 2012. La SODRAC pourra déposer une réplique au plus tard le mardi 10 avril 2012.

Attachment : Demande d'arbitrage 2012-2016 R C 03 2012.pdf; 2012-03-22_Radio-Canada lance Explora_Cyberpresse.pdf



Application to fix royalties for a licence and its related terms and conditions (ADISQ v. SODRAC)


March 11, 2009up arrow

ORDONNANCE DE LA COMMISSION

La SODRAC a jusqu'au vendredi 20 mars 2009 pour répondre à la demande d'arbitrage de l'ADISQ ainsi qu'à la demande de licence provisoire. L'ADISQ sera avisée du délai dont elle dispose pour répondre à l'éventuelle demande d'arbitrage de la SODRAC dès qu'elle aura été déposée.

Je tiens à attirer votre attention sur un point important qui pourrait mettre en cause la saisine même de la Commission. En 1996, la Commission a énoncé le principe voulant que la capacité d'une association à agir pour le compte de ses membres n'est pas la même en matière d'arbitrage qu'en matière tarifaire :

« La demande de l'AUCC est formulée au nom de toutes les institutions universitaires ou collégiales détenant une licence de CANCOPY venant à expiration le 31 août 1996. Toutefois, comme l'AUCC n'est pas une utilisatrice éventuelle de cette licence, ce n'est qu'à titre de représentant d'utilisateurs qu'elle peut agir. Le régime d'arbitrage n'est pas un régime de tarification universelle; la décision éventuelle lie uniquement ceux qui sont directement impliqués dans le processus, que ce soit personnellement ou par un mandataire en bonne et due forme. Seule l'University of Lethbridge a ainsi mandaté l'AUCC. Par conséquent, seules cette université et WLU seront directement affectées par l'issue de cette affaire. » Voir: http://www.cb-cda.gc.ca/decisions/1996/19960913-a-b.pdf

L'application de ce principe en l'espèce entraînerait les conséquences suivantes.

D'une part, à moins que le contrat d'adhésion des membres à I'ADISQ n'établisse sa capacité pour agir en leur nom en matière d'arbitrage devant la Commission, il faudrait que I'ADISQ soit expressément mandataire d'au moins un de ses membres avant même de faire parvenir à la SODRAC l'avis d'intention de procéder à l'arbitrage prévu à l'article 70.2. L'avis du 6 mars n'aurait aucun effet juridique.

D'autre part, à moins encore une fois que le contrat d'adhésion des membres à l'ADISQ n'établisse sa capacité pour agir en leur nom en matière d'arbitrage devant la Commission, l'expédition par la SODRAC d'un avis d'intention à l'ADISQ ne respecterait pas la condition préalable prévue a l'article 70.2. Il faudrait que
l'avis soit expédié aux utilisateurs éventuels et que la SODRAC dépose une demande d'arbitrage conjointe à l'égard de chacun d'entre eux.

En l'absence de ces documents, on ne peut garantir que chacun des utilisateurs que l'ADISQ entend représenter sera lié par les conclusions de la Commission.

L'alternative suivante s'offre à vous.

La SODRAC pourrait expédier à chacun des membres de l'ADISQ un avis d'intention de procéder à l'arbitrage pour l'ensemble des utilisations visées tant dans l'avis d'intention de la SODRAC que dans la demande d'arbitrage de l'ADISQ. Un mandat formel serait utile mais non nécessaire; le consentement des membres à être représentés par l'ADISQ pourrait s'inférer de leur comportement ultérieur.
L'ADISQ pourrait par contre obtenir de ses membres des mandats rétroactifs l'autorisant à agir pour leur compte pour l'ensemble des utilisations visées dans les demandes de l'ADISQ et de la SODRAC.

Une fois la qualité de représentant de l'ADISQ établie, chaque partie pourra ratifier les gestes posés par l'autre avant cette date, ce qui éviterait des délais inutiles.

L'avocat général de la Commission, Mario Bouchard, est à votre disposition si vous désirez davantage d'éclaircissements sur la question.



Application to fix royalties for a licence and its related terms and conditions (SODRAC v. ARTV).


January 12, 2012up arrow

AVIS DE LA COMMISSION

À cause d'un problème de nature technique, des erreurs typographiques se sont glissées dans le texte de la décision du 5 janvier 2012 dans l'affaire indiquée en rubrique. Veuillez trouver ci-joint une version révisée de la décision dans laquelle ces erreurs ont été corrigées. Cette nouvelle version est également disponible sur le site de la Commission à l'adresse: http://www.cb-cda.gc.ca/home-accueil-f.html. Nous nous excusons des inconvénients que cela aurait pu causer.

Attachment : Interim - SODRAC c  ARTV (2012-01-05).pdf


January 6, 2012up arrow

AVIS DE LA COMMISSION

La décision provisoire de la Commission à l'égard du dossier en rubrique est disponible sur notre site web à l'adresse suivante: http://www.cb-cda.gc.ca/home-accueil-f.html.


October 19, 2011up arrow

DÉCISION DE LA COMMISSION

Le 30 septembre 2011, la SODRAC déposait une demande en vertu des articles 66.51 et 70.2 de la Loi sur le droit d'auteur à l'égard d'ARTV. Cette dernière y a répondu le 7 octobre 2011 et la SODRAC a déposé une réplique le 11 octobre 2011. Le 13 octobre 2011, ARTV a déposé une nouvelle réplique sans que la Commission l'ait sollicité ou autorisé. La Commission a exclu cette nouvelle réplique du dossier. 

Dans les affaires courantes de la Commission, les parties ne sont généralement pas autorisées, sauf sur requête préalable et motivée, à déposer des commentaires autrement que dans le cadre d'un processus requête-réponse-réplique. C'est en vertu d'un écart à ce cadre habituel que la Commission avait exclu la nouvelle réplique d'ARTV.

Néanmoins, à la demande expresse d'ARTV, la Commission a revu sa décision et accepte maintenant d'inclure la nouvelle réplique d'ARTV dans le dossier en rubrique. La SODRAC peut déposer une réponse à cette réplique au plus tard le vendredi 21 octobre 2011. Aucun commentaire supplémentaire des parties ne sera accepté par la suite.


October 18, 2011up arrow

AVIS DE LA COMMISSION

La réplique d'ARTV ci-dessous, non sollicitée par la Commission, est exclue du dossier en rubrique.

Réplique d'ARTV :
Monsieur le Secrétaire général,

Un dernier mot en réplique, si vous me le permettez :

1) ARTV ne fait pas, ou très peu, de productions internes.  Son modèle d'affaires a évolué. Une licence générale telle que formulée à SODRAC-1 n'est plus appropriée.  ARTV ne prétend pas vouloir agir sans licence pour une production interne, s'il en est.  Elle négociera alors la license voulue.

2) Les redevances que ARTV payait sous SODRAC-1 équivalent presque à ce que ASTRAL paye en vertu de la licence provisoire émise par la Commission le 14 décembre 2009 dans le dossier 70.2-2008-02. Or les revenus d'ASTRAL sont de quelque 20 fois supérieurs aux revenus d'ARTV.  Accéder à la demande de SODRAC équivaudrait à prolonger indûment une iniquité manifeste qui doit être rectifiée, même au stade provisoire.



Application to fix royalties for a licence and its related terms and conditions (SODRAC v. Bornes Interactives de la SRC, 75e anniversaire)


April 30, 2012up arrow

AVIS DE LA COMMISSION

Les motifs de la décision disposant des demandes de décision provisoire à l'égard des bornes interactives, d'Explora et d'une licence générale applicable du 1er avril 2012 au 31 mars 2016 sont disponibles sur notre site web à l'adresse : http://www.cb-cda.gc.ca/home-accueil-f.html.

L'examen de la licence finale pour les bornes interactives attendra que la Commission tranche dans l'arbitrage en délibéré. On devrait alors pouvoir procéder par écrit, en limitant le débat pour tenir compte du caractère modeste du montant en jeu.

L'examen de la licence finale pour les activités du service Explora avant le 1er avril 2012 se fera en même temps que celui de la licence générale pour 2012-2016.

L'examen de la licence finale pour 2012-2016 est suspendu jusqu'à ce que la Commission rende une décision dans l'arbitrage en délibéré.

Application to fix royalties for a licence and its related terms and conditions (SODRAC v. Espace.mu, SRC-CBC)

Application to fix royalties for a licence and its related terms and conditions (SODRAC v. Canadian Broadcasting Corporation and SODRAC v. Les chaînes Télé Astral and Teletoon)


January 16, 2012up arrow

AVIS DE LA COMMISSION

La SRC peut déposer une réponse à la demande ci-jointe de la SODRAC au plus tard le lundi 23 janvier 2012. La SODRAC pourra déposer une réplique au plus tard le lundi 30 janvier 2012.

Attachment : décembre 2011 Commission Bornes interactives.pdf



Application to fix royalties for a licence and its related terms and conditions (SODRAC v. Espace.mu, SRC-CBC)


April 30, 2012up arrow

DÉCISION DE LA COMMISSION

La Commission confirme que le service Espace.mu est visé dans l'alinéa 2(b) de la licence provisoire du 31 mars 2009 dans le dossier 70.2-2008-01. La Commission disposera de la demande de licence finale visant ce service dans le cadre du dossier précité. Dans sa demande initiale d'arbitrage, la SODRAC cherchait à ce que soient établis les droits et modalités notamment « Pour une licence visant la Web diffusion audio et audiovisuelle » [para. 25], sans se limiter aux services offerts au moment de son dépôt. La Commission est donc saisie à l'égard d'Espace.mu.


December 5, 2011up arrow

AVIS DE LA COMMISSION

La Commission désire recevoir la réponse de la SRC à la demande de la SODRAC, ci-jointe, au plus tard le mercredi, 7 décembre 2011. La SODRAC pourra soumettre sa réplique au plus tard le vendredi 9 décembre 2011.

Attachment : demande d'arbitrage.pdf



Application to fix royalties for a licence and its related terms and conditions (SODRAC v. Canadian Broadcasting Corporation and SODRAC v. Les chaînes Télé Astral and Teletoon)


June 2, 2011up arrow

NOTICE OF THE BOARD

With respect to Question 1 of the Board to SODRAC of May 4, 2011, given the objections formulated by SODRAC, it need not file the agreement reached between SODRAC and MusiquePlus.

_________________________________________

AVIS DE LA COMMISSION

Conformément à la question 1 de la Commission à la SODRAC du 4 mai 2011, compte tenu des objections qu'elle formule, la SODRAC n'est pas tenue de déposer l'entente intervenue entre SODRAC et MusiquePlus.


May 4, 2011up arrow

[Le texte français suit l'anglais]

NOTICE OF THE BOARD

Parties are asked to provide answers to the following questions by no later than Friday, May 13, 2011. Parties can file replies by no later than Friday, May 20, 2011

Questions to CBC

1. The Board was provided with an agreement between CMRRA and CBC Radio. Does such an agreement exist between CMRRA and CBC Television? If so, please provide a copy to the Board.

2. In your letter to the Board dated December 28, 2010, you stated that SRC and RDI rebroadcast 81,120 minutes of programming a year. Do these minutes of rebroadcasts only apply to SRC (French) and RDI channels? If so, would a similar estimation apply to CBC (English), Bold, Documentary and News Network channels?

Questions to SODRAC

1. On July 23, 2010, the Board was informed that an agreement had been reached between SODRAC and MusiquePlus. If both parties to the agreement have no objections, the Board wishes to obtain a copy of this agreement.

2. With regard to cinematographic works exhibited in a theatre as referred to in tariff 5, how many first integration licenses do you sign a year with producers, where the primary exploitation is not exhibition in a theatre? What is the proportion of such licences to the total number of licences?

AVIS DE LA COMMISSION

La Commission demande aux parties de répondre aux questions suivantes au plus tard le vendredi 13 mai 2011. Les parties pourront déposer des répliques à ces réponses, au plus tard le vendredi, 20 mai 2011.

Questions à la SRC

1. Une entente entre la CMRRA et la radio de la SRC a été déposée auprès de la Commission. Existe-t-il une entente similaire entre la CMRRA et la télévision de la SRC? Si oui, veuillez en fournir une copie à la Commission.

2. Dans votre lettre à la Commission datée du 28 décembre 2010, vous affirmez que la SRC et RDI rediffusent 81 120 minutes de programmation par année. Ces minutes de rediffusions sont-elles seulement à l'égard de la SRC (français) et RDI? Si oui, une telle estimation s'applique-t-elle également aux canaux de la CBC (anglais), Bold, Documentary et News Network?

Questions à la SODRAC

1. Le 23 juillet 2010, la Commission a été informée qu'une entente venait d'être conclue entre SODRAC et MusiquePlus. Si les parties à l'entente n'ont pas d'objections, la Commission aimerait recevoir une copie de cette entente.

2. À l'égard des œuvres cinématographiques présentées en salle (tel que mentionné dans le tarif 5), combien de licences de première intégration, dans lesquelles la présentation en salle ne constitue pas le marché principal d'exploitation, signez-vous chaque année avec les producteurs? Quelle est la proportion du nombre de ces licences par rapport au nombre total de licences?


March 18, 2011up arrow

DÉCISION DE LA COMMISSION

Dans le but de répondre aux engagements qu'elle avait pris lors de l'audience, la SRC a déposé le 29 décembre 2010 un document qui contient des faits nouveaux ainsi que des interprétations nouvelles de faits déjà au dossier. La SRC s'est aussi permis de fournir certains commentaires relevant de l'argumentation.

Ces éléments sont des preuves et prétentions nouvelles. La SODRAC doit avoir l'occasion de faire valoir ses moyens à leur égard. C'est ce qu'elle a fait dans sa lettre du 21 janvier 2011. Il se peut que la SODRAC ait dépassé le cadre strict du commentaire portant sur les réponses fournies par la SRC. Ce dépassement, si tant est qu'il existe, n'est pas plus sérieux que celui auquel la SRC s'est elle-même livrée dans un document qui, à strictement parler, ne nécessitait aucun commentaire de nature éditoriale.

La SRC a rempli ses engagements. La SODRAC a commenté les réponses de la SRC. Cette dernière a répliqué aux commentaires de la SODRAC. Il revient pour le reste à la Commission de faire la part des choses.

La requête de la SRC visant à faire retirer du dossier la lettre de la SODRAC du 21 janvier 2011 est rejetée.


July 22, 2010up arrow

La Commission accepte la demande de la SODRAC et reporte les dates d'échéance du dépôt des réponses à l'égard des commentaires de la CMPDA au mercredi, le l5 septembre 2010, et des répliques à ces réponses au mercredi, le 29 septembre 2010.

The Board accepts SODRAC's request and extends the deadlines for filing submissions with respect to CMPDA's comments to Wednesday, September 15, 2010, and for replies to those submissions to Wednesday, September 29, 2010.


July 19, 2010up arrow

CMPDA's comments of June 16, 2010 (attached for convenience) were filed pursuant to the directive on procedure and as such, are part of the record. Parties are entitled to respond to these comments. However, a review of the transcripts of the June 18, 2010 hearing reveals that the parties may have developed the impression that they should wait for the Board to set timelines before doing so. Consequently, the parties may file submissions with respect to these comments no later than on Wednesday, August 18, 2010 and may reply to other parties' submissions no later than Wednesday, September 1, 2010. CMPDA is not allowed to reply to any of those documents.

Les commentaires du 16 juin 2010 de la CMPDA (joints à toutes fins utiles) ayant été déposés conformément à la directive sur la procédure, ils font partie du dossier. Les parties ont droit d'y répondre. Cela dit, une relecture de la transcription de l'audience du 18 juin 2010 indique que les parties auraient pu comprendre qu'elles devraient attendre que la Commission établisse un échéancier avant de le faire. Par conséquent, les parties peuvent répondre à ces commentaires d'ici le mercredi, 18 août 2010 et réagir aux réponses des autres parties d'ici le mercredi, 1er septembre 2010. La CMPDA n'a pas le droit de répondre à ces documents.

Attachment : CMPDA Comments re SODRAC 5 (Final).pdf


May 31, 2010up arrow

ORDER OF THE BOARD

The Board would like to remind the parties that the SODRAC v. CBC and SODRAC v.
Astral case is separate from the SODRAC Tariff 5 case. Hence, the Board wants to ensure that the evidence only specific to SODRAC Tariff 5 be heard after all of the common evidence to both cases will have been heard. Parties are asked to review the attached list of witnesses and suggest modifications to make sure that the order of witnesses and evidence conform to the fact that these are two distinct matters.

ORDONNANCE DE LA COMMISSION

La Commission rappelle aux parties que le dossier SODRAC c. SRC et SODRAC c. Astral est distinct de celui du tarif 5 de la SODRAC. En conséquence, la Commission veut s'assurer que la preuve spécifique au seul dossier du tarif 5 de la SODRAC soit entendue après que la preuve commune aux deux dossiers aura été entendue. Nous demandons aux parties de revoir la liste des témoins ci-jointe et de suggérer les modifications nécessaires pour que l'ordre des témoins et de la preuve soit conforme au fait qu'il s'agit de deux affaires distinctes.


May 28, 2010up arrow

ORDER OF THE BOARD

Parties are asked to answer the questions below by no later than Tuesday, June 1, 2010. In addition, the Board asks the parties to ensure that the relevant witnesses will be able to properly explain how the English Canadian television and film markets function when it comes to clearing copyright and to explain the difference, to the extent there is one, between the Canadian and American notions of a buyout.

ORDONNANCE DE LA COMMISSION

Les parties doivent répondre aux questions ci-dessous au plus le mardi, 1er juin, 2010. De plus, la Commission demande aux parties de s'assurer que les témoins pertinents soient en mesure de bien expliquer le fonctionnement des marchés de la télévision et du cinéma canadiens anglais à l'égard de la libération des droits d'auteur ainsi que les différences, si tant est qu'elles existent, entre la notion du "buy out" canadienne et américaine.

SODRAC v. CBC/SRC and/et SODRAC v. ASTRAL Media inc.

Questions à la SODRAC

Question A
Selon les ententes ARTV-SODRAC présentées à la pièce SODRAC-52, le taux de redevance s'est accru de 0,40 pour cent à 0,50 pour cent des revenus entre les années 2001 et 2007, mais a diminué à 0,45 pour cent pour les années 2007 à 2009. Quelles sont les raisons qui expliquent cette baisse de taux?

Question B
La pièce SODRAC-102 comporte une analyse de l'utilisation du répertoire de la SODRAC par la radio de la CBC/SRC. La Commission désire obtenir le détail des calculs qui permettent d'arriver aux pourcentages d'utilisation indiquées dans cette pièce.

Questions to CBC/SRC and Astral

Question A
At paragraph 74 of CBC/SRC and Astral's statement of case, both SRC/CBC and Astral state that SODRAC's claims regarding the use of its repertoire are exaggerated. CBC-12 already provides some details of the content study carried out by CBC. The Board would like to obtain any additional analysis that would have been performed by both CBC/SRC and Astral to arrive at their conclusions.

Question B
At paragraph 177 of Wall Communications Inc. Report (DEF-3), it is stated that: "Under a general synchronization agreement, a significant discount would normally be reflected in the final price. Assuming a discount of 40% was applied, for instance, the total estimated general synchronization license fee would be [".]". Please explain the basis of this discount.

SODRAC Tariff 5 (Video-copies) / Tarif 5 de la SODRAC (Vidéocopies) 2009-2012

Question à la SODRAC

Les redevances minimales que la SODRAC dit rechercher au paragraphe 32 de son énoncé de cause ne correspondent pas à celles calculées aux paragraphes 38 et 39 de son énoncé. La Commission désire obtenir une explication de ces différences, ou les calculs corrigés, le cas échéant.


May 27, 2010up arrow

[Le texte français suit l'anglais]

RULING OF THE BOARD

The Board accepts that the exhibits submitted by the objectors be filed, subject to the following:

The objectors shall answer SODRAC's questions with respect to AST-5A. To the extent that CBC-15 and CBC-16 are already part of the file, these exhibits must not be filed again.

SODRAC is entitled to reply to this new evidence. As such, the filing of exhibit SODRAC-177 in response to DEF-52 is granted.

With respect to CBC-14, the objectors shall provide explanations, in the form of a witness statement, on the relevance and the use they intend to make of it, by no later than 5:00 p.m. today. SODRAC shall reply by no later than noon tomorrow.

DÉCISION DE LA COMMISSION

La Commission accepte le dépôt des pièces soumises par les opposants, sous réserve de ce qui suit:

Les opposants doivent répondre aux questions de la SODRAC à l'égard de AST-5A. Dans la mesure où CBC-15 et CBC-16 font déjà partie du dossier, ces pièces ne doivent pas être déposées de nouveau. La SODRAC pourra répliquer à ces nouveaux éléments de preuve. Conséquemment, le dépôt de la pièce SODRAC-177 en réponse à DEF-52 est accordé.

À l'égard de CBC-14, les opposants doivent fournir des explications, sous forme de
sommaire du témoignage, quant à la pertinence et l'utilisation que compte en faire les opposants, et ce au plus tard aujourd'hui à 17h00. La SODRAC déposera sa réplique au plus tard demain à midi.


May 21, 2010up arrow

[le texte français suit l'anglais]

RULING OF THE BOARD

Filing of supplementary exhibits DEF-36 to DEF-44

The Board accepts that these exhibits be filed. Parties are not entitled as of right to add to the evidence between filing their statement of case and the start of hearings. That being said, the reason invoked to justify the late filing is reasonable and some of the licences appear to pertain to markets or levels of trade that were not covered in the evidence filed to date.

SODRAC will be entitled to reply to this new evidence.

The party who wishes to file additional evidence should provide reasons in support of the application to file.

Ordering SODRAC to file forthcoming renunciations

Ms. Matteau's undertaking is sufficient.

Witness timetable and Procedure

The objectors' timetable is accepted.

Oral argument will be on June 18.

The objectors will be allowed to make a short opening presentation before they start presenting their respective evidence.

There is no need for the Board to react to the objectors' other comments on these issues.

Identification of what is relevant to the arbitration, to video-copy and to both

In so far as the Board is concerned, the objectors' identification is correct.

Confidentiality of some information and sufficiency of a sample of licences

The matter is settled.
__________________________

DÉCISION DE LA COMMISSION

Dépôt des pièces supplémentaires DEF-36 à DEF-44

La Commission accepte le dépôt de ces pièces. Les parties n'ont pas le droit strict d'ajouter à leur preuve entre le dépôt de l'énoncé de cause et le début des audiences. Cela dit, le motif justifiant le dépôt tardif est raisonnable et certaines des licences semblent viser des marchés ou niveaux de marchés qui n'étaient pas couverts par ce qui a été déposé jusqu'ici.

La SODRAC pourra demander de répliquer à ces nouveaux éléments de preuve.

La partie qui envisagerait de déposer d'autres éléments de preuve supplémentaire devra exposer les motifs au soutien de sa demande de dépôt.

Ordonnance obligeant la SODRAC à déposer les renonciations à venir

L'engagement de Me Matteau suffit.

Tableau des témoins et procédure

L'échéancier que proposent les opposants est retenu.

L'argumentation orale aura lieu le 18 juin.

Les opposants pourront faire une courte présentation d'ouverture avant de débuter la présentation de leur preuve respective.

Il n'est pas nécessaire que la Commission réagisse au reste des commentaires des opposants à ce sujet.

Identification de ce gui est pertinent à l'arbitrage, à la vidéocopie et aux deux dossiers

Pour autant que la Commission est concernée, la répartition effectuée par les opposants est correcte.

Caractère confidentiel de certains renseignements et contestation de la suffisance d'un échantillon de licences

La question est réglée.


May 17, 2010 up arrow

The Board would like to receive the objectors' response to SODRAC's letter of May 14, 2010 by no later than Wednesday May 19, 2010 at noon.


March 1, 2010up arrow

[Le texte français suit l'anglais]

NOTICE OF THE BOARD

The recent statements of case and evidence of the collectives in the above-referenced files (a total of 31 binders) clearly demonstrate that parties do not comply with some clear requirements in the directive on procedure issued in each file.

1) Some of the filed documents do not assist the Board and unnecessarily burden the file. Among those are Board decisions (enough for a full binder in one instance), representation agreements between Canadian and foreign collectives, collectives' membership lists, repertoires and other documents containing numerous entries (sample radio station play lists, for example) used to derive an analytical document (repertoire use analysis).

2) The amount of responses to interrogatories filed is clearly excessive. Paragraph B.5 of the directives (B.6 in the case of SODRAC v. CBC/Astral) clearly states that parties should file as evidence only those responses to which they know they intend to refer. In addition, paragraph B.9 (of the three directives) allows for parties to refer during the hearing to a response that was not filed as part of their evidence if this becomes necessary as a result of the testimony of an opposing witness, for the purposes of cross-examination or rebuttal. These paragraphs are ignored. All responses are filed, often in a manner that makes it difficult to consult them. One is left with large amounts of documents that will serve no purpose: objectors' corporation documents, membership lists, names and addresses of directors, countless Web pages.

3) The manner in which parties deal with supposedly confidential information is especially troublesome.

  • Some documents are stamped "confidential" without any indication (highlighting) of what purports to be confidential or highly confidential.
  • Whole documents, including their most garden-variety provisions, are printed on yellow or blue paper without any indication of what is confidential and what is not. In other files, parties have gone so far as to deny the Board full access to complete documents by redacting the copy meant for members and staff.
  • Parties treat as confidential information that is not: Web pages, advertisements, information provided to the public upon request (how much a fitness club charges for a one-day pass to a non-member), information "owned" by a person subject to access to information legislation and which would be provided in response to any access request, information that a collective must provide following a request made pursuant to sections 67 or 70.11 of the Copyright Act.
  • Parties take for granted that indicating that a document is confidential ipso facto triggers confidential treatment. Yet paragraph A.8 of each relevant directive is clear on the issue. Any document filed with the Board is placed on the public record unless the Board decides otherwise.

Admittedly, the Board contributed to the situation by being overly permissive in the application of the directive on procedure. As a result, files are unnecessarily large and difficult to manage.

The Board does not intend to thoroughly analyse documents filed to date in the above-referenced matters, as this might delay processes that are already well-engaged. For the remainder of these proceedings, however, the Board asks that parties strictly comply with the directive, especially paragraphs dealing with confidentiality and filing of responses to interrogatories as evidence.

The following principles, among others, will inform decisions as to what is relevant and what is not.

1) No exhibit is to be filed unless it is necessary to a full understanding of the matter.

2) An exhibit is presumed to be unnecessary unless the statement of case, an expert report or the written summary of evidence of a person expected to testify clearly shows that it is relevant.

3) Parties should not file all related documents that tend to support the same conclusion (collectives' reciprocal representation agreements, rights holders' affiliation agreements, similar or identical licensing agreements); a sample would suffice. If necessary, an overview of the contents of all documents can be provided by filing with the sample documents a list of all documents or an analysis of their relevant provisions.

Access to all relevant documents (as opposed to a sample) is obtained by asking the person who filed the sample.

4) The Board intends to return to the parties any document that does not comply with the principles outlined above with respect to confidential treatment and relevance. The Board does not intend to explain in each instance why it is returning a document filed as evidence. It is incumbent on the person who wishes that a document remain on the record to explain to the Board what leads that person to conclude that this should be so.

__________________________

AVIS DE LA COMMISSION

Suite au récent dépôt des énoncés de cause et de la preuve des sociétés de gestion dans les dossiers mentionnés en rubrique (un total de 31 cahiers à anneaux), force est de constater que les parties ne se conforment pas à certaines exigences claires de la directive sur la procédure émise dans chacun de ces dossiers.

1) Certains documents déposés sont superflus pour la Commission et encombrent inutilement le dossier. Cela inclut les décisions de la Commission (qui occupent l'équivalent de plus d'un cartable dans un dossier), les ententes de réciprocité entre sociétés de gestion canadiennes et étrangères, la liste des membres d'une société de gestion, son répertoire et plusieurs autres documents comportant de très nombreuses entrées (une liste des pistes jouées par un échantillon de stations
radio, par exemple) servant de fondement à un document analytique (analyse d'utilisation de répertoire).

2) La quantité de réponses aux demandes de renseignements déposées est nettement exagérée. Le paragraphe B.5 des directives (B.6 dans le cas de l'affaire SOCRAC c. SRC/Astral) énonce clairement que les parties devraient déposer en preuve uniquement les réponses auxquelles ils entendent faire référence. De plus, le paragraphe B.9 (des trois directives) permet à une partie de se reporter durant l'audience à une réponse qui n'a pas été déposée si le besoin est, suite aux
déclarations d'un témoin adverse, que ce soit à des fins de contre-interrogatoire ou de contre-preuve. On ignore ces paragraphes et dépose l'ensemble des réponses, souvent d'une façon qui rend leur consultation difficile. On se retrouve ainsi avec un grand nombre de documents qui ne seront d'aucune utilité: documents d'incorporation d'un opposant, liste de membres, noms et adresses des administrateurs, innombrables pages Web.

3) La façon dont les parties traitent de renseignements qu'on prétend confidentiels pose de sérieux problèmes.

  • Certains documents portant la mention «confidentiel» ne comportent aucune indication (par surlignement) de ce qu'on prétend être confidentiel ou très confidentiel.
  • Des documents entiers, y compris les passages les plus banals, sont imprimés sur du papier jaune ou bleu sans aucune indication de ce qui est confidentiel et de ce qui ne l'est pas. On est même allé dans certains autres dossiers jusqu'à priver la Commission d'un accès complet à l'ensemble du document en caviardant la copie destinée aux commissaires et au personnel.
  • Les parties traitent comme confidentiels des renseignements qui ne le sont pas : pages Web, annonces publicitaires, renseignements qui sont divulgués au public sur demande (combien il en coûte à un non-membre pour avoir accès à un club d'entraînement pour une journée), renseignements détenus par une personne assujettie à une loi d'accès à l'information et qui seraient rendus publics en réponse à la plus élémentaire demande d'accès, renseignements qu'une société de gestion devrait fournir en réponse à une demande faite en vertu des articles 67 ou 70.11 de la Loi sur le droit d'auteur.
  • On tient pour acquis qu'il suffit d'indiquer qu'un document est confidentiel pour qu'il soit ainsi traité. Pourtant, le paragraphe A.8 de chacune des directives est clair à ce sujet. Les documents que la Commission reçoit sont versés au dossier public, à moins qu'elle n'en décide autrement.

La Commission a certes contribué à cet état de fait en faisant preuve de laxisme dans l'application de la directive sur la procédure. Il en découle que les dossiers sont inutilement volumineux et difficiles à gérer.

La Commission n'entend pas procéder à une analyse poussée des documents qui ont été déposés à ce jour dans les dossiers mentionnés en rubrique, de façon à ne pas retarder des processus déjà bien engagés. Pour la suite de ces procédures, par contre, la Commission demande aux parties de se conformer strictement à la directive et, en particulier, aux paragraphes portant sur le traitement confidentiel et le dépôt en preuve de réponses aux demandes de renseignements.

Les principes suivants serviront entre autres à établir ce qui est pertinent et ce qui ne l'est pas.

1) Chaque pièce déposée doit être nécessaire à la compréhension du dossier.

2) La pièce dont la pertinence ne ressort pas clairement de l'énoncé de cause, du rapport d'un témoin expert ou du sommaire écrit du témoignage d'une personne appelée à témoigner est presumée superflue.

3) On ne dépose pas tous les documents de même nature tendant à établir un même point (ententes de réciprocité entre sociétés de gestion, contrats d'affiliation des ayants droit, contrats de licence répétitifs), un échantillon suffit. S'il est nécessaire de fournir une vue d'ensemble du contenu des documents, on accompagne l'échantillon d'une liste de documents ou d'une analyse des dispositions pertinentes.

La partie qui désire avoir accès à tous les documents pertinents plutôt qu'à un échantillon s'adresse à la personne qui a déposé les échantillons.

4) La Commission entend retourner aux parties les documents qui ne respectent pas les principes mentionnés ci-haut à l'égard du traitement confidentiel et de la pertinence. La Commission n'entend pas expliquer dans chaque cas ce qui l'amène à retourner une pièce déposée. C'est à la personne qui veut qu'un document reste au dossier d'expliquer à la Commission les motifs qui l'amènent à croire que tel devrait être le cas.


January 19, 2010up arrow

[le texte français suit l'anglais]

RULING OF THE BOARD

As requested in Mr. Mark Hayes' letter of January 11, 2010, Mr. Hayes will be added as co-counsel to Astral and CBC. As requested in Me Matteau's letter of January 12, 2010, SODRAC and the Board are only required to correspond with Fasken Martineau Dumoulin.

The Board will not apply the implicit attribution rules that Mr. Hayes proposed to follow. It is up to Messrs. Hayes and Nitoslawski always to indicate clearly on behalf of whom they are speaking at any point in time.

In his letter, Mr. Hayes takes issue with paragraph 5.2.2 of the interim licence without formally applying for a change in the licence. The Board will not deal with the matter until and unless Astral files a formal application to vary.

Mr. Hayes raises other issues that need not be addressed. An interim decision is of necessity made on the basis of an imperfect understanding of a incomplete record. The matters the objectors raised remain open.

__________________________

DÉCISION DE LA COMMISSION

Suite à la demande formulée dans sa lettre du 11 janvier 2010, Me Mark Hayes est identifié comme co-procureur d'Astral et de la SRC. Suite à la demande formulée par Me Matteau dans sa lettre du 12 janvier 2010, la SODRAC et la Commission sont tenues de contacter les opposants uniquement par le truchement de l'étude Fasken Martineau Dumoulin.

La Commission n'appliquera pas les règles d'attribution implicites que Me Hayes a proposées. Il revient à Mes Hayes et Nitoslawski de toujours indiquer clairement pour qui ils s'expriment dans chaque instance.

Dans sa lettre, Me Hayes conteste le paragraphe 5.2.2 de la licence provisoire sans demander de façon expresse qu'il soit modifié. La Commission ne traitera pas de la question avant qu'Astral demande formellement une telle modification, si elle le désire.

Point n'est besoin de se pencher sur les autres questions que Me Hayes soulève. Une décision provisoire est nécessairement rendue en se fondant sur une compréhension imparfaite d'un dossier incomplet. Le débat sur les questions que les opposantes soulèvent reste ouvert.


December 22, 2009up arrow

[Le texte français suit l'anglais]

RULING OF THE BOARD

The December 15, 2009 application of CAFDE is granted in part.

The SODRAC Tariff 5 (video-copies) hearing is postponed to June 2010, at a date to be determined later. The hearing will begin after the hearing of the Astral/CBC matter which starts on Tuesday, June 1, 2010.

The Board adopts the dates already set for filing the response and reply records in the Astral/CBC matter as dates for these same filings in the video-copy matter. Hence, the schedule of the video-copy matter is revised in the following way:

Filing of Objectors' case: no later than Friday, April 9, 2010.

Filing of SODRAC's reply case: no later than Friday, May 14, 2010.

The Board requests that, if possible, parties agree on the delay between the end of the Astral/CBC hearing and the beginning of the second one, by reason that both matters must end no later than on Thursday, June 17, 2010.

Unless the Board orders otherwise, any evidence common to both matters should be heard during the hearing of the Astral/CBC matter, so as to allow Ms. Matteau sufficient time to prepare the online music services hearing.

__________________________

ORDONNANCE DE LA COMMISSION

La Commission fait droit pour partie à la demande de CAFDE du 15 décembre 2009.

L'audience sur le tarif 5 de la SODRAC (vidéocopies) est reportée au mois de juin 2010, à une date à être déterminée ultérieurement. Cette audience aura lieu après celle sur le dossier Astral/SRC, qui débutera le mardi, 1er juin 2010.

La Commission adopte comme dates de dépôt de la preuve en réponse et en réplique dans le dossier de la vidéocopie, les dates prévues pour le dépôt de ces mêmes éléments de preuve dans le dossier Astral/SRC. L'horaire du dossier de la vidéocopie est donc modifié de la manière suivante :

Dépôt de l'énoncé de cause des opposants : au plus tard vendredi, 9 avril 2010.

Dépôt de la réplique de la SODRAC : au plus tard vendredi, 14 mai 2010.

Dans la mesure du possible, la Commission demande aux parties de s'entendre sur le délai entre la fin de l'audience dans le dossier Astral/SRC et le début de la seconde, étant entendu que les deux affaires doivent avoir pris fin au plus tard le jeudi 17 juin 2010.

À moins d'ordonnance à l'effet contraire, toute preuve commune aux deux dossiers devrait être entendue dans le cadre de l'audience sur le dossier Astral/SRC, de façon à laisser à Me Matteau suffisamment de temps pour préparer l'audience sur le dossier de la musique en ligne.


December 15, 2009up arrow

La Commission apprécierait recevoir vos commentaires sur la proposition avancée par le nouveau procureur de la CAFDE (voir lettre ci-jointe) -[letter not attached] d'ici vendredi midi, 18 décembre 2009.


December 14, 2009up arrow

DÉCISION PROVISOIRE DE LA COMMISSION

La Commission a rendu une décision portant sur la demande de licence provisoire de la SODRAC déposée le 1er septembre dernier dans le dossier cité en rubrique. La décision est disponible sur le site Web de la Commission, sous la rubrique « Quoi de neuf - Décisions récentes » au: http://www.cb-cda.gc.ca/home-accueil-f.html.


December 3, 2009up arrow

ORDONNANCE DE LA COMMISSION RE : RÉPONSES INCOMPLÈTES AUX DEMANDES DE RENSEIGNEMENTS

Questions de la SODRAC à la Société Radio-Canada (SRC)

Questions 3, 9, 12, 20, 24, 32, 33, 36, 44, 47, 48, 49, 50, 52, 55, 56 et 62 à 98

Si on se fonde sur les documents dont la Commission dispose, l'état du dossier d'échange de renseignements dans la présente affaire est lamentable. La responsabilité semble en revenir tant à la SODRAC qu'à la SRC.

D'une part, il semble que la SODRAC ait demandé une quantité nettement excessive de renseignements. Il est inconcevable que répondre à une demande raisonnable de renseignements dans une affaire comme celle-ci nécessite la mise en place d'une équipe de 12 personnes comme le prétend la SRC. La Commission n'a aucune intention de permettre les « discoveries » à l'américaine.

D'autre part, la SRC a clairement choisi de faire fi de l'échéancier de la présente affaire. La date de production des réponses aux demandes de renseignements était le 6 novembre, pas le 11 décembre. Il importe peu à la Commission que le dossier soit complexe. La SRC a insisté être en mesure de se conformer à l'échéancier alors même que la SODRAC mettait cette capacité en doute. Les assurances de la SRC ont été prises en compte avant de faire droit à la demande de la SRC d'entendre son affaire en même temps qu'Astral. La SRC voudra tenir compte de ce fait pour
le reste du processus si elle ne veut pas voir les délais dont elle dispose être raccourcis pour permettre à la fois de commencer les audiences en temps et de donner à la SODRAC l'occasion de faire valoir ses moyens.

En tout état de cause, la SRC verra, de façon péremptoire, à fournir tout ce qu'elle s'est engagée à fournir d'ici le 11 décembre 2009.

Questions de la SODRAC à Astral

18 : Ce qu'Astral offredevrait suffire, dans la mesure où elle applique correctement le tarif 22 de la SOCAN (le tarif parle de consultations de page audio, pas de consultation de pages musicales).

28 : L'opposition de la SODRAC est rejetée. Astral pourra subséquemment verser au dossier des documents qui seraient visés par la question 28 mais qui ne sont pas en la possession d'Astral.

Questions des opposantes à la SODRAC

27 : La SQDRAC doit fournir le document intitulé « Présentation du bilan » pour les exercices 2006-2007, 2007-2008 et 2008-2009 dans le mesure où ces documents existent. Ce que la SODRAC offre à l'égard des membres ayant reçu certains niveaux de redevances suffit.

34 : Le pourquoi des distinctions que la SODRAC pratique est peu ou pas pertinent. Cela dit, la SODRAC s'étant engagée à répondre, elle devra s'exécuter.

46 : La SODRAC n'a pas à produire la pièce 46J avec les notes personnelles de Me Matteau. Comme Me Matteau n'a pas participé aux négociations et que la SODRAC n'en a pas reçu copie, ces notes ne sont pas pertinentes.


November 5, 2009up arrow

ORDONNANCE DE LA COMMISSION

Vous trouverez ci-joint l'ordonnance de confidentialité de la Commission portant sur les renseignements échangés au cours de la procédure de demandes de renseignements pour lesquels un traitement confidentiel peut être exigé.

Attachment : Confidentiality order - Ordonnance de confidentialité.pdf


October 13, 2009up arrow

Ceci fait suite à la demande des parties de modifier la décision provisoire rendue le 31 mars dernier par la Commission dans le dossier cité en rubrique.

Vous trouverez ci-joint les motifs des modifications demandées.

Nous espérons le tout conforme.

Attachment : Interim decision modified - Decision provisoire modifiee.pdf


September 8, 2009up arrow

Me Nitoslawski,

Votre réplique à la requête de la SODRAC du 1er septembre dernier doit être déposée auprès de la Commission au plus tard vendredi, 25 septembre 2009.


July 24, 2009up arrow

Suite à la décision de la Commission du 21 juillet dernier, vous trouverez ci-joint la directive sur la procédure.

Nous vous prions de noter que la version électronique de la preuve (sur CD-ROM, DVD ou clé USB, et non plus par courriel) doit être déposée auprès de la Commission en même temps que les copies papier, à la date fixée pour ce faire. Vous devez aussi vous assurer que l'autre partie reçoive les versions papier et électronique le même jour que les documents sont déposés auprès de la Commission.

Attachment : Directive on procedure.pdf


July 21, 2009up arrow

RULING OF THE BOARD

CMPDA's application of June 10, 2009 to be granted intervenor status is denied.

DECISION DE LA COMMISSION

La demande de la CMPDA du 10 juin 2009 visant à obtenir le statut d'intervenante est rejetée.

July 21, 2009

À noter que dans l'échéancier soumis plus tôt, le nom de la SRC/CBC avait été omis pour le dépôt de la réponse l'énoncé de cause de la SODRAC] le vendredi 9 avril 2010. La correction a été apportée ci-dessous.

DÉCISION DE LA COMMISSION

La demande de jonction des affaires citées en rubrique est accordée. Des motifs suivront.

L'affaire procédera conformément à l'échéancier suivant, qui avait été convenu entre les parties dans l'affaire SODRAC c. Groupe Astral.

Dépôt des demandes de renseignements : au plus tard vendredi, 11 septembre 2009

Dépôt des oppositions aux demandes de renseignements : au plus tard vendredi, 25 septembre 2009

Dépôt des répliques aux oppositions : au plus tard vendredi, 9 octobre 2009

[Ordonnance de la Commission]

Dépôt des réponses aux demandes de renseignements : au plus tard vendredi, 6 novembre 2009

Dépôt des requêtes concernant les réponses incomplètes/insatisfaisantes aux demandes de renseignements : au plus tard mardi, 17 novembre 2009

Dépôt des répliques aux requêtes : au plus tard vendredi, 27 novembre 2009

[Ordonnance de la Commission]

Dépôt des réponses complètes/satisfaisantes aux demandes de renseignements : au plus tard vendredi, 11 décembre 2009

Dépôt de l'énoncé de cause de la SODRAC : au plus tard vendredi, 5 février 2010

Dépôt de la réponse de la SRC/CBC et d'Astral Media inc. : au plus tard vendredi, 9 avril 2010

Dépôt de la réplique de la SODRAC : au plus tard vendredi, 14 mai 2010

Conférence préparatoire : [à déterminer, si nécessaire]

Début de l'audience : mardi, 1er juin 2010 à 10h00 à la salle d'audience de la Commission.

La directive sur la procédure suivra sous peu.


March 31, 2009up arrow

La décision provisoire de la Commission portant sur le dossier en arbitrage SODRAC c. SRC (Reproduction d'ouvres musicales) est maintenant affichée sur le site de la Commission sous la rubrique « Quoi de Neuf - Décisions récentes » au lien suivant: http://www.cb-cda.gc.ca/decisions/arbitration-arbitrage-e.html.



Application to fix royalties for a licence and its related terms and conditions (SODRAC v. MusiquePlus Inc. [MusiquePlus and MusiMax])


July 27, 2010up arrow

À la suite de la réception de la lettre du 23 juillet 2010 des procureurs de la SODRAC faisant état d'une entente intervenue entre les parties, la Commission confirme être dessaisie de la demande, conformément au paragraphe 70.3(1) de la Loi sur le droit d'auteur.


May 18, 2010up arrow

DÉCISION DE LA COMMISSION

Cette décision fait suite à la requête du 23 avril 2010 de MusiquePlus pour réponses insatisfaisantes. La SODRAC doit fournir le document qui fait suite au tableau d'analyses d'utilisation du répertoire faites à partir de la liste de membres existante dans le système au moment de l'analyse (25 novembre 2008), si ce document existe, et sous réserve de ce qui suit.

Si la SODRAC veut se prévaloir du privilège relatif au litige, il lui faudra produire à la Commission le tableau qu'elle a déjà fourni à MusiquePlus et le document qui y fait suite tout en expliquant en quoi sa fourniture divulguerait le plan de match de la SODRAC. La SODRAC voudra alors porter une attention particulière à la possibilité qu'en divulguant le fait que le tableau « avait évolué », la SODRAC ait renoncé au privilège à l'égard du document modifié, si tant est qu'il existe.

Si la Commission juge qu'il peut y avoir matière à privilège, elle accordera à MusiquePlus l'occasion de faire valoir ses moyens. Sinon, elle ordonnera la divulgation sans autre étape.


March 29, 2010up arrow

DÉCISION DE LA COMMISSION

À la demande des parties, le calendrier des procédures est modifié comme suit:

Requêtes concernant les réponses incomplètes/insatisfaisantes aux demandes de renseignements: au plus tard lundi, 12 avril 2010

Dépôt, auprès de la Commission, des répliques aux requêtes: au plus tard vendredi, 23 avril 2010

[Ordonnance de la Commission]

Réponses complètes/satisfaisantes aux demandes de renseignements: au plus tard vendredi, 7 mai 2010

Dépôt de la preuve de la SODRAC : au plus tard jeudi, 17 juin 2010

Dépôt de la preuve de MusiquePlus inc. : au plus tard vendredi, 8 octobre 2010

Dépôt de la réplique de la SODRAC : au plus tard lundi, 1er novembre 2010

[Conférence préparatoire: à déterminer]

Début de l'audience: mardi, 16 novembre 2010 à 10h00 à la salle d'audience de la Commission.


March 15, 2010up arrow

ORDONNANCE DE LA COMMISSION

Vous trouverez ci-joint l'ordonnance de confidentialité portant sur les renseignements échangés au cours de la procédure de demandes de renseignements pour lesquels un traitement confidentiel peut être exigé.

Attachment : Ordonnance de confidentialité.pdf


January 15, 2010up arrow

DÉCISION DE LA COMMISSION

Privilège relatif au litige

La Commission se permet de rappeler certains des principes qu'elle a choisi d'appliquer en la matière.

1) Devant la Commission, la divulgation devrait être la règle; l'invocation du privilège relatif au litige devrait être surveillée étroitement.

2) Le privilège relatif au litige cherche avant tout à protéger le plan de match du procureur. On ne peut l'invoquer à l'égard de ce qui n'est pas susceptible de faire connaître ce plan.

3) La Commission applique le privilège aux documents existants uniquement si en les révélant, ou en révélant le fait que le procureur les détient, on risque de divulguer le plan de match du procureur et que la confection ou copie implique une copie sélective ou découle d'une recherche ou de l'utilisation de compétences ou de connaissances de la part du procureur. Ainsi, par exemple, si le client a en sa possession un document (autre qu'un document que le procureur a fourni au
client), il doit être fourni et ce, même si le procureur en a une copie, à moins que le fait même de divulguer que le client a une copie risque de dévoiler le plan de match du procureur.

4) Le participant qui invoque le privilège a le fardeau d'établir par prépondérance de preuve soit (a) que le renseignement a été établi principalement aux fins de l'instance ou, (b) s'il s'agit d'un renseignement qui existait déjà, qu'il a été obtenu principalement aux fins de l'instance et que sa communication divulguerait probablement le plan de match du procureur.

5) Le participant qui invoque le privilège doit fournir à la personne qui a formulé la demande pertinente une liste des renseignements pour lesquels le privilège est invoqué ainsi qu'une courte description du renseignement et des motifs au soutien de l'invocation du privilège. Le participant qui croit que le simple fait de savoir que son procureur a accès au renseignement risque de divulguer le plan de match de ce dernier fournit à la personne qui a formulé la demande pertinente le plus de renseignements possible sans pour autant faire échec au privilège.

6) Après avoir reçu la liste des renseignements pour lesquels le privilège est invoqué, la personne qui a formulé la demande pertinente peut demander à la Commission de trancher sur la légitimité des prétentions de la personne qui invoque le privilège. Cette dernière doit alors remettre à la Commission copie des renseignements pertinents afin que celle-ci puisse trancher.

Questions adressées à MusiquePlus

Question 13 : dans la mesure où MusiquePlus n'entend pas mettre en cause sa capacité de payer, l'opposition est maintenue, sauf à l'égard de l'offre de contenu sur Internet. Cette offre n'a jamais fait l'objet d'un examen et il est donc légitime que la SODRAC cherche à en savoir davantage à ce sujet.

Question 14 : l'opposition est rejetée. L'information concerne une période de temps visée par le projet de licence.

Question 17 : l'opposition est rejetée. L'information pourrait servir à décider de l'ampleur de l'assiette tarifaire.

Question 60 : l'opposition est rejetée. La réponse permettra à la SODRAC de connaître la pleine étendue de l'utilisation que MusiquePlus fait de ses droits.

Questions adressées à la SODRAC

Question 12 : l'opposition est rejetée.

Questions 47, 49, 65 : l'opposition est rejetée. Pour ce qui est du privilège relatif au litige, voirles commentaires qui précèdent. Pour ce qui est de l'information que la SODRAC a obtenue de MusiquePlus, la Commission accepte les motifs avancés par MusiquePlus pour que cette information lui soit fournie.


October 29, 2009up arrow

Suite à l'avis de la Commission du 28 octobre, vous trouverez ci-joint la Directive sur la procédure portant sur le dossier cité en rubrique.

Attachment : Directive sur la procédure.pdf


October 28, 2009up arrow

AVIS DE LA COMMISSION

La Commission adopte le calendrier des procédures suivant proposé par les parties le 20 octobre dernier.

Demandes de renseignements : au plus tard vendredi, 20 novembre 2009

Oppositions aux demandes de renseignements : au plus tard vendredi, 4 décembre 2009

Dépôt, auprès de la Commission, des répliques aux oppositions aux demandes de
Renseignements : au plus tard vendredi, 18 décembre 2009

[Ordonnance de la Commission]

Réponses aux demandes de renseignements : au plus tard lundi, 15 mars 2010

Requêtes concernant les réponses incomplètes/insatisfaisantes aux demandes de renseignements : au plus tard jeudi, 1er avril 2010 *

Dépôt, auprès de la Commission, des répliques aux requêtes : au plus tard mercredi, 14 avril 2010

[Ordonnance de la Commission]

Réponses complètes/satisfaisantes aux demandes de renseignements : au plus tard mercredi, 28 avril 2010

Dépôt de la preuve de la SODRAC : au plus tard lundi, 7 juin 2010

Dépôt de la preuve de MusiquePlus inc. : au plus tard vendredi, 8 octobre 2010 **

Dépôt de la réplique de la SODRAC : au plus tard lundi, 1er novembre 2010

[Conférence préparatoire : à déterminer]

Début de l'audience : mardi, 16 novembre 2010 à 10h00 à la salle d'audience de la Commission.

La directive sur la procédure suivra sous peu.

* Le 2 avril 2010, proposé par les parties, est un jour férié: Vendredi Saint.
** Le 10 octobre 2010, proposé par les parties, est un dimanche et le lendemain, 11 octobre, est un jour férié: Action de grâces.



Arbitrage - SODRAC c. ADISQ (70.2-1999-1)


February 9, 2000

NOTICE OF THE BOARD

Please find enclosed the Letter of the Board dated February 9, 2000. Re: Traitement confidentiel - Réponses aux demandes de renseignements.

Attachment: Letter of the Board dated February 9, 2000.pdf


February 2, 2000

NOTICE OF THE BOARD

Please find enclosed the Letter of the Board dated February 2, 2000. Re: Oppositions aux demandes de renseignement.

Attachment: Letter of the Board dated February 2, 2000.pdf


December 9, 1999

NOTICE OF THE BOARD

Please find enclosed the Letter of the Board dated December 9, 1999. Re: Revised Schedule of Proceedings.

Attachment: Letter of the Board dated December 9, 1999.pdf


December 1, 1999

NOTICE OF THE BOARD

Please find enclosed the Letter of the Board dated December 1, 1999. Re: Directive on Procedure.

Attachment: Letter of the Board dated December 1, 1999.pdf


November 18, 1999

NOTICE OF THE BOARD

Objet: Dossier 70.2-1999-1 - Demande en vertu de l'article 70.2 - SODRAC et ADISQ.pdf

La présente confirme que l'audience sur l'affaire citée en rubrique débutera le mardi, 25 avril 2000 à 10h00 et non le 4 avril 2000 tel que mentionné dans notre avis du 1er octobre dernier.



Arbitrage - SODRAC c. MusiquePlus Inc. (70.2-1999-2)


March 8, 2000

NOTICE OF THE BOARD

Please find enclosed the Letter of the Board dated March 8, 2000. Re: Réponses incomplètes ou insatisfaisantes aux demandes de renseignements

Attachment: Letter of the Board dated March 8, 2000.pdf


February 14, 2000

NOTICE OF THE BOARD

Please find enclosed the Letter of the Board dated February 14, 2000. Re: Prolongation de délai pour répondre aux demandes de renseignements

Attachment: Letter of the Board dated February 14, 2000.pdf


February 9, 2000

NOTICE OF THE BOARD

Please find enclosed the Letter of the Board dated February 9, 2000. Re: Traitement confidentiel - Réponses aux demandes de renseignements.

Attachment: Letter of the Board dated February 9, 2000.pdf


February 2, 2000

NOTICE OF THE BOARD

Please find enclosed the Letter of the Board dated February 2, 2000. Re: Oppositions aux demandes de renseignement.

Attachment: Letter of the Board dated February 2, 2000.pdf


January 6, 2000

NOTICE OF THE BOARD

Please find enclosed the Letter of the Board dated January 6, 2000. Re: Directive on Procedure.

Attachment: Letter of the Board dated January 6, 2000.pdf



Arbitrage - AVLA v. MusiSélect Inc (70.2-2005-1)


April 18, 2006

ORDER OF THE BOARD

AVLA shall file with the Board and serve on MusiSélect inc., no later than Friday, May 5, 2006, a copy of the standard agreement by which AVLA members authorize AVLA to issue licences on their behalf. AVLA shall also file with the Board, by that same date, copy of ail documents filed to date in Federal Court Action T-648-06.

MusiSélect shall indicate to the Board and to AVLA, no later than Friday, May S, 2006, whether it intends respond to AVLA's arguments.

The Board will then decide on its course of action in this matter,

ORDONNANCE DE LA COMMISSION

AVLA doit déposer à la Commission et signifier à MusiSélect inc., au plus tard le vendredi 5 mai 2006, copie de l'entente-type en vertu de laquelle les membres d'AVLA autorisent cette dernière à délivrer des licences pour leur compte. AVLA doit aussi déposer à la Commission, au plus tard à la même date, copie de tous les documents déposés à ce jour dans l'affaire T-648-06 devant la Cour fédérale.

MusiSélect doit indiquer à la Commission et à AVLA, au plus tard le vendredi 5 mai 2006, si elle entend répondre aux prétentions d'AVLA.

La Commission décidera ensuite de la marche à suivre dans cette affaire.


October 13, 2005

NOTICE OF THE BOARD

This is in response to Mr. McCormack's e-mail of October 13 reproduced below. The Board can issue interim decisions on application. Once such an application is withdrawn, the Board is no longer seized of it.

Note: In future, please ensure that all correspondence sent to the Board in connection to the above-reference filed is copied to the other party.

La présente fait suite au courriel de M. McCormack du 13 octobre, reproduit ci-dessous. La Commission a le pouvoir d'émettre des décisions provisoires sur demande. Une fois la demande retirée, la Commission n'en est plus saisie.

Note: À l'avenir, veuillez-vous assurer que l'autre partie reçoit copie de toute correspondance expédiée à la Commission en rapport avec l'affaire mentionnée en rubrique.

-----Message d'origine-----

De: Stuart McCormack

Envoyé: le 13 octobre, 2005 15:03

À : Claude Majeau

Objet: Avla

I would note that the board has not to my knowledge either responded or issued an order in respect of MusiSelects withdrawal of its request for an interim order.


October 13, 2005

NOTICE OF THE BOARD

As per the Board's notice of October 11, 2005, please find attached the Directive on Procedure and relevant appendices.

We draw your attention to the third paragraph in section B.2 (Interrogatories), which reads as follows:

"The Board intends to ensure that the burden inherent in the interrogatories pro cess be consistent with the importance of the issues raised, given, among other things, that this matter is not one leading to the certification of a tariff that applies to a whole category of users."

AVIS DE LA COMMISSION

Conformément à l'avis de la Commission du 11 octobre 2005, veuillez trouver ci-joint la directive sur la procédure et les annexes pertinentes. Nous attirons votre attention au troisième paragraphe de la section B.2 (Demandes de renseignements) qui se lit comme suit:

«La Commission entend faire en sorte que le fardeau qu'impose le processus d'échange de renseignements soit proportionnel aux enjeux soulevés, compte tenu, entre autres, qu'il ne s'agit pas d'une affaire visant l'homologation d'un tarif applicable à l'ensemble d'une catégorie d'utilisateurs.»


October 11, 2005

NOTICE OF THE BOARD

Further to the parties' correspondence of October 3, 2005, the Board hereby confirms the agreed upon schedule as follows:

Filing of interrogatories: no later than Friday, October 21, 2005

Filing of objections ta interrogatories: no later than Friday, October 28, 2005

Filing of replies ta the objections: no later than Wednesday, November 2, 2005

[Ruling of the Board on objections]

Filing of responses ta interrogatories: no later than Friday, November 18, 2005

Filing of motions re: unsatisfactory/incomplete responses ta interrogatories: no later than Friday, December 2, 2005

Filing of replies ta the motions: no later than Friday, December 9, 2005

[Ruling of the Board on motions]

Filing of complete/satisfactory responses ta interrogatories: no later than Friday, December 23, 200S

Filing of MusiSélect's case: no later than Friday, January 13, 2006

Filing of AVLA's case: no later than Friday, February 17, 2006

Filing of MusiSélect's supplementary case: no later than Friday, March 3, 2006

Beginning of hearing: [to be determined]

The Directive on Procedure will follow shortly.

AVIS DE LA COMMISSION

Suite à la correspondance des parties du 3 octobre dernier, la Commission confirme le calendrier des procédures sur lequel elles se sont entendues, soit :

Dépôt des demandes de renseignements: au plus tard le vendredi 21 octobre 2005

Dépôt des oppositions aux demandes de renseignements: au plus tard le vendredi 28 octobre 2005

Dépôt des répliques aux oppositions: au plus tard le mercredi 2 novembre 2005

[Ordonnance de la Commission sur les oppositions]

Dépôt des réponses aux demandes de renseignements: au plus tard le vendredi 18 novembre 2005

Dépôt des requêtes re : réponses insatisfaisantes/incomplètes aux demandes de renseignements: au plus tard le vendredi 2 décembre 2005

Dépôt des répliques aux requêtes : au plus tard le vendredi 9 décembre 2005

[Ordonnance de la Commission sur les requêtes]

Dépôt des réponses complètes/satisfaisantes aux demandes de renseignements: au plus tard le vendredi 23 décembre 2005

Dépôt de la preuve de MusiSélect : au plus tard le vendredi 13 janvier 2006

Dépôt de la preuve d'AVLA : au plus tard le vendredi 17 février 2006

Dépôt de la preuve supplémentaire de MusiSélect : au plus tard le vendredi 3 mars 2006

Début de l'audience: [à déterminer]

La directive sur la procédure suivra sous peu.


September 13, 2005

NOTICE OF THE BOARD

This is further to the application filed by MusiSélect inc. on July 4, 2005 pursuant to subsection 70.2(1) of the Copyright Act, and the response of AVLA Audio Video Licensing Agency Inc. dated July 11, 2005.

Jurisdictional Issue

The jurisdictional issue raised by AVLA requires a consideration of whether the conditions precedent to the application of the relevant provisions have been fulfilled; this requires evidence. The issue will therefore be examined at the same time as the substance of the matter.

Application for Interim Decision

MusiSélect inc. asks for an interim licence for the duration of the proceedings without specifying the price of the licence or the related terms and conditions. The Board takes for granted that the conditions sought are those of the final licence. If not, MusiSélect inc. shall specify the conditions sought no later than by noon on Wednesday, September 14, 2005.

AVLA may make its arguments against the issuance of an interim licence no later than on Wednesday, September 21, 2005.

Process for the Examination of the Substantive Issues

MusiSélect inc. has asked that its substantive application be examined according to a less cumbersome process than usual. The Board is of the view that this matter is well-suited to a lighter examination process that takes into account the relatively small amounts involved while still a1lowing for enough information to be gathered to lead to a reasoned decision. Parties have until Monday, October 3, 2005 to file a joint proposal. Absent such a proposal, parties shall file their suggestions with the Board by the same date.

AVIS DE LA COMMISION

La présente fait suite à la demande de MusiSélect inc. déposée auprès de la Commission du droit d'auteur le 4 juillet dernier en vertu du paragraphe 70.2(1) de la Loi sur le droit d'auteur, et la réplique de A VLA Audio Video Licensing Agency Inc. datée du 11 juillet 2005.

Question juridictionnelle

La question juridictionnelle soulevée par AVLA nécessite qu'on établisse si les conditions d'application des positions pertinentes sont remplies, ce qui ne saurait se faire sans preuve. La question sera donc examinée en même temps que le fond de l'affaire.

Demande de décision provisoire

MusiSélect inc. demande une licence provisoire pour toute la durée des procédures sans toutefois préciser le prix de cette licence ou les modalités recherchées. La Commission présume que les modalités recherchées sont celles de la licence définitive. Dans le cas contraire, MusiSélect inc. devra préciser les conclusions recherchées au plus tard à midi le mercredi 14 septembre 2005.

AVLA a jusqu'au mercredi 21 septembre 2005 pour faire valoir ses moyens à l'encontre de la demande de licence provisoire.

Processus d'examen de la demande au fond

MusiSélect inc. recherche la mise au point d'un processus d'examen allégé de sa demande au fond. La Commission est d'avis que la présente instance se prête à un processus d'examen allégé, qui tienne compte du caractère modeste des montants en jeu tout en permettant de recueillir l'information nécessaire à la prise d'une décision éclairée. La Commission accorde aux parties jusqu'au lundi 3 octobre 2005 pour lui soumettre une proposition conjointe. À défaut de proposition conjointe, les parties devront d'ici là faire parvenir à la Commission leurs suggestions.



Arbitrage - AVLA v. MusiSélect Inc (70.2-2009-1)


June 11, 2010

AVIS DE LA COMMISSION

La Commission accepte les modifications à l'échéancier proposées par les parties.

De : Bursanescu, Silviu
Envoyé: 11 juin 2010 13:27
À : Gilles McDougall
Cc: Nitoslawski_Marek; Mikus_Jean-Philippe; Bertrand Lisane; Chantal Poirier
Objet: Dossier MusiquePlus

Monsieur le Secrétaire général,

Nous confirmons qu'après discussion les parties ont convenu des modifications suivantes à l'échéancier dans le dossier MusiquePlus, que nous vous soumettons respectueusement:

  • dépôt de la preuve de la SODRAC: 29 juin (au lieu du 17 juin)
  • dépôt de la preuve de MP: 15 octobre (au lieu du 8 octobre)
  • dépôt de la réplique de la SODRAC: 1 er novembre, tel qu'originellement convenu.

Les audiences débuteraient le 16 novembre.

En espérant le tout conforme, veuillez recevoir, monsieur le Secrétaire général, mes sentiments distingués,

Silviu Bursanescu


May 18, 2010

DÉCISION DE LA COMMISSION

Cette décision fait suite à la requête du 23 avril 2010 de MusiquePlus pour réponses insatisfaisantes. La SODRAC doit fournir le document qui fait suite au tableau d'analyses d'utilisation du répertoire faites à partir de la liste de membres existante dans le système au moment de l'analyse (25 novembre 2008), si ce document existe, et sous réserve de ce qui suit.

Si la SODRAC veut se prévaloir du privilège relatif au litige, il lui faudra produire à la Commission le tableau qu'elle a déjà fourni à MusiquePlus et le document qui y fait suite tout en expliquant en quoi sa fourniture divulguerait le plan de match de la SODRAC. La SODRAC voudra alors porter une attention particulière à la possibilité qu'en divulguant le fait que le tableau « avait évolué », la SODRAC ait renoncé au privilège à l'égard du document modifié, si tant est qu'il existe.

Si la Commission juge qu'il peut y avoir matière à privilège, elle accordera à MusiquePlus l'occasion de faire valoir ses moyens. Sinon, elle ordonnera la divulgation sans autre étape.


March 22, 2010

DÉCISION DE LA COMMISSION

À la demande des parties, le calendrier des procédures est modifié comme suit:

Requêtes concernant les réponses incomplètes/insatisfaisantes aux demandes de renseignements: au plus tard lundi, 12 avril 2010

Dépôt, auprès de la Commission, des répliques aux requêtes: au plus tard vendredi, 23 avril 2010

[Ordonnance de la Commission]

Réponses complètes/satisfaisantes aux demandes de renseignements: au plus tard vendredi, 7 mai 2010

Dépôt de la preuve de la SODRAC : au plus tard jeudi, 17 juin 2010

Dépôt de la preuve de MusiquePlus inc. : au plus tard vendredi, 8 octobre 2010

Dépôt de la réplique de la SODRAC : au plus tard lundi, 1er novembre 2010

[Conférence préparatoire: à déterminer]

Début de l'audience: mardi, 16 novembre 2010 à 10h00 à la salle d'audience de la Commission.


March 15, 2010

ORDONNANCE DE LA COMMISSION

Vous trouverez ci-joint l'ordonnance de confidentialité portant sur les renseignements échangés au cours de la procédure de demandes de renseignements pour lesquels un traitement confidentiel peut être exigé.

Attachment: Ordonnance de confidentialité.pdf


January 15, 2010

DÉCISION DE LA COMMISSION

Privilège relatif au litige

La Commission se permet de rappeler certains des principes qu'elle a choisi d'appliquer en la matière.

  1. Devant la Commission, la divulgation devrait être la règle; l'invocation du privilège relatif au litige devrait être surveillée étroitement.
  2. Le privilège relatif au litige cherche avant tout à protéger le plan de match du procureur. On ne peut l'invoquer à l'égard de ce qui n'est pas susceptible de faire connaître ce plan.
  3. La Commission applique le privilège aux documents existants uniquement si en les révélant, ou en révélant le fait que le procureur les détient, on risque de divulguer le plan de match du Procureur et que la confection ou copie implique une copie sélective ou découle d'une recherche ou de l'utilisation de compétences ou de connaissances de la part du procureur. Ainsi, par exemple, si le client a en sa possession un document (autre qu'un document que le procureur a fourni au client), il doit être fourni et ce, même si le procureur en a une copie, à moins que le fait même de divulguer que le client a une copie risque de dévoiler le plan de match du procureur.
  4. Le participant qui invoque le privilège a le fardeau d'établir par prépondérance de preuve soit (a) que le renseignement a été établi principalement aux fins de l'instance ou, (b) s'il s'agit d'un renseignement qui existait déjà, qu'il a été obtenu principalement aux fins de l'instance et que sa communication divulguerait probablement le plan de match du procureur.
  5. Le participant qui invoque le privilège doit fournir à la personne qui a formulé la demande pertinente une liste des renseignements pour lesquels le privilège est invoqué ainsi qu'une courte description du renseignement et des motifs au soutien de l'invocation du privilège. Le participant qui croit que le simple fait de savoir que son procureur a accès au renseignement risque de divulguer le plan de match de ce dernier fournit à la personne qui a formulé la demande pertinente le plus de renseignements possible sans pour autant faire échec au privilège.
  6. Après avoir reçu la liste des renseignements pour lesquels le privilège est invoqué, la personne qui a formulé la demande pertinente peut demander à la Commission de trancher sur la légitimité des prétentions de la personne qui invoque le privilège. Cette dernière doit alors remettre à la Commission copie des renseignements pertinents afin que celle-ci puisse trancher.

Questions adressées à MusiquePlus

Question 13 : dans la mesure où MusiquePlus n'entend pas mettre en cause sa capacité de payer, l'opposition est maintenue, sauf à l'égard de l'offre de contenu sur Internet. Cette offre n'a jamais fait l'objet d'un examen et il est donc légitime que la SODRAC cherche à en savoir davantage à ce sujet.

Question 14 : l'opposition est rejetée. L'information concerne une période de temps visée par le projet de licence.

Question 17 : l'opposition est rejetée. L'information pourrait servir à décider de l'ampleur de l'assiette tarifaire.

Question 60 : l'opposition est rejetée. La réponse permettra à la SODRAC de connaître la pleine étendue de l'utilisation que MusiquePlus fait de ses droits.

Questions adressées à la SODRAC

Question 12 : l'opposition est rejetée.

Questions 47, 49, 65 : l'opposition est rejetée. Pour ce qui est du privilège relatif au litige, voir les commentaires qui précèdent. Pour ce qui est de l'information que la SODRAC a obtenue de MusiquePlus, la Commission accepte les motifs avancés par MusiquePlus pour que cette information lui soit fournie.


October 28, 2009

NOTICE OF THE BOARD

Suite à l'avis de la Commission du 28 octobre 2009, vous trouverez ci-joint la Directive sur la procédure portant sur le dossier cité en rubrique.

Attachment: Directive sur la procédure.pdf


October 28, 2009

ORDER OF THE BOARD

La Commission adopte le calendrier des procédures suivant proposé par les parties le 20 octobre dernier.

Demandes de renseignements: au plus tard vendredi, 20 novembre 2009

Oppositions aux demandes de renseignements: au plus tard vendredi, 4 décembre 2009

Dépôt, auprès de la Commission, des répliques aux oppositions aux demandes de renseignements: au plus tard vendredi, 18 décembre 2009

[Ordonnance de la Commission]

Réponses aux demandes de renseignements: au plus tard lundi, 15 mars 2010

Requêtes concernant les réponses incomplètes/insatisfaisantes aux demandes de renseignements: au plus tard jeudi, 1er avril 2010 *

Dépôt, auprès de la Commission, des répliques aux requêtes: au plus tard mercredi, 14 avril 2010

[Ordonnance de la Commission]

Réponses complètes/satisfaisantes aux demandes de renseignements: au plus tard mercredi, 28 avril 2010

Dépôt de la preuve de la SODRAC : au plus tard lundi, 7 juin 2010

Dépôt de la preuve de MusiquePlus inc. : au plus tard vendredi, 8 octobre 2010 **

Dépôt de la réplique de la SODRAC : au plus tard lundi, 1er novembre 2010

[Conférence préparatoire: à déterminer]

Début de l'audience: mardi, 16 novembre 2010 à 10h00 à la salle d'audience de la Commission.

La directive sur la procédure suivra sous peu.

* Le 2 avril 2010, proposé par les parties, est un jour férié, «Vendredi Saint».

** Le 10 octobre 2010, proposé par les parties, est un dimanche et le lendemain, 11 octobre, est un jour férié, «Action de grâces».



CSI - Online Music Services (2014)


August 20, 2013

NOTICE OF THE BOARD

Please take note of the following.

De : Chantal Carbonneau
Envoyé : 20 août 2013 09:27
À : McDougall, Gilles: CB-CDA
Objet : Retrait des demandes d'intervention

Monsieur McDougall,

La présente vise à confirmer que CBC/Radio-Canada retire les demandes d'intervention déposées dans les dossiers suivants:

SODRAC - Tarif 5, 2014
SODRAC - Tarif 6, 2014
CSI - Services de Musique en Ligne - 2014

N'hésitez pas à communiquer avec la soussignée pour toute question relative au présent courriel.

Cordialement,

Chantal Carbonneau


August 1, 2013up arrow

NOTICE OF THE BOARD

Parties may respond to the attached CBC's request for intervention in the file mentioned above by no later than Friday, August 9, 2013. CBC may reply no later than Friday August 16, 2013.

The objectors to the above mentioned proposed tariff are:

  • NCRA/ANREC, ARC and ARCQ
  • Apple Canada Inc. and Apple Inc.
  • Canadian Association of Broadcasters
  • Bell Canada, Rogers Communications Inc., Quebecor Media Inc. and Yahoo! Canada Inc.
  • Pandora Media, Inc.

Attachment: 2013-07-25 Intervenor Status Request (CSI Proposed - 2014).pdf



CSI - Online Music Services (2011-2013); SOCAN Tariff 22.A - Online Music Services (2011-2013); SODRAC Tariff 6 - Online Music Services, Music Videos (2010-2013)


March 28, 2014

NOTICE OF THE BOARD

Parties are invited to comment on whether subsection 31.1(4) of the Copyright Act dealing with Hosting applies to any activities targeted by the proposed tariffs in the file mentioned above and explain why.

Parties are asked to provide their answer to the Board's question above by no later than Wednesday, April 23, 2014.

Parties are allowed to provide replies no later than Friday, May 2, 2014.


January 24, 2014

NOTICE OF THE BOARD

Apple's request is granted. Parties shall provide answers to the Board's January 16, 2014 questions no later than Friday, February 21, 2014. Parties may reply no later than Friday, February 28, 2014.


January 23, 2014up arrow

NOTICE OF THE BOARD

The Board confirms that the files mentioned above will proceed as follows, and as agreed between the parties:

Commercial Radio: SOCAN (2012-2013); Re:Sound (2012-2014); CSI (2012-2013); AVLA/SOPROQ (2012-2017); ArtistI (2012-2014)

Filing with the Board of Factums: no later than Friday, February 14, 2014.

Filing with the Board of Replies to Factums: no later than Wednesday, February 26, 2014.

Oral Argument: Monday, March 3, 2014 and Tuesday, March 4, 2014.

Online Music Services (2011-2013)

Filing with the Board of Factums: no later than Thursday, March 13, 2014.

Filing with the Board of Replies to Factums: no later than Wednesday, April 23, 2014.

Oral Argument: Monday, May 12, 2014 and Tuesday, May 13, 2014.

The schedule set by the Board for responding to its questions of January 16, 2014 in the Online Music Services file remains.


January 16, 2014up arrow

NOTICE OF THE BOARD

Please find enclosed Questions from the Board, which contains highly confidential information, in the above-referenced matter.

Parties are asked to provide answers to the Board's questions by no later than Friday, January 31, 2014. Parties are allowed to provide replies no later than Friday, February 7, 2014.

Attachment: Questions from the Board - Online Music Services - Jan. 16, 2014 (PUBLIC).pdf


December 20, 2013up arrow

NOTICE OF THE BOARD

The parties shall include legal arguments as part of their respective written submissions to be filed and served on all parties no later than noon on Friday, February 7, 2014 and are not to exceed 30 pages in length.

Reply submissions and supplementary compendia, including legal arguments, are to be filed and served on all parties no later than end of day on Monday, February 24, 2014 and are not to exceed 10 pages in length.

After having reviewed the written submissions filed on February 7, 2014, a party that feels it cannot comply with the volume limits above for its reply may seek leave from the Board to submit reply submissions that exceed the above volume limits.

The Board otherwise approves the procedures as agreed among the parties.


November 15, 2013up arrow

RULING OF THE BOARD

On November 13, Apple applied to the Board to strike paragraphs 8 through 21 of SOCAN's Reply Statement of Case and to rule SOCAN's claim for streams from the cloud outside the scope of these proceedings.

Apple argued that SOCAN's reply case was the first time that SOCAN asked for royalties for streams from the cloud. It explained that this violates the Board's Directive on Procedure, which provides that the Initial Statement contain its arguments and how it intends to establish them. Apple further alleged that SOCAN's references to the cloud in its reply case are a violation of procedural fairness.

SOCAN responded that its tariffs have applied to on-demand streams since 2007 and to free on-demand streams since 2012. The tariff proposed in May 2011 contained a specific reference to the cloud. Furthermore, Dr. Murphy's report described iTunes Match as an on-demand streaming service. Apple has already filed evidence on this issue, found in portions of the Walsh witness statement.

Apple replied to SOCAN on November 15.

Apple's applications are denied for the following reasons.

The arguments relating to the cloud advanced by SOCAN find grounding in its initial Statement of Case. As such, SOCAN's reply in paragraphs 8 through 21 is a clarification of its initial case, not a modification of that case or introduction of new evidence or argument. Moreover, we do not see how Apple could be surprised or prejudiced, given that Apple has already filed evidence on this issue. Finally, such a clarification is welcome, as it facilitates the Board's understanding and better focuses the issues.

This ruling is not an endorsement of the merit of the approach put forward by SOCAN; all parties will have the opportunity to discuss this approach during the hearing.


November 13, 2013up arrow

NOTICE OF THE BOARD

SOCAN may respond to Apple's attached motion no later than Thursday, November 14, 2013. Apple may reply no later than Friday, November 15, 2013.

Attachment: Letter to G. McDougall re: Apple (2).pdf


November 1, 2013up arrow

RULING OF THE BOARD

On October 21, 2013, CSI and SODRAC filed with the Board a motion that the Networks be deemed to have withdrawn from the proceedings because the Networks' statement of case, they argue, was not in compliance with the requirements of section B.5 of the Board's Revised Directive on Procedure issued on December 21, 2012. The Networks responded to the request on October 29 and CSI and SODRAC replied on October 31.

After reviewing the submissions, the Board is of the view that the alleged defects in the Networks' statement of case do not justify the removal of the Networks as a party to the proceedings. If it is found in due course that the arguments and the evidence relied upon by the Networks are not sufficient to support their case, then the Board's decision on the merits will address such issue. The Board therefore denies CSI and SODRAC's motion to rule that the Networks be deemed to have withdrawn from the proceedings.

The issue of admissibility of the Breton witness statement remains.

The Board finds it surprising that the Networks did not proceed to file the witness statement of Mr. Christian Breton and make reference to such evidence at the time of the filing of its original statement of case filed on October 11, 2013. This would have clearly been the best way to proceed for a few reasons. First, the information underlying the witness statement in issue was available at the time of the original filing. Second, the timelines set by the Board in its schedules of proceedings are designed to lead to hearing in an efficient and timely manner while providing all the parties, and the Board, sufficient time to properly prepare for hearings. As such, parties should always comply with the set timelines. Third, the Networks have not provided satisfactory explanations as to why the witness statement of Mr. Breton was not filed earlier.

However, making a ruling on the issue of admissibility requires the Board to also consider the relevance of the evidence sought to be adduced to the proceedings and the benefit for the Board to have the evidence made part of the record. After a review of the witness statement that the Networks are seeking leave to file, the Board believes that the new evidence may be relevant to these proceedings and that the potential benefit of having the evidence at issue part of the record outweighs any inconveniences. The Board could simply ask that the responses to interrogatories underlying the Breton witness statement be filed and made part of the record and rely on them if deemed appropriate. However, proceeding in such a way would take away the opportunity for the Board and the other parties to get some context and explanation from a witness who is able to provide such information through testimony.

As a matter of procedural fairness, CSI and SODRAC argue that the timeline set in these proceedings would not allow them to properly reply to this new evidence. The Board is conscious that CSI and SODRAC will likely want to address the substance of the witness statement, and they have all the right to do so. However, the Board believes that the timeline can be amended to provide enough time for CSI and SODRAC to properly prepare and reply to the evidence.

The Networks' revised statement of case and the witness statement of Mr. Christian Breton will be made part of the record. CSI and SODRAC may file any reply statement of case to the Networks' revised statement of case no later than Thursday, November 14, 2013.


October 25, 2013up arrow

NOTICE OF THE BOARD

CSI's request for an extension is partially granted. CSI can file its reply in respect of the Networks submissions no later than Tuesday, November 12, 2013. In respect of any other submissions, CSI shall file its reply as already scheduled.

De : Chisick, Casey
Envoyé : 25 octobre 2013 10:08
À : McDougall, Gilles: CB-CDA
Cc : jkerrwilson; Pinos, Timothy; mkoch; gabriel vanloon; kathleen simmons.com; david.kent; lynne.watt ; Matthew.estabrooks; Baldassarra, Stefanie; cpoirier; lbertrand; athomas; Mayzel, Eric; jonathan.ohara
Objet : RE: Online Music Services (2011-2013) [IWOV-Legal.FID1557178]

Gilles,

In view of the extension granted to the Networks, CSI requests a one-week extension - that is, until Tuesday, November 12 - to file its Reply Statement of Case. Obviously, it will be important for CSI to know whether or not it is required to reply to the issues raised by the Networks before preparing and filing its Reply.

CMC


October 23, 2013up arrow

NOTICE OF THE BOARD

The Networks' request for an extension is granted. The Networks can respond to the attached CSI and SODRAC's request by no later than Tuesday, October 29, 2013. CSI and SODRAC can reply no later than Thursday, October 31, 2013.

De : Jay Kerr-Wilson
Envoyé : 22 octobre 2013 17:48
À : McDougall, Gilles: CB-CDA; tpinos; cchisick; mkoch; gabriel vanloon; kathleen simmons.com; david.kent; lynne.watt; Matthew.estabrooks; sbaldassarra; cpoirier; lbertrand Ariel Thomas; emayzel; jonathan.ohara
Objet : RE: Online Music Services (2011-2013)

Dear Mr McDougall,

Both Ms Thomas and I are away from the office on business this week and will not have an opportunity to consult with our clients in time to file a response by Thursday. We respectfully request an extension to Tuesday, October 29th.

Regards,

Jay Kerr-Wilson

-------- Original message --------
From: Gilles.McDougall@cb-cda.gc.ca
Date: 10-22-2013 10:48 AM (GMT-08:00)

Subject: RE: Online Music Services (2011-2013)

NOTICE OF THE BOARD

The Networks can respond to the attached CSI and SODRAC's request by no later than Thursday, October 24, 2013. CSI and SODRAC can reply no later than Monday, October 28, 2013.

De : Pinos, Timothy [mailto:tpinos@CasselsBrock.com]
Envoyé : 21 octobre 2013 21:58
À : McDougall, Gilles: CB-CDA et al.

Objet : RE: Online Music Services (2011-2013)

Gilles:

Enclosed is the submission of CSI and SODRAC to the Board that the Statement of Case of the Networks fails to comply with the Board's Directive on Procedure.

Cheers

October 21 2013 Copyright Board re Networks Statement of Case.pdf


October 1, 2013up arrow

NOTICE OF THE BOARD

The Board would prefer that legal issues be addressed in the Statements of Case to be filed on October 11, 2013. If needed or requested, a deadline will be set later for submission of legal briefs.


September 6, 2013up arrow

NOTICE OF THE BOARD

As no additional comments were received, the Objectors' request of August 30, 2013 is granted. The remainder of the schedule in the above-noted file is as follows:

(D) No later than Friday, October 18, 2013:

SOCAN's reply to responses filed pursuant to (B) and (C);

Reply of participants who filed a response pursuant to (B) to responses filed pursuant to (C) and to responses filed by other participants pursuant to (B);

Reply of participants who filed a response pursuant to (C) to responses filed by other participants pursuant to (C).

The Board will then advise the participants on any further steps, if necessary, before taking the issue under advisement.


September 3, 2013up arrow

NOTICE OF THE BOARD

The Board is of the preliminary view that the request below should be granted. Parties other than SOCAN, who already sent the attached comments, are to respond to the request no later than Wednesday, September 4, 2013. No reply should be sent, unless sollicited by the Board.

De : Koch, Michael
Envoyé : 30 août 2013 14:59
À : McDougall, Gilles: CB-CDA
Objet : RE: SOCAN Tariff 22.A - Making Available Right / Tarif 22.A de la SOCAN - Droit de mise à disposition - Amendments to the schedule/Modifications au calendrier

Dear Mr. McDougall,

Request

I am writing on behalf of Apple, the Networks, Microsoft, ESA and Cineplex (the "Objectors") to request an extension - from September 9, 2013 to October 18, 2013 - to the deadline for the filing of submissions pursuant to paragraph (D) of the schedule, that is, for:

  • SOCAN's reply to responses filed pursuant to (B) and (C);
  • Reply of participants who filed a response pursuant to (B) to responses filed pursuant to (C) and to responses filed by other participants pursuant to (B);
  • Reply of participants who filed a response pursuant to (C) to responses filed by other participants pursuant to (C).

Reasons for the Request

On June 14, 2013, the Objectors each filed a response pursuant to paragraph (B) of the schedule, in which they opposed the position taken by SOCAN. On August 21, 2013 seven different participants filed submissions pursuant to paragraph (C), opposing the positions taken by the Objectors. An extension is required to provide the Objectors an adequate opportunity to consider, and respond to, these paragraph (C) submissions, for the following reasons:

  • Under the current schedule, those submitting paragraph (C) submissions had more than 9 weeks in which to consider, and respond to, the Objectors' paragraph (B) submissions - by contrast, the Objectors would have fewer than 3 weeks (of which 2 weeks before Labour Day) in which to respond in kind.
  • Despite the fact the paragraph (C) submissions generally side with SOCAN's position, they are voluminous - in the case of the Music Canada submission, 66 pages long.
  • The paragraph (C) submissions also considerably broaden the scope of the issues raised by SOCAN's application and the responses of the Objectors. An opportunity is therefore required to consider the implications of these submissions before responding.
  • Despite the late stage in the proceeding, two of the participants filing paragraph (C) submissions - Music Canada and CMRRA-SODRAC Inc. - filed a 75-page "Expert Opinion" authored by Dr. Silke von Lewinski. The Objectors require an adequate opportunity in which to have their experts review this opinion and advise the Objectors in respect thereof.
  • As expressed by Mr. Chisick on behalf of CMRRA-SODRAC Inc. in the context of his request for an extension to the deadline for filing paragraph (C) submissions, the majority of Objectors' counsel are currently occupied with meeting filing dates, and preparing for, ongoing Board proceedings. This includes the deadline for filing Objectors' evidence in the Online Music Services file to which the instant Making Available Right application primarily relates.

For all of these reasons, we respectfully request an extension of the September 9 filing date, to October 18.

Best regards,

Michael Koch
Goodmans LLP


August 14, 2013up arrow

NOTICE OF THE BOARD

The request reproduced below is granted. The remainder of the schedule in the above-noted file is as follows:

(C) Responses to submissions filed pursuant to (B) by participants, other than SOCAN, who did not file submissions pursuant to (B): no later than Wednesday, August 21, 2013;

(D) No later than Monday, September 9, 2013:

SOCAN's reply to responses filed pursuant to (B) and (C);

Reply of participants who filed a response pursuant to (B) to responses filed pursuant to (C) and to responses filed by other participants pursuant to (B);

Reply of participants who filed a response pursuant to (C) to responses filed by other participants pursuant to (C).

The Board will then advise the participants on any further steps, if necessary, before taking the issue under advisement.


August 2, 2013up arrow

RULING OF THE BOARD

The request sought by CMPA to intervene in the proceedings cited above is granted.

As stated in the Board's Notice of December 7, 2012, which was only cited partially by the Networks and Cineplex, "[T]he issue certainly is not limited to a single SOCAN tariff, and probably not limited to SOCAN itself. Any decision the Board may render on the meaning of the making available right with respect to musical works will have some impact on the interpretation of the same right with respect to other works, performances and recordings, especially if the Board's decision is judicially reviewed."

The intent of the proceedings was and still is to reach a broad number of participants.

As per its email of July 26, 2013, CMPA shall adhere to the Board's existing schedule and deadlines.


July 26, 2013up arrow

NOTICE OF THE BOARD

As per the request below, CMPA will be allowed to participate in the above-mentioned file unless parties object to it by no later than Wednesday, July 31, 2013.

De : Jay Thomson
Envoyé : 26 juillet 2013 10:37
À : McDougall, Gilles: CB-CDA
Objet : SOCAN Tariff 22A - Making Available Right - Request by the CMPA for Standing to Intervene

Mr. Gilles McDougall
Secretary General
Copyright Board of Canada

Dear Mr. McDougall:

This is a request by the Canadian Media Production Association (CMPA) for standing as an intervener in the current Copyright Board proceeding with respect to the above-mentioned file, in order to provide the Board by August 16, 2013 with the perspective of independent Canadian producers (and copyright owners) of audio-visual content.

The CMPA represents the interests of screen-based media companies engaged in the production and distribution of English-language television programs, feature films, and new media content in all regions of Canada. The CMPA's member companies are significant employers of Canadian creative talent and assume the financial and creative risk of developing original audio-visual content for Canadian and international audiences.

The CMPA is aware that our affiliated organization, the Canadian Retransmission Collective (CRC), already has standing to intervene in this proceeding. However, the CRC represents more than Canadian audio-visual producers (e.g. it also represents producers of programs broadcast on PBS and international producers); accordingly, we submit the CMPA would be in a better position to present the views of our members in this proceeding. To our knowledge, no other current party in the proceeding represents the Canadian audio-visual content industry.

Please be advised that, if our request for standing is granted, we would be fully prepared to adhere to the Board's existing schedule and deadlines, including, as noted, the August 16, 2013 deadline for responses to submissions filed by participants, other than SOCAN, who did not file submissions by June 14, 2013.

Jay Thomson, LL.B, LL.M
Vice President, Broadcasting Policy & Regulatory Affairs

Canadian Media Production Association


July 18, 2013up arrow

NOTICE OF THE BOARD

The collectives' request to extend the deadlines for filing of the statements of case, to which the other parties consent, is granted. The deadlines to file the statements of case are now as follows:

Filing of CSI, SOCAN and SODRAC statements of case: no later than Friday, July 26, 2013

Filing of objectors' case: no later than Friday, October 11, 2013

Filing of CSI, SOCAN and SODRAC reply statements of case: no later than Tuesday, November 5, 2013

***********************************************************************************

AVIS DE LA COMMISSION

La requête des sociétés de gestion pour prolonger les délais de dépôt des énoncés de cause, à laquelle les autres parties consentent, est accordée. Les délais pour déposer les énoncés de cause sont maintenant les suivants:

Dépôt des énoncés de cause de CSI, de la SOCAN et de la SODRAC : au plus tard le vendredi 26 juillet 2013

Dépôt des énoncés de cause des opposants: au plus tard le vendredi 11 octobre 2013

Dépôt de la réplique de CSI, de la SOCAN et de la SODRAC : au plus tard le mardi 5 novembre 2013


June 21, 2013up arrow

NOTICE OF THE BOARD

Apple may respond to CSI's request (attached) no later than Tuesday, June 25, 2013. In particular, Apple is asked to respond to the following CSI submission:

"The Collectives submit that regardless of whether Apple has Concrete Plans to launch iTunes Radio in Canada between now and the end of 2014, its Concrete Plans to do so in the U.S., which have been recently announced, are sufficient to require that its interrogatory responses be amended to report on the intended operation of the service in that location. Accordingly, this gives rise to Apple's continuing disclosure obligation to produce any further agreements in respect of iTunes Radio and to revise its responses in light of Apple's confirmed plans to launch the new iTunes Radio service."

CSI may reply no later than Thursday, June 27, 2013.

Attachment: CSI Letter to Board - June 19, 2013.pdf


May 28, 2013up arrow

RULING OF THE BOARD

This Ruling deals with the additional alleged deficiencies in Rogers' responses to CSI interrogatories:

Q32: Answered, the best available information was provided.

Q41: In accordance with the Ruling of the Board Dealing with Objections to Interrogatories, dated January 25, 2013 with respect to CSI's Interrogatory 41, Rogers shall supply the additional information requested concerning MVOD for the period from January 2011 to June 2011 and concerning Galaxie Radio for the period from January 2011 to July 2011, if available. Rogers shall continue to provide information for 2013 as it becomes available. Otherwise, answered.

Q49: Answered.

Q55: With respect to the costs related to advertising for the Galaxie Service in 2010, 2011, 2012 and 2013, Rogers shall supply the information as offered. Otherwise, answered.


April 25, 2013up arrow

NOTICE OF THE BOARD

Attached is the Board's Ruling dealing with Motions re: incomplete/unsatisfactory responses to interrogatories, in respect to the alleged deficiencies in Bell's responses to the collectives' interrogatories.

Attachment: Ruling - Online Music Services - Grounds for Deficiencies - April 25, 2013.pdf


April 23, 2013up arrow

NOTICE OF THE BOARD

Attached is the Board's Ruling dealing with Motions re: incomplete/unsatisfactory responses to interrogatories.

Attachment: Ruling - Online Music Services - Grounds for Deficiencies - April 23, 2013.pdf


April 16, 2013up arrow

NOTICE OF THE BOARD

Further to the Board's Notice of April 11, 2013 in the above-mentioned file, CSI provided comments, to which SOCAN and Re:Sound agreed. The Board accepts CSI's proposition and adopts the following schedule:

  1. Filing of SOCAN's submissions: no later than Friday, March 8, 2013;
  2. Responses to SOCAN's submissions by the objectors and other participants who wish to so respond: no later than Friday, June 14, 2013;
  3. Responses to submissions filed pursuant to (B) by participants, other than SOCAN, who did not file submissions pursuant to (B): no later than Friday, August 16, 2013;
  4. No later than Friday, August 30, 2013:
    • SOCAN's reply to responses filed pursuant to (B) and (C);
    • Reply of participants who filed a response pursuant to (B) to responses filed pursuant to (C) and to responses filed by other participants pursuant to (B);
    • Reply of participants who filed a response pursuant to (C) to responses filed by other participants pursuant to (C).

The Board will then advise the participants on any further steps, if necessary, before taking the issue under advisement.


AVIS DE LA COMMISSION

Pour faire suite à l'avis de la Commission du 11 avril 2013 dans l'affaire précitée, CSI a fourni à la Commission des commentaires. SOCAN et Ré:Sonne se sont dit être en accord avec ces commentaires. La Commission accepte la proposition de CSI et établit le calendrier suivant :

  1. dépôt des prétentions de la SOCAN : au plus tard le vendredi 8 mars 2013;
  2. réponses aux prétentions de la SOCAN des opposantes et des autres participants qui désirent ainsi répondre : au plus tard le vendredi 14 juin 2013;
  3. réponses des participants, autres que la SOCAN, n'ayant pas déposé de réponse en vertu de (B) aux prétentions déposées en vertu de (B) : au plus tard le vendredi 16 août 2013;
  4. au plus tard le vendredi 30 août 2013 :
    • réplique de la SOCAN aux réponses déposées en vertu de (B) et (C);
    • réplique des participants ayant déposé une réponse en vertu de (B) aux réponses déposées en vertu de (C) et aux réponses déposées par d'autres participants en vertu de (B);
    • réplique des participants ayant déposé une réponse en vertu de (C) aux réponses déposées par d'autres participants en vertu de (C).

La Commission avisera les participants par la suite de toute démarche supplémentaire requise, au besoin, avant de mettre cette question en délibéré.


April 12, 2013up arrow

NOTICE OF THE BOARD

The request described below is granted. All parties may provide their replies to deficiency motions by no later than Tuesday, April 16, 2013.

De : Koch, Michael
Envoyé : 12 avril 2013 14:29
À : McDougall, Gilles: CB-CDA
Cc : 'Baldassarra, Stefanie'; 'Mills, Stephanie'; 'Pinos, Timothy'; 'Chisick, Casey'; 'Chantal Poirier';
Objet : Online Music Services (2011-2013) - Request for Brief Extension for Date for Motion re: Deficiencies

Gilles,

CSI and Apple are working to resolve, to the greatest extent possible, any claimed deficiencies relating to Apple's responses to interrogatories. We have been successful with a number but a few remain outstanding. Towards that end, the parties request an extension to the date for filing motions with the Board pursuant to the Directive on Procedure, from today, Friday April 12, to Tuesday, April 16.

Best regards,

Michael Koch


April 11, 2013up arrow

NOTICE OF THE BOARD

The Board is inclined to grant the request described below. The following schedule would result:

  1. Filing of SOCAN's submissions: no later than Friday, March 8, 2013;
  2. Responses to SOCAN's submissions by the objectors and other participants who wish to so respond: no later than Friday, June 14, 2013;
  3. Responses to submissions filed pursuant to (B) by participants, other than SOCAN, who did not file submissions pursuant to (B): no later than Friday, July 12, 2013;
  4. No later than Friday, July 26, 2013:
    • SOCAN's reply to responses filed pursuant to (B) and (C);
    • Reply of participants who filed a response pursuant to (B) to responses filed pursuant to (C) and to responses filed by other participants pursuant to (B);
    • Reply of participants who filed a response pursuant to (C) to responses filed by other participants pursuant to (C).
    The Board will then advise the participants on any further steps, if necessary, before taking the issue under advisement.

This schedule will prevail unless parties provide comments by no later than Monday, April 15, 2013.


AVIS DE LA COMMISSION

La Commission est encline à accorder la requête décrite ci-dessous. Le calendrier suivant en résulterait :

  1. dépôt des prétentions de la SOCAN : au plus tard le vendredi 8 mars 2013;
  2. réponses aux prétentions de la SOCAN des opposantes et des autres participants qui désirent ainsi répondre : au plus tard le vendredi 14 juin 2013;
  3. réponses des participants, autres que la SOCAN, n'ayant pas déposé de réponse en vertu de (B) aux prétentions déposées en vertu de (B) : au plus tard le vendredi 12 juillet 2013;
  4. au plus tard le vendredi 26 juillet 2013 :
    • réplique de la SOCAN aux réponses déposées en vertu de (B) et (C);
    • réplique des participants ayant déposé une réponse en vertu de (B) aux réponses déposées en vertu de (C) et aux réponses déposées par d'autres participants en vertu de (B);
    • réplique des participants ayant déposé une réponse en vertu de (C) aux réponses déposées par d'autres participants en vertu de (C).
    La Commission avisera les participants par la suite de toute démarche supplémentaire requise, au besoin, avant de mettre cette question en délibéré.

Ce calendrier est celui qui prévaudra à moins que les parties ne fournissent leurs commentaires au plus tard le lundi 15 avril 2013.

De : Kerr-Wilson_Jay [mailto:JKerrwilson@fasken.com]
Envoyé : 10 avril 2013 11:13
À : McDougall, Gilles et al.
Objet : RE: SOCAN Tariff 22.A - Making Available Right / Tarif 22.A de la SOCAN - Droit de mise à disposition

Dear Mr. McDougall,

On behalf of Rogers, Shaw, Bell, Quebecor, Yahoo!, Google, Microsoft, Apple, Cineplex and the CAB (collectively the "Moving Parties"), we are writing to request an extension in the deadline for parties to file responses to the arguments and evidence filed by SOCAN on March 8. This extension is required in order for the Moving Parties to retain and instruct expert witnesses and for those witnesses to prepare their respective reports to respond to the evidence that was unexpectedly filed by SOCAN.

In support of their request, the Moving Parties note that the proceeding to examine the "making available" issue has evolved considerably from SOCAN's original request in November.

On November 28, 2012 counsel for SOCAN wrote to Objectors to suggest that the preliminary matter of the impact of ss. 2.4(1.1) of the Act, which was raised in the context of the Online Music Services proceeding, be expanded to include other parties that may have an interest in other SOCAN tariffs in which the making available issue might be relevant. As part of that note, SOCAN stated that "In SOCAN's view, this is a pure legal issue that can and should be determined by the Board without the need of interrogatories and/or the presentation of new evidence" [emphasis added].

On December 7, 2012 the Board issued a Notice in response to SOCAN's request in which the Board expressed a number of preliminary views including the fact that "the interpretation of the making available right essentially raises purely legal issues that require little (or preferably, no) discovery or presentation of new evidence" [emphasis added]. The balance of the Board's proposed process refers to the filing of legal briefs but not to the filing of evidence.

On January 31, 2013 the Board issued a Notice in which it identified the parties to the "making available" proceeding and set out the process for dealing with the issue. At no point in the Notice is the preparation or filing of evidence mentioned. Parties were encouraged to only file joint memoranda.

On February 22, 2013 counsel for SOCAN wrote the Board asking for an extension in the time for SOCAN to file its legal brief. At no point the in the request did SOCAN indicate that it was planning on file evidence in addition to its legal arguments.

On March 8, 2013 SOCAN filed and served its submission which consisted of 30 pages of written submissions and a 25-page report by Dr. Ficsor with respect to the WIPO Copyright Treaty and matters related to foreign jurisdictions. Whereas SOCAN's original request that set in motion this process only referred to the interpretation of ss. 2.4(1.1) of the Copyright Act, Dr. Ficsor's report deals with a number of issues that have no bearing on the original question including evidence about legislation and licensing practices in foreign jurisdictions.

On Friday, March 15, counsel for Apple, on behalf of Apple, Microsoft and Cineplex. filed a motion with the Board asking that Dr. Ficsor's report be struck. On Monday, March 18 without hearing from any of the other parties, the Board dismissed the motion and extended the deadline for filing responding submissions until May 3.

In an attempt to comply with the Board's request that parties coordinate filings, the Moving Parties have been cooperating to find and jointly retain an appropriate expert witness who is able to comment on the new issues raised in Dr. Ficsor's report. The Moving Parties now find themselves in the situation where the schedule of their chosen expert will not accommodate the preparation of a responding report by May 3. We have been informed that the expert will require at least an additional 30 days in which to conduct the necessary research and prepare the written report. The Moving Parties will also require time to incorporate the expert evidence into their written submissions.

Therefore, the Moving Parties request that the deadline for filing responses to SOCAN's submission be extended to Friday, June 14 so that we may retain and instruct our expert witness to prepare evidence that responds to the evidence filed by SOCAN.

Regards,

--
Jay Kerr-Wilson | Partner


March 28, 2013up arrow

NOTICE OF THE BOARD

CSI and Re:Sound's proposal described below is accepted.

De : Chisick, Casey
Envoyé : 28 mars 2013 10:24
À : McDougall, Gilles: CB-CDA
Cc : JKerrwilson; aahmad; mhubbard; gbloom; mklee; bfong;freya; Gabriel vanloon; kathleen simmons.com; david.kent; athomas; Sarah.Kilpatrick; Pinos, Timothy; Fingerhut, Jessica; lynne.watt ; cpoirier;mkoch; Matthew.estabrooks
Objet : RE: Online Music Services (2010-2013): CSI's request for access to confidential information from Re:Sound Tariffs 8.A and 8.B proceeding [IWOV-Legal.FID1557178]

Dear Mr. McDougall,

CSI and Re:Sound are continuing to explore the possibility of resolving CSI's request for access to confidential information from the Re:Sound Tariffs 8.A and 8.B proceeding without the need for an order of the Board. Accordingly, CSI and Re:Sound have agreed to propose to the Board that CSI's initial request be adjourned sine die, to be brought back on notice by CSI if necessary, with responses from Re:Sound and other parties due within seven days after receipt of such notice.

We look forward to the direction of the Board.

CMC


March 20, 2013up arrow

ORDER OF THE BOARD

The intent of the Board is that those who participate in the current proceeding be entitled to access information tendered in previous online music proceedings as if the information had been supplied in response to interrogatories. See, for example, the statement in the Board's Ruling of January 25, 2013 that "Information obtained by a collective in a previous online music proceeding can be shared with other collectives, unless that information was objected to and the objection was sustained."

Consequently, the Board confirms that a person who has executed a confidentiality agreement in the current proceeding is entitled to have access to confidential and highly confidential information tendered in previous online music services proceedings, subject to the terms of the February 11, 2013 confidentiality order (the "confidentiality order") and of the confidentiality agreement executed by that person in the current proceeding.

A person who is not party to the current proceeding and who tendered confidential and highly confidential information in previous online music services proceedings (a "non-party supplier") must be afforded the opportunity, set out in paragraph 8 of the confidentiality order, to object to the disclosure of information to a person who has signed a confidentiality agreement. Executed agreements must be delivered to a non-party supplier (or its counsel) three clear working days before any confidential and highly confidential information tendered by that supplier in previous online music services proceedings information is disclosed. A copy of the confidentiality order shall be sent with the first executed confidentiality agreement delivered to a non-party supplier.

Parties to the current proceeding may not have understood the extent of the disclosure envisaged by the Board when examining confidentiality agreements they received to date pursuant to paragraph 8 of the confidentiality order. They may avail themselves of that paragraph within three clear working days of this Order with respect to any information they tendered in previous online music services proceedings.


March 18, 2013up arrow

NOTICE OF THE BOARD

The application to strike the expert report of Dr. Fiscor is denied. It would be unthinkable to deal with the making available right without some understanding of what that right is meant to be in the relevant treaties.

The application for a two-week extension is granted. However, two weeks may be a bit short to undertake the preparation of an expert report. Consequently, a four-week extension is granted. Further to the February 22, 2013 Notice of the Board, the schedule of proceedings is thus now the following:

(A) Filing of SOCAN's submissions: no later than Friday, March 8, 2013;

(B) Responses to SOCAN's submissions by the objectors and other participants who wish to so respond: no later than Friday, May 3, 2013;

(C) Responses to submissions filed pursuant to (B) by participants, other than SOCAN, who did not file submissions pursuant to (B): no later than Friday, May 31, 2013;

(D) No later than Friday, June 14, 2013:

  • SOCAN's reply to responses filed pursuant to (B) and (C);
  • Reply of participants who filed a response pursuant to (B) to responses filed pursuant to (C) and to responses filed by other participants pursuant to (B);
  • Reply of participants who filed a response pursuant to (C) to responses filed by other participants pursuant to (C).

The Board will then advise the participants on any further steps, if necessary, before taking the issue under advisement.

********************************************************************

AVIS DE LA COMMISSION

La requête en radiation du rapport d'expert du Dr. Fiscor est rejetée. Il serait inconcevable de traiter du droit de mise à disposition sans en comprendre le sens dans les traités pertinents.

La requête pour une extension de deux semaines est accordée. Toutefois, ce délai pourrait être trop court pour s'engager dans la préparation d'un rapport d'expert. En conséquence, un délai de quatre semaines est accordé. Suite à l'avis de la Commission du 22 février 2013, le calendrier des procédures est donc maintenant le suivant :

(A) dépôt des prétentions de la SOCAN : au plus tard le vendredi 8 mars 2013;

(B) réponses aux prétentions de la SOCAN des opposantes et des autres participants qui désirent ainsi répondre : au plus tard le vendredi 3 mai 2013;

(C) réponses des participants, autres que la SOCAN, n'ayant pas déposé de réponse en vertu de (B) aux prétentions déposées en vertu de (B) : au plus tard le vendredi 31 mai 2013;

(D) au plus tard le vendredi 14 juin 2013 :

  • réplique de la SOCAN aux réponses déposées en vertu de (B) et (C);
  • réplique des participants ayant déposé une réponse en vertu de (B) aux réponses déposées en vertu de (C) et aux réponses déposées par d'autres participants en vertu de (B);
  • réplique des participants ayant déposé une réponse en vertu de (C) aux réponses déposées par d'autres participants en vertu de (C).

La Commission avisera les participants par la suite de toute démarche supplémentaire requise, au besoin, avant de mettre cette question en délibéré.


March 14, 2013up arrow

NOTICE OF THE BOARD

The Networks request is granted. Parties may respond to the March 1, 2013 Notice of the Board by no later than Thursday, March 28, 2013.


March 13, 2013up arrow

NOTICE OF THE BOARD

Re:Sound's attached request to be granted a further extension of time to respond to CSI's request for access to confidential information from Re:Sound Tariff 8.A and 8.B proceeding, to which CSI agrees, is granted. Re:Sound may respond to the March 1, 2013 Notice of the Board by no later than Thursday, March 28, 2013.

Attachment: ReSoundT8 - ReSound letter to Board - CSI request.pdf


March 7, 2013up arrow

NOTICE OF THE BOARD

Further to the Board's Notice of March 1, 2013 in the above-noted matter, please note that no objections were received. Therefore, the Board confirms that Microsoft's request for leave to participate as an intervenor is granted.


March 4, 2013up arrow

NOTICE OF THE BOARD

Re:Sound's attached request to be granted an extension of time to respond to CSI's request for access to confidential information from Re:Sound Tariff 8.A and 8.B proceeding, to which CSI and the BDUs agree, is granted. Parties may thus respond to the March 1, 2013 Notice of the Board reproduced below by no later than Monday, March 18, 2013.

Attachment: Re:Sound letter to the Board - response to CSI letter request to see confidential information in Tariff 8 proceeding.pdf


March 1, 2013up arrow

NOTICE OF THE BOARD

No later than Tuesday, March 5, 2013, the parties to the Re:Sound Tariff 8 proceeding may respond to the attached application.

Anyone who opposes granting the application may do so only in respect of information that (a) is confidential and either (b) it "owns" or (c) is owned by another and was filed with the understanding that the information would remain confidential. Parties who oppose granting the application are asked to specify which otherwise confidential documents they do not object being supplied in response to the application.

Attachment: 13-03-01 Letter to Copyright Board re ReSound Tariffs 8.A and 8.B Confidential Information.pdf


March 1, 2013up arrow

NOTICE OF THE BOARD

Microsoft will be allowed to participate in the above-mentioned file unless parties object to it by no later than Tuesday, March 5, 2013.

De : David Kent
Envoyé : 28 février 2013 08:00
À : McDougall, Gilles: CB-CDA
Cc : Sarah Kilpatrick
Objet : Making Available - Microsoft Request to Participate

Dear Mr. McDougall,

We have been retained by Microsoft Corporation ("Microsoft") with respect to the "making available" amendments to the Copyright Act and, in particular, with respect to the "making available" proceeding described in the Board's Notice dated January 31, 2013 (the "Proceeding"). As described more fully below, Microsoft seeks leave to participate in the Proceeding.

Microsoft is Affected by the Issues Raised in the Proceeding

Microsoft's mission is to enable individuals and businesses throughout the world to realize their full potential by creating technology that transforms the way people work, play, and communicate. Microsoft develops, manufactures, licenses, and supports a wide range of programs, devices, and online services, including Windows, Surface, Microsoft Office and Microsoft Office 365, SkyDrive, Xbox and Xbox Live, and Bing. Microsoft's products and services are used by consumers worldwide to access, experience, and enjoy a wide range of media including music, games, movies, and television, whether such media is obtained via Microsoft online services such as Xbox Music or Xbox Live, via third party applications, or from third party online marketplaces.

As part of its licensed entertainment services in Xbox Music and Xbox Live, Microsoft enables users to download media files containing music for which they have purchased a licence (including music tracks, film, television, and video game content). Additionally, users of various Microsoft online cloud services may also choose to store, or backup, and download media files containing music for their personal use, whether obtained from Microsoft or from third party media providers. Accordingly, Microsoft stands to be affected by the resolution of the "making available" issue raised by SOCAN in its email to the Board of November 28, 2012 and to be determined in the Proceeding.

Microsoft's Preliminary Position

Microsoft is keenly interested in both preserving settled copyright law and sensibly resolving new issues, to better enable consumers to effectively access and use the media they have purchased or licensed, and to encourage sensible interpretations of copyright law that foster innovation. Microsoft's preliminary view is that these objectives are best met, for the purposes of the Proceeding, by rejecting SOCAN's interpretation of the amendments to the Copyright Act. In other words, new section 2.4(1.1) does not render moot or inapplicable the recent conclusion reached by the Supreme Court of Canada in ESA v. SOCAN, 2012 SCC 34, (and the Rogers companion case), and users of music on the Internet are not thereby liable to pay communication right royalties to SOCAN when they post musical works on their Internet servers for download by their end-user customers.

Microsoft's Request to Participate

Preliminary steps with respect to the Proceeding were taken by the Board in its Notice of December 7, 2012. In that Notice, the Board set out a process for interested parties to (i) identify themselves; (ii) indicate how they were affected; (iii) provide their preliminary views on the merits and (iv) comment on the Board's proposed procedures. That process culminated in the Board's January 31, 2013 Notice which (i) identified the parties "as of right"; (ii) set out the list of intervenors who would also participate and (iii) established a sequence and schedule of submissions. As amended, the deadline for the first submission (from SOCAN) is March 8, 2013. Objectors and other participants who wish to do so are to respond by April 5, 2013.

Microsoft missed the December 21, 2012 date for responding to the Board's December 7 Notice. This is because it only became aware of the Proceeding in late January 2013 when advised by its US counsel. It thereafter sought Canadian legal advice, and then considered the effect of the "making available" issue on its users, its businesses and its objectives before concluding that it was appropriate to seek to participate. At that point we were asked to prepare this request.

Microsoft respectfully submits that it should be given leave to participate for the following reasons:

  1. Microsoft is clearly a directly interested stakeholder. Its voice should be heard in deciding this matter. A wide variety of intervenors is currently contemplated, including governments and individuals. Microsoft is a core stakeholder and should be permitted an opportunity to state its case.
  2. No party will be affected at all, much less prejudiced, by Microsoft being added as a participant at this stage. As the Board noted on December 7, the Proceeding essentially raises legal issues. No party has yet filed a submission. SOCAN's submission, due March 8, is unaffected by the identity of the other participants. The filing deadline for other participants, such as Microsoft, has not yet arrived. Microsoft asks for no accommodation, and its inclusion will not extend or otherwise negatively affect the process in any way.
  3. The Board permitted Cineplex to make a "late filing" in response to the December 7 Notice (see Board Notice dated January 17, 2013). In doing so, the Board noted that the December 7 Notice "was to reach a broad number of respondents". It can be difficult to provide effective notice to firms that are not current participants in proceedings before the Board. Microsoft responded responsibly, but with alacrity, once alerted to the Proceeding. It has provided the information requested in the December 7 Notice. The fact that it did not have prior notice should not be held against it.

Conclusion

Accordingly, this is to request leave for Microsoft to participate as an intervenor in the Proceeding. I look forward to hearing from you.

David W. Kent


February 22, 2013up arrow

NOTICE OF THE BOARD

Given the circumstances, SOCAN's request described below is granted. The new schedule is as follows:

(A) Filing of SOCAN's submissions: no later than Friday March 8, 2013;

(B) Responses to SOCAN's submissions by the objectors and other participants who wish to so respond: no later than Friday, April 5, 2013;

(C) Responses to submissions filed pursuant to (B) by participants, other than SOCAN, who did not file submissions pursuant to (B): no later than Friday May 3, 2013;

(D) No later than Friday May 17, 2013:

  • SOCAN's reply to responses filed pursuant to (B) and (C);
  • Reply of participants who filed a response pursuant to (B) to responses filed pursuant to (C) and to responses filed by other participants pursuant to (B);
  • Reply of participants who filed a response pursuant to (C) to responses filed by other participants pursuant to (C).

The Board will then advise the participants on any further steps, if necessary, before taking the issue under advisement.


AVIS DE LA COMISSION

Dans les circonstances, la requête de la SOCAN mentionnée ci-dessous est accordée. Le nouvel échéancier est le suivant :

(A) dépôt des prétentions de la SOCAN : au plus tard le vendredi 8 mars 2013;

(B) réponses aux prétentions de la SOCAN des opposantes et des autres participants qui désirent ainsi répondre : au plus tard le vendredi 5 avril 2013;

(C) réponses des participants, autres que la SOCAN, n'ayant pas déposé de réponse en vertu de (B) aux prétentions déposées en vertu de (B) : au plus tard le vendredi 3 mai 2013;

(D) au plus tard le vendredi 17 mai 2013 :

  • réplique de la SOCAN aux réponses déposées en vertu de (B) et (C);
  • réplique des participants ayant déposé une réponse en vertu de (B) aux réponses déposées en vertu de (C) et aux réponses déposées par d'autres participants en vertu de (B);
  • réplique des participants ayant déposé une réponse en vertu de (C) aux réponses déposées par d'autres participants en vertu de (C).

La Commission avisera les participants par la suite de toute démarche supplémentaire requise, au besoin, avant de mettre cette question en délibéré.


February 11, 2013up arrow

NOTICE OF THE BOARD

Attached is the Board's Order dealing with information for which confidential treatment may be claimed.

Attachment: Confidentiality Order - Online Music.pdf


February 1, 2013up arrow

ORDER OF THE BOARD

This order deals with a number of pending matters in the above-referenced proceedings.

  1. On January 11, 2013, Netflix, relying on section A.2 of the Board's directive on procedure issued on June 8, 2011, addressed the attached letter. The letter will not be made part of the record of these proceedings for two reasons.
    • First, comments should be based on the record as it stands. The letter is not. Indeed, dealing with it necessarily requires the additional collection of fresh evidence.
    • Second, the main purpose of the letter is to address two issues that have not been raised by any of the parties to the proceedings. Barring exceptional circumstances, a person who files comments should not be allowed to broaden the debate. This is especially so with Netflix, who has known of these proceedings for some time, was invited to participate at an earlier stage and chose not to. Even if it were true that Netflix could not have raised the issues it now seeks to address before July 12, 2012, the issue should have been raised much earlier and certainly no later than in mid-September.
  2. On January 25, 2013, Facebook, also relying on section A.2 of the Board's directive on procedure, addressed to the Board the attached letter. Barring exceptional circumstances, this letter should be ignored, for the following reasons.
    • First, the letter fails to mention that Facebook has known of these proceedings at least since June, 2011. Those who seek to participate, so late in the process, in a matter they have known of for so long should at least state this as a fact and then explain their sudden desire to leave the sidelines and join the fray.
    • Second, the justification that Facebook apparently advances for now springing into action (i.e., the timing of some statements contained in SOCAN's memorandum of January 13, 2013) does not stand to analysis. These statements, to the extent they do have the meaning Facebook attaches to them, are nothing new: the Board addressed them as far back as in 1999. The only reasonable conclusion is that Facebook has known for some time that these issues would be part of the debate before the Board in these proceedings.
  3. This having been said, exceptional circumstances do exist that justify allowing Netflix and Facebook to participate in these proceedings. The matter is proceeding without a hearing, as a result of an agreement reached by SOCAN and some of the objectors. Some newer objectors to the relevant tariffs for 2012 and 2013, who are not party to the agreements and who may not know of them, will have to be allowed to comment on them: to allow Netflix and Facebook to participate at that stage will not disrupt the process. Finally, Netflix and Facebook are dominant players in the relevant markets: even if their sudden urge to express their view resulted in some disruption, it would be preferable to gain the benefit of some comments on their part.
  4. This matter cannot conveniently proceed before the long-awaited agreement dealing with audiovisual user-generated content, now referred to as Tariff 22.D.2, has been filed with the Board. SOCAN is asked to provide forthwith a status report on this matter.
  5. The Board intends to proceed with this matter as follows.
  1. The Registry of the Board shall identify, among all those who objected to SOCAN Tariff 22 for the years 2007 to 2013, those who are not party to the agreements pertaining to SOCAN Tariffs 22.D.1 (Audiovisual Webcasts) and 22.D.2 (Audiovisual User-Generated Content) and who may be streaming audiovisual or user-generated content.
  2. Once the 22.D.2 agreement has been filed with the Board, the Registry shall send, to anyone identified in A), to Netflix and to Facebook, the agreements, the parties' comments on the agreements and a notice that will include the following questions:
    • Do you stream audiovisual programs containing one or more musical works for which a licence from SOCAN may be required? If so, what are your views on the request that the Board certify a tariff that reflects the attached agreement between SOCAN on the one hand, and Apple Inc., Apple Canada Inc., Cineplex Entertainement LP, BCE Inc. Rogers Communication Partnership, Videotron G.P. and Yahoo! Canada Co. on the other?
    • Do you stream user generated content containing one or more musical works for which a licence from SOCAN may be required? If so, what are your views on the request that the Board certify a tariff that reflects the attached agreement between SOCAN on the one hand, and (list the objectors who will have signed the agreement) on the other?
  3. The recipients of the notice set out in B) shall have three weeks to respond. The recipients in general, and Netflix and Facebook in particular, will be expected to focus on the issues already raised by the parties. They will avoid introducing new evidence, unless this consists of facts that are not controversial and that shed significant light on the proper course of action.
    • It may not be possible for the recipients to strictly comply with the limitations set out in the previous paragraph. The Board will decide which additional content to allow into the record as need be; it will deal with procedural issues that may arise as a result at the same time.
  4. SOCAN will then be allowed three weeks to respond to all comments received pursuant to C). There shall be no further comment or reply from anyone else except by leave.
  5. The Board will then decide whether further input is required before it proceeds to the examination of the proposed tariffs.

SOCAN and objectors are invited to comment on this proposed course of action no later than on Friday, February 15, 2013. Responses to these comments may be filed no later than on Friday, February 22, 2013.


January 31, 2013up arrow

Please see the attached Notice of the Board (Making Available Right).

*********************************

Veuillez prendre note de l'avis de la Commission ci-joint (Droit de mise à disposition).

Attachment : 1) Notice of the Board - Making Available Right.pdf 2) Avis de la Commission - Droit de mise à disposition.pdf


January 25, 2013up arrow

NOTICE OF THE BOARD

Attached is the Ruling of the Board dealing with objections to interrogatories.

Attachment: Ruling - Online Music Services - Objections to Interrogatories.pdf


January 24, 2013up arrow

NOTICE OF THE BOARD

CSI's understanding of the Board's order is correct.

De : Chisick, Casey

Envoyé : 24 janvier 2013 09:08

À : McDougall, Gilles: CB-CDA

Objet : RE: CSI - Online Music Services (2011-2013); SOCAN Tariff 22.A - Online Music Services (2011-2013); SODRAC Tariff 6 - Online Music Services, Music Videos (2010-2013) - NCRA/ARC's Request

Dear Mr. McDougall,

We write to seek clarification and confirmation in relation to the Order of the Board dated January 14, 2013, granting the Application of NCRA/ARC to have royalties set by non-commercial radio stations for their Internet activities as part of a separate hearing, not the current one. Our understanding of the Board's Order is as follows:

  • The CSI Online Music Tariff (2008-2010) and CSI's corresponding proposals for 2011 through 2013 cover the online activities (permanent downloads, limited downloads, on-demand streaming, and webcasting, each as applicable,) of all users that engage in those activities, including the members of NCRA/ARC.
  • The intent and effect of the Board's decision is not to withdraw these activities from the scope of the certified tariffs. The Board's decision only permits NCRA/ARC not to participate in the current proceeding with the other users.

Consequently:

  • The rates and conditions for 2011 through 2013, which are to be set by the Board in this hearing, will not apply to the members of NCRA/ARC but the Board reserves its jurisdiction to determine these rates and conditions in another proceeding, the schedule for which can be determined later.
  • The 2008-2010 CSI Tariff, which is still in force by virtue of section 70.18 of the Copyright Act, continues to apply to members of NCRA/ARC and will continue to do so until it is replaced by a new tariff that the Board determines to be applicable to members of NCRA/ARC who engage in the relevant activities.

In order to avoid any misunderstanding and dispute, CSI respectfully requests that the Board advise the parties accordingly.

CMC


January 17, 2013up arrow

NOTICE OF THE BOARD

The intent of the December 7, 2012 Board's Notice was to reach a broad number of recipients. Given the circumstances, Cineplex's request described below to file a late submission is granted. Parties may reply to Cineplex's submissions no later than Monday, January 21, 2013.


January 15, 2013up arrow

NOTICE OF THE BOARD

The Objectors' request described below, agreed by the collectives, is granted.

Mr. McDougall,

My apologies for any confusion arising from my email below. I am writing on behalf of the objectors Pandora, Google, Apple, Stingray and CAB.

We respectfully request that the Board amend its schedule and grant all parties one additional day to file replies to objections to interrogatories (thereby amending the deadline to January 16, instead of today). We submit this request so as to permit some further negotiations that we hope will reduce the number of objections to be filed with the Board.

Counsel for CSI and SOCAN have provided their consent for this request for an extension.

We look forward to hearing from you.

Best regards,

Sarah

Sarah S Kilpatrick


January 11, 2013up arrow

ORDER OF THE BOARD

L'Alliance des radios communautaires, L'Association des radiodiffuseurs communautaires du Québec and the National Campus and Community Radio Association/L'Association nationale des radios étudiantes et communautaires (NCRA/ARC) ask that any royalties payable by non-commercial radio stations for their Internet activities not be set as part of the hearing dealing with the above-referenced tariffs.

In response, CSI requests that NCRA/ARC clarify the nature of its members' activities. If they do not offer downloads, streams, or interactive webcasting, then the Board may assume that CSI agrees with the NCRA/ARC application. That response misses the point. If non-commercial radio stations do not use works in the repertoire of SOCAN or CSI in the manner set out in the proposed tariffs, then the application under consideration is moot. The issue to be decided is whether NCRA/ARC ought to participate in the examination of the above-referenced tariffs whether or not non-commercial radio stations use the relevant repertoires in the manner set out in the proposed tariffs.

The application is granted. The royalties payable by non-commercial radio stations for their Internet activities shall not be set as part of the examination of the above-referenced tariffs. Any such royalties shall be set in the context of future proceedings, if necessary.

NCRA/ARC also appears to request some assurance that its members' current or future Internet services will not attract royalties in addition to those they currently pay to SOCAN or to CSI and that such royalties, if determined in future proceedings, will be set on a non-retroactive basis. The Board cannot provide those assurances: if non-commercial radio stations perform protected uses, they require a licence. Again, whether such activities should attract additional royalties and whether any such royalties should be set on a retroactive basis shall be determined in the context of future proceedings, if necessary.


December 21, 2012up arrow

NOTICE OF THE BOARD

The Copyright Board of Canada has rendered an interim decision in the above-noted matter in regards to the Application of the Canadian Broadcasters Rights Agency Inc. and the Canadian Retransmission Collective for an interim decision. The decision is posted on the Board's web site under the heading "What's New - Recent Decisions" at: http://www.cb-cda.gc.ca/home-accueil-e.html.

________________________________________________________________

AVIS DE LA COMMISSION

La Commission du droit d'auteur du Canada a rendu une décision provisoire dans le dossier précité à l'égard de la demande de décision provisoire formulée par l'Agence des droits des radiodiffuseurs canadiens et la Société collective de retransmission du Canada. La décision est affichée sur le site web de la Commission sous la rubrique « Quoi de neuf - Décisions récentes » à : http://www.cb-cda.gc.ca/home-accueil-f.html.


December 21, 2012up arrow

NOTICE OF THE BOARD

Google Inc. was not identified as a participant in the Directive on Procedure dated December 18, 2012, even though its request for leave to intervene was granted. This has been corrected in the attached revised Directive. We apologize for any inconvenience this may have cause.

________________________________________________________________

AVIS DE LA COMMISSION

Google inc. n'était pas identifié comme participant dans la Directive sur la procédure du 18 décembre 2012, même si sa requête en intervention a été acceptée. Cette erreur a été corrigée dans la Directive révisée, ci-jointe. Nous nous excusons des inconvénients que cela aurait pu causer.

Attachment: Online Music Services (2012-2013) - Revised Directive on procedure and Appendices new2.pdf


December 19, 2012up arrow

NOTICE OF THE BOARD

Further to the Board's Notice of December 4, 2012, attached is the Directive on Procedure. We draw your attention on the following points:

  1. The electronic version of the evidence (on CD, DVD or USB key) should be filed with the Board, along with the hard copies on the date set for that purpose. You must also ensure that other participants receive their hard copy and electronic version on the same date the documents are filed with the Board;
  2. As a general rule, responses to interrogatories are NOT filed with the Board. Parties should only file as evidence those responses to interrogatories to which they know they intend to refer;
  3. When filing documents with the Board, confidential and highly confidential information should be highlighted in yellow and blue, respectively. The cover page of the document should indicate whether it includes confidential or highly confidential information.

**************************************************************************

AVIS DE LA COMMISSION

En référence à l'avis de la Commission en date du 4 décembre 2012, vous trouverez ci-joint la directive sur la procédure. Nous attirons votre attention sur les items suivants :

  1. La version électronique de la preuve (sur CD-ROM, DVD ou clé USB) doit être déposée auprès de la Commission en même temps que les copies papier à la date fixée pour ce faire. Vous devez aussi vous assurer que tous les participants reçoivent les versions papier et électronique le même jour que les documents sont déposés auprès de la Commission;
  2. En règle générale, les réponses aux demandes de renseignements ne sont PAS déposées auprès de la Commission. Les participants devraient déposer en preuve uniquement les réponses aux demandes de renseignements auxquelles ils entendent faire référence;
  3. Lorsque les participants déposent des documents auprès de la Commission, les renseignements confidentiels et hautement confidentiels doivent être surlignés en jaune et bleu, respectivement. La page titre du document doit indiquer si le document contient des renseignements confidentiels ou hautement confidentiels.

Attachment : Online Music Service (2010-2013) - Directive on procedure and Appendices new2.pdf


December 14, 2012up arrow

NOTICE OF THE BOARD

On December 4, 2012, the Board ruled that "[t]he royalties payable by Sirius XM for its Internet activities shall not be set during the forthcoming hearings dealing with proposed SOCAN Tariff 22.A. Those royalties shall be set in the context of future proceedings, if necessary." This Ruling is attached.

No later than Friday, December 21, 2012, SOCAN and CSI shall indicate whether they agree that the attached, December 12, 2012 application of NCRA/ARC to the same effect should be disposed of in the same way and if not, why not. NCRA/ARC may reply no later than Friday, January 11, 2013.


December 7, 2012up arrow

NOTICE OF THE BOARD

[la version française suit l'anglaise]

NOTICE OF THE BOARD

SOCAN intends to ask that the Board deal with the impact of the coming into force of the making available right on its proposed tariffs. (See attached email) Specifically, SOCAN wishes the Board to rule on the interface between the making available right and ESA v. SOCAN [2012 SCC 34] and companion cases.

In a nutshell, SOCAN is of the view that the making available right renders moot the conclusion that the communication right does not apply to downloads of musical works. Without doubt, some users will take issue with that view.

The issue is properly before the Board as a necessary incident to the exercise of its core competence. It is not possible to set SOCAN Tariff 22.A (Online Music Services) without deciding the extent, if any, to which the enactment of subsection 2.4(1.1) of the Copyright Act and other companion amendments may "revive" SOCAN's ability to collect royalties for the transmission of permanent copies of musical works.

The issue certainly is not limited to a single SOCAN tariff, and probably not limited to SOCAN itself. Any decision the Board may render on the meaning of the making available right with respect to musical works will have some impact on the interpretation of the same right with respect to other works, performances and recordings, especially if the Board's decision is judicially reviewed.

The Board's preliminary views on the issue are as follows.

First, the interpretation of the making available right essentially raises purely legal issues that require little (or preferably, no) discovery or presentation of new evidence.

Second, the issue would be best approached through a separate proceeding during which all those who may be affected by a decision of the Board may have an opportunity to make their views known.

Third, the examination of the issue should not change anything to the timetable of other proceedings, other than to carve out the interpretation of the making available right as an issue to be examined in those proceedings.

Fourth, it should be possible to deal with the issue through written submissions. Collectives would be allowed four weeks to file their legal arguments. Objectors would respond within four weeks and collectives would be allowed two weeks to reply. Accordingly, all pleadings would be filed before the end of March 2013. The possibility of oral arguments should be entertained only after the collectives' replies have been filed.

Fifth, the following parties appear to be directly or indirectly concerned by the issue:

  • any collective that may, now or later, act for those whose works, performances or recordings may be made available in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public;
  • any objector who may make available a work, performance or recording in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public, including objectors to SOCAN tariffs 17 (Transmission of Pay, Specialty and other Television Services by Distribution Undertakings), 22.A (Online Music Services), G (User Generated Content), H (Game Sites) and I (Other Sites) as well as all other SOCAN 22 tariffs, to the extent that these are currently user-based, 23 (Hotel and Motel In-room Services), 24 (Ringtones and Ringbacks) and 25 (Satellite Radio Services).

Recipients of this notice are asked to inform the Board no later than Friday, December 21, 2012, of the following:

  1. whether they consider themselves to be affected by the issues to be determined and if so, how;
  2. whether they intend to participate in this proceedings;
  3. to the extent possible, their preliminary views on the issues to be determined; and
  4. any comments they may have on whether the issues to be determined should be addressed as proposed in this notice.

Responses to the comments of others should be received no later than Friday, January 11, 2013.

**************************************************************************

AVIS DE LA COMMISSION

La SOCAN compte demander à la Commission de traiter de l'impact de l'entrée en vigueur du droit de mise à disposition sur ses projets de tarifs. (Voir courriel ci-joint) Plus précisément, la SOCAN désire que la Commission se prononce sur le rapport entre le droit de mise à disposition et l'arrêt ESA c. SOCAN [2012 CSC 34] et les décisions connexes.

Essentiellement, la SOCAN soutient que le droit de mise à disposition rend caduque la conclusion voulant que le droit de communication ne concerne pas le téléchargement d'œuvres musicales. Il ne fait aucun doute que certains utilisateurs ne partagent pas ce point de vue.

La Commission est saisie de la question à titre d'incident nécessaire à l'exercice de sa compétence essentielle. On ne peut homologuer le tarif 22.A (Services de musique en ligne) de la SOCAN sans décider si, et dans quelle mesure, l'adoption du paragraphe 2.4(1.1) de la Loi sur le droit d'auteur et d'autres modifications connexes font en sorte que la SOCAN peut à nouveau percevoir des redevances pour la transmission de copies permanentes d'œuvres musicales.

La question ne se soulève certainement pas à l'égard d'un seul tarif de la SOCAN, et concerne sans doute d'autres sociétés de gestion. La décision que la Commission pourrait rendre sur le sens du droit de mise à disposition à l'égard des œuvres musicales influera sur l'interprétation du même droit à l'égard des autres œuvres, des prestations et des enregistrements, surtout si cette décision fait l'objet d'une demande de révision judiciaire.

Le point de vue préliminaire de la Commission sur la question est le suivant.

Premièrement, l'interprétation du droit de mise à disposition soulève essentiellement des questions purement juridiques nécessitant peu (ou, encore mieux, pas) de communication préalable ou de présentation de preuve.

Deuxièmement, la question bénéficierait d'être abordée dans le cadre d'un processus distinct durant lequel tous ceux qu'une décision de la Commission pourrait affecter auront l'occasion de faire valoir leurs moyens.

Troisièmement, l'examen de la question ne devrait rien changer à l'échéancier d'autres affaires, sinon que de retirer l'interprétation du droit de mise à disposition comme question devant être examinée dans ces affaires.

Quatrièmement, il devrait être possible de traiter de la question au moyen d'échanges écrits. Les sociétés de gestion devraient disposer de quatre semaines pour faire valoir leur point de vue. Les opposants répondraient quatre semaines plus tard, puis les sociétés de gestion répliqueraient au bout de deux semaines. Par conséquent, toutes les plaidoiries seraient produites avant la fin mars 2013. Une argumentation orale ne serait pas envisagée avant le dépôt des répliques des sociétés de gestion.

Cinquièmement, les personnes suivantes semblent concernées, directement ou non, par la question :

  • les sociétés de gestion qui agissent ou qui pourraient plus tard agir pour le compte des titulaires dont les œuvres, les prestations ou les enregistrements pourraient être mis à la disposition de manière que chacun puisse y avoir accès de l'endroit et au moment qu'il choisit individuellement;
  • les opposants qui pourraient mettre à la disposition du public une œuvre, une prestation ou un enregistrement de manière que chacun puisse y avoir accès de l'endroit et au moment qu'il choisit individuellement, y compris les opposants aux tarifs suivants de la SOCAN : 17 (Transmission de services de télévision payante, services spécialisés et autres services de télévision par des entreprises de distribution), 22.A (Services de musique en ligne), G (Contenu généré par utilisateurs), H (Sites de jeux) et I (Autres sites) ainsi que les autres aspects du tarif 22, dans la mesure où en ce moment ils visent un utilisateur, 23 (Services offerts dans les chambres d'hôtel et de motel), 24 (Sonneries et sonneries d'attente) et 25 (Services de radio par satellite).

Les destinataires du présent avis sont priés d'informer la Commission, au plus tard le vendredi, 21 décembre 2012, de leur point de vue sur ce qui suit :

  1. s'ils se croient visés par les questions à trancher et si oui, comment;
  2. s'ils entendent participer à la présente affaire;
  3. dans la mesure possible, leur point de vue préliminaire sur les questions à trancher;
  4. si les questions à trancher devraient être abordées comme le propose le présent avis.

On pourra répondre aux commentaires des autres destinataires au plus tard le vendredi, 11 janvier 2013.

Attachment : Making Available Right - SOCAN.pdf


December 4, 2012up arrow

RULING OF THE BOARD

On November 18, 2012, the parties to the above-referenced proceedings filed with the Board a proposed schedule. On November 23, the Board sent a copy of the proposed schedule to Sirius XM, who had not apparently received copy of the proposed schedule.

On November 26, Sirius XM moved that "the Board issue a clear statement that proposed Tariff 22.A does not apply to Sirius XM and, therefore, that Sirius XM shall no longer be required to participate in this proceeding." In the alternative, Sirius XM asked that the Board decline to set the schedule until all parties have an opportunity to negotiate a reasonable timeline for the remaining steps. Its reasons for so doing were as follows. First, Sirius XM was not involved in designing the schedule. Second, the use-based language in proposed Tariff 22 makes it impossible for Sirius XM to determine whether Tariff 22.A [Online Music Services] applies to its Internet radio offering, which Sirius XM considers to be purely ancillary to its satellite radio offering. Sirius XM favours the "current predictable, user-based tariff structure" that allows it to pay Internet royalties pursuant to Tariff 22.D [Commercial Television, Non-Broadcast Television, Pay Audio Services, Satellite Radio] and nothing else. This approach avoids Sirius XM having to participate in multiple proceedings to determine the royalties it must pay to SOCAN.

SOCAN takes issue with the applicant's description of the sequence of events, asks that the application be dismissed but is willing to accommodate Sirius XM on the time allowed to it to deal with interrogatories.

The application of Sirius XM came as somewhat of a surprise. The parties should be close to an agreement, since they moved that satellite radio tariffs hearings be postponed sine die. One would expect such an agreement to address all possible forms of royalty liability on the part of Sirius XM. Yet the motion has been filed, and the Board must deal with it.

The Board will not allow the particular situation of Sirius XM to derail the schedule in the above-referenced proceedings.

The declaration that Sirius XM is asking would require the Board to dismiss at the outset SOCAN's proposed use-based language in favour of user-based tariffs. This is not possible. Whether Internet tariffs should be use-based or user-based, either as a rule or on in the case of Sirius XM, is far from settled, as the Board made clear in the inaugural Tariff 22.B-G:

  • [7] Our decision to certify a user-based Internet tariff is not to be taken as the approach that we will use for all tariffs in the future. We expect that the relative importance of websites in the overall business strategy of some music users will increase; in time, websites will become for some an independent, significant source of revenue. Existing monitoring tools, that already allow a precise assessment of music consumption, will be further refined; better, cheaper tools will be developed. We will reexamine this issue in the future. As other developments occur, a use-based approach may prove to be more appropriate. [SOCAN - Tariffs 22.B to 22.G (1996-2006) Internet - Other Uses of Music (24 October 2008) Copyright Board Decision]

Whether the Internet activities of Sirius XM remain ancillary to its satellite transmissions cannot be settled without some evidentiary basis, especially since full access to its Internet offerings now commands a premium of 25 per cent over the cost of the basic service.

Sirius XM asks that all its royalties be certified following a single proceeding. This is reasonable. In this instance, the best way to do so is to issue a ruling similar to the one the Board issued on May 14, 2012 in another proceeding, at the request of the Canadian Association of Broadcasters.

The royalties payable by Sirius XM for its Internet activities shall not be set during the forthcoming hearings dealing with proposed SOCAN Tariff 22.A. Those royalties shall be set in the context of future proceedings, if necessary. SOCAN may then, if it so wishes, argue that the Internet activities of Sirius XM should be use-based, while Sirius XM may argue that it should be subject to a single, user-based tariff.

Sirius XM shall continue to pay interim royalties pursuant to SOCAN Tariff 22.D for the years 1996 to 2006 until the Board certifies a final tariff for the Internet transmissions of Sirius XM, unless the Board decides otherwise in an interim decision.


December 4, 2012up arrow

RULING OF THE BOARD

The Board adopts the following schedule of proceedings with respect to the above-mentioned file, leading to a hearing beginning Tuesday, November 19, 2013:

Exchange of interrogatories: no later than Friday, December 7, 2012

Objections to interrogatories: no later than Friday, December 21, 2012

Filing, with the Board, of replies to objections to interrogatories: no later than Tuesday, January 15, 2013

[Board Ruling]

Responses to interrogatories: no later than Friday, March 15, 2013

Exchange of motions re: incomplete/unsatisfactory responses to interrogatories: no later than Thursday, March 28, 2013

Filing, with the Board, of replies to motions: no later than Friday, April 12, 2013

[Board Ruling]

Complete/satisfactory responses to interrogatories: no later than Friday, May 17, 2013

Filing of CSI, SOCAN and SODRAC statements of Case: no later than Friday, July 19, 2013

Filing of Objectors' Case: no later than Friday, October 4, 2013

Filing of CSI, SOCAN and SODRAC reply statements of case: no later than Friday, November 1, 2013

Filing of legal briefs (if required by the Board)

Beginning of hearing: Tuesday, November 19, 2013 at 10:00 a.m., Copyright Board's hearing room.

The Directive on Procedure will follow shortly.


November 29, 2012up arrow

NOTICE OF THE BOARD

Please be informed that the Board will soon provide an indication as to how it intends to deal with the issue of the making available right within the context of SOCAN 22 and other proposed tariffs.


November 28, 2012up arrow

NOTICE OF THE BOARD

In your letter of November 26, 2012, you request confirmation of CRIA's right to file any written submissions related to the above-referenced file. This confirmation is unnecessary, given the wording of the Model Directive on Procedure which states, at section A.2, that:

"Anyone may comment in writing on any aspect of the proceedings. As a general rule, comments received later than the date by which participants must present or file oral or written arguments, will not be considered. In due course, the Board will forward these comments to participants."


November 28, 2012up arrow

NOTICE OF THE BOARD

Given Google's reply reproduced below, its request for leave to intervene in the above-referenced matter is granted.

Dear Mr. McDougall,

The period for commenting on Google's request for leave to intervene in the above-reference proceeding has now passed and Google has been copied on comments from CSI, SODRAC and SOCAN. None of the collectives oppose Google's request.

Both CSI's and SOCAN's consent was conditional on Google being subject to the same obligations as other objectors, particularly with respect to the requirement to respond to interrogatories. SODRAC agreed with CSI.

Google is well aware that the Board's usual practice is to grant to interveners the same rights as are granted to parties and to impose on interveners the same obligations as are imposed on parties. Google has not asked the Board to deviate from its usual practice in this case.

Google understands that, if its request for leave to intervene is granted, it will be required to respond to interrogatories according to the schedule that is set by the Board.

Please do not hesitate to contact the undersigned if you have any questions.

Regards,

Jay Kerr-Wilson
Counsel to Google Inc.


November 27, 2012up arrow

NOTICE OF THE BOARD

SOCAN shall respond to the attached Sirius' request by no later than Thursday, November 29, 2012. Sirius shall reply by no later than Monday, December 3, 2012.

Attachment: DOCS-#12001726-v1-Sirius XM Final Submission to Copyright Board Nov 26, 2012 3 .pdf


November 26, 2012up arrow

NOTICE OF THE BOARD

The following timetable, which the parties submitted, shall govern the exchange of information and arguments concerning the tariffs' administrative provisions.

1) Access Copyright shall file its comments on the draft administrative provisions no later than Friday, January 18, 2013. More specifically, Access shall state whether it is content with the wording and administrative provisions as gazetted or whether it proposes certain changes. It shall set out why Access wants the tariff to be worded as it proposes (purpose of every provision). It shall address the wording and administrative issues already raised by the objectors, and especially those raised in paragraphs 23 to 33 of Exhibit BC-1. It will finally indicate, with explanation, the transitional provisions Access wants to be included in the tariff.

2) The Objectors shall respond no later than Friday, March 29, 2013. The Objectors will explain what they accept and what they do not; where appropriate, they will propose alternative solutions. British Columbia is free to discuss in more detail the issues raised in paragraphs 23 to 33 of Exhibit BC-1.

3) Access Copyright shall reply to the Objectors' comments no later than Friday, April 26, 2013.


November 23, 2012up arrow

NOTICE OF THE BOARD

Parties can respond to the attached Google's request for leave to intervene by no later than Tuesday, November 27, 2012. Google can reply no later than Thursday, November 29, 2012.

Attachment: DM_OTT-#110076-v1-Letter to Copyright Board Nov 201 2012 on behalf of Google.pdf


November 23, 2012up arrow

NOTICE OF THE BOARD

As an objector to SOCAN Tariff 22.A for 2013, Sirius is asked to indicate no later than Monday, November 26, 2012 whether it would agree with the attached proposed schedule, agreed upon by the other parties.

Attachment: 12-11-18 LETTER TO Gilles McDougall re scheduling of Online Music Services proceedings (2011-2013).pdf


July 26, 2012up arrow

NOTICE OF THE BOARD

The scheduling of the hearing for the 2011-2013 tariffs is suspended until the Board settles the question of how the 2007 to 2010 decision will proceed.


July 20, 2012up arrow

ORDER OF THE BOARD

The decisions the Supreme Court of Canada issued on July 12, 2012 (the "Decisions") require that the Board modify, sometimes significantly, the tariff and reasons it was soon to release in the above-referenced matter. In particular, the Board is of the preliminary view that SOCAN is no longer entitled to a tariff for permanent downloads or limited downloads and that listening to previews constitutes fair dealing for the purpose of research in 2007-2010 just as it did in 1996-2006. Some other adjustments might also be necessary.

The Board is considering three ways to deal with the consequences of the Decisions on the above-referenced matter.

1) The Board can proceed to adjust the reasons and tariffs without further input from the parties. The resulting decision may account somewhat imprecisely for the longer-term impact of the Decisions, but it could be issued fairly rapidly. The Board would then proceed without delay with the examination of the tariffs for the years 2011 and following, at which time the full impact of the Decisions would be accounted for.

2) The Board can seek further input from the parties. This may take the form of arguments only, or may require some additional evidence. The Board would then render its decision based on the existing record and on the additional input of the parties. This would allow the Board to better account for the impact of the Decisions. It would also postpone the final decision by several months.

3) The Board can fully re-open the matter and join it with the examination of the tariffs for the years 2011 and following. The full impact of the Decisions would be accounted for. This approach would require a new evidence-gathering process (including interrogatories). A decision would not likely be issued until the end of 2013.

Approach number 3 presents a procedural hurdle. The member of the panel currently seized of the above-referenced matter who is no longer a member of the Board cannot deal with the tariffs for the years 2011 and following. However, with the unanimous consent of the parties, it should be possible to remit the matter for 2007-2010 to a panel of current members, to join that matter with the tariffs for the years 2011 and following and to treat the record for 2007-2010 as part of the record of the joint proceedings.

The Board favors option 1.

Parties are invited to communicate to the Board their views on all these issues no later than on Friday, August 3, 2012. Parties will be allowed to respond to the view of others no later than on Friday, August 17, 2012.


July 11, 2012up arrow

NOTICE OF THE BOARD

The June 21, 2012 application of CSI is denied, essentially for the reason that the parties cannot adequately prepare for the 2011-2013 proceeding without reading the Board's forthcoming decision for 2007-2010. That decision should be issued before Labour Day. Since the 2011-2013 proceeding will not be a matter of first impression, eight months is sufficient to prepare for a hearing. Consequently, parties are asked to discuss a possible timetable that would begin with Interrogatories being exchanged in September, 2012 and end with a hearing starting no later than June 18, 2013.


June 21, 2012up arrow

NOTICE OF THE BOARD

The objectors in the above-mentioned file are asked to file their response to the attached CSI's request (supported by SOCAN and SODRAC) by no later than Tuesday, June 26, 2012. The collectives may reply by no later than Friday, June 29, 2012.

Attachment: 12-06-21 Letter to Gilles McDougall re scheduling of Online tariff proceeding.pdf


May 27, 2011up arrow

Please note that the following ruling has been rendered by the Board on Thursday, May 26, 2011, in English only. It is being resent in both official languages.

Veuillez noter que l'ordonnance qui suit a été rendue par la Commission le jeudi 26 mai 2011, en anglais seulement. Elle est maintenant renvoyée dans les deux langues officielles. 

[Le texte français suit l'anglais]

RULING OF THE BOARD

The examination of the proposed Online Music Services Tariffs of CSI and SOCAN for the years 2011 and 2012 as well as of the proposed SODRAC Tariff 6 (Online Music Services - Music Videos) for 2010-2012 are merged. The process will be triggered as soon as the CSI Online Music Services Tariff (2008-2010) and SOCAN Tariff 22.A (2007-2010) are certified.

__________________________________

ORDONNANCE DE LA COMMISSION

L'examen des projets de tarifs de CSI et de la SOCAN à l'égard des services de musique en ligne pour les années 2011 et 2012, de même que celui du projet de tarif 6 (Services de musique en ligne - Vidéos de musique) de la SODRAC pour les années 2010 à 2012 sont fusionnés. Le processus sera enclenché dès que les tarifs de CSI (2008-2010) et de la SOCAN (2007-2010) à l'égard des services de musique en ligne seront homologués.


May 26, 2011up arrow

RULING OF THE BOARD

The examination of the proposed Online Music Services Tariffs of CSI and SOCAN for the years 2011 and 2012 as well as of the proposed SODRAC Tariff 6 (Online Music Services - Music Videos) for 2010-2012 are merged. The process will be triggered as soon as the CSI Online Music Services Tariff (2008-2010) and SOCAN Tariff 22.A (2007-2010) are certified.


May 4, 2011up arrow

NOTICE OF THE BOARD

In its Ruling of April 29, 2011 (attached for convenience) [See April 29, 2011 ruling entry below], the Board invited comments on its preliminary view that the examination of proposed tariffs SODRAC 6, SOCAN 22.A and CSI Online Music Services should all proceed according to the same schedule. The Board does not wish to receive any comment on the possible examination of proposed Re:Sound tariffs 8.A and 8.B at the same time, since the Board intends to proceed as per its ruling of January 26, 2011 (also attached) [see January 26, 2011 entry in the file Re:Sound 8.A and 8.B] and hear the matter independently.

With respect to proposed Re:Sound tariffs 8.A and 8.B, parties are reminded that the Board asked them on January 26, 2011 to submit a mutually acceptable schedule of proceedings. Since no proposal has been made yet, the Board sets as Friday, May 27, 2011, the date by which parties may submit such a proposed schedule. After that date, the Board will proceed to set the schedule without the benefit of the parties' point of view.


April 29, 2011up arrow

RULING OF THE BOARD

On February 24, 2011, CSI asked that the Board set in motion the process leading to the examination and certification of its proposed Online Music Services Tariffs for 2011 and 2012 without waiting for the Board to certify the corresponding tariff for 2008-2010, a matter currently under advisement. The application is denied.

However, the Board is of the preliminary view that the examination of the proposed Online Music Services Tariffs of CSI and SOCAN should again be merged for the years 2011 and 2012. The Board is also of the preliminary view that the examination of the proposed SODRAC Tariff 6 (Online Music Services - Music Videos) for 2010-2012 should proceed at the same time. This process should be triggered as soon as the CSI Online Music Services Tariff (2008-2010) and SOCAN Tariff 22.A (2007-2010) are certified.

Parties are asked to comment on the Board's preliminary view by no later than Friday, May 20, 2011.


April 29, 2011

RULING OF THE BOARD

On January 25, 2011, SOCAN asked that the Board set in motion the process leading to the examination and certification of its proposed tariffs 22.D (Audiovisual Webcasts) and G (User Generated Content) for the year 2011, along with the corresponding proposed tariffs for the years 2007 to 2010, which SOCAN identified as items 22.4 (Audiovisual Webcasts) for 2007-2008 and 22.D (Audiovisual Webcasts) for 2009-1010. SOCAN also proposed a schedule of proceedings leading to such a hearing.

The application generated a significant number of comments and proposals. Some asked that all SOCAN Internet tariffs be heard at the same time. Some suggested that Re:Sound's Internet tariffs be examined with SOCAN's. Others asked that specific tariff items of interest to them be examined separately. SOCAN and Re:Sound opposed any widening of the issues. Many asked that the process not be set in motion until the Board has certified the CSI and SOCAN Online Music Services tariffs that are currently under advisement.

The motion is granted in part. The examination of proposed SOCAN tariffs 22.D and G (2011) will proceed jointly, but only to the extent that they target the use of musical works in non-simulcast, audio-visual transmissions other than video games. The examination of proposed SOCAN tariffs 22.4 (2007-2008) and 22.D (2009-2010) will proceed at the same time. So will the examination of proposed SOCAN tariffs 22.7 (Other Sites, 2007-2008) and 22.G (Other Sites, 2009-2010), to the extent that they target user generated content as described in proposed SOCAN tariff 22.G (2011).

The reasons to so proceed are as follows:

Non-simulcast, audio-visual transmissions are prima facie sufficiently distinct from other forms of music offerings over the Internet to deserve separate examination. Audio-visual offerings probably dominate music uses targeted in proposed tariff 22.G for 2011; postponing the examination of audio-only user generated content will allow the Board to focus on the lion's share of that activity. As for simulcast uses of music, they generally are so strongly associated to a principal use that they should be examined at the same time as that principal use.

Video games are non-simulcast, audio-visual transmissions. However, since neither SOCAN nor the relevant objectors wish this item to be examined with tariffs 22.D and G, there is no need to consider the issue.

Focussing on audio-visual products restricts the number of objectors: hence, those who only supply audio transmissions need not participate. It also makes it moot to decide whether to examine any corresponding Re:Sound or CSI proposed tariffs at the same time, since such tariffs do not exist.

Merging the examination of all Internet tariffs would create more problems than it would solve. To do so would make no more sense than, for example, merging the examination of all tariff items dealing with the use of music by all radio and television services. Contrary to what some objectors argued, it is quite possible to migrate from user-based to use-based tariffs without examining all Internet tariffs in a single hearing. Currently, both types of tariffs coexist; tariff 22.A (Online Music Services) is use-based while all other tariff 22 items are user-based. Any transition issues created by moving from one type of tariff to the other can be addressed through proper tariff wording.

There is no need to postpone the examination of these tariff items until the Board certifies the SOCAN and CSI Online Music Services tariffs, currently under advisement. The issues raised by audio-visual transmissions probably are sufficiently different to warrant separate consideration. There will be plenty of time for the parties to adjust their approach once the decision under advisement is rendered, if they so wish. However, since the schedule SOCAN proposed is now moot, the Board asks the parties to present a new scheduling proposal, preferably jointly, by no later than Friday, May 27, 2011.

SOCAN identified the proposed tariffs that should be examined together as tariff 22.4 (Audiovisual Webcasts) for 2007-2008, tariff 22.D (Audiovisual Webcasts) for 2009-1010 and tariffs 22.D (Audiovisual Webcasts) and 22.G (User Generated Content) for 2011. Out of an abundance of caution, the examination of proposed SOCAN tariffs 22.7 (Other Sites, 2007-2008) and 22.G (Other Sites, 2009-2010) will also be joined to these proceedings, to the extent that they target user generated content as described in proposed SOCAN tariff 22.G (2011).



Private Copying (2015-2016)


June 11, 2014up arrow

NOTICE OF THE BOARD

Further to CPCC’s May 23, 2014 request, please find attached an Order of the Board in today’s date.

Attachment: Private Copying 2015-2016 – Order of the Board 2014 06 11.pdf


May 27, 2014up arrow

NOTICE OF THE BOARD

The Board acknowledges receipt of CPCC’s Statement of Case with its accompanying letter requesting the confidential treatment of Exhibits CPCC-1 and CPCC-3 (including Appendix C) pursuant to Rule 8 of the Directive on Procedure. We also acknowledge the receipt of Mr. Knopf’s comments with respect to CPCC’s request for confidential treatment and not having been served CPCC’s Statement of Case in a timely manner.

Mr. Knopf requested time to respond to CPCC’s aforementioned letter. This request is granted.

The Objectors can respond to CPCC’s letter no later than Monday, June 2, 2014.

CPCC can provide its reply no later than Friday, June 6, 2014.


May 22, 2014up arrow

RULING OF THE BOARD

Following CPCC’s May 16, 2014 request for the issuance of a confidentiality order, the Board issues the attached Order dealing with information for which confidential treatment may be claimed.

DECISION

These reasons are based on CPCC’s request of May 16, 2014 and the response from RCC of May 20, 2014. The reply submitted by CPCC on May 21, 2014 is not addressed since it was not asked for by the Board nor leave was sought by CPCC to file a reply.

RCC opposed the request on different grounds. First, RCC argues that CPCC is asking for the adaptation of a procedure regarding the use of confidential material that only makes sense at the beginning of a hearing process in order to deal with answers to interrogatories, without any apparent thought to appropriate changes. Second, RCC suggests that CPCC waited too long to raise the issue of confidentiality. RCC also raised the fact that CPCC did not even disclose the nature of the documents it wants to treat as confidential.

We are not convinced by RCC’s first argument. In the present proceeding, it was agreed that no interrogatories would be required given the very limited nature of the issues to be decided. This was done in an effort to minimize costs and expedite the matter. It would be completely counterintuitive to now hold that no confidentiality order may be issued since this is normally done prior to the exchange of information through the interrogatories process. The issuance of a confidentiality order is about protecting information that is deemed confidential, regardless by which procedural step such information is made part of the record. The shortened procedure, where appropriate, should be encouraged, not discouraged by removing or impeding the mechanism put in place to protect confidential information that is relevant and helpful for the determination of the issue before the Board.

With respect to RCC’s argument about the timing of the request, although CPCC could have made its request at an earlier time, the issuance of confidentiality orders are issued by the Board as a matter of course in virtually all proceedings and it was not unreasonable for CPCC to expect the same in this instance. Specifically, and as RCC acknowledges in its May 20 submissions, the Board has issued confidential orders in the context of previous private copying proceedings, to address confidentiality issues which are likely to be similar in this proceeding.

The submissions from RCC dealing with the nature of the documents CPCC wishes to designate confidential are premature. This is a request to obtain a confidentiality order, not a dispute over whether particular documents were properly designated as confidential or highly confidential. The Board, as a matter of efficiency and practicality, does not consider all potential documents intended to be designated as confidential by the parties prior to issuing a confidentiality order. The Board will only intervene afterwards as provided for in the Directive on Procedure issued on April 2, 2014.

Attachment: Private copying 2015-2016 – Confidentiality Order.pdf


May 20, 2014up arrow

NOTICE OF THE BOARD

Mr. Knopf’s request to comment on CPCC’s request for a Confidentiality Order is granted.

The RCC shall file its comments no later than today, Tuesday, May 20, 2014 at 6:00 PM.


April 2, 2014up arrow

NOTICE OF THE BOARD

Further to the Board's Order of March 26, 2014, attached is the Directive on Procedure.

Attachment: Private copying (2015-2016) - Directive on Procedure and Appendix.pdf


March 26, 2014up arrow

ORDER OF THE BOARD

Further to agreement of the parties, the Board adopts the following schedule of proceedings with respect to the above-mentioned file.

Filing of CPCC's Statement of Case: no later than Friday, May 23, 2014

Possible questions (in writing) to CPCC from the Board: to be determined by the Board

Filing of CPCC's answers to the Board's questions (if applicable): to be determined by the Board

Filing of Objectors' Statement of Cases: no later than Friday, July 25, 2014

Filing of CPCC's Reply Case: no later than Friday, August 8, 2014

Filing of written representations (if required by the Board): no later than Friday, August 22, 2014

Filing of short replies to written representations (if applicable): no later than Friday, September 5, 2014

The Board will determine at a later date the manner in which the hearing will proceed.

Mr. Knopf's request regarding the filing of reports in their entirety is premature and therefore denied at this stage. The Board may order the production of reports after the parties' Statements of Case have been filed, if necessary.


March 17, 2014up arrow

NOTICE OF THE BOARD

The Retail Council of Canada's (RCC) request described below is granted. The RCC can provide comments on the attached proposed schedule in the file mentioned above no later than Monday, March 24, 2014. CPCC can reply to these comments no later than Friday, March 28, 2014.

De : Howard Knopf
Envoyé : 17 mars 2014 11:25
À : Claude Brunet; McDougall, Gilles: CB-CDA; Madeleine Lamothe-Samson; S. Maguire
Objet : Re: Private Copying Tariffs - 2015-2016

Dear Mr. McDougall:

I had hoped to provide comments on CPCC's suggested approach and timetable set forth in its communication of February 28, 2014 by today, which is the date set forth in the Board's email of March 5, 2014. However, the instructing Senior VP of my client has been away and out of contact for much if not most of the intervening time.

He is now back and I should be able to respond by the original date that I had asked for, namely Monday, March 24, 2014, which is the date I had proposed in my email of March 3, 2014.

I cannot see how this brief delay can possibly prejudice CPCC or cause any inconvenience to the Board.

I would ask for your confirmation that I will have until Monday, March 24, 2014 to respond to CPCC's submissions of February 28, 2014.

Yours sincerely,

Howard Knopf
Counsel to RCC


March 5, 2014up arrow

NOTICE OF THE BOARD

The Objectors are asked to provide comments on the attached CPCC?s proposed schedule in the file mentioned above no later than Monday, March 17, 2014. CPCC can reply to these comments no later than Friday, March 21, 2014.

Attachment: 1) v1-L-McDougall 02232014.pdf; 2) Proposed schedule 2015-2016 Tariff proceeding.pdf


December 6, 2013up arrow

NOTICE OF THE BOARD

The Statement of Proposed Levies to Be Collected by CPCC on the Sale, in Canada, of Blank Audio Recording Media for the Years 2015 and 2016 will be published in the Canada Gazette tomorrow, December 7, 2013. The proposed tariff is now posted on our Web Site (www.cb-cda.gc.ca), under the heading "What's New - Proposed Tariffs for 2015".

The deadline for objecting to the tariff proposal is Wednesday, February 5, 2014.



Educational Rights (2012-2016)


December 19, 2013up arrow

NOTICE OF THE BOARD

The Copyright Board of Canada has rendered its decision (Application to Vary: Eliminating the years 2014 to 2016 of the tariff) on the Educational Rights Tariff 2012-2016 further to an application by Educational Rights Collective of Canada (ERCC) to review and vary the tariff approved by the Board on December 24, 2011.

Please find enclosed a copy of the decision. It is posted on the Board's web site today under the heading "What's New - Recent Decisions" at http://www.cb-cda.gc.ca/home-accueil-e.html.

Attachment: ERCC 2012-2016 - Application to vary.pdf

December 23, 2011up arrow

NOTICE OF THE BOARD

The Copyright Board of Canada has rendered its decision on Educational Rights 2012-2016.

Please find enclosed a copy of the decision. It will be posted on the Board's web site today under the heading "What's New - Recent Decisions" at http://www.cb-cda.gc.ca/home-accueil-e.html, along with the certified tariff as published in the Canada Gazette dated December 24, 2011.

Attachment: ERCC Decision NEW 2011 (2012-2016).pdf


July 18, 2011up arrow

NOTICE OF THE BOARD

Mr. Grant, pursuant to subsection 68(1) of the Copyright Act, I wish to inform you that the Copyright Board of Canada has not received any objections to ERCC's Educational Rights Tariff, 2012-2016 which was published in the Canada Gazette on May 14, 2011. Objections were to be filed by July 13, 2011 and, to date, none have been received.


May 9, 2011up arrow

NOTICE OF THE BOARD

Mr. Grant, for your information, the Statement of Proposed Royalties to be collected by ERCC for the years 2012-2016 is scheduled to be published in the Canada Gazette this Saturday, May 14, 2011. As usual, the link to the proposed tariff will be posted on the Friday, by the end of the day, on our Web Site under the heading "What's New".



Commercial Radio - SOCAN 1.A (2011-2013); Re:Sound (2012-2014); CSI (2012-2013); AVLA/SOPROQ (2012-2017); ARTISTI (2012-2014);


March 6, 2014up arrow

NOTICE OF THE BOARD

At paragraphs 161 to 164 of its February 14 written submissions, AVLA/SOPROQ and CSI raised an issue with respect to AVLA/SOPROQ low income rates. In its February 26, 2014 reply submissions, CAB mentioned that the issue was not previously raised in this proceeding and not directly related to any other pre-existing issues. CAB requested that the Board defer determination on this issue until it has provided CAB and other parties with sufficient time to respond.

CAB is asked to respond to the issue raised by AVLA/SOPROQ and CSI no later than Friday, March 14, 2014. AVLA/SOPROQ and CSI may reply no later than Friday, March 21, 2014.


March 6, 2014up arrow

NOTICE OF THE BOARD

Towards the end of the hearing on Tuesday, March 4, 2014, Member Majeau put a question to Mr. Chisick regarding the appropriateness of certifying a tariff structure where users could benefit from discounts under certain conditions. As examples, reference was made to SOCAN Tariffs 22.B-G and the SODRAC/CBC licence resulting from an arbitration proceeding before the Board.

At the end of the exchange, it was mentioned that the Board would issue a Notice seeking further clarification on the issue from the parties.

Upon further review of the transcripts, the Board considers that the parties' submissions are sufficient and that there is no need for further submissions for the time being.


February 18, 2014up arrow

NOTICE OF THE BOARD

Parties are asked to provide answers to the attached Board's questions by no later than Friday, February 28, 2014.

Attachment: Questions from the Board - Commercial Radio - Feb. 18, 2014.pdf


February 12, 2014up arrow

NOTICE OF THE BOARD

De : Cotter, John
Envoyé : 12 février 2014 14:36
À : McDougall, Gilles: CB-CDA
Cc : David Kent; Gabriel Van Loon; kathleen simmons; Chisick, Casey; Henein, Peter; Colette Matteau; Watt, Lynne; Estabrooks, Matthew; Annie Morin; Fong, Barry; Seto, Chi
Objet : Commercial Radio: SOCAN 1.A (2011-2013); Re:Sound (2012-2014); CSI (2012-2013); AVLA-SOPROQ (2012-2017); ARTISTI (2012-2014)

Mr. MacDougall,

I am writing on behalf of all counsel regarding two details associated with the filing of the written submissions.

Compendia

The initial proposal of counsel to the Board, which was approved in the Board's December 4th Notice, dealt with the timing of the filing of compendia as follows:

"On consent of all parties, we would propose to file the written submissions and compendia of evidence (extracts, not full exhibits, to be referred to in oral argument) no later than noon on Monday, January 27, 2014, with reply submissions and supplementary compendia to be filed no later than end of day on Wednesday, February 5, 2014."

Rather than having each party file two compendia, one with the initial submissions (now due on February 14th) and a supplementary one with the reply submissions (now due on February 26th), counsel are proposing that each party simply file one compendium and that it be filed with the reply written submissions.

Joint Book of Authorities

The initial proposal of counsel to the Board, which was approved in the Board's December 4th Notice, dealt with the joint book of authorities as follows, without any reference to timing:

"Counsel have also agreed to cooperate to prepare a joint book of authorities, to avoid the inevitable duplication as we all refer to the same Board decisions and key cases, and to prepare compendia of evidence (extracts, not full exhibits) to be referred to in oral argument. With the Board's consent, we would propose to file the joint book of authorities in electronic form [on CDs or on USB sticks, according to the Board's preference] and to insert only the pinpoint references in our compendia."

Counsel are proposing that the joint book of authorities also be filed with the reply written submissions.

We respectfully request that the Board approve the above proposals.

John Cotter


January 23, 2014up arrow

NOTICE OF THE BOARD

The Board confirms that the files mentioned above will proceed as follows, and as agreed between the parties:

Commercial Radio: SOCAN (2012-2013); Re:Sound (2012-2014); CSI (2012-2013); AVLA/SOPROQ (2012-2017); ArtistI (2012-2014)

Filing with the Board of Factums: no later than Friday, February 14, 2014.

Filing with the Board of Replies to Factums: no later than Wednesday, February 26, 2014.

Oral Argument: Monday, March 3, 2014 and Tuesday, March 4, 2014.

Online Music Services (2011-2013)

Filing with the Board of Factums: no later than Thursday, March 13, 2014.

Filing with the Board of Replies to Factums: no later than Wednesday, April 23, 2014.

Oral Argument: Monday, May 12, 2014 and Tuesday, May 13, 2014.

The schedule set by the Board for responding to its questions of January 16, 2014 in the Online Music Services file remains.


December 4, 2013up arrow

NOTICE OF THE BOARD

The Board approves the following proposal.

De : Henein, Peter
Envoyé : 28 novembre 2013 15:01
À : McDougall, Gilles: CB-CDA
Cc : Chisick, Casey; Colette Matteau; Estabrooks, Matthew; Gabriel Van Loon; Kathleen Simmons; David Kent; Lynne Watt; Pinos, Timothy; Zagar, Jessica; Mayzel, Eric; Jonathan O'Hara; Sarah Kilpatrick; Fong, Barry
Objet : Commercial Radio: SOCAN 1.A (2012-2013); Re:Sound (2012-2014); CSI (2012-2013); AVLA/SOPROQ (2012-2017); ArtistI (2012-2014) [IWOV-Legal.FID1784700]

Dear Gilles,

Further to the Chairman's direction, counsel for all parties have conferred with respect to the preparation and filing of the written submissions and the presentation of final argument. On consent of all parties, we would propose to file the written submissions and compendia of evidence (extracts, not full exhibits, to be referred to in oral argument) no later than noon on Monday, January 27, 2014, with reply submissions and supplementary compendia to be filed no later than end of day on Wednesday, February 5, 2014. The dates for filing materials have been adjusted to reflect the new hearing dates of February 10 and 11.

Counsel have agreed on the following which we would like to propose to the Board: written submissions will not exceed 60 pages "per side" (i.e. 60 pages for the Collectives and 60 pages for the Objector), with reply not to exceed 15 pages. We have further agreed to allocate the pages for the submissions as follows, subject to deviation of no more than a page or two in either direction:

Written Submissions

  • Reproduction and Valuation Issues: 25 pages in the initial submission
  • Rate Base Issue (i.e., Station Rate Base Model vs. Group Rate Base Model): 15 pages in the initial submission
  • Administrative Provisions and s. 69(2): 20 pages in the initial submission

Reply Submissions

  • The parties shall allocate the 15 pages as they see fit with respect to the issues.

These page limits and allocations assume no less than 1.5 line spacing and 11 point Arial font (or 12 point Times New Roman font) and either endnotes or footnotes, at each party's discretion. Endnotes, table of contents, and list of authorities cited would not count as part of the 60 pages/15 pages.

Counsel have also agreed to cooperate to prepare a joint book of authorities, to avoid the inevitable duplication as we all refer to the same Board decisions and key cases, and to prepare compendia of evidence (extracts, not full exhibits) to be referred to in oral argument. With the Board's consent, we would propose to file the joint book of authorities in electronic form [on CDs or on USB sticks, according to the Board's preference] and to insert only the pinpoint references in our compendia.

We would also propose to divide up the time for oral argument as follows:

  • Monday, February 10, 2014 for the CAB reproduction issues: CAB 2.5 hrs; AVLA/SOPROQ-CSI 2.5 hrs; reply CAB 0.5 hr.
  • Tuesday, February 11, 2014 for the Collectives issues: Re:Sound (Admin provisions and s.69(2)) 1.25 hrs; AVLA/SOPROQ (rate base) 1.25 hrs; CAB 2.5 hrs.; Collectives reply 0.5 hr.

We respectfully request that the Board approve the above proposal.

Best,

Peter Henein


October 10, 2013up arrow

NOTICE OF THE BOARD

SOCAN shall provide an answer to the following questions by no later than Friday, November 8, 2013. SOCAN's responses will be made part of the record in respect of the above-mentioned file. Should they so wish, parties may provide comments on SOCAN's responses at any time.

Questions to SOCAN:

Subsection 69(2) of the Copyright Act deals with "public performances by means of any radio receiving set" which may apply to musical works in SOCAN's repertoire as well as sound recordings in Re:Sound's repertoire, and provides that the owner or user of the radio receiving set may be exempted from paying royalties.

Given the reference to possible different interpretations of subsection 69(2) of the Copyright Act during testimony before the Board on October 8, 2013, the Board requests that SOCAN provide in writing its interpretation of the scope of subsection 69(2) of the Copyright Act and an explanation of how it is being applied to users.

In addition, and only if the information is readily available, SOCAN should also provide some measure of the extent to which users benefit from subsection 69(2), such as the number and a relative measure of such users.


October 2, 2013up arrow

NOTICE OF THE BOARD

The Board agrees with the schedule as proposed by the parties, subject to two comments. First, the Board is willing to sit until 5 pm every day except Fridays, if this can help shorten the hearing. Second, since there is only one witness to be heard on the last day, October 23, and for a maximum of only 2 hours, having this witness heard on one of the two preceding days would further reduce the hearing time.

De : Watt, Lynne
Envoyé : 30 septembre 2013 11:44
À : McDougall, Gilles: CB-CDA
Cc : David Kent; Chisick, Casey; Cotter, John; bureau matteaupoirier.com; Henein, Peter; Gabriel Van Loon; Kathleen Simmons; Sarah Kilpatrick; Fong, Barry; Estabrooks, Matthew
Objet : Commercial Radio - Proposed Hearing Schedule

Dear Gilles,

On behalf of the Collectives and the CAB, I am forwarding a proposed schedule for the upcoming Commercial Radio hearing that we have agreed and are proposing to the Board. The parties have worked cooperatively to minimize the travel for out-of-town witnesses and to give as much certainty as possible as to the days on which they will testify. We have also tried to shorten the hearing (by, for example, foregoing oral evidence in chief and cross-examination of certain witnesses (e.g. Silke von Lewinski and Benoit Gauthier).

In preparing this schedule we have used a 4:30 end time for the day to give us flexibility and, as the Board is often prepared to do, to sit later if needed to accommodate a witness. We have also assumed that (other than on the first day) the hearing will start at 9:30, run to approximately 4:30, with breaks in the morning and afternoon and a lunch break from 12:30-2:00. We are suggesting that the Board consider starting early on the first Friday, October 11th, to ensure that we do not run long on that day when everyone will be wanting to travel home for the Thanksgiving weekend. We are also proposing that the Board not sit on Tuesday, October 15th, so that none of the witnesses has to travel on Thanksgiving day (which would also benefit counsel and the Board); we can use the Tuesday to travel to Ottawa and to prepare the next days' witnesses.

The parties would also like to propose that closing arguments and legal briefs be pushed off until the new year. As the Board knows, many of the counsel on the Commercial Radio hearing are also involved in the Online Music proceeding and have, amongst other things, reply cases due on November 1st, as well as witnesses to prepare for the hearing starting on November 19th. We would propose that the parties file their written legal briefs on or before Friday, January 24, 2014 and attend to present oral argument before the Board on February 4 and 5, 2014 (if these dates are convenient for the Board). We are also proposing that we file full legal briefs (in the nature of factums containing a review of the relevant evidence and law), rather than just outlines of oral argument, as a number of the issues are novel and complicated.

Finally, we have confirmed that all witnesses will be testifying in English and that none of the counsel intends to conduct any examination or cross-examination in French.

If the Board has any questions or concerns about the proposed schedule, counsel can make themselves available for a conference call this week (or an attendance in person on Monday, October 7th).

Lynne

D. Lynne Watt


August 14, 2013up arrow

NOTICE OF THE BOARD

The parties' request, attached, is granted. AVLA/SOPROQ and CSI may file their Responding Statement of Case no later than Friday, September 20, 2013.

Attachment: 13-08-14 - Letter to Gilles McDougall re CAB interrogatories.pdf


August 7, 2013up arrow

NOTICE OF THE BOARD

The Board takes note of the agreement between AVLA/SOPROQ, ArtistI and CAB as described in the attached request. In accordance with this agreement, the Board confirms that the issues on which there is an agreement need not be examined as part of the proceedings and will not require submission from any of the parties.

AVIS DE LA COMMISSION

La Commission prend acte de l'entente entre AVLA/SOPROQ, ArtistI et l'ACR telle que décrite dans la requête ci-jointe. Conformément à cette entente, la Commission confirme que les questions faisant l'objet de l'entente n'ont pas à être examinées dans le cadre des audiences et ne nécessiteront pas de dépôt de preuve de la part d'aucune des parties.

Attachment: 13-08-06 Letter to Gilles McDougall re Resolved Issues.pdf


July 4, 2013up arrow

NOTICE OF THE BOARD

Attached is the Board's Ruling dealing with Deficiency Motions in the above-noted matter.

Attachment: Ruling - Commercial Radio - Deficiency Motions - July 4, 2013.pdf


June 13, 2013up arrow

ORDER OF THE BOARD

Re:Sound and ArtistI shall provide to CAB the information they offered in response to CAB's interrogatories 53 and 58 and referred to in Mr. Bloom's letter of June 12, 2013. The information shall be treated as confidential for the purposes of interrogatories.

An order directing Re:Sound and ArtistI to disclose the information to other parties in these proceedings would be misdirected, premature and prima facie unnecessary. Misdirected because it is CAB, not Re:Sound or ArtistI, who would be filing the information as part of its case. Premature both because information responsive to an interrogatory is provided only to the party who asked that interrogatory and because even CAB does not yet know whether it will file the information as part of its case. Prima facie unnecessary because information on music use by a commercial radio station or on the use of radio receiving sets in public places is, prima facie, not confidential.

Confidentiality may be claimed for this information if and when it is filed with the Board as part of the CAB's evidence.


June 7, 2013up arrow

NOTICE OF THE BOARD

The study may proceed with the documents as filed yesterday by AVLA/SOPROQ and CSI, except for the French versions of the invitation letter and of the proposed survey which contain minor revisions.


June 5, 2013up arrow

NOTICE OF THE BOARD

The Board approves the two matters as described below.

De : Chisick, Casey
Envoyé : 5 juin 2013 10:18
À : McDougall, Gilles: CB-CDA
Cc : David Kent; Gabriel Van Loon; Kathleen Simmons; Colette Matteau; Pinos, Timothy; Henein, Peter; Zagar, Jessica
Objet : Commercial Radio - online survey

Gilles,

Further to our letter of May 29, 2013, AVLA/SOPROQ and CSI wish to inform the Board of two minor changes to the form of online survey to be conducted in connection with this proceeding and to ask that the Board confirm its approval of these two matters in addition to those set out in our original letter.

First, as a result of a bug in the SurveyGizmo software that interfered with the randomization of the rating question in the manner prescribed by the Board, we now intend to use a different software application, SawTooth, to administer the online survey. Second, because SawTooth does not offer "drag and drop" functionality, stations will now be asked to respond to the ranking question simply by assigning a number to each type of copy they make, with 1 being the highest-ranked copy. Apart from that, the content of the proposed survey remains the same.

CMC

Casey M. Chisick


June 5, 2013up arrow

NOTICE OF THE BOARD

As requested in their letter of May 29, 2013 to the Board, AVLA/SOPROQ and CSI are granted the right to reply to today's submissions of CAB, reproduced below, by no later than Thursday, June 6, 2013.

De : Gabriel Van Loon
Envoyé : 5 juin 2013 14:20
À : McDougall, Gilles: CB-CDA
Cc : lynne.watt; Matthew Estabrooks; Bloom, Glen; Cotter, John; Fong, Barry; colette; Chisick, Casey; Pinos, Timothy; Henein, Peter; Zagar, Jessica; amorin; Kathleen Simmons; david.kent
Objet : Re: Commercial Radio/Radio commerciale - SOCAN (2011-2013); Re:Sound/Ré:Sonne (2012-2014); CSI (2012-2013); AVLA-SOPROQ (2012-2017); ARTISTI (2012-2014) - Ruling of the Board re: AVLA/SOPROQ and CSI's request

Gilles -

As indicated on May 29, the CAB will facilitate the survey and forward on the cover letter to the 212 affected broadcasters. We accept the cover letter as drafted at Appendix B of the May 29 submission of Mr. Chisick subject to some minor changes as reflected in the attached document. The first changes we propose make it clear that this survey is the result of a Board order. The second change we have indicated in the attached ensures that the letter takes into account that not all forms of copy listed are generated by all stations, something we understand is already contemplated in the survey design. We feel that these proposed changes are non-contentious, and if accepted, we will proceed to administer the survey as soon requested by the Board and instructed by the Collectives.

We respectfully request that we are given the chance to test the survey in advance of sending out invitations to our clients to participate, so that we can ensure there are no confusing elements or technical glitches. We make this request to try to avoid any unnecessary burden on our clients in the event that there any issues with the survey or survey platform. We do not expect to make any substantive recommendations at that point in the process.

Finally, we request that the Board oblige Mr. Chisick to furnish the CAB with full survey results, in a manipulable form, once available to him and his clients.

Van Loon Simmons Professional Corporation


May 23, 2013up arrow

NOTICE OF THE BOARD

See the attached Ruling of the Board regarding AVLA/SOPROQ AND CSI's request with respect to an online survey.

Attachment : Ruling - Commercial Radio - May 23, 2013.pdf


May 9, 2013up arrow

NOTICE OF THE BOARD

Further to the parties' submissions with regards to the schedule, the Board issues the following amended schedule:

Responses to interrogatories: no later than Friday, May 31, 2013

Motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, June 14, 2013

Filing, with the Board, of replies to motions: no later than Friday, June 21, 2013

[Board Ruling]

Complete/satisfactory responses to interrogatories: No later than Friday, July 12, 2013

Filing of Statements of Case by those challenging the status quo: no later than Friday, August 9, 2013

Filing of responding Statements of Case: no later than Tuesday, September 17, 2013

Filing of reply Statements of Case: no later than Friday, October 4, 2013

Beginning of hearing: Tuesday, October 8, 2013 at 10:00 a.m., Copyright Board's hearing room.


AVIS DE LA COMMISSION

Pour faire suite aux représentations écrites des parties à l'égard du calendrier, la Commission émet le calendrier amendé suivant :

Réponses aux demandes de renseignements : au plus tard le vendredi 31 mai 2013

Requêtes concernant les réponses incomplètes ou insatisfaisantes aux demandes de renseignements : au plus tard le vendredi 14 juin 2013

Dépôt auprès de la Commission des réponses aux requêtes : au plus tard le vendredi 21 juin 2013

[Ordonnance de la Commission]

Réponses complètes/satisfaisantes aux demandes de renseignements : au plus tard le vendredi 12 juillet 2013

Dépôt de l'énoncé de cause des parties qui remettent en question le statu quo : au plus tard le vendredi 9 août 2013

Dépôt des énoncés de cause en réponse : au plus tard le mardi 17 septembre 2013

Dépôt des répliques : au plus tard le vendredi 4 octobre 2013

Début de l'audience : le mardi 8 octobre 2013 à 10h00, à la salle d'audience de la Commission.


May 7, 2013up arrow

NOTICE OF THE BOARD

On April 25, 2013, AVLA/SOPROQ asked that the Board clarify its April 19, 2013 Ruling as it relates to Interrogatories 35, 36 and 37 addressed by CAB to the collectives. Specifically, AVLA/SOPROQ note that while the questions are addressed to them, the "subsequent recording issue" relates to CSI, not AVLA/SOPROQ. It is unclear to AVLA/SOPROQ how these interrogatories relate to the "subsequent recording issue", whether or how AVLA/SOPROQ should respond to these interrogatories, or whether responses would still be required if CSI were to elect not to pursue the "subsequent recordings issue" before the Board.

On April 30, CAB asked that the Board dispense with the "subsequent recording" or "pending list" issue by declaring it to be irrelevant to this proceeding. The Board is willing to do so. The Board is aware, for example, that the importance of the pending list issue may be rapidly decreasing. However, since the Board knows of the issue, it was not up to the Board to ignore it unless the parties agree that the matter can be left aside for the purposes of these proceedings. Thus, what CAB is asking for requires the consent of CSI.

Absent CSI's consent, however, the Board is of the view that anyone who is a party to these proceedings and who "owns" relevant information on the issues just mentioned ought to supply it in response to an interrogatory, whether or not that party is directly concerned by the issue.

There remains the issue of the extent to which AVLA/SOPROQ and CSI should respond to Q35, 36 and 37 if the subsequent recording issue remains live.

CAB offered to withdraw Q35 and 36 and proposed that the issue, if live, be addressed through oral testimony. This would be satisfactory to the Board.

With respect to Q37, the explanation CAB provided establishes the relevance of the information. CSI and AVLA/SOPROQ shall cooperate in providing CAB a satisfactory response.

CAB points to the fact that some of the Board's rulings on the objections to interrogatories may have been made on the basis of the Board's understanding of certain practices that the Board has not made part of the record. The Board must indeed, from time to time, use its own expertise and understanding of the relevant markets to decide if, and to what extent, information sought may be relevant. Of necessity, some decisions at this early stage of the process must be made without the benefit of evidence. In the same way, and as counsel know, the Board generally takes statements made by parties as to the availability or not of information at their face value. Anything else would require on the part of the Board and the parties the expenditure of time and resources that the Board does not have and that the parties may prefer to use otherwise.


May 2, 2013up arrow

NOTICE OF THE BOARD

Parties are to provide comments on the attached request and proposed schedule from CAB by no later than Monday, May 6, 2013. CAB can reply by no later than Wednesday, May 8, 2013.

Attachments : 1) Commercial Radio 2013 schedule of proceedings (CAB Proposal May 2013).pdf 2) CAB Letter - Request for Extension of time to respond to Interrogatories - May 1, 2013.pdf


May 2, 2013up arrow

NOTICE OF THE BOARD

CAB may respond to the attached AVLA/SOPROQ and CSI request by no later than Wednesday, May 8, 2013. AVLA/SOPROQ and CSI may reply no later than Tuesday, May 14, 2012.

Attachment : 13-05-01 Letter to Gilles McDougall Re Survey - Commercial Radio.pdf


May 1, 2013up arrow

NOTICE OF THE BOARD

CAB is asked to file no later than Thursday, May 2, 2013, a proposed revised schedule of proceedings consistent with its request for an extension of time to file responses to interrogatories, and that would lead to the same, October 8, 2013 hearing date.


April 25, 2013up arrow

NOTICE OF THE BOARD

CAB is asked to respond to the attached application no later than Tuesday, April 30, 2013. If possible, the Board would appreciate receiving further information from CAB as to precisely which uses CAB may put the information if supplied.

Attachment : 13-04-25 AVLA SOPROQ Request for Reconsideration Following April 19-13 Board Order.pdf


April 19, 2013up arrow

NOTICE OF THE BOARD

Attached is the Ruling of the Board dealing with objections to interrogatories.


AVIS DE LA COMMISSION

Vous trouverez ci-jointe, l'ordonnance de la Commission portant sur les objections aux demandes de renseignements.

Attachments : 1) Ruling - Commercial Radio - Objections to Interrogatories EN.pdf; 2) Ruling - Commercial Radio - Objections to Interrogatories FR.pdf


April 9, 2013up arrow

NOTICE OF THE BOARD

1) In their objections and replies, parties rely on certain documents, including earlier orders of the Board, sometimes without even providing the date of such order. Such negligence in supplying supporting documentation unnecessarily drains the Board's limited resources. Parties shall forthwith provide the Board with a copy of any document referred to in their objections and replies, in which the passages on which the party relies are highlighted.

2) In the document dealing with CAB's objections to the interrogatories of AVLA/SOPROQ and CSI, no objection is provided in respect of Q 32. The collectives shall provide the text of the objection forthwith.


AVIS DE LA COMMISSION

1) Dans leurs oppositions et répliques, les parties invoquent certains documents, dont des ordonnances antérieures de la Commission, parfois sans même fournir la date de l'ordonnance. Une telle négligence dans la fourniture des documents pertinents taxe inutilement les ressources limitées de la Commission. Les parties fourniront sans délai à la Commission une copie de chaque document cité dans leurs oppositions et répliques dans laquelle les passages sur lesquels la partie se fonde sont surlignés.

2) Dans le document traitant des oppositions de l'ACR aux demandes de renseignements d'AVLA/SOPROQ et de CSI, rien n'est offert en opposition à la question 32. Les sociétés de gestion fourniront sans délai le texte de l'opposition.


March 21, 2013up arrow

NOTICE OF THE BOARD

Since some of the parties do not agree that the matters referred to in the Board's notice of March 14, 2013 should be dealt with at the same time as the commercial radio tariffs, they will not be. To the extent that CSI's proposed tariffs expressly provide for the licensing of simulcasts in addition to the over-the-air broadcasting operations of commercial radio stations, simulcasts will be dealt with by the Board in relation to the proposed CSI tariffs.

**********************************************************************

AVIS DE LA COMMISSION

Puisque certaines parties ne sont pas d'accord pour que les questions mentionnées dans l'avis de la Commission du 14 mars 2013 soient examinées en même temps que les tarifs pour la radio commerciale, elles ne le seront pas. Dans la mesure où les projets de tarifs de CSI visent expressément la diffusion simultanée en plus des activités par radio des stations commerciales, la diffusion simultanée sera abordée par la Commission dans le cadre des projets de tarifs de CSI.


March 15, 2013up arrow

NOTICE OF THE BOARD

AVLA/SOPROQ and CSI are asked to reply to Sirius XM Canada's attached response by no later than Wednesday, March 20, 2013. The collectives request access to evidence filed in a matter that is not directly linked to these proceedings, filed by non-parties to these proceedings. They shall indicate how the material filed in connection with the Satellite Radio Tariff proceeding may be useful in dealing with the issues the collectives intend to raise in these proceedings.

Attachment : Docs - #12002731-v1 - Let to Copyright Board re CAB Application 3.pdf


March 14, 2013up arrow

NOTICE OF THE BOARD

Please see the attached Ruling of the Board.

Attachment : Ruling of the Board (14-04-2013) EN.pdf


March 14, 2013up arrow

NOTICE OF THE BOARD

Please see the attached Notice of the Board

Attachment : Notice of the Board (14-04-2013) EN.pdf


March 14, 2013up arrow

NOTICE OF THE BOARD

The Board is of the preliminary view that all Internet transmissions of audio content previously offered on a station's main signal, including simulcasts and podcasts, should be dealt with at the same time as the commercial radio tariffs, to the extent that they may be ancillary to the main broadcast activities of a commercial radio station. This would include Internet transmissions targeted in SOCAN Tariff 22.C(i) (Webcasts of radio stations signals, conventional radio station) and some transmissions (simulcast of commercial radio signals) targeted in Re:Sound Tariff 8.A (Simulcasting and Webcasting).

However, the Board does not wish to delay the above-referenced proceedings. Consequently, these matters will be addressed in the context of these proceedings only if it can be done within the existing timelines, and only if the parties so agree. Parties are free to suggest a parallel timetable to deal with the Internet uses already referred to, as long as the timetable provides that the hearing still starts on Tuesday, October 8, 2013.

There may be a certain overlap between these and other matters, including Re:Sound Tariff 8, which is currently under advisement. The parties should take for granted that, in all probability, the forthcoming decision dealing with Re:Sound Tariff 8 will defer setting the commercial radio simulcasting rate until such time as the Board considers Re:Sound Tariff 1.A. Furthermore, the Board is of the view that since proposed tariffs have been filed for the Internet uses already referred to for 2013, and since none of these proposed tariffs is under consideration in another matter, this is sufficient to allow the Board to proceed as proposed, if the parties so agree.

Parties are asked to file their comments on the above no later than Wednesday,March 20, 2013.

*******************************************************************

AVIS DE LA COMMISSION

De façon préliminaire, la Commission est d'avis que toutes les transmissions Internet de contenu audio préalablement offert dans le signal principal d'une station, incluant la diffusion simultanée et la baladodiffusion, devraient être examinées en même temps que les tarifs pour la radio commerciale, dans la mesure où ces transmissions semblent ancillaires aux activités principales d'une station de radio commerciale. Cela inclurait les transmissions Internet visées par le tarif 22.C(i) (Diffusions Web de signaux de stations de radio, station de radio conventionnelle) et certaines transmissions (diffusion simultanée des signaux de radio commerciale) visées par le tarif 8.A de Ré:Sonne (Diffusion simultanée et webdiffusion).

La Commission ne désire toutefois pas retarder l'affaire mentionnée en rubrique. Par conséquent, ces questions seront examinées dans le cadre de la présente affaire seulement si cela peut se faire dans le cadre de l'échéancier actuel et que les parties y consentent. Les parties peuvent suggérer un échéancier parallèle pour traiter des transmissions Internet susmentionnées pour autant que l'audience commence toujours le mardi 8 octobre 2013.

Il pourrait y avoir chevauchement entre ces questions et d'autres affaires, dont le tarif 8 de Ré:Sonne, en délibéré. Les parties devraient tenir pour acquis que, en toute probabilité, la décision à intervenir à l'égard du tarif 8 de Ré:Sonne reportera l'établissement des redevances pour la diffusion simultanée de la radio commerciale au moment où la Commission examinera le tarif 1.A de Ré:Sonne. De plus, la Commission est d'avis que puisque des projets de tarifs visant les transmissions Internet susmentionnées ont été déposés pour 2013, et puisqu'aucun de ces projets ne fait l'objet d'un examen dans une autre affaire, elle peut procéder comme elle le propose, si les parties sont d'accord.

Les parties sont priées de déposer leurs commentaires sur ces questions au plus tard le mercredi 20 mars 2013.


March 6, 2013up arrow

NOTICE OF THE BOARD

Please see the attached Ruling of the Board.

AVIS DE LA COMMISSION

Veuillez prendre note de la décision de la Commission ci-jointe.

Attachment: 1) Status quo issue - Commercial Radio en.pdf 2) Status quo issue - Commercial Radio FR.pdf


March 1, 2013up arrow

NOTICE OF THE BOARD

CAB is to respond to the attached letter submitted by the collectives by no later than Tuesday, March 5, 2013.

Attachment: 13-02-27 Letter to Gilles McDougall re February 15 CAB submission.pdf


February 20, 2013up arrow

NOTICE OF THE BOARD

Attached is the Board's Order dealing with information for which confidential treatment may be claimed.

Attachment: Confidentiality Order - Commercial Radio.pdf


January 29, 2013up arrow

NOTICE OF THE BOARD

SOCAN is asked to provide particulars in respect of its issue 2, below.

De : Daigle, Gilles

Envoyé : 28 janvier 2013 15:19

Objet : RE: Commercial Radio/Radio commerciale - SOCAN 1.A (2011-2013); Re:Sound/Ré:Sonne (2012-2014); CSI (2012-2013); AVLA-SOPROQ (2012-2017); ARTISTI (2012-2014); ACTRA PRS/MROC (2010-2013)

Cher Monsieur McDougall,

In accordance with the schedule of proceedings, SOCAN hereby advises the Board and the parties of the modifications that SOCAN will propose to its Tariff 1.A for commercial radio stations for the years 2011-2013.

As of this writing (and absent agreement between SOCAN and CAB/CAB members), SOCAN's position is that its tariff requires modifications to address the following issues:

  1. Clarification and express reference in the tariff to include all contra values in the definition of gross income (as some stations are refusing to include contra values in their reporting and royalty payments to SOCAN).
  2. Further clarifications relating to the tariff definition of gross income and the exclusions from the rate base, including the treatment of advertising agency revenues (as it is SOCAN's position that some stations are inappropriately excluding such revenues from the royalty base).

SOCAN reserves the right to comment on and potentially adopt as its own the proposed changes, if any, to be submitted by the other Collectives.

Please do not hesitate to contact us if you have any questions.

Gilles M. Daigle


January 22, 2013up arrow

NOTICE OF THE BOARD

Attached is the final schedule for the above-referenced proceedings. The Board has opted for a single process leading to a hearing starting on Tuesday, October 8, 2013, for the following reasons:

Essentially for the reasons advanced by the collectives, a bifurcated process is not appropriate: see also paragraph 12 of the Board's December 21, 2012 decision.

None of the reasons advanced by the collectives to postpone the hearing is convincing.

  • Any music use analysis required because ACTRA PRS/MROC is presenting a first tariff probably can be conducted using existing data. The issue is not so much whether the repertoire is before the Board, but whether the economic value in the performance is owned by the performer or by the maker: see Commercial Radio (2011). This, in turn, is an issue of contract interpretation, not repertoire use.
  • As should be evident from the Board's December 21, 2012 decision, CAB probably will bear most of the evidentiary burden linked to the new exceptions; CAB is willing to abide by the timelines the Board proposed. For the rest, the timetable affords the parties a generous amount of time to develop their arguments concerning the legal issues raised in these proceedings, however complex they may be.
  • The changes SOCAN and Re:Sound have proposed are not so complex as to require additional time to be dealt with.

The collectives already largely know the arguments CAB intends to raise. Six weeks should be ample time to prepare interrogatories, however novel they may be. CAB is willing to abide by the timelines the Board proposed to respond to interrogatories. The Board will examine the interrogatories as soon as they are exchanged so as to help focus the process.

Parties do not need responses to interrogatories to start developing valuation methodologies and other theories or strategies.

It would appear that the filing of legal briefs will almost certainly be required in these proceedings. Parties are asked to inform the Board whether they would prefer to do so as part of their statements of case or after the hearing.

As mentioned above, so as to help focus the process, parties are asked to copy the Board when exchanging interrogatories. The Board may wish to inquire on the purpose of interrogatories and possibly rule in advance on the admissibility of some.

Please note that the SOCAN Tariff 1.A for the year 2011 was added to this matter. Parties can provide comments to the Board in that respect, if they so wish.

************************************************

AVIS DE LA COMMISSION

Vous trouverez ci-joint l'échéancier final pour les affaires mentionnées en rubrique. La Commission a opté pour un processus unique menant à une audience débutant le mardi 8 octobre 2013, pour les motifs suivants:

Essentiellement pour les motifs invoqués par les sociétés de gestion, un processus bifurqué ne convient pas : voir aussi la décision de la Commission du 21 décembre 2012 au paragraphe 12.

Aucun des motifs qu'invoquent les sociétés de gestion pour retarder l'audience n'est convainquant.

  • Les études d'utilisation de musique qui pourraient être rendues nécessaires du fait qu'ACTRA PRS/MROC présente un premier tarif peuvent sans doute être menées à partir de données existantes. La question n'est pas tant de savoir si apport a été fait du répertoire que de décider si la valeur économique de la prestation appartient à l'interprète ou au producteur : voir Radio commerciale (2011). Il s'agit là d'une question relevant de l'interprétation des contrats et non de l'utilisation du répertoire.
  • Il semble découler clairement de la décision de la Commission du 21 décembre 2012 que l'essentiel du fardeau de preuve lié aux nouvelles exceptions incombera à l'ACR, qui accepte de se soumettre à l'échéancier que la Commission propose. Pour le reste, l'échéancier laisse aux parties bien assez de temps pour mettre au point leurs prétentions à l'égard des questions de droit soulevées dans la présente affaire, si complexes soient-elles.
  • Les changements qu'ont proposés SOCAN et Ré:Sonne ne sont pas compliqués au point d'exiger davantage de temps pour en traiter.

Les sociétés de gestion connaissent déjà l'essentiel des prétentions que l'ACR compte faire valoir. Six semaines devraient amplement suffire pour établir les demandes de renseignements, même les plus inédites. L'ACR accepte de se soumettre à l'échéancier que la Commission propose pour répondre aux questions. La Commission examinera ces questions dès qu'elles seront échangées afin d'aider à cibler le processus.

Point n'est besoin d'attendre les réponses aux demandes de renseignements pour commencer à mettre au point une formule d'évaluation ou autre théorie ou stratégie.

Par ailleurs, il semble que le dépôt de mémoires juridiques soit à toutes fins utiles inévitable en l'espèce. Les parties sont priées de faire savoir à la Commission si elles préfèrent le faire en même temps que leurs énoncés de cause ou après l'audience.

Tel que mentionné précédemment, afin d'aider à cibler le processus, les parties devront également acheminer à la Commission une copie des demandes qu'elles s'échangeront. La Commission pourrait vouloir s'informer de l'objet des demandes de renseignements et même disposer à l'avance de l'admissibilité de certaines questions.

Veuillez prendre note que le tarif 1.A de la SOCAN pour l'année 2011 a été ajouté à la présente affaire. Les parties peuvent soumettre des commentaires à la Commission à cet effet, si elles le désirent.

Attachment : Commercial Radio - Schedule of Proceedings.pdf


January 21, 2013up arrow

NOTICE OF THE BOARD

The first deadline in the above-referenced proceeding will be:

Filing of submissions by those who intend to challenge the status quo, setting out the reasons on which they intend to base their challenge: Monday, January 28, 2013.

A complete scheduling order will follow shortly.

********************************************************

AVIS DE LA COMMISSION

La première étape de la procédure mentionnée en rubrique sera la suivante :

Dépôt par les parties qui comptent remettre en question le statu quo, d'un énoncé indiquant les motifs sur lesquels elles entendent se fonder : le lundi 28 janvier 2013.

Un échéancier complet suivra sous peu.


January 11, 2013up arrow

NOTICE OF THE BOARD

CAB shall respond to the attached proposed schedule filed by the collectives no later than Wednesday, January 16, 2013. The collectives shall reply, if necessary, no later than Friday, January 18, 2013.


AVIS DE LA COMMISSION

L'ACR peut répondre au calendrier ci-joint, proposé par les sociétés de gestion, au plus tard le mercredi, 16 janvier 2013. Les sociétés de gestion pourront répliquer, si nécessaire, au plus tard le vendredi, 18 janvier 2013.

Attachment : Letter to Gilles McDougall re commercial radio schedule 130111.pdf


December 21, 2012up arrow

NOTICE OF THE BOARD

The parties are invited to file, by no later than Friday, January 11, 2013, a joint proposed timetable leading to the examination of the above-referenced matters at the hearings beginning on Tuesday, September 24, 2013.

On an interim basis, the Board is of the opinion that the process should include the following steps:

(1) those who challenge the status quo will first set out the reasons on which they intend to base their challenge;

(2) those who disagree with these points of view will set out their reasons; and

(3) an exchange of information will then take place and will be limited to the arguments raised in (1) and (2).

________________________________________________________________

AVIS DE LA COMMISSION

Les parties sont invitées à déposer, au plus tard le vendredi 11 janvier 2013, une proposition conjointe d'échéancier menant à l'examen des affaires mentionnées en rubrique lors d'audiences débutant le mardi 24 septembre 2013.

À titre préliminaire, la Commission est d'avis que le processus devrait comporter les étapes suivantes:

1) les personnes qui remettent en cause le statu quo exposent d'abord les moyens sur lesquels elles entendent se fonder pour le faire;

2) les personnes qui ne partagent pas ces points de vue en exposent les motifs;

3) l'échange de renseignements a lieu ensuite, et se limite aux prétentions soulevées en 1) et 2)


November 21, 2012up arrow

NOTICE OF THE BOARD

The Board will grant Cassels Brock's request described below unless a party advises the Board, no later than Thursday, November 22, 2012, that it wishes to oppose the request. That party may then file, no later than on Tuesday, November 27, 2012, the arguments in support of its opposition.

Gilles,

As you know, Cassels Brock is representing AVLA/SOPROQ in this matter and is also acting, with Matteau Poirier, as co-counsel to CSI. Because we are new to this file, it is important that we have immediate access to the confidential and sensitive confidential material filed in connection with all previous Commercial Radio and Satellite Radio tariff proceedings, even as we await further direction from the Board in relation to the CAB application. We are, of course, prepared to execute the necessary confidentiality agreements, which we should be able to obtain from Matteau Poirier; we simply request the Board's confirmation that we may have access to the material under the same conditions as previous counsel and permission to deliver our confidentiality agreements now.

CMC


November 12, 2012up arrow

NOTICE OF THE BOARD

Parties are asked to await further instructions on how the Board will deal with the attached CAB application.

Attachment: CAB Notice of Application November7 2012.pdf



Re:Sound Tariff 3 - Use and Supply of Background Music (2010-2011)


July 4, 2014up arrow

NOTICE OF THE BOARD

Re:Sound’s June 25 request for a deadline to submit a further status report on the negotiations between the parties is granted. Re:Sound shall file its status report no later than October 31, 2014.

However, considering that the parties have been in negotiations since April 2011, the Board intends to start a hearing process if agreements in respect of all parts of the Tariff (3.A and 3.B) are not reached by October 31, 2014.


March 5, 2014up arrow

NOTICE OF THE BOARD

Re:Sound's request is granted. Re:Sound shall provide a further status report in respect of the above-noted file by no later than Monday, June 30, 2014.


December 3, 2013up arrow

NOTICE OF THE BOARD

Re:Sound's request (attached) is granted. Re:Sound shall provide a further status report on the negotiations in respect of the above-noted file by no later than Friday, February 28, 2014.

Attachment: ReSound Background Music - letter to Board - Nov. 29, 2013.pdf


September 3, 2013up arrow

NOTICE OF THE BOARD

Re:Sound's request (attached) is granted. Re:Sound shall provide a further status report on the negotiations in respect of the above-noted file by no later than Friday, November 29, 2013.

Attachment: ReSound Background Music T3 - August 30, 2013.pdf


June 3, 2013up arrow

NOTICE OF THE BOARD

Re:Sound's request (attached) is granted. Re:Sound shall provide a further status report on the negotiations in respect of the above-noted file by no later than Friday, August 30, 2013.

Attachment: Re:Sound Background Music letter to Board - May 31, 2013.pdf


May 22, 2013up arrow

NOTICE OF THE BOARD

Please take note of the following from Totem Médias inc.

De : Bruno Fréchette
Envoyé : 21 mai 2013 12:52
À : McDougall, Gilles: CB-CDA
Cc : Pier-Luc Pothier
Objet : Re: Tariff 3 de Ré:Sonne - Totem Médias Inc.

Bonjour M. McDougall

Totem Médias désire demeurer un opposant au dossier.
J'agirai à titre de personne contact pour Totem Médias dans ce dossier:

Bruno Fréchette, vice-président
Totem Médias inc.


April 5, 2013up arrow

NOTICE OF THE BOARD

As per the request below, the letter is removed from the above-noted file.

De : Linda Crouch
Envoyé : 5 avril 2013 15:53
À : McDougall, Gilles: CB-CDA
Objet : Re:Sound Background Music Tariff 3 (2010-2013)

Good afternoon Mr. McDougall,

The letter to Glen A. Bloom, dated April 2, 2013, was sent to you in error and we are asking that the Copyright Board of Canada ignore it. Thank you.

Kind regards,
Linda

Linda Crouch
Executive Assistant and Secretary to the Board | Adjointe exécutive et secrétaire du conseil
Hotel Association of Canada | L'Association des hôtels du Canada


April 3, 2013up arrow

NOTICE OF THE BOARD

Re:Sound's request (attached) to be required to provide a further status report on the negotiations in respect of the above-noted file by no later than Friday, May 31, 2013 is granted.

Attachment: ReSound background music Tariff 3 - March 28, 2013 letter to Board.pdf


March 1, 2013up arrow

NOTICE OF THE BOARD

Following the attached Re:Sound's request, Re:Sound shall file a further status report no later than Friday, March 29, 2013. This report shall be more substantial than the previous one and include, in particular, a description of the issues on which the parties involved in the discussions agree, and those on which parties do not agree.

Attachment: ReSound background Tariff 3 - letter to Board - Feb. 19, 2013.pdf


December 20, 2012up arrow

NOTICE OF THE BOARD

Re:Sound's request (attached) to be required to provide a further status report on the negotiations in respect of the tariff cited above by no later than Monday, February 18, 2013 is granted.

Attachment: ReSound background Tariff 3 - letter to Board - Dec. 17, 2012.pdf


November 21, 2012up arrow

RULING OF THE BOARD

The application of GoodLife for leave to intervene in the 2013-2016 file is granted.

The Board will not deal with the applications for leave to intervene of the Fitness Industry Council and of GoodLife (the Applicants) in the 2010-2012 proceedings until Re:Sound reports on its ongoing negotiations with objectors, which it has been ordered to do by no later than Monday, December 17, 2012. Re:Sound shall ensure that any relevant correspondence or agreement is copied to the Applicants. The Applicants shall be entitled to comment on any agreement Re:Sound may file with the Board, by such date as the Board will set in due course.


September 7, 2012up arrow

NOTICE OF THE BOARD

Re:Sound's request (attached) to be required to provide a further status report on the negotiations with the parties in respect of the tariff cited above by no later than October 26, 2012 is granted.

Attachment: 1) ReSound Background Tariff 2010-2011 Status Report


August 30, 2012up arrow

NOTICE OF THE BOARD

Parties are asked to comment on Goodlife Fitness Centres Inc.'s Application for Leave to Intervene dated August 24, 2012 as well as The Fitness Industry Council of Canada's (FIC) Application for Leave to Intervene dated October 5, 2011 (both attached) in the above-referenced matter by no later than Friday, September 21, 2012. Goodlife and FIC may submit their replies by no later than Friday, September 28, 2012.

Attachment: 1) Goodlife Request for Leave to Intervene Re Sound Proposed Tariff 3 and ReSound proposed 6B 2) FIC Request for Leave to Intervene


February 1, 2012up arrow

NOTICE OF THE BOARD

Re:Sound's request to be required to provide a further status report on the negotiations with the parties in respect of the tariff cited above by no later than Monday, April 16, 2012 is granted.


January 12, 2012up arrow

NOTICE OF THE BOARD

Re:Sound is asked to provide forthwith a status report on the negotiations with parties other than the BDUs and Stingray Digital Group in respect of the file mentioned above.


November 15, 2011up arrow

NOTICE OF THE BOARD

Re:Sound's request, attached, is granted. Re:Sound shall provide a status report on the negotiations with the parties in respect of the tariff cited above by no later than Monday, January 16, 2012.

Attachment: letter to mcdougall - Background Tariff 3.pdf


May 17, 2011up arrow

[Le texte français suit l'anglais]

RULING OF THE BOARD

On January 31, 2011, SOCAN asked that the Board set in motion the process leading to an oral hearing to determine its Tariff 15 (Background Music) for the years 2008 through 2011. On February 1, the Retail Council of Canada (RCC) asked that more time be provided, in particular to allow parties to consider the issue of the examination of SOCAN Tariff 16 (Background Music Suppliers) for the years 2010-2011 and Re:Sound Tariff 3 (Use and Supply of Background Music) for the years 2010-2011 jointly with SOCAN Tariff 15.

On February 18, the Board asked participants to submit their comments on the possible consolidation of the three tariffs.

The Board received comments from Bell Canada, the Hotel Association of Canada, the Canadian Restaurant and Foodservices Association, Stingray Digital Group, DMX Music, the BDUs (Rogers Communications Inc., Shaw Communications Inc., Videotron Ltd., Cogeco Cable Inc.), and the Association des restaurateurs du Québecsupporting the joint examination of all tariffs. SOCAN does not oppose the consolidation of its two tariffs but does oppose the joinder of its tariffs with that of Re:Sound. Re:Sound strongly objected to the consolidation of its tariff with those of SOCAN.

The Board merges the consideration of SOCAN Tariffs 15 and 16. This will allow the Board to examine the entire background music industry at once and will avoid duplicating the presentation of common legal and factual issues.

The consideration of Re:Sound Tariff 3 is not joined to that of SOCAN Tariffs 15 and 16, for several reasons. First, while joint hearings may bring about efficiencies for some objectors, they will increase costs for both collectives. Second, the presence of multiple objectors with potentially diverging points of view necessarily makes it more difficult to lead an orderly hearing than, say, where a single representative of a whole industry is involved, as was the case in commercial radio. Third, SOCAN basically seeks the status quo; this makes it possible to focus the issues by asking objectors to proceed first. This is not possible with Re:Sound, which seeks significant changes to the tariff rates and structure of its Tariff 3. Fourth, several issues particular to the consideration of Re:Sound tariffs do not arise in the consideration of SOCAN tariffs. Fifth, forcing Re:Sound to prepare for an additional hearing will necessarily lower the quality of the evidence led in another matter that is already proceeding.

There is no need to rule on the April 1, 2011 application of SOCAN requesting that RCC not be given Objector status in Tariff 16. The examination of Tariffs 15 and 16 is merged. Assuming that RCC does not represent users of Tariff 16, it certainly does represent users of Tariff 15. The matter is therefore moot.

The application of the same date from SOCAN requesting that objectors present their case before that of SOCAN is granted. SOCAN seeks the status quo. Asking it to proceed first is asking it to defend recent decisions of the Board. The objectors are taking issue not only with the results of the Board's decisions of 2006 and 2009, but also with some of the specific issues addressed in these decisions. Asking the objectors to first file their case will help focus the debate on the issues the objectors intend to raise.

Parties are asked to file with the Board, by no later than Friday, May 27, 2011, a proposed schedule of proceedings leading to a hearing beginning on Tuesday, June 12, 2012 and in which objectors file their case first, with a right of reply.

The decision not to join the consideration of Re:Sound Tariff 3 to that of SOCAN Tariffs 15 and 16 does not mean that the matter will be postponed indefinitely. Re:Sound shall provide a status report on the negotiations with the parties by no later than Thursday, September 15, 2011. If no agreement has been reached by that date, Re:Sound shall file by the same date a proposed schedule for the examination of its tariff.

The March 4, 2011 application of PJJ Productions for leave to intervene in Re:Sound Tariff 3 is granted. PJJ is a background music supplier based in Quebec; as such it belongs to a market not otherwise represented by the other Objectors. PJJ shall have full participatory status.

******************************************************

DÉCISION DE LA COMMISSION

Le 31 janvier 2011, la SOCAN a demandé à la Commission de mettre en place un processus menant à une audience pour déterminer son tarif 15 (Musique de fond) pour les années 2008 à 2011. Le 1er février, le Retail Council of Canada (RCC) a demandé que plus de temps soit alloué, notamment pour permettre aux parties d'étudier la question de l'examen du tarif 16 de la SOCAN (Fournisseurs de musique de fond) pour les années 2010 et 2011 et du tarif 3 de Ré:Sonne (Utilisation et distribution de musique de fond) pour les années 2010 et 2011 conjointement avec celui du tarif 15 de la SOCAN.

Le 18 février, la Commission a demandé aux participants de soumettre leurs commentaires au sujet de la fusion possible des trois tarifs.

La Commission a reçu de Bell Canada, de l'Association des hôtels du Canada, de la Canadian Restaurant and Foodservices Association, du Stingray Digital Group, de DMX Music, des EDR (Rogers Communications Inc., Shaw Communications Inc., Vidéotron Ltd., Cogeco Cable Inc.), et de l'Association des restaurateurs du Québec des commentaires favorables à l'examen conjoint de tous les tarifs. La SOCAN ne s'oppose pas à la fusion de ses deux tarifs, mais s'oppose à celle de ses tarifs avec celui de Ré:Sonne. Ré:Sonne s'est fortement opposée à la fusion de son tarif avec ceux de la SOCAN.

La Commission fusionne l'examen des tarifs 15 et 16 de la SOCAN. Cela permettra à la Commission d'examiner l'industrie de la musique de fond dans son entièreté et d'éviter les dédoublements dans la présentation de la preuve et des questions juridiques communes aux deux tarifs.

L'examen du tarif 3 de Ré:Sonne n'est pas fusionné avec celui des tarifs 15 et 16 de la SOCAN pour plusieurs raisons. Premièrement, bien que les audiences conjointes puissent mener à des efficiences pour certains opposants, elles augmenteront assurément les coûts pour les deux sociétés de gestion. Deuxièmement, la présence de plusieurs opposants ayant des points de vue potentiellement divergents rend la gestion de l'audience plus difficile que dans le cas, par exemple, où il n'y a qu'un seul représentant d'une industrie entière, comme en radio commerciale. Troisièmement, la SOCAN recherche essentiellement le statu quo; les enjeux peuvent donc être ciblés en demandant aux opposants de procéder en premier. Cela n'est pas possible dans le cas de Ré:Sonne puisqu'elle demande à ce que des changements significatifs soient apportés aux taux et à la structure du Tarif 3. Quatrièmement, plusieurs questions spécifiques à l'examen du tarif de Ré:Sonne ne se soulèvent pas dans l'examen des tarifs de la SOCAN. Cinquièmement, forcer Ré:Sonne à se préparer pour une audience additionnelle mènera nécessairement à une qualité réduite de preuve déposée par elle dans une autre affaire déjà engagée.

Il n'est pas nécessaire de rendre une décision à l'égard de la demande de la SOCAN (du 1er avril 2011) de ne pas accorder à la RCC le statut d'opposant dans le tarif 16 de la SOCAN. L'examen des tarifs 15 et 16 est fusionné. Même si la RCC ne représente pas les utilisateurs du tarif 16, elle représente ceux du tarif 15. L'affaire est donc sans portée pratique.

La demande de la SOCAN (de la même date) voulant que les opposants présentent leur preuve avant la sienne est accordée. La SOCAN cherche à maintenir le statu quo. Demander qu'elle procède en premier est équivalent à lui demander de défendre les décisions récentes de la Commission. Les opposants contestent non seulement les résultats des décisions de la Commission de 2006 et 2009, mais également certains des enjeux spécifiques soulevés dans ces décisions. Demander aux opposants de soumettre leur preuve en premier aidera à cibler le débat sur les questions que les opposants souhaitent soulever.

La Commission demande aux parties de déposer, au plus tard le vendredi 27 mai 2011, un projet de calendrier des procédures menant à une audience débutant le mardi 12 juin, 2012 et dans laquelle les opposants déposent leur preuve en premier et ont un droit de réplique.

La décision de ne pas fusionner l'examen du tarif 3 de Ré:Sonne et des tarifs 15 et 16 de la SOCAN ne signifie pas que l'affaire est reportée à une date indéfinie. La Commission demande à Ré:Sonne de lui soumettre un rapport décrivant l'état actuel des négociations avec les parties au plus tard le jeudi 15 septembre 2011. Si aucune entente n'est conclue à cette date, Ré:Sonne devra soumettre au plus tard à cette même date un projet de calendrier des procédures pour l'examen de son tarif.

La requête en intervention du 4 mars 2011 de PJJ Productions dans l'affaire du tarif 3 de Ré:Sonne est accordée. PJJ est un fournisseur de musique de fond établi au Québec; à ce titre, il appartient à un marché non représenté par les autres opposants. PJJ disposera des pleins droits de participation.


April 4, 2011up arrow

Last Friday's deadline was for replies to submissions filed on March 4, 2011. The Retail Council of Canada's request for an extended deadline is partly denied. Parties may file replies no later than today, 5pm.


March 15, 2011up arrow

The Board agrees to extend the deadline to Friday, April 1, 2011 to reply to the submissions on consolidation of Re:Sound tariff 3 and SOCAN Tariffs 15 and 16.


February 18, 2011up arrow

Following recent submissions of some participants (attached) in respect of the above-captioned files, the Board wishes to obtain the views of all participants involved in the possible consolidation of SOCAN Tariff 15 (Background music), SOCAN Tariff 16 (Background music suppliers) and Re:Sound Tariff 3 (Use and supply of background music).

Participants that have already submitted their views on this matter need not file again, unless they wish to add something new. All participants have until Friday, March 4, 2011 to file their submissions. All participants will be allowed to provide replies by no later than Friday, March 18, 2011.

Attachments: RCC submissions.pdf; SOCAN submissions (1).pdf; Bell submissions.pdf; Hotel Association of Canada's submissions.pdf;SOCAN's submissions (2).pdf



Re:Sound Tariff 3 - Use and Supply of Background Music (2012)


July 4, 2014up arrow

NOTICE OF THE BOARD

Re:Sound’s June 25 request for a deadline to submit a further status report on the negotiations between the parties is granted. Re:Sound shall file its status report no later than October 31, 2014.

However, considering that the parties have been in negotiations since April 2011, the Board intends to start a hearing process if agreements in respect of all parts of the Tariff (3.A and 3.B) are not reached by October 31, 2014.


March 5, 2014up arrow

NOTICE OF THE BOARD

Re:Sound's request is granted. Re:Sound shall provide a further status report in respect of the above-noted file by no later than Monday, June 30, 2014.


December 3, 2013up arrow

NOTICE OF THE BOARD

Re:Sound's request (attached) is granted. Re:Sound shall provide a further status report on the negotiations in respect of the above-noted file by no later than Friday, February 28, 2014.

Attachment: ReSound Background Music - letter to Board - Nov. 29, 2013.pdf


September 3, 2013up arrow

NOTICE OF THE BOARD

Re:Sound's request (attached) is granted. Re:Sound shall provide a further status report on the negotiations in respect of the above-noted file by no later than Friday, November 29, 2013.

Attachment: ReSound Background Music T3 - August 30, 2013.pdf


November 21, 2012up arrow

RULING OF THE BOARD

The application of GoodLife for leave to intervene in the 2013-2016 file is granted.

The Board will not deal with the applications for leave to intervene of the Fitness Industry Council and of GoodLife (the Applicants) in the 2010-2012 proceedings until Re:Sound reports on its ongoing negotiations with objectors, which it has been ordered to do by no later than Monday, December 17, 2012. Re:Sound shall ensure that any relevant correspondence or agreement is copied to the Applicants. The Applicants shall be entitled to comment on any agreement Re:Sound may file with the Board, by such date as the Board will set in due course.


August 30, 2012up arrow

NOTICE OF THE BOARD

Parties are asked to comment on Goodlife Fitness Centres Inc.'s Application for Leave to Intervene dated August 24, 2012 as well as The Fitness Industry Council of Canada's (FIC) Application for Leave to Intervene dated October 5, 2011 (both attached) in the above-referenced matter by no later than Friday, September 21, 2012. Goodlife and FIC may submit their replies by no later than Friday, September 28, 2012.

Attachment: 1) Goodlife Request for Leave to Intervene Re Sound Proposed Tariff 3 and ReSound proposed 6B 2) FIC Request for Leave to Intervene



Re:Sound Tariff 3 - Use and Supply of Background Music (2013-2016)


July 4, 2014up arrow

NOTICE OF THE BOARD

Re:Sound’s June 25 request for a deadline to submit a further status report on the negotiations between the parties is granted. Re:Sound shall file its status report no later than October 31, 2014.

However, considering that the parties have been in negotiations since April 2011, the Board intends to start a hearing process if agreements in respect of all parts of the Tariff (3.A and 3.B) are not reached by October 31, 2014.


March 5, 2014up arrow

NOTICE OF THE BOARD

Re:Sound's request is granted. Re:Sound shall provide a further status report in respect of the above-noted file by no later than Monday, June 30, 2014.


September 3, 2013up arrow

NOTICE OF THE BOARD

Re:Sound's request (attached) is granted. Re:Sound shall provide a further status report on the negotiations in respect of the above-noted file by no later than Friday, November 29, 2013.

Attachment: ReSound Background Music T3 - August 30, 2013.pdf


November 21, 2012up arrow

RULING OF THE BOARD

The application of GoodLife for leave to intervene in the 2013-2016 file is granted.

The Board will not deal with the applications for leave to intervene of the Fitness Industry Council and of GoodLife (the Applicants) in the 2010-2012 proceedings until Re:Sound reports on its ongoing negotiations with objectors, which it has been ordered to do by no later than Monday, December 17, 2012. Re:Sound shall ensure that any relevant correspondence or agreement is copied to the Applicants. The Applicants shall be entitled to comment on any agreement Re:Sound may file with the Board, by such date as the Board will set in due course.


August 30, 2012up arrow

NOTICE OF THE BOARD

Parties are asked to comment on Goodlife Fitness Centres Inc.'s Application for Leave to Intervene dated August 24, 2012 as well as The Fitness Industry Council of Canada's (FIC) Application for Leave to Intervene dated October 5, 2011 (both attached) in the above-referenced matter by no later than Friday, September 21, 2012. Goodlife and FIC may submit their replies by no later than Friday, September 28, 2012.

Attachment: 1) Goodlife Request for Leave to Intervene Re Sound Proposed Tariff 3 and ReSound proposed 6B 2) FIC Request for Leave to Intervene



Re:Sound Tariff 5.E - Circuses, Ice Shows, Fireworks Displays, Sound & Light Shows & Similar Events (2013-2015)
Re:Sound Tariff 5.H - Sports Events (2008-2015)
Re:Sound Tariff 5.I - Comedy and Magic Shows (2008-2015)
Re:Sound Tariff 5.J - Concerts (2008-2015)


March 7, 2014up arrow

NOTICE OF THE BOARD

As some of the responses of the Board's questions of February 13, 3014 were not sent to all participants, please find attached all responses received by the Board.

Attachment: 1) CAFE Response.pdf; 2) ReSound Response.pdf; 3) CAPACOA Response.pdf; 4) Sports Objectors Response.pdf


February 21, 2014up arrow

NOTICE OF THE BOARD

Question 2 of the attached questions to the parties in the file mentioned above makes reference to SOCAN's proposed rate for 2013 and 2014 that remains at its certified level of 0.1 per cent for 2012. The Board was referring more precisely to SOCAN Tariff 9 for sports events. The assertion that the proposed Tariff 9 rates for 2013 and 2014 remain at their 2012 certified level of 0.1 per cent is based on the attached email from SOCAN in respect of its Tariff 9.


June 4, 2013
Mr. McDougall,
I have spoken with Mark Hayes regarding the objection to SOCAN Tariff 9 for the year 2013 filed the NHL and the Blue Jays. Mr. Hayes has confirmed that his clients will withdraw their objection to SOCAN Tariff 9 for the year 2013 if SOCAN amends its proposal to use the certified rate of 0.10 per cent (i.e. back to the certified rate of 0.1 per cent for 2011 and 2012) which SOCAN hereby does. We would, therefore, ask that the Board proceed to certify SOCAN Tariff 9 at the rate of 0.10 per cent for 2013.

Lynne

D. Lynne Watt


February 7, 2014up arrow

NOTICE OF THE BOARD

Please see the attached Notice of the Board.

Attachment: Notice of the Board - ReSound 5 - Feb. 13, 2014.pdf



Re:Sound Tariff 6.B - Use of Recorded Music in Fitness Venues (2013)


October 12, 2012up arrow

NOTICE OF THE BOARD

The August 24, 2012 application of Goodlife for leave to intervene in the above-referenced proceedings is granted.


August 30, 2012up arrow

NOTICE OF THE BOARD

Parties are asked to comment on Goodlife Fitness Centres Inc.'s Application for Leave to Intervene dated August 24, 2012 as well as The Fitness Industry Council of Canada's (FIC) Application for Leave to Intervene dated October 5, 2011 (both attached) in the above-referenced matter by no later than Friday, September 21, 2012. Goodlife and FIC may submit their replies by no later than Friday, September 28, 2012.

Attachment: 1) Goodlife Request for Leave to Intervene Re Sound Proposed Tariff 3 and ReSound proposed 6B



Re:Sound Tariff 8.A - Simulcasting and Webcasting (2009-2012); Re:Sound Tariff 8.B - Semi-Interactive Webcasting (2011-2012)


January 30, 2014up arrow

NOTICE OF THE BOARD

Re:Sound's request is granted.

No later than on Monday, February 24, 2014, Parties shall file with the Board any agreed position on issues raised in the January 27, 2014 Notice of the Board as well as their comments where no agreement has been reached. Parties may respond to comments filed by other parties no later than on Monday, March 10, 2014.

De : Glen Bloom
Envoyé : 29 janvier 2014 15:05
À : Gilles McDougall
Cc : Seto, Chi; aoneill; athomas; david.kent; freya; gabriel vanloon; jkerrwilson; kathleen simmons; sarah.kilpatrick; Fong, Barry; chantal carbonneau; Cotter, John
Objet : FW: Sound Tariffs 8.A (2009-2012) and 8.B (2011-2012) - Consultations on the Tariff

Mr. McDougall I am writing to you on behalf of Re:Sound to request an extension of the period of time to respond to the Notice of the Board dated January 27, 2014. The request is to extend the date of February 17 to February 24 and March 3 to March 10. The reason for the request is that February 17 is a holiday in Ontario (Family Day). February 14 is the deadline for the closing arguments in the recent commercial radio proceedings. March 3 is the date for the oral hearing of the closing arguments in those proceedings.

I have exchanged communication with David Kent. Mr. Kent has advised me that he was OK with the proposed new dates.

I also ask that you communicate with me to my new email address on this matter which is glen.bloom@osler.com.

Glen Bloom


January 27, 2014up arrow

NOTICE OF THE BOARD

Please see attached Notice of the Board and Annexes.

Attachment: 1) Notice of the Board - ReSound 8 - Jan. 27, 2014; 2) Annexe 1; 3) Annexe 2


November 8, 2012up arrow

NOTICE OF THE BOARD

The October 25, 2012 request of Re:Sound, in the above-referenced file, to disregard Sirius' letter of comments of September 21, 2012 in its entirety is denied. Sirius' letter is thus part of the record of the file. Re:Sound's comments included in its request are also made part of the record.

However, the reply letter filed by Sirius on November 6, 2012 will not be included in the record and is returned, unread.


September 21, 2012up arrow

NOTICE OF THE BOARD

Opening statements

The Board expects that each opening statement will not be longer than 20 minutes, unless there is a clear justification that more time is required.

Technical protection measures

The Board does not wish to hear any evidence dealing with cross-fading, stream ripping TPMs, the Sound Recording Performance Complement or other issues to the extent that they concern the prevention of copying of sound recordings off the Internet. The Board does not intend to include terms and conditions that are meant solely to prevent or restrict unauthorised copying of sound recordings in the tariff it will certify.

Dispensing with testimonies

The Board does not wish to hear the testimony of Mr. Mooney. His statement will remain on the record.

The Board wishes to hear the testimony of Mr. Boyce and Ms. Gagné only to the extent that they deal with uses of sound recordings over the Internet. Their statement with respect to other issues will remain on the record.

Reporting requirements

The Board expects to hear the parties on the reporting requirements, at least with respect to what is possible, feasible or practical. Important reporting issues should be addressed at the hearing. Discussions on tariff wording after the hearing are meant to hone details.

Issues to be addressed at the hearing

The parties will be expected to address the following issues.

  • Whether to account for non-eligible sound recordings and if so, how.
  • Whether it is possible to segregate plays according to which label owns the sound recordings.
  • Whether it is possible to segregate plays according to whether the recording triggers or not equitable remuneration (non-Rome recordings, public domain recordings).
  • The proportion of webcasting royalties in the United States that are paid (a) pursuant to the rates set by the Copyright Royalty Board, (b) pursuant to agreements signed with SoundExchange, (c) pursuant to agreements signed with music labels or other rights holders.
  • The extent to which users of semi-interactive services skip songs and the extent to which song skipping increases or decreases with time.
  • The account, if any, that should be taken of sound recordings that are played only partially, if a per play rate is set.
  • The extent to which users in general, and radio stations in particular, can or do generate page-view reports.
  • Whether it would be possible, if the Board so wished, to derive a per play or per ATH rate using the SOCAN commercial radio tariff as starting point. If so, how would it be best to proceed (choice of formula, choice of data)?
  • The relative ease and usefulness of counting plays/page views for the purposes of the tariff under examination.

TO CBC:

In its recent decision dealing with an application from Stingray, the CRTC stated the following:

The CBC noted that display advertising revenues on the [CBC Music] site have already exceeded expectations.

CBC is asked to provide the predicted and actual advertising revenues for music.cbc.ca and espace.mu.

TO NCRA:

A NCRA witness will be expected to comment on the following issues:

  • Whether non-commercial radio stations can monitor aggregate tuning hours (ATH: please refer to Exhibits Pandora/CAB-2, footnote 22 and Re:Sound-4, para. 128)
  • Whether non-commercial radio stations can monitor plays.
  • Whether non-commercial radio stations would accept a tariff that sets royalties at a fixed dollar amount if they keep below a certain number of ATH and if so, what that number should be.

TO RE:SOUND:

The relevant witness is expected to clarify the underlined statement in paragraph 7 of Exhibit Re:Sound-8:

I understand that Re:Sound represents the interests of performers and makers of sound recordings to receive equitable remuneration for the communication of sound recordings to the public over the Internet and similar networks such as telephone networks by Webcasts. I also understand that Re:Sound does not represent any of the rights relating to the use of sound recordings for interactive communications.


August 23, 2012up arrow

RULING OF THE BOARD

Re:Sound's application for leave to substitute the Will Say Statement of Lucy Otterwell for the Will Say Statement of Tucker McCrady in the above-referenced file is granted.


August 9, 2012up arrow

RULING OF THE BOARD

On July 31, 2012, Re:Sound applied for an order striking out parts of Exhibit NCRA/ARC-4 from the record and directing NCRA/ARC to remove from its statement of case anything that may rely on such parts of the exhibit. In essence, the application seeks to prevent NCRA/ARC from relying on answers it provided in response to some of Re:Sound's interrogatories.

The application is denied.

Re:Sound argues that it is improper for a party to file as its evidence its answers to the interrogatories posed of it by another party. Assuming, without deciding, that this is a well established principle in civil litigation, it is of no obvious relevance in proceedings before the Board. For one thing, such a principle would allow a party to prevent another from relying on any document through a simple, pre-emptive strike: to require that the document be supplied in response to an interrogatory. The principle, if principle there is, must be something else.

The application of Re:Sound raises two separate questions. The first is who can offer a document as evidence. The second is whether that document can be relied upon by the party offering it without further supporting evidence.

The first question is a non-issue. That NCRA/ARC offers any evidence, with or without the support of a witness, is not a problem. The Board accepts as evidence documents without any witness support as a matter of course.

The second question raises a legitimate issue, that is Re:Sound's ability to test the evidence offered by another party. Re:Sound will be free to test the reliability of every document through such means as the Board will allow. Re:Sound can file rebuttal evidence. With the Board's permission, it can ask that a party be required to provide witnesses that can speak to the authenticity and reliability of the information. In the end, whether the information contained in a document is sufficiently reliable for the Board to use it in reaching a decision is one for the panel to decide, after considering the evidence.

Proceeding as Re:Sound proposes would be especially prejudicial to parties with limited means such as NCRA/ARC. The hurdles such parties face are already formidable enough. There is no need to add to their burden.

DÉCISION DE LA COMMISSION

Le 31 juillet 2012, Ré:Sonne a demandé à la Commission de radier certains éléments de la pièce NCRA/ARC-4 et d'ordonner à NCRA/ARC de retirer de son énoncé de cause tout ce qui pourrait être fondé sur les éléments en question. La demande vise essentiellement à empêcher NCRA/ARC d'utiliser en preuve ce qu'elle a fourni en réponse aux demandes de renseignements de Ré:Sonne.

La demande est rejetée.

Ré:Sonne prétend qu'il est déplacé pour une partie de déposer en preuve les réponses aux demandes de renseignements qu'une autre partie lui a adressées. En supposant, sans l'affirmer, qu'il s'agit là d'un principe bien établi en matière de procédure civile, la pertinence n'en est pas évidente devant la Commission. Un tel principe permettrait entre autres à une partie d'en empêcher une autre d'utiliser un document via un simple geste anticipatoire, soit en demandant le renseignement. Le principe, si tant est qu'il existe, doit être différent.

La demande de Ré:Sonne soulève deux questions distinctes. Premièrement, qui peut introduire un document en preuve? Deuxièmement, la partie qui invoque le document peut-elle le faire sans autre preuve à l'appui?

La première question n'en est pas une. Le fait que NCRA/ARC soumette de la preuve, appuyée ou non par un témoin, ne pose pas problème. La Commission accepte régulièrement en preuve des documents qui ne sont pas appuyés de témoignages.

La seconde question soulève un point légitime, soit la capacité de Ré:Sonne de tester la fiabilité de la preuve présentée par une autre partie. Ré:Sonne pourra tester la fiabilité de tout document de la façon dont la Commission le permettra. Ré:Sonne peut déposer une contre-preuve. Elle peut demander à la Commission d'exiger qu'une partie fournisse un témoin en mesure d'attester l'authenticité et la fiabilité de l'information. En bout de ligne, la question à savoir si l'information provenant d'un document est suffisamment fiable pour fonder la décision de la Commission relève de la formation, qui en disposera après avoir apprécié la preuve.

Procéder de la façon suggérée par Ré:Sonne serait particulièrement préjudiciable aux parties disposant de ressources limitées comme NCRA/ARC. Les difficultés que ces parties ont à surmonter sont déjà considérables. Nous ne voyons pas pourquoi il faudrait ajouter à leur fardeau.


July 9, 2012up arrow

ORDER OF THE BOARD

On July 3, 2012, the Board granted Pandora's and CAB's application, with reasons to follow. The reasons are now attached.

Attachment: 1) Reasons - Order - ReSound 8A and 8B - CAB and Pandora request.pdf 2) June 16, 2011 Directive on Procedure


July 3, 2012up arrow

ORDER OF THE BOARD

The June 20, 2012 application of Pandora and CAB, attached for convenience, is granted. Re:Sound shall provide the requested information forthwith. Reasons will follow.

Attachment: E-mail from D. Kent to G. McDougall dated June 20, 2012.pdf


June 21, 2012up arrow

NOTICE OF THE BOARD

Re:Sound shall respond to CAB's and Pandora's request by no later than Friday, June 22, 2012. CAB and Pandora shall reply by no later than Wednesday, June 27, 2012.


April 11, 2012up arrow

NOTICE OF THE BOARD

Re:Sound's request described below is granted.

Re:Sound's request:
Mr. McDougall, I am writing to you on behalf of Re:Sound further to the Notice of the Board dated October 27, 2011 which established the schedule in the proceedings concerning the above tariffs.

Re:Sound requests that the two deadlines in the schedule be amended as follows:

Filing of Collective's Case: no later than Friday April 20, 2012

Filing of Objectors' Cases: no later than Friday July 6, 2012

Re:Sound is not requesting amendment to any of the other deadlines set out in the Notice of the Board.

Each of the objectors has consented to this request.

Should you require any background information, please let me know.


March 29, 2012up arrow

NOTICE OF THE BOARD

On December 22, 2011, the Copyright Board of Canada issued a Ruling dealing with the grounds for Deficiencies. On page 3 the Board stated the following:

[.]

Digital Media Association ("DiMA") and Planetnerve8 Inc. ("Planetnerve")

DiMA and Planetnerve shall provide responses to the Interrogatories by January 27, 2012. If DiMA or Planetnerve fail to do so, they will be prohibited from further participating in these proceedings.

[.]

Considering Re:Sound's confirmation below that DiMA and Planetnerve8 Inc. have not provided responses, both are now deemed to have withdrawn from the proceedings.

Re:Sound's email:
Mr. McDougall, this will confirm that we have not been served with any responses to Re:Sound's interrogatories in the proceedings concerning the above tariffs from either Digital Media Association or Planetnerve 8 Inc. as required by the Board pursuant to the Ruling of the Board of December 12, 2011.


March 26, 2012up arrow

NOTICE OF THE BOARD

Attached is the Order of the Board requested by Re:Sound in respect of record labels' licensing agreements.

Attachment: Order - ReSound 8A and 8B - Confidential agreements.pdf


March 21, 2012up arrow

NOTICE OF THE BOARD

Objectors may provide a response to the attached request by no later than Friday, March 23, 2012. Re:Sound may reply by no later than Tuesday, March 27, 2012.

Attachment: ReSound Tariff 8 - order to record labels .PDF


February 10, 2012up arrow

NOTICE OF THE BOARD
  
Re:Sound and NCRA/ARC's request of today, which is attached, is granted. Therefore, the deadlines with respect to the Interrogatory process between NCRA/ARC and Re:Sound are now as follows:
  
NCRA/ARC to provide its responses to Interrogatories to Re:Sound by no later than Monday, February 6, 2012

Re:Sound to provide its notice of deficiencies to NCRA/ARC by no later than Monday, February 13, 2012

NCRA/ARC to file with the Board its replies to Re:Sound's notice of deficiencies, if any, by no later than Tuesday, February 21, 2012

[Board Ruling]

NCRA/ARC to provide complete/satisfactory responses to interrogatories by no later than Tuesday, March 6, 2012

The remainder of the schedule is unchanged.

Attachment: NCRA ARC - Jan 5 2012.pdf; Request for a Schedule Change.pdf


February 8, 2012up arrow

ORDER OF THE BOARD

On January 27, 2011, Re:Sound filed with the Board documents over which it claims litigation privilege, along with the reasons outlining why privilege is claimed.

Re:Sound's claim of privilege is dismissed for the following reasons.

Q25, 71: Re:Sound argues that the documents were obtained by legal counsel exercising legal knowledge, skill and judgment for the sole or dominant purpose of the proceedings and that their disclosure would disclose Re:Sound's litigation strategy.

Re:Sound merely repeats the principles set out in the October 17, 2011 Ruling of the Board with respect to objections to Interrogatories. It fails to demonstrate how these principles may apply in this specific instance. It provides no information on the facts that may underpin the claim of privilege. It provides no indication of the context within which the documents were obtained, by whom and for what purpose. As such, Re:Sound's arguments are not responsive to the Board's Order of December 22, 2011.

The privilege claim with respect to the documents to be filed in response to Q71 is especially difficult to understand. On its face, these are (a) an unsolicited email sent by IFPI to all its members, suggesting best practices concerning stream ripping, the subject of the interrogatory and (b) a supporting document. A claim of privilege with respect to such documents requires particularly convincing evidence and argument. None was provided.

Q59, Q72: Re:Sound indicates that it has no documents responsive to these questions other than those set out with respect to Q25 and Q71. The Board's treatment of Q25 and Q71 disposes of Q59 and Q72.

Q42: Re:Sound indicated in its letter to the Board dated January 27, 2011 that it had no documents which are responsive to the question. The issue of privilege is therefore moot.

As a result of the foregoing, Re:Sound shall provide the objectors with the documents filed with the Board by no later than Wednesday, February 15, 2012.


December 22, 2011up arrow

NOTICE OF THE BOARD

Attached is the Ruling of the Board dealing with the grounds for deficiencies. 

Attachment: Ruling - ReSound 8A and 8B - Deficiencies.pdf


December 16, 2011up arrow

NOTICE OF THE BOARD

The CAB's request (attached) for an extension of the deadline to Wednesday, December 21, 2011 for filing replies to motions re: incomplete/unsatisfactory responses to interrogatories is granted.

Attachment: L - McDougall - Time Extension on Deficiency Motions.pdf


November 21, 2011up arrow

NOTICE OF THE BOARD

Re:Sound's request is granted. The hearing for the file cited above will begin at 10:00 a.m., on Monday, September 24, 2012.


November 10, 2011up arrow

NOTICE OF THE BOARD

On November 2, 2011, Re:Sound sought clarification of the Ruling of the Board, dated October 17, 2011, on Re:Sound's objections to certain interrogatories. It asked that the Board confirm that its ruling with respect to interrogatory 64 addressed by the objectors to Re:Sound equally applies to interrogatory 52 and 58, since the three questions are similar.

No parties offered comments on Re:Sound's request.

The Board confirms that the ruling in respect of interrogatory 64 to Re:Sound equally applies to interrogatory 52 and 58.


November 9, 2011up arrow

ORDER OF THE BOARD

Attached is the Board's Order dealing with information requested during the Interrogatory exchange process for which confidential treatment may be claimed.

Attachment: Confidentiality Order Re Sound 8A 8B.pdf


November 3, 2011up arrow

NOTICE OF THE BOARD

Parties can provide a response to Re:Sound's clarification request, attached, by no later than Friday, November 4, 2011. Re:Sound can provide a reply by no later than Monday, November 7, 2011.

Attachment: ReSound Tariff 8A and 8B - letter to Board from ReSound.pdf


October 27, 2011up arrow

NOTICE OF THE BOARD

Re:Sound is requesting (request attached) a modification of three of the deadlines in the Board's schedule of proceedings, as follows:

    Answers to Interrogatories: October 28, 2011 to November 11, 2011;

    Motions re Interrogatories: November 18, 2011 to December 2, 2011;

    Replies to Motion: December 9, 2011 to December 16, 2011.

Re:Sound has informed the Board that CAB, Pandora, the Services (BDUs) and CBC have consented to the request. Unless the other participating parties (NCRA/ANREC, DiMA and Planetnerve8 Inc.) to the file referred above object to the modified schedule by no later than at the end of today, the Board will adopt the following revised schedule for the remainder of the proceedings:

[...]

Responses to interrogatories: no later than Friday, November 11, 2011

Motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, December 2, 2011

Filing, with the Board, of replies to motions: no later than Friday, December 16, 2011

[Board Ruling]

Complete/satisfactory responses to interrogatories: no later than Friday, January 27, 2012

Filing of Collective's Case: no later than Friday, April 13, 2012

Filing of Objectors' Cases: no later than Friday, June 29, 2012

Filing of Collective's Supplementary Case: no later than Friday, August 24, 2012

Filing of Legal Briefs (if required): to be determined at a later date

Beginning of hearing: Tuesday, September 25, 2012 at 10:00 a.m., Copyright Board's hearing room.

Attachment: Tariff 8 - letter to Board - extension request.PDF


October 20, 2011up arrow

CAB's request for time extension, as described below, is granted.

CAB extension request:
The CAB would like to request an extension of two timeframes related to the interrogatory process for Re:Sound Tariff 8.  As you know, 35 commercial radio stations will be required to respond to a broad array of comprehensive questions relating to all aspects of their business.  As of this morning, all English language stations have their questions and are processing them as we speak.  We hope to have French language interrogatories finalized and sent to the French stations by the middle of next week.  Needless to say, the deadline of October 28 for initial responses is not at all possible for any of the stations subject to the interrogatory process.

We have obtained consent from Re:Sound for an extension of the deadline for interrogatory responses from October 28, 2011 to November 11, 2011 and for motions on interrogatory answers from November 18, 2011 to November 25, 2011.  This extension request does not impact any of the other timelines for this proceeding.


October 17, 2011up arrow

RULING OF THE BOARD

RE:SOUND OBJECTIONS TO OBJECTORS' QUESTIONS

There is no need to rule on interrogatories 4, 27, 33, 34, 35, 37, 39, 53, 85 (question withdrawn).

There is no need to rule on the general objection on the scope of the rights Re:Sound administers, the general comment on the definition of communication to the public by telecommunication or interrogatories 1, 10, 24, 25, 30, 31, 32, 71, 72 (parties have reached an agreement).

General comment on litigation privilege: privilege claims are premature. It is also not the place of the parties to exchange proposals as to how the Board is to handle such claims. Privilege claims shall be dealt with according to the Board's May 29, 2008 ruling on the issue, adjusted so that documents for which privilege is claimed are filed with the Board only if useful in making its ruling.

  • 1) The person claiming litigation privilege bears the burden of proving, on a balance of probabilities, either (a) that the information was prepared for the dominant purpose of these proceedings or, (b) in the case of pre-existing information, that the information was obtained for the dominant purpose of these proceedings and that its disclosure is likely to disclose counsel's strategy.

  • 2) The person claiming litigation privilege shall provide to the person who asked the relevant interrogatory a list of the information for which privilege is claimed with a short description of the information and the reasons for which privilege is being claimed. If the person is of the view that simply knowing the fact that information is available to counsel might reveal counsel's strategy, the person shall provide as much details about the information as possible without defeating the purpose of the privilege.

  • 3) After receiving the list of information for which privilege is claimed, the person who asked the relevant question may ask the Board to rule on the validity of the claim. If this happens, the person claiming litigation privilege shall provide to the Board and the opposing party information that identifies or describes documents for which privilege is claimed in a manner sufficient to permit the Objectors and the Board to determine whether a claim of privilege is justified in the circumstances. Documents for which privilege is claimed shall be filed with the Board only at the Board's request.

Definition of "members of Re:Sound": Re:Sound shall make reasonable efforts to gather a reasonable amount of relevant information when that information is in the hands of rights holders.

Interrogatory 2: Re:Sound shall answer as it offered, for all three tariffs for the past three years.

Interrogatory 11: Re:Sound need not seek information from its members or from rights holders. Rights holders' sources of income are irrelevant to the determination of a fair tariff.

Interrogatory 18: the objection is sustained. How much money flows from Canada to elsewhere is irrelevant.

Interrogatory 20: Re:Sound's objection is based on a legal assumption that has yet to be proven. Re:Sound shall provide the information requested concerning what is eligible, and within what is eligible, what is in its repertoire. If no general answer exists, Re:Sound shall provide available information for the Existing Tariffs.

Interrogatory 28: Re:Sound has answered the question.

Interrogatory 29: Re:Sound shall provide a general description with respect to its Tariffs 1.A, Pay Audio and CBC Radio.

Interrogatories 42, 43, 44, 65, 68, 77: the objection to these questions is based on privilege and as such, is premature. However, the Board's preliminary view is that providing such information probably would disclose counsel's strategy.

Interrogatory 45: the objection is sustained. The question is too broad to be capable of an answer.

Interrogatories 49, 55: Re:Sound shall answer as it offered.

Interrogatories 50, 56, 62, 69, 76: Re:Sound shall provide, on a without prejudice basis, the information requested except the list of sites referred to in Q69 and the answer to the first question in Q76. This will allow Objectors to prepare their case knowing Re:Sound's perspective on these issues.

Interrogatories 51, 57, 63: the objection is sustained. Objectors cannot know what triggers liability unless Re:Sound tells them. Objectors know how they operate; no purpose is served by informing them, at this early stage, of how Re:Sound thinks they operate.

Interrogatory 61: the objection is sustained in part. Information requested in paragraphs a), e), f) and g) is irrelevant. Re:Sound shall respond to paragraphs b), d) and h) as asked, and to paragraph c) as agreed by the parties.

Interrogatory 64: while the objection to these questions is based on privilege and as such, premature, this information is inherently irrelevant and need not be provided in any event.

Interrogatories 86, 87, 88: the objection is sustained in part. The real and substantial connection exists whether or not a foreign collective collects royalties. On the other hand, whether royalties are paid elsewhere may be relevant to the amount of equitable remuneration to be paid in Canada. Re:Sound shall make reasonable inquiries from foreign collectives, but only on the issue of whether they collect royalties on communications that originate from, or end in, Canada.

Interrogatory 89: the objection is sustained. While similar information was ordered to be supplied in earlier instances, any position Re:Sound may have taken is irrelevant given that the Supreme Court will deal with the issue in a few months.

OBJECTORS' OBJECTIONS TO RE:SOUND QUESTIONS

General objection re publicly available information: a party is not required to provide a research service for another. If it knows of publicly available documents relevant to a question, it should assist the asking party in obtaining it. This can be achieved by providing a link to a web site or a bibliographical reference.

Interrogatory 3(d): the objection is dismissed. Broadcasters shall indicate whether or not they geo-block or track location of online audience and if so, provide the relevant information.

Interrogatory 20: the objection is sustained. While the information is relevant, the request is not the proper subject of an interrogatory. Re:Sound has other means of accessing geo-blocked websites.

Interrogatory 28: the question is relevant. That being said, the question asks for too much information. Re:Sound can achieve its legitimate objectives with less. Counsel shall attempt to come to an agreement on the amount of information needed. In case of disagreement, the Board will dispose of the issue upon request.

Interrogatory 30: the objection is dismissed. The information is relevant. The question can be answered by providing facts or data (whether copies are made in Canada), not opinions (whether these are "reproductions" or whether they are subject to Canadian law).

Interrogatory 31(j), 42: objectors shall answer the question if they intend to argue ability to pay.

Interrogatories 48, 49: the objection is dismissed, for the reasons stated by Re:Sound.

Interrogatories 53, 54, 55, 56, 61: the information is relevant but the amount requested probably is excessive. Counsel shall attempt to come to an agreement on the amount of information needed for Re:Sound to develop an understanding of what the expectations are until 2013. Financial projections shall be provided only if CAB intends to argue ability to pay. In case of disagreement, the Board will dispose of the issue upon request.

Interrogatory 68: the objection is dismissed, for the reasons stated by Re:Sound.


August 8, 2011up arrow

RULING OF THE BOARD

The June 24, 2011 application of CSI for leave to intervene in the above-referenced proceedings is dismissed.

According to some participants, the right to intervene should benefit first and foremost affected users. This argument is logically flawed. Users have a strict right to object. Interventions are for those who are not entitled to appear before the Board as of right. This includes collectives whose tariffs are not the object of the proceedings. Such was the case of ACTRA/PRS and AFM Canada in the most recent commercial radio proceedings.

That being said, the Board is not convinced that anything would be achieved by allowing CSI to join the debate as intervener. As any other member of the public, CSI can keep abreast of the evidence filed as part of the public record of these proceedings and is free to file written representations or comments, based on that record, at any stage.

Allowing CSI's external counsel and experts to access confidential information so early in the process would unnecessarily broaden the circulation of such information. CSI may conclude, after Re:Sound and the objectors have filed their evidence in chief, that it cannot formulate informed comments without such access. Then will be the time to address such concerns.


July 8, 2011up arrow

NOTICE OF THE BOARD

In light of the content of CSI's reply of today, attached for your convenience, parties have until Wednesday, July 13, 2011 to provide additional comments.

Attachment: 11-07-08 Letter to Gilles McDougall re CSI application for leave to intervene (ReSound).pdf


June 29, 2011up arrow

NOTICE OF THE BOARD

Parties are asked to comment on CSI's application (attached) for leave to intervene in the above-referenced matter by no later than Wednesday, July 6, 2011, at noon. CSI may submit a reply by no later than Friday, July 8, 2011, at noon.

Attachment: 11-06-24 Letter to Gilles McDougall re CMRRA-SODRAC Inc. Application for Leave to Intervene.PDF


June 17, 2011up arrow

[Le texte français suit l'anglais]

NOTICE OF THE BOARD

Further to the Board's Notice of June 6, 2011, attached is the Directive on Procedure.  We draw your attention on the following points:

a) The electronic version of the evidence (on CD, DVD or USB key) should be filed with the Board, along with the hard copies on the date set for that purpose. You must also ensure that other participants receive their hard copy and electronic version on the same date the documents are filed with the Board;

b) As a general rule, responses to interrogatories are NOT filed with the Board. Parties should only file as evidence those responses to interrogatories to which they know they intend to refer;

c) When filing documents with the Board, confidential and highly confidential information should be highlighted in yellow and blue, respectively. The cover page of the document should indicate whether it includes confidential or highly confidential information.

________________________________________________________

AVIS DE LA COMMISSION

En référence à l'avis de la Commission en date du 6 juin 2011, vous trouverez ci-joint la directive sur la procédure.  Nous attirons votre attention sur les items suivants :

a)  La version électronique de la preuve (sur CD-ROM, DVD ou clé USB) doit être déposée auprès de la Commission en même temps que les copies papier à la date fixée pour ce faire. Vous devez aussi vous assurer que tous les participants reçoivent les versions papier et électronique le même jour que les documents sont déposés auprès de la Commission;

b) En règle générale, les réponses aux demandes de renseignements ne sont PAS déposées auprès de la Commission. Les participants devraient déposer en preuve seulement les réponses aux demandes de renseignements auxquelles ils entendent faire référence;

c) Lorsque les participants déposent des documents auprès de la Commission, les renseignements confidentiels et hautement confidentiels doivent être surlignés en jaune et bleu, respectivement. La page titre du document doit indiquer si le document contient des renseignements confidentiels ou hautement confidentiels.

Attachment : Re.Sound Tariffs 8.A & 8.B - Directive on procedure and Appendices.pdf


June 6, 2011up arrow

NOTICE OF THE BOARD

The Board adopts the following schedule of proceedings with respect to the above-mentioned file, leading to a hearing beginning Tuesday, September 25, 2012:

Exchange of Interrogatories: no later than Friday, July 15, 2011

Objections to interrogatories: no later than Friday, August 19, 2011

Filing, with the Board, of replies to objections to interrogatories: no later than Friday, September 9, 2011

[Board Ruling]

Responses to interrogatories: no later than Friday, October 28, 2011

Motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, November 18, 2011

Filing, with the Board, of replies to motions: no later than Friday, December 9, 2011

[Board Ruling]

Complete/satisfactory responses to interrogatories: no later than Friday, January 27, 2012

Filing of Collective's Case: no later than Friday, April 13, 2012

Filing of Objectors' Cases: no later than Friday, June 29, 2012

Filing of Collective's Supplementary Case: no later than Friday, August 24, 2012

Filing of Legal Briefs (if required): to be determined at a later date

Beginning of hearing: Tuesday, September 25, 2012 at 10:00 a.m., Copyright Board's hearing room.

The Directive on Procedure will follow shortly.


May 31, 2011up arrow

The Board adopts the alternative hearing starting date proposed by Mr. Kerr-Wilson.

Accordingly, parties are asked to file with the Board, by no later than Thursday, June 2, 2011, a proposed schedule of proceedings along the lines suggested in Mr. Kerr-Wilson's email below, that will lead to a hearing on Tuesday, September 25, 2012.


May 4, 2011up arrow

NOTICE OF THE BOARD

In its Ruling of April 29, 2011 (attached for convenience) [See April 29, 2011 entry below for ruling], the Board invited comments on its preliminary view that the examination of proposed tariffs SODRAC 6, SOCAN 22.A and CSI Online Music Services should all proceed according to the same schedule. The Board does not wish to receive any comment on the possible examination of proposed Re:Sound tariffs 8.A and 8.B at the same time, since the Board intends to proceed as per its ruling of January 26, 2011 (also attached) [see January 26, 2011 entry below for ruling] and hear the matter independently.

With respect to proposed Re:Sound tariffs 8.A and 8.B, parties are reminded that the Board asked them on January 26, 2011 to submit a mutually acceptable schedule of proceedings. Since no proposal has been made yet, the Board sets as Friday, May 27, 2011, the date by which parties may submit such a proposed schedule. After that date, the Board will proceed to set the schedule without the benefit of the parties' point of view.


April 29, 2011up arrow

RULING OF THE BOARD

On January 25, 2011, SOCAN asked that the Board set in motion the process leading to the examination and certification of its proposed tariffs 22.D (Audiovisual Webcasts) and G (User Generated Content) for the year 2011, along with the corresponding proposed tariffs for the years 2007 to 2010, which SOCAN identified as items 22.4 (Audiovisual Webcasts) for 2007-2008 and 22.D (Audiovisual Webcasts) for 2009-1010. SOCAN also proposed a schedule of proceedings leading to such a hearing.

The application generated a significant number of comments and proposals. Some asked that all SOCAN Internet tariffs be heard at the same time. Some suggested that Re:Sound's Internet tariffs be examined with SOCAN's. Others asked that specific tariff items of interest to them be examined separately. SOCAN and Re:Sound opposed any widening of the issues. Many asked that the process not be set in motion until the Board has certified the CSI and SOCAN Online Music Services tariffs that are currently under advisement.

The motion is granted in part. The examination of proposed SOCAN tariffs 22.D and G (2011) will proceed jointly, but only to the extent that they target the use of musical works in non-simulcast, audio-visual transmissions other than video games. The examination of proposed SOCAN tariffs 22.4 (2007-2008) and 22.D (2009-2010) will proceed at the same time. So will the examination of proposed SOCAN tariffs 22.7 (Other Sites, 2007-2008) and 22.G (Other Sites, 2009-2010), to the extent that they target user generated content as described in proposed SOCAN tariff 22.G (2011).

The reasons to so proceed are as follows:

Non-simulcast, audio-visual transmissions are prima facie sufficiently distinct from other forms of music offerings over the Internet to deserve separate examination. Audio-visual offerings probably dominate music uses targeted in proposed tariff 22.G for 2011; postponing the examination of audio-only user generated content will allow the Board to focus on the lion's share of that activity. As for simulcast uses of music, they generally are so strongly associated to a principal use that they should be examined at the same time as that principal use.

Video games are non-simulcast, audio-visual transmissions. However, since neither SOCAN nor the relevant objectors wish this item to be examined with tariffs 22.D and G, there is no need to consider the issue.

Focussing on audio-visual products restricts the number of objectors: hence, those who only supply audio transmissions need not participate. It also makes it moot to decide whether to examine any corresponding Re:Sound or CSI proposed tariffs at the same time, since such tariffs do not exist.

Merging the examination of all Internet tariffs would create more problems than it would solve. To do so would make no more sense than, for example, merging the examination of all tariff items dealing with the use of music by all radio and television services. Contrary to what some objectors argued, it is quite possible to migrate from user-based to use-based tariffs without examining all Internet tariffs in a single hearing. Currently, both types of tariffs coexist; tariff 22.A (Online Music Services) is use-based while all other tariff 22 items are user-based. Any transition issues created by moving from one type of tariff to the other can be addressed through proper tariff wording.

There is no need to postpone the examination of these tariff items until the Board certifies the SOCAN and CSI Online Music Services tariffs, currently under advisement. The issues raised by audio-visual transmissions probably are sufficiently different to warrant separate consideration. There will be plenty of time for the parties to adjust their approach once the decision under advisement is rendered, if they so wish. However, since the schedule SOCAN proposed is now moot, the Board asks the parties to present a new scheduling proposal, preferably jointly, by no later than Friday, May 27, 2011.

SOCAN identified the proposed tariffs that should be examined together as tariff 22.4 (Audiovisual Webcasts) for 2007-2008, tariff 22.D (Audiovisual Webcasts) for 2009-1010 and tariffs 22.D (Audiovisual Webcasts) and 22.G (User Generated Content) for 2011. Out of an abundance of caution, the examination of proposed SOCAN tariffs 22.7 (Other Sites, 2007-2008) and 22.G (Other Sites, 2009-2010) will also be joined to these proceedings, to the extent that they target user generated content as described in proposed SOCAN tariff 22.G (2011).


January 26, 2011up arrow

RULING OF THE BOARD

The Board grants Re:Sound's request to consolidate Tariff 8 (Simulcasting and Webcasting, now referred to as 8.A) and Tariff 8.B (Semi-Interactive Webcasting). To the extent possible, parties are asked to submit to the Board a mutually acceptable schedule of proceedings.

***************************

DÉCISION DE LA COMMISSION

La Commission accède à la requête de Ré:Sonne et fusionne les affaires du tarif 8 (diffusion simultanée et la webdiffusion, maintenant identifié comme 8.A) et du tarif 8.B (webdiffusion semi-interactive). Dans la mesure du possible, la Commission demande aux parties de lui soumettre un calendrier des procédures sur lequel elles se seront entendues.


January 13, 2011up arrow

The Board is of the preliminary view that Re:Sound's request (below) with respect to the consolidation of Tariff 8 (Simulcasting and Webcasting, now referred to as 8.A) and Tariff 8.B (Semi-Interactive Webcasting) should be granted. Objectors wishing to file comments with respect to this request have until Friday, January 21, 2011 to do so. Objectors who do not file comments by the due date will be deemed to agree with the requested consolidation.

**************************************

La Commission est d'avis préliminaire que la requête de Ré:Sonne (ci-dessous) à l'égard de la fusion des affaires du tarif 8 (diffusion simultanée et la webdiffusion, maintenant identifié comme 8.A) et du tarif 8.B (webdiffusion semi-interactive) devrait être accordée. Les opposants désirant déposer des commentaires à l'égard de cette requête ont jusqu'au vendredi, 21 janvier 2011 pour le faire. Les opposants qui n'auront pas déposé de commentaires à la date d'échéance seront réputés être favorables à la requête.



Television Retransmission (2014-2018)


August 22, 2014up arrow

NOTICE OF THE BOARD

The Board acknowledges the receipt of the BDUs attached request that confidential and highly confidential information not be disclosed to Mr. Francis Schiller.

BBI may respond to the BDUs request by no later than Wednesday, August 27, 2014.

The BDUs may reply by no later than Friday, August 29, 2014.

Attachment: Retransmission 2014-2018  BDU Objection to Shiller.pdf


August 12, 2014up arrow

NOTICE OF THE BOARD

Following the parties’ August 11, 2014 request for the issuance of a confidentiality order, the Board issues the attached Order dealing with information for which confidential treatment may be claimed.

Attachment: Confidentiality Order – Retransmission 2014-2018.pdf


July 3, 2014up arrow

NOTICE OF THE BOARD

Further to all parties’ consent to the amendment in the Schedule of Proceedings, the request is granted.

The new schedule is as follows (amended dates highlighted):

Exchange of responses to interrogatories: no later than Wednesday, August 20, 2014

Exchange of motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, August 29, 2014

Filing, with the Board, of replies to motions re: incomplete/unsatisfactory responses to interrogatories: no later than Monday, September 8, 2014

[Board Ruling]

Complete/satisfactory responses to interrogatories: no later than Friday, October 3, 2014

Filing of Collectives’ case(s): no later than Friday, January 23, 2015

Filing of Objectors’ case: no later than Friday, March 27, 2015

Filing of Collectives’ reply statement of case(s): no later than Friday, May 15, 2015

Filing of Legal Briefs (if required by the Board): TBD

Beginning of hearing: Tuesday, May 26, 2015 at 10:00 a.m., Copyright Board's hearing room.


July 3, 2014up arrow

NOTICE OF THE BOARD

The Board acknowledges the receipt of the parties’ (excluding BBI) request below to amend the Schedule of Proceedings.

BBI is asked to respond to the request no later than Monday, July 7, 2014.

If required, the parties may reply to BBI’s submissions no later than Wednesday July 9, 2014.

From: Jay Kerr-Wilson Sent: July-02-14 1:00 PM To: McDougall, Gilles: CB-CDA Cc: Levac, Roch: CB-CDA; Choquette, Maryse: CB-CDA; 'Callaghan, John'; 'Green, James'; David Kent; bwhitwham; PGRANT; 'Ryan Sheahan'; mkoch; Mark Hayes; Lynne Watt; matthew estabrooks; 'Mlewis'; Greg Piasetzki; Antoine Malek; 'smccormack’; Ariel Thomas; Yael Wexler Subject: TV Retransmission 2014-2018 - Request to revise schedule

Dear Mr. McDougall,

I am writing on behalf of the parties (other than BBI) to request a revision in the schedule of the TV Retransmission proceeding. We are not aware that BBI opposes the request, but we have not been able to confirm its position.

The BDUs and the Collectives are in discussions to commission a joint retransmission study. The data that would be included in the proposed study would overlap with some of the interrogatories addressed to the BDUs. Therefore, the parties are proposing to extend the deadline for responding to interrogatories until after the anticipated completion date of the proposed retransmission study.

The parties are proposing to revise the dates for serving interrogatory responses and for dealing with any motions arising from incomplete or unsatisfactory responses. The parties do not think it will be necessary to adjust any of the other dates in the schedule.

Therefore, the parties request that the Board revise the schedule as follows:

Exchange of responses to interrogatories: no later than August 20, 2014

Exchange of motions re: incomplete/unsatisfactory responses to interrogatories: no later than August 29, 2014

Filing, with the Board, of replies to motions re: incomplete/unsatisfactory responses to interrogatories: no later than September 8, 2014

[Board Ruling]

Please do not hesitate to contact the undersigned if you have any questions.

Regards,

Jay Kerr-Wilson | Partner


May 27, 2014up arrow

NOTICE OF THE BOARD

Mr. Kent’s request to revise some of the deadlines with respect to the interrogatories process on consent of the other parties is granted.

Exchange of responses to interrogatories: no later than Friday, July 11, 2014

Exchange of motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, August 1, 2014

Filing, with the Board, of replies to motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, August 15, 2014

[Board Ruling]

Complete/satisfactory responses to interrogatories: no later than Friday, October 3, 2014 (unchanged).


May 26, 2014up arrow

RULING OF THE BOARD

BDUs’ Interrogatories to Collectives

BBI2, BBI3, CBRA2, CBRA3, CCC2, CRC2, CRRA2, FWS2, MLB2: The requested information is irrelevant. The Board agrees with the Collectives that the royalties to be paid for the retransmission of distant signals do not depend on the identity of the rights holders.

BBI4, BBI6, CBRA4, CBRA6, CCC3, CCC4, CRC3, CRC4, CRRA3, CRRA4, FWS3, MLB3: For the reasons set out in the BDUs’ submissions, the Board is of the view that the information is potentially relevant. Collectives shall answer for a sample of stations or affiliates to be agreed upon by the parties for the years 2009 to 2013.


May 6, 2014up arrow

NOTICE OF THE BOARD

Please see attached the Ruling of the Board dealing with objections to interrogatories.

Attachment: Ruling – TV Retransmission (2014-2018) – Objections to Interrogatories.pdf


March 28, 2014up arrow

NOTICE OF THE BOARD

Further to the Board's Notice of March 18, 2014, attached is the Directive on Procedure.

Attachment: TV Retransmission (2014-2018) - Directive on Procedure and Appendices.pdf


March 18, 2014up arrow

NOTICE OF THE BOARD

The Board adopts the following schedule of proceedings, as agreed between the parties, with respect to the above-mentioned file, leading to a hearing beginning Tuesday, May 26, 2015:

Exchange of interrogatories: no later than Friday, March 21, 2014

Objections to interrogatories: no later than Friday, April 4, 2014

Filing, with the Board, of replies to objections to interrogatories: no later than Thursday, April 17, 2014

[Board Ruling]

Exchange of responses to interrogatories: no later than Friday, June 20, 2014

Exchange of motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, July 11, 2014

Filing, with the Board, of replies to motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, July 25, 2014

[Board Ruling]

Complete/satisfactory responses to interrogatories: no later than Friday, October 3, 2014

Filing of Collectives' case(s): no later than Friday, January 23, 2015

Filing of Objectors' case: no later than Friday, March 27, 2015

Filing of Collectives' reply statement of case(s): no later than Friday, May 15, 2015

Filing of Legal Briefs (if required by the Board): TBD

Beginning of hearing: Tuesday, May 26, 2015 at 10:00 a.m., Copyright Board's hearing room.

The Directive on Procedure will follow shortly.


December 19, 2013up arrow

NOTICE OF THE BOARD

The Copyright Board of Canada has rendered its decision with regards to the Statements of Royalties to Be Collected for the Retransmission of Distant Television and Radio Signals, in Canada, for the Years 2009 to 2013. It is now posted on the Board's web site under the heading "What's New ? Recent Decisions" at http://www.cb-cda.gc.ca/home-accueil-e.html, along with the certified tariffs as published in the Canada Gazette.

Attachment: Retransmission (Television and Radio) 2014-2018 - Interim Decision.pdf



Television Retransmission (2009-2013)


July 24, 2013up arrow

NOTICE OF THE BOARD

The request for an extension described below is granted.

De : David Kent
Envoyé : 24 juillet 2013 16:14
À : Choquette, Maryse: CB-CDA; SMcCormack; HINTVEN; Chantal.carbonneau; John.Callaghan; mlewis ; gpiasetzki; mkoch; lynne.watt; matthew.estabrooks ; jkerrwilson; bruce; GBUCK; athomas; AMalek; cooper; james.green; aoneill; Laurent.massam
Cc : McDougall, Gilles: CB-CDA
Objet : RE: Television Retransmission Tariff, 2009-2013

Maryse/Gilles,

The deadline for responding to the Board's questions is today. The stakeholders have discussed making a joint submission that would eliminate the need for the Board to compare multiple responses and that could also eliminate the need for a response period. We are very close, but communications among us are sometimes delayed by holidays.

This is to ask for an extension of the response period until Friday July 26 to give us a chance to complete this process. At that time I will submit the joint response of as many parties as have signed on and other parties (if any) will be free to file separate responses if so advised.

We look forward to hearing from you.

David W. Kent *


July 10, 2013up arrow

ORDER OF THE BOARD

Parties are asked to respond to the following questions or comments no later than on Wednesday, July 24, 2013:

  1. What is the purpose of adding the definition of "personal information" in section 2 and the reference to PIPEDA in section 28?
  2. The second sentence of section 3 reads as follows:
    • For the purposes of this tariff, the collective society "CBRA" shall mean Canadian Broadcasters Rights Agency Inc. until and including December 31, 2010 and shall thereafter mean Canadian Broadcasters Rights Agency for all purposes including, without limitation, all payments made to CBRA after December 31, 2010 regardless of the period in respect of which the payment is made.
    • The Board's preliminary view is that the sentence serves no purpose; the proposed mention concerning CBRA in Appendix A is sufficient.
  3. The royalty due date is expressed as "on" a date in ss. 4(1)(b), 5(b) and 6 and as "no later than" a date in s. 7(1). The Board's preliminary view is that a debt becomes due "on" a specific date and proposes to amend s. 7(1) accordingly.
  4. The Board's preliminary view is that no purpose is served by ss. 31(5), 35 or 36.
  5. The Board proposes that the transitional provisions of the tariff read as follows:
    • 37. [not required]
    • 38. A payment due in respect of any period ending on or before December 31, 2012 and that is allocated pursuant to subsection 15(2) of the Interim Television Retransmission Tariff, as of January 1, 2009 shall be deemed to have been properly allocated pursuant to this tariff.
    • 39. ( 1) No later than [DATE], a retransmitter who owes royalties as a result of a difference between the rates set in this tariff and the Interim Television Retransmission Tariff, as of January 1, 2009 shall provide to each collective society a statement of these royalties, together with their payment.
    • (2) Royalties paid pursuant to subparagraph (1) shall not bear any interest.
    • 40. (1) No later than [DATE], a collective society shall pay to other collective societies any amount due to them as a result of a difference between the allocation set out in this tariff and the Interim Television Retransmission Tariff, as of January 1, 2009.
    • (2) Interests on allocation adjustments, if the Board so rules.

Parties may respond to the answer and comments of other parties no later than on Wednesday, August 7, 2013.


April 26, 2013up arrow

NOTICE OF THE BOARD

The application of CCC for leave to file a reply submission, reproduced below, is dismissed as redundant. The only new information contained in the proposed reply even appears to contradict CCC's earlier evidence: nowhere is it stated in the Meideiros affidavit that "CCC reserved and invested more than the full amount of royalties now estimated to be re-allocated from the tariff years 2010, 2011 and 2012 in order to cover re-allocations for those years, as well as the full amount of royalties now estimated to be re-allocated for the 2009 tariff year." (our underlining)

De : Massam, Laurent
Envoyé : 25 avril 2013 17:16
À : McDougall, Gilles: CB-CDA; JKerrwilson; HINTVEN; David.Ken; mlewis; AONeill ; athomas; mkoch; Estabrooks, Matthew; Green, James; GBUCK; SMcCormack ; Chantal.Carbonneau; bruce; cooper; GPiasetzki; AMalek; Callaghan, John
Cc : Dunne, Frances
Objet : RE: Television Retransmission (2009-2013) / Retransmission de signaux de télévision (2009-2013)

Mr. McDougall,

In accordance with the Board's Order of 15 March 2013, CCC respectfully requests leave to file a very brief reply submission to correct a material misstatement of fact in CRC, CBRA and FWS's submission filed on 19 April 2013.

More particularly, CRC, CBRA and FWS state in footnote 18 of their responding submissions (referenced at paragraph 25) that "CCC appears to have reserved and invested only about 1/3 of the amounts it actually owes in retroactive payments." This statement appears to be based on calculations submitted by CRC, CBRA and FWS. The calculations and statement are incorrect, and are directly contradictory to the sworn evidence of Ms. Medeiros, filed by CCC with its submissions on 5 April 2013. In fact, as attested to at paragraph 57 to 60 of Ms. Medeiros' affidavit, and re-articulated in CCC's submissions of 5 April 2013 (paragraphs 83 to 89), CCC reserved and invested royalties collected from the tariff years 2009, 2010, 2011 and 2012 to cover the full amount of the now estimated retroactive payments. CCC reserved and invested approximately one third of the amounts now estimated to be re-allocated for the 2009 tariff year. CCC reserved and invested more than the full amount of royalties now estimated to be re-allocated from the tariff years 2010, 2011 and 2012 in order to cover re-allocations for those years, as well as the full amount of royalties now estimated to be re-allocated for the 2009 tariff year.

We thank you in advance for your consideration of this matter.

Yours very truly,
Laurent

Laurent Massam


April 26, 2013up arrow

NOTICE OF THE BOARD

Parties are not to respond to CCC's request below, until further notice from the Board.

De : Massam, Laurent
Envoyé : 25 avril 2013 17:16
À : McDougall, Gilles: CB-CDA; JKerrwilson; HINTVEN; David.Ken; mlewis; AONeill ; athomas; mkoch; Estabrooks, Matthew; Green, James; GBUCK; SMcCormack ; Chantal.Carbonneau; bruce; cooper; GPiasetzki; AMalek; Callaghan, John
Cc : Dunne, Frances
Objet : RE: Television Retransmission (2009-2013) / Retransmission de signaux de télévision (2009-2013)

Mr. McDougall,

In accordance with the Board's Order of 15 March 2013, CCC respectfully requests leave to file a very brief reply submission to correct a material misstatement of fact in CRC, CBRA and FWS's submission filed on 19 April 2013.

More particularly, CRC, CBRA and FWS state in footnote 18 of their responding submissions (referenced at paragraph 25) that "CCC appears to have reserved and invested only about 1/3 of the amounts it actually owes in retroactive payments." This statement appears to be based on calculations submitted by CRC, CBRA and FWS. The calculations and statement are incorrect, and are directly contradictory to the sworn evidence of Ms. Medeiros, filed by CCC with its submissions on 5 April 2013. In fact, as attested to at paragraph 57 to 60 of Ms. Medeiros' affidavit, and re-articulated in CCC's submissions of 5 April 2013 (paragraphs 83 to 89), CCC reserved and invested royalties collected from the tariff years 2009, 2010, 2011 and 2012 to cover the full amount of the now estimated retroactive payments. CCC reserved and invested approximately one third of the amounts now estimated to be re-allocated for the 2009 tariff year. CCC reserved and invested more than the full amount of royalties now estimated to be re-allocated from the tariff years 2010, 2011 and 2012 in order to cover re-allocations for those years, as well as the full amount of royalties now estimated to be re-allocated for the 2009 tariff year.

We thank you in advance for your consideration of this matter.

Yours very truly,
Laurent

Laurent Massam


March 15, 2013up arrow

Please see the attached Order of the Board.

Attachment: 1) Order of the Board.pdf


December 13, 2012up arrow

NOTICE OF THE BOARD

On November 9, 2012, the collective societies involved in the above-referenced proceedings advised the Board that they had reached an agreement on the allocation of royalties for the retransmission of distant television signals for the period 2009-2013. On December 20, 2010, the Collectives and retransmitter objectors had already agreed on the amounts of the same royalties.

On December 6, 2012, some of the Collectives asked the Board to initiate steps to finalize and certify the tariff. The relevant email is attached. While all have agreed on most terms and conditions pertaining to the agreed allocation, a few issues remain. The Board has been asked to establish a process to resolve these matters.

The Collectives wish that retransmitters start paying at the new royalty rates, as per the agreed allocation, as of January 1, 2013. In order to do so, the Board is being asked to certify the tariff as soon as possible.

Prima facie, both the agreed royalties and the agreed allocation seem reasonable. Requiring retransmitters to pay royalties accordingly starting January 1, 2013 also seems reasonable. However, the Board will not be able to certify a final tariff in time for this to occur.

The result sought by the Collectives can be achieved through an interim decision. An interim decision could be issued before December 31, 2012 if an application for an interim decision was filed no later than by noon on Friday, December 14, 2012. Anyone who opposes the application could respond no later than Wednesday, December 19, 2012. There would be no reply unless by leave of the Board.

Attachment: RE_Television Retransmission (2009-2013).pdf


November 9, 2012up arrow

NOTICE OF THE BOARD

The hearing in respect of the above-mentioned file is adjourned indefinitely.

Re: Television Retransmission (2009-2013)

Dear Mr. McDougall

We are pleased to advise the Board that the parties in the Television Retransmission proceeding have reached a settlement on the allocation of royalties among the various collecting societies*. As the Board was previously advised, a settlement had earlier been reached on the issue of the quantum of royalties payable by retransmitters to the collecting societies. Accordingly the outstanding issues in this proceeding have now been settled.

Accordingly, there is no requirement for the hearing scheduled to commence next week, on November 13, 2012. We would request that the Board adjourn the hearing indefinitely, in order that it can be reconvened at a later date only in the event some procedural or other matters require it.

The collecting societies intend to submit a formal settlement agreement with the Board shortly, together with a filing to request certification of the 2009-13 tariff. We would be pleased to speak with you about next steps in the process of certifying the tariff.

We apologize to the Board for the late notice of this settlement. This settlement has arisen from increasingly intensive multi-party discussions and negotiations over the past few days, and we have just managed to reach a settlement this morning.

We are copying this email to all parties to the retransmission proceeding.

Regards,

Hank Intven

*One of the collectives, which represents a very small percentage of the proposed settlement, is still awaiting formal internal approval for this settlement agreement from one senior executive. In the event this formal approval is not obtained, and in the event that issues related to that collective must be litigated, the interested parties will apply to the Board for directions on procedures for a hearing at a later date.


November 8, 2012up arrow

RULING OF THE BOARD

MLB Application re: filing of legal briefs

The application of MLB to file legal briefs on the subject of copyright in sports highlights is granted. The date for the filing of legal briefs will be determined in due course.

Board evidence

In the course of preparing for the hearing, Board staff encountered a paper relevant to these proceedings. The attached paper is entered into evidence as BOARD-1. The authors of this paper "provide an assessment of degree to which various factors impact the ratings differences between button-pushing and passive meter systems, and argue that button-pushing non-compliance accounts for most of the difference."

Parties are invited to comment on this paper in the course of the hearing.

Attachment: Board-1.pdf


November 8, 2012up arrow

NOTICE OF THE BOARD

Seating arrangements

Please find attached a floor plan for the Board's hearing room. The parties are to discuss the seating arrangements amongst themselves and provide the Board with the agreed arrangement by no later than Friday November 9, 2012 at 2:00 p.m.

PowerPoint Presentations

When using PowerPoint presentations during the hearing, parties are asked to cross-reference when possible the relevant portions of the report or study the slide is referring to.

Attachment: Floor Plan - Hearing room.pdf


November 7, 2012up arrow

NOTICE OF THE BOARD

The evidence filed with the Board has been reorganized as follows. Please refer to the attached Exhibit List for revised Exhibit numbering. Parties are asked to ensure that their binders reflect those of the Board.

DRTVC Evidence (please refer to the attached document)

Duplicate evidence was removed. In addition, the three binders filed were reorganized in two binders:

Vol. 1 of 2 (Exhibits DRTVC-1 to DRTVC-13); Vol. 2 of 2 (Exhibits DRTVC-14 to DRTVC-33).

Please provide an Index accordingly. Please provide the Board with appropriate tabs (no. 1-33) for all 8 copies. Please provide a revised Responding Case and Reply case to the Board and all Parties reflecting the new Exhibit numbering.

FWS Evidence (please refer to the attached document)

Two binders and loose leaves were filed and have been reorganized in two binders:

Vol. 1 of 2 (Exhibits FWS-1 to FWS-16); Vol. 2 of 2 (Exhibits FWS-17 to FWS-21).

Please provide an Index accordingly. Please provide the Board with appropriate tabs (no. 17-21) for all 8 copies. Please provide a revised Reply case to the Board and all Parties reflecting the new Exhibit numbering.

CRRA Evidence

Three binders were filed and reorganized in one binder (Exhibits CRRA-1 to CRRA-5).

Please provide an Index accordingly.

MLB Evidence

Binder 1 and binder 2 have been merged into one binder (Exhibits MLB-1 to MLB-9).

Please provide an Index accordingly.

BBI Evidence

BBI-5 has been added to the existing binder (Exhibits BBI-1 to BBI-5).

Please provide an Index accordingly.

The evidence of CBRA, CBRA/CRC, CCC and SOCAN remains unchanged.

Please contact Maryse Choquette (613-952-8629) or Nadia Campanella (613-946-4458) should you have any questions.

Attachments: 1) List of Exhibits.pdf; 2) Changes to DRTVC's Evidence.pdf; 3) Changes to FWS Evidence.pdf


October 23, 2012up arrow

NOTICE OF THE BOARD

DRTVC is asked to file forthwith the "33 interrogatories pertaining to BBM materials" referred to in paragraph 12.ii of its October 19, 2012 application, and any answers to these interrogatories it might have received.


October 20, 2012up arrow

NOTICE OF THE BOARD

FWS and other parties may respond to the attached DRTVC's request no later than Wednesday, October 24, 2012, at noon. DRTVC can reply no later that Thursday, October 25, 2012.

Attachment: Motion by DRTVC October 19, 2012.pdf


May 17, 2012up arrow

NOTICE OF THE BOARD

MLB's request, to which the other collectives consent, to modify the schedule of proceedings as per below is granted.

MLB's request:
On behalf of MLB, and with the consent (or lack of objection) of the other collectives, I would like to request a change to the June 1 and September 21 dates in the Schedule of Proceedings, so that they would now read:

Filing of the parties' case: no later than Friday, June 22, 2012.
(A party's case shall include any affirmative position and proposed allocation not dependant on other parties' cases, as well as the party's response, if any, to any other party's allocation proposal or report if delivered by February 3, 2012)

Filing of Parties' Responding Cases: no later than Friday, October 12, 2012

Movement of the September 21 date is at the request of certain other collectives, as a condition of accommodating MLB's request to change the June 1 date. No other changes to the Schedule of Proceedings would be made at this time.


May 4, 2012up arrow

NOTICE OF THE BOARD

The third phrase of the paragraph relating to Q6 in the ruling of the Board reproduced below [See other May 4, 2012 entry below] should have read:

"While CRRA should NOT be required to provide an analysis, it can be ordered to provide the agreements."


May 4, 2012up arrow

RULING OF THE BOARD

MLB INTERROGATORIES TO CRRA

Q1: Answered. Neither CRRA nor its members are required to generate information they do not have. Collectives were asked, not ordered, to cooperate. Sanction for non-cooperation is already provided for in the Board's earlier ruling on the matter (attached for convenience) - [Not attached. See March 15, 2012 entry below].

Q6: The question relates to agreements. The agreements exist. While CRRA should be required to provide an analysis, it can be ordered to provide the agreements. CRRA is ordered to provide a reasonable amount of information. The number 50 appears high. The number of ways in which MLB proposes to approach the analysis (license fees, number of hours broadcast, viewing and cumulative viewing) unnecessarily increases the task. CRRA shall provide, for each of the five services or networks mentioned in its response, agreements for the 20 top programs for one year, measured by license fees, number of hours broadcast, viewing OR cumulative viewing at MLB's choice. If CRRA prefers not to file the agreements as such, it remains free to provide, as requested, the material details of the agreements.

Q7: The question asks for percentages. CRRA states that the percentages do not exist. Answered, subject to the same comments as for Q1.


April 12, 2012up arrow

NOTICE OF THE BOARD

CRRA's request of below is granted.

CRRA's request:
For reasons that we have already discussed, MLB will only be in a position to provide its written motions to CRRA tomorrow with respect to alleged "unsatisfactory" CRRA interrogatory responses. As such, CRRA would ask that it be permitted by the Board to reply to any such MLB motions by no later than Friday, April 20, 2012.

MLB has consented to this request by CRRA.

Thank you very much.


April 2, 2012up arrow

RULING OF THE BOARD

Attached is the Board's Order dealing with information requested during the interrogatory exchange process for which confidential treatment may be claimed.

Attachment: Confidentiality Order - Retransmission 2009-2013.pdf


March 15, 2012up arrow

RULING OF THE BOARD

This Ruling disposes of the objections to interrogatories submitted to the Board for resolution.

CRC Interrogatories to CCC

Q1: the only issue appears to be one of timing. CCC shall comply with the schedule of proceedings and provide, no later than on Friday, March 30, 2012, the information relating to titles for which entitlement issues remain unresolved as of that date.

CRC/CRRA Interrogatories to FWS

General: the date by which to claim privilege is the date set to respond to interrogatories (in this instance, March 30, 2012). The Board's Ruling of October 17, 2011 to which CRC/CRRA refer sets out the procedure to do so.

Q1, Q2: no need to address at this time. While interrogatories normally do not involve creating documents, at some point, the parties and the Board will require information to rule on title disputes and their impact on royalty distribution. On the other hand, parties should avoid asking others to engage in exercises that are largely duplicative. In this instance, for example, CCC/CRRA should ask questions only on titles that were not already addressed in the CRC/CBRA study.

Q4: the objection is sustained. How FWS wishes local and distant digital signals to be defined, while interesting, is not relevant. Regulations, not FWS, will provide that definition.

Q8: the objection is sustained. What FWS has provided is sufficient for the time being. If FWS intends to file its own viewing study, it should provide the additional information as soon as available and in any event, no later than on Friday, June 1.

Q9: the objection is sustained. What FWS has provided is sufficient for the time being. CCC/CRRA are as capable as FWS to compare the CBC/CBRA and FWS methodologies. FWS need not explain what it perceives to be the differences between the two methodologies until FWS files its case.

Q18: the objection is sustained. The time to provide the information is when FWS files its case.

MLB Interrogatories to CBRA, CRC, CCC and CRRA

Q2, Q6, Q7 (information in the hands of collectives' members): the objection is dismissed.

The information is relevant. Most or all of it is in the hands of the collectives' members, not the collectives themselves. Ordinarily, this is not information secured through interrogatories. In this instance, however, collectives have required the cooperation of other collectives to develop the information they require. In particular, CRC and CBRA have already sought and obtained the cooperation of members of other collectives in building their viewing study. As a result, they are foreclosed from refusing to offer the same cooperation. They shall seek the required information from their members.

The collectives should keep in mind that if they fail to obtain the relevant evidence from their members, any evidence they may seek to introduce that would have been responsive to the interrogatories may not be admitted.

The collectives are also reminded of the Board's order of May 1, 1998, a copy of which is attached. Particular attention should be paid to the highlighted passages on pages 4 and 5.

Q1: the objection is dismissed in part.

The genre information MLB seeks is not in the proposed tariff. However, MLB failed to specify which genres to use in Q1. The genres specified in Q7 appear to be the ones intended. MLB shall confirm forthwith whether this is so.

The information is relevant and necessary if MLB is to make a case. The collectives are asked to cooperate so as to focus the debate. Absent such cooperation, MLB may proceed with its own classification. Non-cooperating collectives may find the Board reticent to entertain any challenge to this classification. They may also find it difficult to introduce evidence that would have been responsive to the interrogatory.

Q2 (whose value): the precision offered by MLB is sufficient. The collectives shall answer the question.

Q6, Q7 (burden): the solution MLB offers is acceptable. CBRA shall answer the question as specified.

Attachment: Retransmission 1998-2000 - May 1, 1998 Order.pdf


January 19, 2012up arrow

NOTICE OF THE BOARD

Further to the Board's Notice of December 15, 2011, attached is the Directive on Procedure. We draw your attention on the following points:

a) The electronic version of the evidence (on CD, DVD or USB key) should be filed with the Board, along with the hard copies on the date set for that purpose. You must also ensure that other participants receive their hard copy and electronic version on the same date the documents are filed with the Board;

b) As a general rule, responses to interrogatories are NOT filed with the Board. Parties should only file as evidence those responses to interrogatories to which they know they intend to refer;

c) When filing documents with the Board, confidential and highly confidential information should be highlighted in yellow and blue, respectively. The cover page of the document should indicate whether it includes confidential or highly confidential information.

________________________________________________________

AVIS DE LA COMMISSION

En référence à l'avis de la Commission en date du 15 décembre 2011, vous trouverez ci-joint la directive sur la procédure. Nous attirons votre attention sur les items suivants :

a)  La version électronique de la preuve (sur CD-ROM, DVD ou clé USB) doit être déposée auprès de la Commission en même temps que les copies papier à la date fixée pour ce faire. Vous devez aussi vous assurer que tous les participants reçoivent les versions papier et électronique le même jour que les documents sont déposés auprès de la Commission;

b) En règle générale, les réponses aux demandes de renseignements ne sont PAS déposées auprès de la Commission. Les participants devraient déposer en preuve seulement les réponses aux demandes de renseignements auxquelles ils entendent faire référence;

c) Lorsque les participants déposent des documents auprès de la Commission, les renseignements confidentiels et hautement confidentiels doivent être surlignés en jaune et bleu, respectivement. La page titre du document doit indiquer si le document contient des renseignements confidentiels ou hautement confidentiels.

Attachment : Television Retransmission - Directive on procedure and Appendices new.pdf


December 15, 2011up arrow

NOTICE OF THE BOARD

The Board adopts the following schedule of proceedings, as agreed between the parties, with respect to the above-mentioned file, leading to a hearing beginning Tuesday, November 13, 2012:

Delivery of CBRA/CRC Allocation report: no later than Friday, January 13, 2012

Exchange of interrogatories: no later than Tuesday, February 7, 2012

Objections to interrogatories: no later than Tuesday, February 14, 2012

Filing, with the Board, of replies to objections to interrogatories: no later than Friday, February 24, 2012

[Board Ruling]

Exchange of Responses to interrogatories: no later than Friday, March 30, 2012

Motions re: incomplete/unsatisfactory responses to interrogatories: no later than Thursday, April 5, 2012

Filing, with the Board, of replies to motions: no later than Friday, April 13, 2012

[Board Ruling]

Exchange of complete/satisfactory responses to interrogatories: no later than Friday, May 4, 2012

Filing of the parties' case: no later than Friday, June 1, 2012.
(A party's case shall include any affirmative position and proposed allocation not dependant on other parties' cases, as well as the party's response, if any, to any other party's allocation proposal or report if delivered by February 3, 2012) 

Filing of Parties' Responding Cases: no later than Friday, September 21, 2012

Filing of Parties' Reply Cases: no later than Friday, October 26, 2012

Filing of Legal Briefs (if required): no later than Friday, November 2, 2012

Beginning of hearing: Tuesday, November 13, 2012 at 10:00 a.m., Copyright Board's hearing room.

The Directive on Procedure will follow shortly.


November 21, 2011up arrow

NOTICE OF THE BOARD

Parties have until Tuesday, November 22, 2011 to indicate whether they disagree with the attached proposed schedule of proceedings submitted by Mr. Kent. Parties submitting no comments will be assumed to agree with the proposed schedule.

Attachment: Television Retransmission Allocation Timetable (Final).pdf


November 4, 2011up arrow

NOTICE OF THE BOARD

In its Notice of October 19, 2011, the Board proposed two alternative starting dates for the hearing in the case referred to above, November 13, 2012 and May 7, 2013, and asked for parties' comments.

For the reasons mentioned in CRC and CBRA's submissions, the Board sets the hearing starting date on November 13, 2012. No later than on Friday, November 18, 2011, parties shall file either a joint schedule proposal, or individual proposals, if they are unable to agree.


October 19, 2011up arrow

NOTICE OF THE BOARD

The Board is available to hear the matter starting either on November 13, 2012 or May 7, 2013. Parties are asked to indicate whether they agree on one of those dates or to submit their individual positions by no later than Friday, October 28, 2011. As suggested by Mr. Kent, the schedule of proceedings should be discussed among the parties once the hearing date is set.


December 19, 2008up arrow

For your information, the Copyright Board has just released an interim decision on Retransmission 2009-2013. It is posted on the Board's website under the heading "What's New/Recent decisions" (http://www.cb-cda.gc.ca/decisions/signals-signaux-e.html).

Pour votre information, la Commission du droit d'auteur vient de rendre une décision provisoire en ce qui a trait à la Retransmission 2009-2013. Elle est affichée sur Ie site web de la Commission sous la rubrique «Quoi de Neuf/Decisions récentes» (http://www.cb-cda.gc.ca/decisions/signals-signaux-f.html).



Commercial and Non-Commercial Tariff (2011-2013)


June 6, 2013up arrow

NOTICE OF THE BOARD

Please note that the following, late response has been received from J&A Media Services, and accepted by the Board.

Attachment: Response to Copyright Board - June 6.pdf


June 4, 2013up arrow

NOTICE OF THE BOARD

Please note that the Board has received, through regular mail, the following response from Public Safety Canada to the Board's questions of May 1, 2013.

Attachment: Public Safety Canada Response.pdf


May 1, 2013up arrow

NOTICE OF THE BOARD

The Board is in the process of examining the proposed statements of royalties filed in March 2010 by the Canadian Broadcasters Rights Agency (CBRA) for the fixation and reproduction of the programs and communication signals of Canadian private broadcasters by commercial and non-commercial media monitors for the years 2011 to 2013. For the moment, the Board believes that this examination can be achieved through a paper process.

J&A Media Services objected to the proposed commercial tariff.

Initially, three provinces (Alberta, Ontario, Saskatchewan) and the Government of Canada objected or sought leave to intervene to the proposed non-commercial tariff. Alberta and Ontario withdrew their objections after entering into an agreement with CBRA. The province of Saskatchewan and the Government of Canada also withdrew their objection or request for intervention.

British Columbia, the Department of National Defence, the corporate and communications divisions of the Privy Council Office, Public Safety and Emergency Preparedness, the Royal Canadian Mounted Police and the Library of Parliament all signed an agreement with CBRA.

As part of its examination, the Board wishes to ask the attached questions to all signatory parties to agreements with CBRA in respect of non-commercial tariff, as well as to J&A Media Services, objector to the commercial tariff. All parties shall provide responses by no later than Friday, May 31, 2013. Parties are allowed to reply to each other by no later than Friday, June 14, 2013.

Attachment: Media Monitoring - Questions from the Board.pdf



Re:Sound Tariff 4 - Use of Music by Satellite Radio Services (2011-2012) SOCAN Tariff 25 - Satellite Radio Services (2010-2012) CSI Tariff - Satellite Radio Services (2010-2013)


September 14, 2012up arrow

NOTICE OF THE BOARD

The parties' request to postpone sine die the hearing process in respect of the above-referenced file is granted.


July 20, 2012up arrow

ORDER OF THE BOARD

The decisions the Supreme Court of Canada issued on July 12, 2012 set out a number of principles that may affect the outcome of the above-referenced matter. To date, the Board has identified the following two.

First, the Board will need to determine which transactions between a satellite radio service and its subscribers involve a communication to the public by telecommunication and which do not. Potentially relevant factors include who decides to make a copy (user-triggered copying vs system-triggered copying) and how long a copy is kept (short buffer, extended buffer, short-term replay, (semi)-permanent copies in temporary internet folder, storing of individual songs, block programming storage).

Second, given the reasons of the majority in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, the Board's analysis of fair dealing in the satellite radio services market may need to be reviewed.

Parties are asked to address these and any other relevant issue raised by the July, 12, 2012 decisions of the Supreme Court of Canada in their evidence and arguments.


March 30, 2011up arrow

NOTICE OF THE BOARD

The parties' request described below is granted.

The parties' request:
Mr. McDougall, I am writing to you on behalf of the Collectives to request a further extension of the deadline of March 30, 2012 set by the Notice of the Board below to Monday April 2, 2012. The Collectives and Sirius XM have today exchanged positions on objections to a very limited number of interrogatories. Certain of those objections have been resolved. The further extension is to enable the parties to explore resolution of the remainder of the objections.

Sirius XM has agreed to the extension requested.


March 8, 2011up arrow

NOTICE OF THE BOARD

SOCAN's request is granted.

AVIS DE LA COMMISSION

La requête de la SOCAN est accordée.

SOCAN's request:
I am writing on behalf of all parties to the Satellite Radio proceeding. The parties have met and are in the process of negotiating resolution of the objections to interrogatories. I am requesting, on consent of all parties, an extension of the date for the filing of responses to objections until Friday March 30, 2012. The parties are optimistic that we may be able to resolve all of the objections, without the need to file anything with the Board, if we have the additional time.


December 22, 2011up arrow

NOTICE OF THE BOARD

Further to the Board's Notice of December 2, 2011, attached is the Directive on Procedure regarding the above-noted matter.  

________________________________________________________

AVIS DE LA COMMISSION

En référence à l'avis de la Commission en date du 2 décembre 2011, vous trouverez ci-joint la directive sur la procédure à l'égard du dossier précité.

Attachment :Satellite - Directive on procedure.pdf


December 2, 2011up arrow

NOTICE OF THE BOARD

The Board adopts the following schedule of proceedings with respect to the above-mentioned file, leading to a hearing beginning Tuesday, February 12, 2013:

Exchange of interrogatories: no later than Friday, February 10, 2012.  The Collectives shall exchange a joint, coordinated set of interrogatories.  All interrogatories should be sent to all participants.

Exchange of objections to interrogatories: no later than Friday, February 24, 2012

Filing, with the Board, of replies to objections to interrogatories: no later than Friday, March 9, 2012

[Board Ruling]

Exchange of responses to interrogatories: no later than Friday, June 1, 2012   

Exchange of Motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, June 15, 2012

Filing, with the Board, of Motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, June 29, 2012

[Board Ruling]

Complete/satisfactory responses to interrogatories: no later than Friday, July 20, 2012

Serving to the other parties and filing with the Board the Statements of Case in chief of participants seeking a change to the status quo: no later than Friday, September 14, 2012

Filing of Parties' Responding Cases: no later than Friday, November 30, 2012

Filing of Parties' Reply Cases: no later than Friday, January 18, 2013

Filing of Legal Briefs (if required): TBD at a later date

Beginning of hearing: Tuesday, February 12, 2013 at 10:00 a.m., Copyright Board's hearing room.

The Directive on Procedure will follow shortly.


November 10, 2011up arrow

On October 18, 2011, Sirius XM Canada Inc. asked the Board to set a date for hearing SOCAN, Re:Sound and CSI tariffs with respect to satellite radio in late May 2012. Sirius XM is arguing that a short process is justified by the fact that it does not intend to try to reopen the Board's prior decision or its underlying logic, but rather to focus primarily on the evidentiary issues with respect to the two adjustments made by the Board to the pay audio proxy. Sirius XM also argues that they would be prejudiced by a later hearing date because of the uncertainty with respect to the royalty rates.

Subject to a condition on the availability of evidence, CSI takes no position with respect to the proposed date. SOCAN and Re:Sound argue that they need more time to build their respective cases and that no prejudice would result to Sirius XM as a result of a later hearing date.

The Board agrees with SOCAN and Re:Sound. A certified tariff exists for all three collective societies, which alleviates some of the risks associated with the accruals for anticipated payments. In addition, the collective societies would need more time if they are to submit substantial evidence, something which they are allowed to do.

Consequently, the Board sets the starting date for the hearing on Tuesday, February 12, 2013, at 10 a.m. No later than on Friday, November 25, 2011, parties shall file either a joint schedule proposal, or individual proposals, if they are unable to agree. In particular, parties should try to agree on the order of presentation of cases: collectives societies first, Sirius XM Canada first or both simultaneously.

Since no one objects to a joint hearing, the Board will hear as part of a single hearing SOCAN Tariff 25 (Satellite Radio Services) for the years 2010 to 2012, Re:Sound Tariff 4 (Satellite Radio Services) for 2011 and 2012 and CSI Tariff for satellite radio services for the years 2010 to 2013.


October 19, 2011up arrow

ORDER OF THE BOARD

The Board is of the preliminary view that the tariffs with respect to satellite radio of SOCAN (2010-2012), Re:Sound (2011-2012) and CSI (2010-2013) should be heard as part of a single hearing, whether or not the Supreme Court of Canada grants CSI's application for leave to appeal.

Sirius XM Canada is indifferent as to whether CSI participates in the process involving SOCAN and Re:Sound as long as it does not result in a delay. Collective societies are asked to comment on the Board's preliminary view and to respond to Sirius XM Canada's proposed calendar of procedures (attached) by no later than Wednesday, October 26, 2011. Sirius XM Canada can provide a reply by no later than Monday, October 31, 2011.

Attachments: 10724908v3 - Draft timetable for 2012 copyright case.pdf; Revised letter to Gilles MacDougall October 18 2011.pdf



SOCAN Tariffs 22.4 (2007-2008) and 22.D (2009-2011) - Audiovisual Webcasts; SOCAN Tariffs 22.7 (2007-2008) and 22.G (2009-2011) - Audiovisual User Generated Content


July 2, 2013up arrow

RULING OF THE BOARD

On June 10, 2013, Netflix sought leave to introduce specific evidence relating to its claim of fair dealing for the free trial subscriptions it offers and to reply to SOCAN's submissions of May 21, 2013.

SOCAN opposed the requests. In the alternative, SOCAN asked that any decision of fair dealing be made on the basis of a complete record and proposed a list of questions it would like answered by Netflix. SOCAN did not address the request of Netflix to respond to SOCAN's submissions.

Netflix replied with offers to answer certain questions as asked by SOCAN, others in a slightly different form and refusing to answer one particular question.

The application to introduce new evidence is denied, for two reasons. First, the proposed rate for free trials, a price in cents, per subscriber, is such that a tariff can be certified without deciding whether free trials are fair dealing. Any free trial that does not require a SOCAN licence will not attract royalties. It is up to a court of law to decide whether a given trial requires a SOCAN licence. Second, even if Netflix could prove that its free trials currently constitute fair dealing for an allowable purpose, it could not prove that all free trials always will constitute fair dealing for the life of the tariff. The Board would still be required to certify a tariff for free trials.

The application to reply is moot to the extent that it concerns fair dealing. As for the rest, the application is granted. Netflix shall file its reply no alter than Tuesday, July 9, 2013.

The Board now intends to proceed to the examination of the proposed tariffs and to address the issues raised by prospective users, other than fair dealing, based on the record as it now stands. The certified tariff will not target commercial radio stations, leaving to the parties the opportunity to reach an agreement in this respect.


June 11, 2013up arrow

NOTICE OF THE BOARD

SOCAN can respond to Netflix's request reproduced below by no later than Thursday, June 13, 2013. Netflix can reply no later than Monday, June 17, 2013.

De : David Kent
Envoyé : 10 juin 2013 15:26
À : McDougall, Gilles: CB-CDA
Cc : Estabrooks, Matthew; Watt, Lynne; mkoch; jkerrwilson; athomas; Gabriel vanloon; Kathleen.simmons; Chantal.carbonneau; tim; hrupani; randall.hofley; Todd.Larson; Sarah Kilpatrick; AONeill; max
Objet : RE: SOCAN Tariffs 22.D.1 and 22.D.2, 2007 to 2013

Gilles,

I am writing on behalf of Netflix with respect to the Board's Order dated March 18, 2013 setting out the process for making submissions in this matter. The Board had already held on February 1 that Netflix should be permitted to file submissions on SOCAN's proposed tariff because, in part, it is a "dominant player" in the relevant market. The Board recognized that Netflix could speak to matters that the Objectors could not.

As you are aware, Netflix received the notice contemplated in paragraph (B) of the Order and filed submissions in accordance with paragraph (C). Those submissions focused solely on the question of minimum royalties in proposed Tariff 22.D.1 in respect of free trial participants. They included reference to certain uncontroversial facts.

SOCAN has now filed submissions pursuant to paragraph (E). Insofar as its submissions addressed Netflix, SOCAN (i) raised certain factual questions in respect of fair dealing and (ii) made certain arguments in respect of Netflix's other grounds.

Paragraph (C ) of the Order provides, in part:

The Board will decide which additional content to allow into the record as need be; it will deal with procedural issues that may arise as a result at the same time.

SOCAN asked that if Facebook or Netflix believe that the Board requires additional evidence, they be required to answer the interrogatories that the Objectors have already answered. The extent to which Facebook or Netflix, or, for that matter, anyone identified in A), will be allowed to file additional evidence and if so, whether they should respond to certain interrogatories, will be addressed if and as required.

Paragraph (E) of the Order provides that "There shall be no further comment or reply from anyone else except by leave", and the Order goes on to provide that "The Board will then decide whether further input is required before it proceeds to the examination of the proposed tariffs."

Given the foregoing, and the unique and quite disadvantageous impact on Netflix posed by SOCAN's proposed tariff, Netflix seeks the following:

1. leave to provide limited and targeted information relevant to the trial user issue - in particular, although the data is not public, and is highly sensitive, to provide:

  1. conversion rates;
  2. the percentage of paying subscribers who do not subscribe through a free trial in Canada;
  3. the percentage of total users who are on a free trial in Canada; and
  4. information about the fact that Netflix has free trials in all of its other territories.

2. leave to file a brief reply to SOCAN's submission - both to present the information identified above, if permitted, and (as a matter of procedural fairness) to respond to SOCAN's submissions and statements so that each opposing party (and not just SOCAN) is given an opportunity to respond to the other.

We look forward to the Board's response.

David W. Kent


April 17, 2013up arrow

NOTICE OF THE BOARD

Following the Board's Order of March 26, 2013, Entertainment Software Association and Entertainment Software Association of Canada as well as Music Canada withdrew from the above-mentioned proceeding. (see attached letters)

Some of the other parties identified in part A) of the March 26 Order have sent the attached submissions, namely Netflix Inc., CAB and Facebook Inc. Parties are to provide comments on these submissions as per the remainder of the March 26 Order.

Attachments: 1) ESA; 2) Music Canada; 3) Facebook; 4) Netflix; 5) CAB;


March 26, 2013up arrow

NOTICE OF THE BOARD

Please see the attached Order of the Board.

Attachment: 1) Order of the Board - Follow up to March 18, 2013 Order.pdf


March 18, 2013up arrow

Please see the attached Order of the Board - Follow up to the February 1, 2013 Notice of the Board.

Attachment: 1) Order of the Board - Follow up to the February 1, 2013 Notice of the Board.pdf


February 1, 2013up arrow

ORDER OF THE BOARD

This order deals with a number of pending matters in the above-referenced proceedings.

1) On January 11, 2013, Netflix, relying on section A.2 of the Board's directive on procedure issued on June 8, 2011, addressed the attached letter. The letter will not be made part of the record of these proceedings for two reasons.

First, comments should be based on the record as it stands. The letter is not. Indeed, dealing with it necessarily requires the additional collection of fresh evidence.

Second, the main purpose of the letter is to address two issues that have not been raised by any of the parties to the proceedings. Barring exceptional circumstances, a person who files comments should not be allowed to broaden the debate. This is especially so with Netflix, who has known of these proceedings for some time, was invited to participate at an earlier stage and chose not to. Even if it were true that Netflix could not have raised the issues it now seeks to address before July 12, 2012, the issue should have been raised much earlier and certainly no later than in mid-September.

2) On January 25, 2013, Facebook, also relying on section A.2 of the Board's directive on procedure, addressed to the Board the attached letter. Barring exceptional circumstances, this letter should be ignored, for the following reasons.

First, the letter fails to mention that Facebook has known of these proceedings at least since June, 2011. Those who seek to participate, so late in the process, in a matter they have known of for so long should at least state this as a fact and then explain their sudden desire to leave the sidelines and join the fray.

Second, the justification that Facebook apparently advances for now springing into action (i.e., the timing of some statements contained in SOCAN's memorandum of January 13, 2013) does not stand to analysis. These statements, to the extent they do have the meaning Facebook attaches to them, are nothing new: the Board addressed them as far back as in 1999. The only reasonable conclusion is that Facebook has known for some time that these issues would be part of the debate before the Board in these proceedings.

3) This having been said, exceptional circumstances do exist that justify allowing Netflix and Facebook to participate in these proceedings. The matter is proceeding without a hearing, as a result of an agreement reached by SOCAN and some of the objectors. Some newer objectors to the relevant tariffs for 2012 and 2013, who are not party to the agreements and who may not know of them, will have to be allowed to comment on them: to allow Netflix and Facebook to participate at that stage will not disrupt the process. Finally, Netflix and Facebook are dominant players in the relevant markets: even if their sudden urge to express their view resulted in some disruption, it would be preferable to gain the benefit of some comments on their part.

4) This matter cannot conveniently proceed before the long-awaited agreement dealing with audiovisual user-generated content, now referred to as Tariff 22.D.2, has been filed with the Board. SOCAN is asked to provide forthwith a status report on this matter.

5) The Board intends to proceed with this matter as follows.

A) The Registry of the Board shall identify, among all those who objected to SOCAN Tariff 22 for the years 2007 to 2013, those who are not party to the agreements pertaining to SOCAN Tariffs 22.D.1 (Audiovisual Webcasts) and 22.D.2 (Audiovisual User-Generated Content) and who may be streaming audiovisual or user-generated content.

B) Once the 22.D.2 agreement has been filed with the Board, the Registry shall send, to anyone identified in A), to Netflix and to Facebook, the agreements, the parties' comments on the agreements and a notice that will include the following questions:

  • Do you stream audiovisual programs containing one or more musical works for which a licence from SOCAN may be required? If so, what are your views on the request that the Board certify a tariff that reflects the attached agreement between SOCAN on the one hand, and Apple Inc., Apple Canada Inc., Cineplex Entertainement LP, BCE Inc. Rogers Communication Partnership, Videotron G.P. and Yahoo! Canada Co. on the other?
  • Do you stream user generated content containing one or more musical works for which a licence from SOCAN may be required? If so, what are your views on the request that the Board certify a tariff that reflects the attached agreement between SOCAN on the one hand, and (list the objectors who will have signed the agreement) on the other?

C) The recipients of the notice set out in B) shall have three weeks to respond. The recipients in general, and Netflix and Facebook in particular, will be expected to focus on the issues already raised by the parties. They will avoid introducing new evidence, unless this consists of facts that are not controversial and that shed significant light on the proper course of action.

It may not be possible for the recipients to strictly comply with the limitations set out in the previous paragraph. The Board will decide which additional content to allow into the record as need be; it will deal with procedural issues that may arise as a result at the same time.

D) SOCAN will then be allowed three weeks to respond to all comments received pursuant to C). There shall be no further comment or reply from anyone else except by leave.

E) The Board will then decide whether further input is required before it proceeds to the examination of the proposed tariffs.

SOCAN and objectors are invited to comment on this proposed course of action no later than on Friday, February 15, 2013. Responses to these comments may be filed no later than on Friday, February 22, 2013.


December 5, 2012up arrow

NOTICE OF THE BOARD

Parties wishing to make written submissions to the Board in respect of the attached agreements may do so no later than Friday, January 11, 2013. Parties may reply no later than Friday, January 25, 2013.


June 5, 2012up arrow

NOTICE OF THE BOARD

The hearing is postponed sine die until the Board receives further information from the Parties with regard to any settlement.


May 25, 2012up arrow

RULING OF THE BOARD

The parties' request to suspend today's deadline for the filing of the Objectors' cases, to which SOCAN consent, is granted, until further notice.


May 14, 2012up arrow

RULING OF THE BOARD

This ruling deals with CAB's application of May 2, 2012 and SOCAN's response of May 10, 2012 (both attached).

The royalties payable by a broadcaster that is (a) subject to Tariff 2.A (Commercial Television Stations) or Tariff 17 (Transmission of Pay, Specialty and Other Television Services by Distribution Undertakings) and (b) a member of the Canadian Association of Broadcasters, for its non-simulcast, audio-visual transmissions in 2007 to 2011 shall not be set during the forthcoming hearing dealing with proposed SOCAN Tariffs 22.D (Audiovisual Webcasts) and G (Audiovisual User Generated Content) for the same years. Those royalties shall be set in the context of future proceedings.

A broadcaster mentioned in the previous paragraph shall continue to pay interim royalties pursuant to SOCAN Tariff 22.D (Commercial Television, Non-Broadcast Television, Pay Audio Services, Satellite Radio) for the years 1996 to 2006 for its non-simulcast, audio-visual transmissions until the Board certifies a final tariff for such transmissions, unless the Board decides otherwise in an interim decision.

Attachments: L - CAB Application Regarding the Applicability of Proposed Tariff 22 D.pdf ; SOCAN Tariffs 22 D and 22 G - SOCAN's Response to CAB's Application for a Ruling on Applicability.pdf


May 10, 2012up arrow

NOTICE OF THE BOARD

The Objectors' request, to which SOCAN consents, is granted. The remaining schedule in the file mentioned above will be the following:

Filing of Objectors' Case: no later than Friday, May 25, 2012

Filing of Collectives' Supplementary Case: no later than Monday, June 11, 2012

Beginning of hearing: Wednesday, June 20, 2012 at 10:00 a.m., Copyright Board's hearing room.


May 9, 2012up arrow

NOTICE OF THE BOARD

SOCAN's request is granted.

SOCAN's request:
CAB counsel have kindly consented to a short extension (until noon tomorrow) for the filing of SOCAN's response. We would appreciate the Board's indulgence in this regard.


May 3, 2012up arrow

NOTICE OF THE BOARD

SOCAN may respond to CAB's letter of May 2, 2012, attached, no later than on Wednesday, May 9, 2012. CAB may reply no later than on Monday, May 14, 2012

Other participants are not expected to participate in this exchange, as this matter concerns SOCAN and CAB alone for the time being.

CAB shall supply forthwith documentary evidence in support of the following statements at p. 7 of its May 2, 2012 letter:

[...] by July 2011 SOCAN had confirmed in writing a position it took in February to the effect that Proposed Tariff 22.D would not apply to any user already covered by Certified Tariff 22.D. In other words, Proposed 22.D would not apply to CAB's members.

[...]

SOCAN has recently advised that it wishes to resile from its previous position and, in particular, modify its prior statement that "[t]he television stations and services falling under Approved SOCAN Tariff 22.D and 22.E will not be subject to the interim tariff, if approved by the Board, or the final tariff" to remove the words "or the final tariff".

Attachment: L - CAB Application Regarding the Applicability of Proposed Tariff 22.D.pdf


April 27, 2012up arrow

NOTICE OF THE BOARD

The hearing for the above-captioned file, which was set to begin on Tuesday, June 19, 2012 at 10:00 a.m., will now start on Wednesday, June 20, 2012, at 10:00 a.m. In addition, the Board will be unable to sit on Friday, June 29, 2012.


March 2, 2012up arrow

RULING OF THE BOARD

YouTube objected to Interrogatories 22, 23 and 26 from SOCAN. These seek information about the relationship between YouTube and its parent company, Google.

On October 14, 2011, the Board ruled the questions were largely relevant. “It will be impossible to understand the business models of the industry and the role music plays within it without learning about the interrelationships between the various products and services offered and about how customers’ data are being used.” At the same time, the Board attempted to design a process that would allow YouTube to shield especially sensitive information while providing answers responsive to SOCAN’s legitimate concerns. In effect, SOCAN was asked to disclose some of its strategy in advance, so as to help YouTube focus its response.

As a result, SOCAN addressed 15 questions to YouTube. Having found them intrusive, YouTube opted to respond directly to the questions, as follows:

22: Q: How much has Google invested in or otherwise provided to YouTube on an annual basis since purchasing it? Provide actual dollar amounts as well as the value of any non-monetary services, executive and personnel additions and any other advantages conferred upon YouTube by Google. Provide any projections regarding such payments, investments and values in the future.

A: YouTube does not have the information requested.

23: Q: Does Google use data from YouTube to generate results to searches on Google’s main search site? If so, explain how Google uses data from YouTube to generate search results.

A: YouTube understands that data from YouTube may be included among the data used to generate search results on Google’s main search site. YouTube does not otherwise have the information requested.

26: Q: For each of the years 2007 to 2011, provide Google’s total revenues, broken down by Canadian and Non-Canadian sources, and showing separately: a. the total revenues generated by the sale of advertising on Google search pages; b. the total revenues generated by the sale of advertising on Google search pages linked to pages containing music.

A: YouTube does not have the requested information broken down in the form requested. See Google’s publically available Form 10-Q, as contained at Schedule 26 hereto.

This let SOCAN to complain of a lack of cooperation on the part of YouTube and requesting the Board’s intervention. An exchange followed, involving a discussion of technical and operational issues that need not be outlined here.

In essence, YouTube submits that it has already provided all it has in response to other interrogatories, that it does not have further information with which to answer the questions, and that since Google and YouTube are discrete corporate entities, the latter cannot be expected to secure information from the former.

The deficiency complaints of SOCAN are dismissed.

Question 22 has been answered.

Questions 23 and 26 solicit information in the possession of Google. If YouTube owned Google, the Board would order that the information be provided: parent companies are not allowed to shield behind their corporate structure to avoid providing relevant information from subsidiaries they control. In this instance, the opposite is true. YouTube cannot possibly force Google to supply information.

SOCAN may note, quite rightly, that the Board regularly orders that a users’ representative who fails to obtain information from users members will not be allowed to remain as objector. YouTube is not a users’ representative. It is itself a prospective user and as such, entitled to appear before the Board without being required to provide information in the possession of others.

As relevant as the information is, either it does not exist or it is not in the possession of YouTube. The Board’s task will be more difficult if it is not able to understand the interactions between YouTube and its parent company. SOCAN is free to suggest other ways of dealing with the situation.

Counsel on both sides have appeared often enough before the Board to know that any attempt on the part of YouTube to introduce evidence that would have been responsive to the above-referenced interrogatories without the consent of SOCAN will be closely monitored.


February 22, 2012up arrow

NOTICE OF THE BOARD

SOCAN's request described below is granted.

SOCAN’s request:

The current schedule of proceedings for this matter has SOCAN filing its case on Friday, February 24, 2011.  However, in light of timing issues relating to the production of interrogatory responses, SOCAN will not be in a position to complete and file its case this week.

Accordingly we would appreciate the following changes to the schedule, all of which are acceptable to the other parties:

Filing of SOCAN case:  From February 24 to March 5, 2011;
Filing of the Objectors' cases:   From May 11 to May 18, 2011;
Filing of SOCAN's supplementary case:  From June 1 to June 6, 2011. 

This would allow just about two full weeks before the commencement of the hearing on June 19.

Thank you for considering this request and please do not hesitate to contact us if you have any questions.


February 17, 2012up arrow

NOTICE OF THE BOARD:

Please note that the decision of the Board with respect to the above-referenced matter is now posted on the Board’s website under the heading "What’s New/Recent Decisions", at http://www.cb-cda.gc.ca/home-accueil-e.html.


February 6, 2012up arrow

NOTICE OF THE BOARD

YouTube is asked to respond to SOCAN's email of 23 January 2012 reproduced below by no later than Friday, February 10, 2012. SOCAN can provide a reply by no later than Wednesday, February 15, 2012.

SOCAN’s email:
This is further to the Board's Order of October 17, 2011, set out below for your convenience, as it relates to YouTube's objections to SOCAN Interrogatories 22, 23 and 26.

You will recall that the Board required the parties to "seek to agree" on the amount of information necessary to allow SOCAN to prepare its case in connection with these interrogatories.  For that purpose, SOCAN provided YouTube counsel with notes prepared by the expert retained by SOCAN on valuation matters (Dr. Liebowitz), which were intended to elicit relevant information from YouTube without disclosing trade secrets (the "SOCAN Proposal").  The SOCAN Proposal was provided on November 10, 2011, for YouTube's consideration as a first step in the discussions between the parties.

Last Thursday, we received an email from counsel for YouTube indicating that, instead of responding to SOCAN's Proposal, YouTube was providing responses to the original Interrogatories 22, 23 and 26.  However, the answers provided are not at all responsive.  In essence, YouTube simply reiterates its original objection that it does not have the requested information and that Google is not a party to this proceeding.

Accordingly, as required in the Board's Order, SOCAN is contacting the Board to apprise it of these difficulties rather than filing a formal motion on deficiencies, and to request directions as to how to proceed with the matter.  In doing so, SOCAN notes that the deadline for the filing of its case is rapidly approaching.  The relevant documents and exchanges between the parties are available for the Board's review upon request.

Please do not hesitate to contact us if you have any questions.


January 24, 2012up arrow

The relevant documents and exchanges between the parties as referred to in SOCAN's correspondence below should be filed with the Board forthwith.

SOCAN’s correspondence:
Cher Monsieur McDougall,

This is further to the Board's Order of October 17, 2011, set out below for your convenience, as it relates to YouTube's objections to SOCAN Interrogatories 22, 23 and 26.

You will recall that the Board required the parties to "seek to agree" on the amount of information necessary to allow SOCAN to prepare its case in connection with these interrogatories.  For that purpose, SOCAN provided YouTube counsel with notes prepared by the expert retained by SOCAN on valuation matters (Dr. Liebowitz), which were intended to elicit relevant information from YouTube without disclosing trade secrets (the "SOCAN Proposal").  The SOCAN Proposal was provided on November 10, 2011, for YouTube's consideration as a first step in the discussions between the parties.

Last Thursday, we received an email from counsel for YouTube indicating that, instead of responding to SOCAN's Proposal, YouTube was providing responses to the original Interrogatories 22, 23 and 26.  However, the answers provided are not at all responsive.  In essence, YouTube simply reiterates its original objection that it does not have the requested information and that Google is not a party to this proceeding.

Accordingly, as required in the Board's Order, SOCAN is contacting the Board to apprise it of these difficulties rather than filing a formal motion on deficiencies, and to request directions as to how to proceed with the matter.  In doing so, SOCAN notes that the deadline for the filing of its case is rapidly approaching.  The relevant documents and exchanges between the parties are available for the Board's review upon request.

Please do not hesitate to contact us if you have any questions.
 


January 20, 2012up arrow

The following Order replaces the Order of the Board of January 20, 2012 issued earlier dealing with the same issue:

ORDER OF THE BOARD

The Copyright Board of Canada hereby Orders Bell Canada, Quebecor Media, Rogers Communications and Yahoo! Canada, and the affiliates of each of these parties, to provide to SOCAN copies of the confidential agreements requested in SOCAN Interrogatories 21, 30 and 31. The disclosure of these agreements shall be governed by the Confidentiality Order issued by the Board on November 22, 2011.


January 20, 2012up arrow

NOTICE OF THE BOARD

The January 20, 2012 application for substitution of party is granted. Yahoo! Canada is hereby substituted to the Computer and Communications Industry Association as a party to the above-referenced proceedings.


January 20, 2012up arrow

ORDER OF THE BOARD

The Services are to provide to SOCAN copies of the agreements requested in Interrogatories 30 and 31.


January 4, 2012up arrow

RULING OF THE BOARD

On November 9, 2011, the Computer Communications Industry Association (CCIA) filed a motion seeking a declaration from the Board that SOCAN’s Tariff 22 (Internet) is not applicable to sites or services which only authorize non-infringing uses of SOCAN’s repertoire. CCIA filed this motion in response to both proposed Tariffs 22.D and G and SOCAN’s application for an interim tariff filed on June 13, 2011.

CCIA advances three reasons in support of its application. First, such a ruling would assist objectors in determining whether they are prospective users under the proposed tariffs and therefore, whether they are properly a participant to the proceedings. Second, the proposed tariff explicitly mentions particular sites and services without establishing that those sites and services engage in activities that require a SOCAN licence. Third, the interim tariff sought by SOCAN proposes to impose liability on entities, including CCIA members, even though the foundation for such purported liability has not yet been established in law.

The application is dismissed on the following grounds.

To the extent that the application can be ruled upon without supporting evidence, the application is trite. No declaration is required to confirm that SOCAN can collect royalties only when so legally entitled pursuant to the Copyright Act, or that an activity (or the authorization of such an activity) does not attract liability when it is unprotected or when it falls within the scope of one of the exceptions provided in the Act.

To the extent that evidence is required before a ruling can be issued, the application is premature. Deciding whether a specific activity attracts liability necessarily involves issues of mixed fact and law. This requires an evidentiary basis, which is best gathered through the usual process. Ruling on the issue absent such a basis would be ill-advised at best.

Ultimately, the parties will only be in a position to assess whether they are subject to a particular tariff once that tariff has been certified by the Board. Positing on the ambit of a proposed tariff - or an application for an interim tariff - will not provide the parties with the assurances they are seeking from this application. Significantly, the proposed tariff does not purport to ascribe liability per se to the site or service offering user-generated content for the communication of that content. Rather the proposed tariff seeks to collect royalties “for communications [.] from [.]” such sites or services, without specifying who may be liable for the payment of royalties.


November 22, 2011up arrow

ORDER OF THE BOARD

Attached is the Board’s Order dealing with information requested during the Interrogatory exchange process for which confidential treatment may be claimed.

Attachment: Confidentiality Order Confidential and highly confidential info SOCAN 22.D and SOCAN 22.G.pdf


November 21, 2011up arrow

Following the exchange of emails (attached)[emails not attached] received from SOCAN's counsel, the Board requires direct confirmation from both ARC, ARCQ and NCRA/ANREC as well as CKUA Radio Network that they are withdrawing from the proceedings in the file mentioned above.


November 10, 2011up arrow

NOTICE OF THE BOARD

Parties in agreement with CCIA's request (attached) are allowed to provide comments in support of CCIA's request by no later than Thursday, November 17, 2011. SOCAN and other parties opposing CCIA's request can file a response by no later than Tuesday, November 22, 2011. CCIA and parties agreeing with CCIA can provide a reply by no later than Friday, November 25, 2011.

Attachment: DM_OTT-#78246-v1-SOCAN_Tariff_22G_-_CCIA_Motion_-_Letter_to_Gilles_Mcdougall


October 17, 2011up arrow

RULING OF THE BOARD

CCIA objections to SOCAN Interrogatories

Confidentiality: the objection is dismissed for the reasons stated by SOCAN.

Operations outside Canada (including Interrogatory 5): the objection is sustained in part. Answers shall be limited to Canada, subject to anything else in this ruling. To the extent that Canadian operations are not sufficiently segregated for information to be usefully provided separately, global information should be provided, with an estimation of the share of operations attributable to Canada.

YouTube objections to SOCAN Interrogatories

The objections are dismissed in part. It will be impossible to understand the business models of the industry and the role music plays within it without learning about the interrelationships between the various products and services offered and about how customers’ data are being used.

That being said, the information requested is especially sensitive. As such, it requires special treatment. SOCAN can achieve its legitimate objectives without getting all that it is asking for, even though this may require SOCAN to disclose to counsel to YouTube the approach it wishes to take in advance of the information being provided.
Counsel for the parties shall seek to agree as to how much information SOCAN’s expert requires to perform his analysis. To help in this, SOCAN shall disclose to the extent necessary the analysis the expert is wishing to perform and the kind of information required to do so. In turn, YouTube shall provide information that is responsive to the needs of the expert either in the form of raw data or, if too sensitive and SOCAN’s legitimate needs can so be satisfied, by generating a new document that sets out what is needed for the expert analysis while limiting the disclosure of highly confidential information. Parties shall contact the Board if difficulties arise before filing any formal motion asking the Board to settle any remaining disputes.

Other objections to SOCAN Interrogatories

Interrogatory 8: Objectors shall provide the number of registered customers for Canada. Objectors shall indicate how a Canadian user’s geographical location is determined and verified. If the verification process is different in the U.S., the difference shall be explained: a variation in geo-location protocols may be relevant in assessing Canadian operations for the purposes of the tariff.

Interrogatory 11: the objection is dismissed. It will be impossible to understand the business models of the industry and the role music plays within it without learning about the interrelationships between the various products and services offered and about how customers’ data are being used.

Interrogatories 30, 31: the objection is dismissed, for the reasons stated by SOCAN. Cineplex shall supply unredacted documents to SOCAN external counsel, with an indication of what it wishes to redact. If Cineplex and SOCAN external counsel cannot agree on redactions, parties shall file what is required for the Board to dispose of the issue.

Interrogatories 47, 48: the objections are sustained.

Interrogatory 53: the Services shall answer the question, for the reason stated by SOCAN. Information supplied in response to the question is subject to the usual implied undertaking that it will only be used in the context of the proceeding in which they were obtained. This, combined with proper confidential treatment, will suffice to avoid potential prejudice to the Services.


September 20, 2011up arrow

The Services' request for an extension is granted.


September 16, 2011up arrow

The parties' request is granted [Extension request].


June 17, 2011up arrow

ORDER OF THE BOARD

Pursuant to section 66.71 of the Copyright Act, SOCAN is ordered to forward forthwith copies of the following documents to every entity mentioned in the application, which is a potential user pursuant to the above-referenced tariffs, and which is not already a participant in these proceedings (the "recipients"):

1. SOCAN's June 13, 2011 application for an interim tariff; [below]
2. The present order.

SOCAN shall copy the Board on the correspondence which is to be sent to the recipients.

The recipients are entitled to participate in the examination of the application according to the timetable already set by the Board’s Notice of June 13, 2011, attached. Recipients may respond to the application by no later than Thursday, June 30, 2011. SOCAN can provide a reply by no later than Monday, July 11, 2011. The responses and the reply are to be sent to all participants in the file as well as the Board.


June 13, 2011 up arrow

NOTICE OF THE BOARD

Parties can reply to SOCAN's application by no later than Thursday, June 30, 2011. SOCAN can file a response by no later than Monday, July 11, 2011.


June 8, 2011up arrow

 [Le texte français suit l’anglais]

Further to the Board’s Notice of June 1, 2011, attached is the Directive on Procedure.  We draw your attention on the following points:

a) The electronic version of the evidence (on CD, DVD or USB key) should be filed with the Board, along with the hard copies on the date set for that purpose. You must also ensure that other participants receive their hard copy and electronic version on the same date the documents are filed with the Board;

b) As a general rule, responses to interrogatories are NOT filed with the Board. Parties should only file as evidence those responses to interrogatories to which they know they intend to refer;

c) When filing documents with the Board, confidential and highly confidential information should be highlighted in yellow and blue, respectively. The cover page of the document should indicate whether it includes confidential or highly confidential information.

________________________________________________________

En référence à l’avis de la Commission du 1er juin 2011, vous trouverez ci-joint la directive sur la procédure.  Nous attirons votre attention sur les items suivants :

a)  La version électronique de la preuve (sur CD-ROM, DVD ou clé USB) doit être déposée auprès de la Commission en même temps que les copies papier à la date fixée pour ce faire. Vous devez aussi vous assurer que tous les participants reçoivent les versions papier et électronique le même jour que les documents sont déposés auprès de la Commission;

b) En règle générale, les réponses aux demandes de renseignements ne sont PAS déposées auprès de la Commission. Les participants devraient déposer en preuve seulement les réponses aux demandes de renseignements auxquelles ils entendent faire référence;

c) Lorsque les participants déposent des documents auprès de la Commission, les renseignements confidentiels et hautement confidentiels doivent être surlignés en jaune et bleu, respectivement. La page titre du document doit indiquer si le document contient des renseignements confidentiels ou hautement confidentiels.

Attachments : SOCAN Tariffs 22.D & 22.G - Directive on procedure and Appendices.pdf


June 1, 2011up arrow

NOTICE OF THE BOARD

The Board adopts the following schedule of proceedings with respect to the above-mentioned file, leading to a hearing beginning Tuesday, June 19, 2012:

Exchange of Interrogatories: no later than Friday, June 24, 2011

Objections to interrogatories: no later than Friday, August 12, 2011

Filing, with the Board, of replies to objections to interrogatories: no later than Friday, September 16, 2011

[Board Ruling]

Responses to interrogatories: no later than Friday, October 21, 2011

Motions re: incomplete/unsatisfactory responses to interrogatories: no later than Thursday, November 10, 2011*

Filing, with the Board, of replies to motions: no later than Friday, December 2, 2011

[Board Ruling]

Complete/satisfactory responses to interrogatories: no later than Friday, January 13, 2012

Filing of Collectives' Case: no later than Friday, February 24, 2012

Filing of Objectors' Case: no later than Friday, May 11, 2012

Filing of Collectives' Supplementary Case: no later than Friday, June 1, 2012

Filing of Legal Briefs (if required): no later than Friday, June 8, 2012

Beginning of hearing: Tuesday, June 19, 2012 at 10:00 a.m., Copyright Board's hearing room.

The Directive on Procedure will follow shortly.

* Friday, November 11, is a holiday (Remembrance Day)


May 26, 2011up arrow

Cineplex Entertainment LP's request for intervenor status with full participatory rights is granted.


May 25, 2011up arrow

Unless parties submit comments to the contrary no later than at the end of the day today, Wednesday, May 25, 2011, the Board intends to grant Cineplex Entertainment LP its request (a copy of which is attached) for intervenor status with full participatory rights with respect to the above-referenced matter.


April 29, 2011up arrow

RULING OF THE BOARD

Pandora's application of February 17, 2011, for Intervenor Status with full participatory rights (attached for convenience) is granted.

Attachment: SOCAN 22 2011 - Pandora Media Inc Request to Intervene.pdf

April 29, 2011up arrow

RULING OF THE BOARD

On January 25, 2011, SOCAN asked that the Board set in motion the process leading to the examination and certification of its proposed tariffs 22.D (Audiovisual Webcasts) and G (User Generated Content) for the year 2011, along with the corresponding proposed tariffs for the years 2007 to 2010, which SOCAN identified as items 22.4 (Audiovisual Webcasts) for 2007-2008 and 22.D (Audiovisual Webcasts) for 2009-1010. SOCAN also proposed a schedule of proceedings leading to such a hearing.

The application generated a significant number of comments and proposals. Some asked that all SOCAN Internet tariffs be heard at the same time. Some suggested that Re:Sound’s Internet tariffs be examined with SOCAN’s. Others asked that specific tariff items of interest to them be examined separately. SOCAN and Re:Sound opposed any widening of the issues. Many asked that the process not be set in motion until the Board has certified the CSI and SOCAN Online Music Services tariffs that are currently under advisement.

The motion is granted in part. The examination of proposed SOCAN tariffs 22.D and G (2011) will proceed jointly, but only to the extent that they target the use of musical works in non-simulcast, audio-visual transmissions other than video games. The examination of proposed SOCAN tariffs 22.4 (2007-2008) and 22.D (2009-2010) will proceed at the same time. So will the examination of proposed SOCAN tariffs 22.7 (Other Sites, 2007-2008) and 22.G (Other Sites, 2009-2010), to the extent that they target user generated content as described in proposed SOCAN tariff 22.G (2011).

The reasons to so proceed are as follows:

Non-simulcast, audio-visual transmissions are prima facie sufficiently distinct from other forms of music offerings over the Internet to deserve separate examination. Audio-visual offerings probably dominate music uses targeted in proposed tariff 22.G for 2011; postponing the examination of audio-only user generated content will allow the Board to focus on the lion’s share of that activity. As for simulcast uses of music, they generally are so strongly associated to a principal use that they should be examined at the same time as that principal use.

Video games are non-simulcast, audio-visual transmissions. However, since neither SOCAN nor the relevant objectors wish this item to be examined with tariffs 22.D and G, there is no need to consider the issue.

Focussing on audio-visual products restricts the number of objectors: hence, those who only supply audio transmissions need not participate. It also makes it moot to decide whether to examine any corresponding Re:Sound or CSI proposed tariffs at the same time, since such tariffs do not exist.

Merging the examination of all Internet tariffs would create more problems than it would solve. To do so would make no more sense than, for example, merging the examination of all tariff items dealing with the use of music by all radio and television services. Contrary to what some objectors argued, it is quite possible to migrate from user-based to use-based tariffs without examining all Internet tariffs in a single hearing. Currently, both types of tariffs coexist; tariff 22.A (Online Music Services) is use-based while all other tariff 22 items are user-based. Any transition issues created by moving from one type of tariff to the other can be addressed through proper tariff wording.

There is no need to postpone the examination of these tariff items until the Board certifies the SOCAN and CSI Online Music Services tariffs, currently under advisement. The issues raised by audio-visual transmissions probably are sufficiently different to warrant separate consideration. There will be plenty of time for the parties to adjust their approach once the decision under advisement is rendered, if they so wish. However, since the schedule SOCAN proposed is now moot, the Board asks the parties to present a new scheduling proposal, preferably jointly, by no later than Friday, May 27, 2011.

SOCAN identified the proposed tariffs that should be examined together as tariff 22.4 (Audiovisual Webcasts) for 2007-2008, tariff 22.D (Audiovisual Webcasts) for 2009-1010 and tariffs 22.D (Audiovisual Webcasts) and 22.G (User Generated Content) for 2011. Out of an abundance of caution, the examination of proposed SOCAN tariffs 22.7 (Other Sites, 2007-2008) and 22.G (Other Sites, 2009-2010) will also be joined to these proceedings, to the extent that they target user generated content as described in proposed SOCAN tariff 22.G (2011).


February 18, 2011up arrow

A number of submissions have already been received with respect to SOCAN's request of January 25, 2011 for a hearing for the purpose of determining Tariffs 22.D and 22.G, as proposed by SOCAN for the year 2011, along with the corresponding tariffs proposed by SOCAN for the previous years 2007 to 2010.

Parties that have already submitted their views on this matter do not need to resubmit unless they wish to add something new. All parties have until Friday, March 4, 2011 to file their submissions on SOCAN's request. All parties are allowed to provide replies by no later than Friday, March 18, 2011.


February 17, 2011up arrow

The Board is examining the issues and will rule in due course, as usual. Could all please refrain from providing additional comments.



SOCAN Tariff 2.A (Commercial Television Stations) and Tariff 17 (Pay, Specialty and other Television), 2009-2013


June 2, 2014up arrow

NOTICE OF THE BOARD

On January 17, 2014, the Board cancelled the hearing scheduled for March 25, 2014 in the above-noted matter further to Ms. Watt’s e-mail (below) of December 2, 2013 informing it that the parties had reached a tentative settlement.

The Board has not received any correspondence from the parties. Therefore, SOCAN is asked to provide the Board a status report on the negotiations with parties in respect of the file mentioned above no later than Friday, June 13, 2014.


January 17, 2014up arrow

NOTICE OF THE BOARD

In the circumstances, the hearing scheduled to start on March 25, 2014 is cancelled.


November 1, 2013up arrow

NOTICE OF THE BOARD

What parties are proposing below is acceptable to the Board.

De : Watt, Lynne
Envoyé : 1 novembre 2013 14:09
À : McDougall, Gilles: CB-CDA
Cc : David Kent; Jay Kerr-Wilson; mklee; ddoyle; Ariel Thomas; gabriel vanloon; kathleen simmons; Estabrooks, Matthew
Objet : RE: SOCAN 2A and 17

Mr. McDougall,

Today is the deadline to file replies to motions with the Board in respect of deficiencies in interrogatory responses. We wanted to let the Board know that the parties are currently engaged in settlement discussions with respect to the tariffs and to the upcoming hearing and, as such, we have all agreed to hold today's date in abeyance, if this is acceptable to the Board. In the event that the discussions do not result in a settlement and if the parties cannot work out deficiency issues as between ourselves (which we probably can do), then we may need to request a revised date from the Board for the filing of the replies to motions and, perhaps, revision to certain of the other dates in the schedule. We will keep the Board apprised of developments in this regard.

Yours truly,

Lynne

D. Lynne Watt


October 1, 2013up arrow

NOTICE OF THE BOARD

Attached is the Board's Order dealing with information for which confidential treatment may be claimed.

Attachment: SOCAN 2.A & 17 2009-2013 - Confidentiality Order.pdf


July 10, 2013up arrow

RULING OF THE BOARD

On July 5, 2013, SOCAN filed a list of four interrogatories to which CAB objects. The substance of the objections and the reply by SOCAN are the same in all cases: CAB objects to giving information on how revenues are earned since SOCAN has proposed no changes to the rate base; SOCAN believes that a clarification to the rate base may be necessary, in particular related to contra and other non-monetary transactions.

The Board agrees with SOCAN. The information sought is relevant and CAB is to answer Interrogatories 7 through 10.

On the same day, the Canadian Association of Broadcasters (CAB), TVA, CBC and the BDUs filed two interrogatories to which SOCAN objects.

The substance of the first objection deals with the annual number of recipients (domestic and foreign) of royalty payments for the Proposed Tariffs in various categories. The Board agrees with SOCAN that such information is irrelevant to the case. The statement from the Objectors that "The Board has recognized in the past that the rates paid for the use of musical works in other jurisdictions can be relevant (even if not determinative) to the value of the use of musical works in Canada" is of no relevance here since Interrogatory 11 deals with the number of recipients of royalties and not the rates of royalties. As such, SOCAN's objection is maintained with respect to Interrogatory 11.

The second interrogatory in issue deals with annual amounts of royalties distributed by SOCAN in respect of each of Tariff 2.A and Tariff 17 for the relevant period. The relevance of the information sought in Interrogatory 12 may be better assessed at a later time in the proceeding. Therefore, SOCAN shall provide any information responsive to Interrogatory 12 it has, in the form it has it.


April 23, 2013up arrow

NOTICE OF THE BOARD

Further to the Board's Notice of April 9, 2013, attached is the Directive on Procedure.


AVIS DE LA COMMISSION

En référence à l'avis de la Commission en date du 9 avril 2013, vous trouverez ci-joint la directive sur la procédure.

Attachment: SOCAN 2.A and 17 2009-2013 - Directive on Procedure and Appendices.pdf


April 9, 2013up arrow

NOTICE OF THE BOARD

Attached is the schedule for the above-referenced proceedings.


AVIS DE LA COMMISSION

Vous trouverez ci-joint le calendrier pour l'affaire mentionnée en rubrique.

Attachment: schedule of proceedings SOCAN 2.A & 17, 2009-2013.pdf


Mach 22, 2013up arrow

NOTICE OF THE BOARD

Parties in the above-mentioned tariffs are invited to submit, by no later than Friday, April 5, 2013, a proposed, preferably joint, timetable for the examination of the tariffs leading to a hearing beginning on Tuesday, March 25, 2014.

Royalties for all Internet transmissions of audiovisual content previously offered on a television station's main signal, including simulcasts, webcasts and podcasts, shall be dealt with at the same time as the above-mentioned tariffs. This includes Internet transmissions targeted in SOCAN Tariff 22.F (Webcasts of Television Station Signals, as proposed by SOCAN for 2013) and non-simulcast, audiovisual Internet transmissions of commercial television stations targeted in SOCAN Tariff 22.D (Audiovisual Webcasts). The Board intends to address two issues. First, which transmissions, if any, are ancillary to the main broadcast activities of a commercial television station' Second, should royalties for such ancillary transmissions be anchored to the tariff targeting the station's main broadcast activities and if so, how?,



SOCAN Tariff 4 - Popular Music Concerts (2009-2012) - Files merged on April 11, 2012.


February 15, 2013up arrow

NOTICE OF THE BOARD

The hearing is postponed sine die until the Board receives further information from the Parties with regard to the completion of any settlement agreement.


February 4, 2013up arrow

NOTICE OF THE BOARD

Parties are asked to respond to the following questions no later than Friday, February 22, 2013. Parties can provide replies by no later than Friday, March 1, 2013.

Questions to SOCAN

  1. A detailed explanation of the distribution of concert royalties, including the thirteen distribution levels set by the Tariff and Distribution Committee of SOCAN's Board of Directors, was provided as exhibit SOCAN-3 (SOCAN Report on Concert Tariff Proposals) in the 2001 hearing on Tariffs 4.A.1, 4.B.1, 4.B.3 and 5.B (1998-2002). Is SOCAN still using the same approach and levels to determine the distribution of concert royalties? If not, provide a detailed explanation of the new approach, including the role played by set lists, the distribution formula and the updated levels.
  2. In its statement of case for 2012 (exhibit SOCAN-6, at para. 26), SOCAN explains that most of the reporting requirements (b) to (d) are currently informally requested when filing the application form for tariff 4. What is the response rate for these requests?

Questions to LIVE NATION and MLSE

  1. How often does Live Nation request that Ticketmaster and other ticketing companies include additional fees to the price of the ticket (exhibit Live Nation-3, at para. 13)? What is the relative value of these fees in comparison with the ticket price? How often is a single amount (including more than one fee) charged to ticket purchasers (exhibit Live Nation-3, at para. 14)?
  2. For each of the following, provide the average fee in 2011 as well the minimum, maximum and median fee?
    • Facility fee (or CRF)
    • Parking fees
    • Convenience charge
    • Ticketing company fees
    • Fees for loaded tickets
    • TicketFast delivery processing fee
    • Fan club fees
    • Fees for VIP or premium ticket packages
    • Delivery charge
    • Charity fees
    • Order processing fees
    • Auction fees
    • Fees for downloading sound recordings
    • Ticket's base amount
    • Final ticket price
  3. In exhibit MLSE-2 (paras. 26-27) and exhibit MLSE-3 (or exhibit Live Nation-5) (para. 18), it is stated that high Canadian licence fees can influence promoters in choosing American venues instead of venues in Canada. Provide specific examples demonstrating that Canadian venues were sometimes excluded from certain tours because of a cheaper US alternative. Also provide any additional information that would tend to demonstrate that competition exists between US and Canadian venues.

October 12, 2012up arrow

NOTICE OF THE BOARD

The Objectors' request, attached, is granted. Substantive cases in the above-mentioned file shall be filed no later than Friday, October 19, 2012.


August 30, 2012up arrow

RULING OF THE BOARD

The parties' request, attached, is granted.

Attachment: SOCAN Tariff 4 - letter to the Board.pdf


June 15, 2012up arrow

RULING OF THE BOARD

Attached is the Board's Order dealing with information requested during the interrogatory exchange process for which confidential treatment may be claimed.

Attachment: Confidentiality Order - SOCAN Tariff 4 (Concerts) 2009-2012.pdf


May 31, 2012up arrow

NOTICE OF THE BOARD

Attached is the Ruling of the Board dealing with objections to interrogatories.

Attachment: SOCAN 4 (Concerts) 2009-2012 - Objections to Interrogatories.pdf


May 22, 2012up arrow

NOTICE OF THE BOARD

Having reviewed SOCAN's responses to Objections raised by Live Nation, MLSE and Sony Centre to the Interrogatories posed by SOCAN, the Board needs a clarification.

In reference to Question 16 - SOCAN's Response to Objections raised by Sony Centre, at Page 10 of the document prepared by SOCAN, SOCAN provides the following information:

16 Advise as to the number of events in the past five years with performers in person performing to recorded music, e.g. lip synching or miming. Our clients have no records of whether performers are lip-synching or miming to recorded music. In addition, as explained above, the only situation which is being added by the reference to lip-synching or miming are concerts is where there is no live music and the entire performance uses recorded music, and this interrogatory is not limited to this type of production. This question is relevant. If the Sony Centre does not have this information, this is the response. Perhaps the Sony Centre could make inquiries of the promoters in case this information is readily available to them.

SOCAN is asked to provide the text being referred to when stating "as explained above".


April 30, 2012up arrow

NOTICE OF THE BOARD

At the parties' request, the Board adopts the following revised schedule of proceedings with respect to the above-mentioned file, leading to a hearing beginning Tuesday, March 12, 2013:

Exchange of any (limited) additional Interrogatories: no later than Wednesday, May 2, 2012

Objections to additional Interrogatories: no later than Wednesday, May 9, 2012

Exchange of Motions re: Objections to Interrogatories: no later than Wednesday, May 16, 2012

Filing, with the Board, of replies to Motions re: Objections to Interrogatories: no later than Friday, May 18, 2012

[Board Ruling]

Exchange of Responses to Interrogatories: no later than Friday, June 15, 2012

Exchange of Motions re: incomplete/unsatisfactory responses to Interrogatories: no later than Friday, July 13, 2012

Filing, with the Board, of replies to Motions re: incomplete/unsatisfactory responses to Interrogatories: no later than Friday, July 27, 2012

[Board Ruling]

Exchange of complete/satisfactory responses to Interrogatories: no later than Friday, August 31, 2012

Filing of substantive cases*: no later than Friday, October 5, 2012.

Filing of Responses to substantive cases: no later than Friday, November 23, 2012

Filing of Replies of parties with respect to their substantive cases: no later than Friday, January 11, 2013

Filing of Legal Briefs (if required): no later than Friday, March 1, 2013

Beginning of hearing: Tuesday, March 12, 2013 at 10:00 a.m., Copyright Board's hearing room.

* Statements of case of any party seeking a change to the status quo. This includes SOCAN's case in respe