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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 11, 2013
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, 2013
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, 2013
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, 2013
NOTICE OF THE BOARD
Please see the attached Order of the Board.
Attachment: Order of the Board - May 6, 2013.pdf
March 27, 2013
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, 2013
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, 2013
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, 2012
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, 2012
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.
- 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.
- 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.
- 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.
- 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, 2012
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, 2012
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, 2012
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.
- 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.
- 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.
- 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.
- 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.
- 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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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
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, 2012
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2010
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, 2010
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:
- 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?
- Are the quality and quantity of the data collected in Phase II affected by a brief or full Phase I?
- 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)?
- What are the rates of initiation and completion of Phase I?
- What is the rate of acceptance to participate in Phase II?
- What are the rates of initiation and completion of Phase II?
- Do any uploaded documents raise privacy or other concerns?
- Are there any reports of accommodating strategies to complete the required tasks [from the interviews]?
- Are the instructions for uploading well-understood?
- 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.
- Should there be a brief Phase I or a full Phase I in the full survey?
- Should uploading be included in the full survey?
- Should the anchor questions be included in the full survey?
- 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 |
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, 2010
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, 2010
La Commission accepte la requête du Consortium. [Objet :Demande de prorogation de délais.]
October 8, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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?
- Is it necessary to create a factual backdrop or context in order to decide the questions?
- 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, 2009
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, 2009
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)
July 16, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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
- which quantitative variables were collected;
- which qualitative or descriptive variables were collected;
- which variables were changed, dropped, or added as a result of the pre-test;
- 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, 2013
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, 2012
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, 2012
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, 2012
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, 2012
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:
- 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;
- 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;
- 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 :
- 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;
- 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;
- 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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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:
- Answers to interrogatories: no later than Tuesday, June 19, 2012
- Notice with respect to unsatisfactory/incomplete responses: no later than Monday, July 23, 2012
- Filing with the Board of replies to notices of the grounds with respect to any remaining issues: no later than Tuesday, August 7, 2012
- 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:
- Notice with respect to unsatisfactory/incomplete responses: Already completed
- Filing with the Board of replies to notices of the grounds with respect to any remaining issues: no later than Thursday, April 26, 2012
- 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, 2012
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, 2012
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, 2012
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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.).
- A list of opt-out institutions that will be required to answer interrogatories;
- 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.
- It is pursuant to an Order of the Board that the institution is required to answer the questions addressed to it;
- 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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2010
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, 2010
In view of the circumstances, the Board grants Access Copyright's request.
[Extension request]
December 13, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
[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, 2010
[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)
June 21, 2013
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, 2013
RULING OF THE BOARD
On June 3, 2013, the Objectors wrote to the Board requesting that Access Copyright be ordered to:
- complete the unfinished repertoire analysis of the subject material of the previous tariff;
- conduct a full repertoire analysis on the new subject material in the proposed tariff: music, consumables and reproducibles; and
- 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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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.
- Rules dealing with the burden of proof are not applied rigidly before the Board.
- 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.
- 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.
- 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.
- 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, 2013
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
July 24, 2013
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, 2013
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)
January 16, 2013
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, 2012
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, 2012
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, 2012
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, 2009
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/a13091996-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, 2012
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, 2012
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, 2011
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, 2011
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, 2012
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, 2012
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, 2012
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, 2011
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, 2011
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, 2011
[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, 2011
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, 2010
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, 2010
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, 2010
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, 2010
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, 2010
[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, 2010
[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
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, 2010
[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, 2010
[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, 2009
[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, 2009
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, 2009
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, 2009
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, 2009
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, 2009
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, 2009
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, 2009
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, 2009
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 [à 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, 2009
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://cb-cda.gc.ca/new-f.html.
Application to fix royalties for a licence and its related terms and conditions (SODRAC v. MusiquePlus Inc. [MusiquePlus and MusiMax])
July 27, 2010
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, 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 29, 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, 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, 2009
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, 2009
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.
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)
July 18, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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:
- Filing of SOCAN's submissions: no later than Friday, March 8, 2013;
- Responses to SOCAN's submissions by the objectors and other participants who wish to so respond: no later than Friday, June 14, 2013;
- 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;
- 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 :
- dépôt des prétentions de la SOCAN : au plus tard le vendredi 8 mars 2013;
- réponses aux prétentions de la SOCAN des opposantes et des autres participants qui désirent ainsi répondre : au plus tard le vendredi 14 juin 2013;
- 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;
- 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, 2013
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, 2013
NOTICE OF THE BOARD
The Board is inclined to grant the request described below. The following schedule would result:
- Filing of SOCAN's submissions: no later than Friday, March 8, 2013;
- Responses to SOCAN's submissions by the objectors and other participants who wish to so respond: no later than Friday, June 14, 2013;
- 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;
- 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).
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 :
- dépôt des prétentions de la SOCAN : au plus tard le vendredi 8 mars 2013;
- réponses aux prétentions de la SOCAN des opposantes et des autres participants qui désirent ainsi répondre : au plus tard le vendredi 14 juin 2013;
- 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;
- 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).
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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.
March 1, 2013
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, 2013
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:
- 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.
- 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.
- 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, 2013
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, 2013
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, 2013
ORDER OF THE BOARD
This order deals with a number of pending matters in the above-referenced proceedings.
- 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.
- 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.
- 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.
- 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.
- The Board intends to proceed with this matter as follows.
- 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.
- 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?
- 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.
- 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.
- 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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2012
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, 2012
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, 2012
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:
- 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;
- 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;
- 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.
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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 :
- 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;
- 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;
- 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, 2012
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, 2012
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:
- whether they consider themselves to be affected by the issues to be determined and if so, how;
- whether they intend to participate in this proceedings;
- to the extent possible, their preliminary views on the issues to be determined; and
- 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.
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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 :
- s'ils se croient visés par les questions à trancher et si oui, comment;
- s'ils entendent participer à la présente affaire;
- dans la mesure possible, leur point de vue préliminaire sur les questions à trancher;
- 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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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-WilsonCounsel to Google Inc.
November 27, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2011
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, 2011
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, 2011
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, 2011
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 (2012-2014) - Files merged on May 2, 2012.
November 29, 2012
NOTICE OF THE BOARD
The MicroSD Cards Exclusion Regulations (Copyright Act) (SOR/2012-226) published on November 7, 2012, came into force on the date of its registration, October 18, 2012. This Regulation may significantly change the landscape in the above-mentioned matter.
The parties are therefore invited to answer the following questions:
Assuming that the microSD cards qualify as audio recording media and that the royalties established would be retroactive to January 1, 2012,
a) would it be intrinsically unfair to establish a tariff given that past experience has demonstrated that in the Private Copying Regime retroactive collection of royalties is either difficult or impossible?
b) would the costs of the establishment of the accounting and reporting structures for the parties for a period of less than ten months be disproportionate to the proposed or potential royalties?
c) would the cost of deciding the issue of whether microSD cards are audio recording media be disproportionate to the proposed or potential royalties?
d) would it be intrinsically unfair to establish a tariff for any other reason?
Objectors shall file their representations on the issue no later than Friday, December 21, 2012. CPCC may respond no later than Friday, January 25, 2013. Objectors may reply no later than Friday, February 8, 2013.
******************************************************
AVIS DE LA COMMISSION
Le Règlement d'exclusion visant les cartes microSD (Loi sur le droit d'auteur) (DORS/2012-226), publié le 7 novembre 2012, est entré en vigueur à la date de son enregistrement le 18 octobre 2012. Ce règlement pourrait modifier passablement la donne dans l'affaire mentionnée en rubrique.
Les parties sont donc invitées à répondre aux questions suivantes :
En supposant que les cartes microSD soient des supports audio, et que les redevances soient établies de manière rétroactive à partir du 1er janvier 2012,
a) serait-il intrinsèquement inéquitable d'établir un tarif, sachant que l'expérience passée a prouvé que la perception rétroactive est difficile ou impossible dans le régime de copie privée?
b) la mise en place d'une structure comptable et de rapport pour une période de moins de dix mois entraînerait-elle des coûts démesurés compte tenu des redevances proposées ou potentielles?
c) les coûts associés à un examen des questions qu'il faudrait trancher avant de pouvoir conclure que les cartes microSD sont des supports audio seraient-ils démesurés compte tenu des redevances proposées ou potentielles?
d) serait-il intrinsèquement inéquitable d'établir un tarif pour tout autre motif?
Les opposantes sont invitées à déposer leurs prétentions à cet égard au plus tard le vendredi, 21 décembre 2012. La SCPCP pourra y répondre au plus tard le vendredi, 25 janvier 2013. Les opposantes pourront répliquer au plus tard le vendredi, 8 février 2013.
October 4, 2012
NOTICE OF THE BOARD
The Board will assume that the schedule proposed by CPCC is agreeable to all if no further comments are received before the end of the day.
Attachment: Proposed schedule of Hearing.pdf
October 2, 2012
NOTICE OF THE BOARD
The Board does not wish to hear the testimony of Ms. Lyette Bouchard. Her statement will remain on the record.
September 25, 2012
NOTICE OF THE BOARD
Counsel for RCC shall, no later than by noon on Wednesday, September 26, 2012, answer the remaining questions asked of him by CPCC in the context of preparing a proposed schedule for the forthcoming hearings. Specifically, counsel for RCC shall inform the Board and CPCC of the following:
- how long he plans his opening and closing remarks to be, keeping in mind that in the current hearings dealing with Re:Sound Tariff 8, the Board expected that each opening statement not be longer than 20 minutes;
- whether he intends to cross-examine Ms. Bouchard and if so, on which issues;
- how long he intends his cross-examination of each witness or panel to be;
- whether he intends to ask Mr. Gauthier questions with respect to the updated tables from Circum Network's Music Monitor survey with respect to CDs.
September 7, 2012
ORDER OF THE BOARD
On August 24, 2012, the Board ordered RCC to:
[.] file [.] a new statement of case indicating clearly the link between each proposition made in the statement already filed and the specific passages within the documents filed on which RCC intends to rely to support the proposition. Documents for which no such indication is supplied shall be withdrawn from the record.
RCC filed an amended Statement of case on August 31 2012. On September 4, 2012, CPCC raised some objections in relation to the amended statement on three grounds.
1. Additional Materials
With its amended Statement of case, RCC filed six new exhibits. CPCC objected to this new evidence being made part of the record.
The Order of August 24, 2012 asked RCC to clarify what propositions the documents already filed were intended to support. The August 17, 2012 deadline for the filing of RCC's evidence remains. No further evidence can be filed without the Board's prior leave. Exhibits RCC-4H through RCC-4M are struck from the record as are any reference to them in RCC's Statement of case.
2. Non Compliance with the Order of August 24, 2012
CPCC argued that the amended Statement of case is not in compliance with the August 24, 2012 Order since it does not clearly indicate "what any document filed in evidence is intended to establish."
The purpose of the Order was to ensure that the reader can readily establish the link between relevant portions of each filed document and one or more propositions in RCC's Statement of case. This was done in a (marginally) acceptable fashion, except in relation to Exhibit RCC-7. RCC is in compliance with the August 24, 2012 Order but for that exhibit.
With respect to Exhibit RCC-7, the only reference in the Statement of case is to an attachment to CPCC response to RCC Interrogatory 57. All other responses are struck from the record. Should RCC wish to rely of those responses (say) to assist in its cross-examination of CPCC witnesses during the hearing, it may introduce them at that time for that purpose.
3. Legal Briefs
In its original Statement of case, RCC announced its intention to file a legal brief. CPCC notes that as a rule, legal briefs are filed only if the Board so requests.
A party is expected to set out the legal arguments it intends to raise in its statement of case. Paragraph B.7 of the Directive on procedure provides that participants may be asked to file a brief on legal issues, along with a list of authorities referred to. No such request has been made. The issues RCC has raised in its statement of case prima facie do not require such a brief; they can be addressed in the normal course of oral argument. Legal briefs shall be filed only if the Board so requests. Any application for such a request shall clearly indicate which legal issues ought to be addressed in legal briefs as well as the reasons on which the applicant relies to conclude that the relevant issues are sufficiently complicated to warrant the filing of such a brief.
August 24, 2012
ORDER OF THE BOARD
This order deals with the motions CPCC filed on August 23, 2012 in the above-referenced proceedings.
The motion for correction is granted. The cover page of Exhibit RCC-5B shall be withdrawn from the record unless RCC files forthwith a modified page starting with the word "EXCERPT".
The motion to strike is dismissed. The Board has always applied very loosely the rules of evidence in general, and those requiring that a document be proffered by a witness in particular. The weight that should receive a document filed without the support of such testimony is an altogether different thing.
That being said, RCC's record is deficient in one important way, which should remedied forthwith. Sections B.5(i) and B.5(ii) of the Directive on Procedure require that the statement of case clearly indicate what any document filed in evidence is intended to establish. This is necessary, if only to avoid the Board and opposing parties having to second guess the person filing the document: see for example the July 9, 2012 Order (attached) under the heading "The Bandsma Affidavit". The statement of RCC does not comply with this requirement.
Consequently, RCC shall file, no later than on Friday, August 31, 2012, a new statement of case indicating clearly the link between each proposition made in the statement already filed and the specific passages within the documents filed on which RCC intends to rely to support the proposition. Documents for which no such indication is supplied shall be withdrawn from the record.
ORDONNANCE DE LA COMMISSION
La présente ordonnance dispose des requêtes que la SCPCP a déposées le 23 août 2012 dans l'affaire mentionnée en rubrique.
La requête pour correction est accueillie. La page couverture de la pièce RCC-5B est retirée du dossier, à moins que le CCCD dépose sans délai une page amendée débutant par le mot «EXCERPT».
La requête pour radiation est rejetée. La Commission a toujours appliqué de façon très souple les règles de preuve en général, et celles exigeant qu'un document soit déposé en preuve par le truchement d'un témoin en particulier. Le poids qu'il y a lieu d'accorder à un document déposé sans l'appui d'un tel témoignage est une toute autre chose.
Cela dit, le dossier du CCCD comporte un faiblesse important à laquelle il y a lieu de remédier sans délai. Les parties B.5(i) et B.5(ii) de la directive sur la procédure exigent que l'énoncé de cause indique clairement ce que les documents déposés en preuve serviront à établir. Cela est nécessaire, ne serait-ce que pour éviter que les parties ou la Commission aient à deviner l'intention de la personne produisant le document : voir par exemple l'ordonnance du 9 juillet 2012 jointe aux présentes, sous la rubrique «The Bandsma Affidavit». L'énoncé du CCCD ne remplit pas cette exigence.
Par conséquent, nous ordonnons au CCCD de déposer au plus tard le vendredi 31 août 2012 un énoncé de cause modifié indiquant clairement le rapport entre chacune des propositions que contient l'énoncé déjà déposé et les passages précis des documents déposés sur lesquels le CCCD entend se fonder pour étayer cette proposition. Les documents ne faisant pas l'objet d'une telle mention seront retirés du dossier.
Attachment : 1) Reasons - Order - ReSound 8A and 8B and Pandora request.pdf
August 17, 2012
ORDER OF THE BOARD
Attached are the reasons in respect of the August 15, 2012 Ruling of the Board in the above-referenced file.
Attachment: Reasons for Ruling - Santa Clara report.pdf;
August 15, 2012
RULING OF THE BOARD
In response to the attached parties' request, CPCC shall provide to counsel for RCC a copy of the June 2011 Santa Clara report on a highly confidential basis, subject to further rulings of the Board on this matter. That copy need not be searchable unless it is readily available in such a format.
RCC may file excepts from the Stichting de Thuiskopie report it received from counsel to CPCC on a confidential basis, subject to further rulings of the Board on this matter.
The application of RCC for an extension of time to file its statement of case is dismissed.
Reasons for this ruling, as well reasons dealing with other aspects of the applications to which this ruling responds, will follow.
Attachment: 1) Email from C. Brunet dated August 15, 2012.pdf;
2) Email from H. Knopf dated August 15, 2012.pdf
August 2, 2012
NOTICE OF THE BOARD
This notice addresses the two issues raised in CPCC's email of July 31, 2012.
1. The Board's ruling of July 20, 2012 is clear. The October 9, Phase I hearing will "address all the parties' evidence and arguments with respect to all issues in relation to CDs." This includes any cross-examination from any party of any witness offered by any other party. There will be no evidence, cross-examination or argument relating to CDs at the Phase II hearing.
2. Issuing a ruling on the threshold issue for microSD cards separately from the ruling on CDs is one of the options that will be available to the panel. Parties will be advised of what is required of them in due course, if and as required.
July 20, 2012
RULING OF THE BOARD
On July 4, 2012, the Coalition asked that the Board adjourn the above-referenced proceedings, at least with respect to microSD memory cards, relying on an announcement made the previous day that the government intends to put in place regulations exempting such cards from the private copying regime. The other objectors supported the application. CPCC opposed it.
The application is dismissed for two reasons. First, a ministerial statement has less legal significance than a parliamentary Bill. If the latter is only taken into account when it becomes law, the former should only be taken into account when it is registered. Second, it is highly unlikely that the regulations would apply to transactions made between January 1, 2012 and the day the regulations will be registered. As a result, given CPCC's stated intention to collect royalties for that period [if so allowed], there is a live issue the Board will need to address irrespective of what the regulations may provide.
That being said, the Board is sensitive to the objectors' wish to minimize the costs involved in dealing with a tariff that may apply only for a short period of time, until regulations make it moot. Furthermore, since this is the first time that the Board will deal with microSD cards, a threshold issue arises that is: are these cards an audio recording medium within the meaning of section 79 of the Copyright Act? This issue can be addressed in more than one way. Each approach may provide savings that the objectors are best able to assess.
A first option is to deal with the matter in two phases. Phase I, which would proceed according to the existing timetable, would address all the parties' evidence and arguments with respect to all issues in relation to CDs. The Board would also hear the evidence, testimony and arguments of only CPCC, and only on the threshold issue, with respect to microSD cards. The objectors would not be allowed to file evidence, to cross-examine witnesses or to present arguments with respect to the microSD cards threshold issue. The objectors' statements of case and CPCC's supplementary case would only deal with CDs. If the Board concluded at this stage that microSD cards are not audio recording media, there would be no need to hear from the objectors. This would end the matter with regard to microSD cards. If the Board was not in a position to decide that these cards are not audio recording media, a Phase II process would be triggered. The objectors would submit all their evidence on microSD cards, CPCC would reply and a further hearing would be scheduled for a final determination of whether these cards qualify and if so, the amount of the levy they should attract.
The second option also involves dealing with the matter in two phases. Phase I would consist of all issues in relation to CDs and only the threshold issue with respect to microSD cards, but would involve the participation of all parties. Phase II, if needed, would consist of all remaining issues with respect to microSD cards. Phase I would proceed according to the existing timetable. The objectors' statements of case and CPCC's supplementary case would deal with CDs and only the threshold issue with regard to microSD cards. A Phase II schedule, if needed, would be set once the Board renders its decision on the threshold issue with respect microSD cards.
The third option is to deal with all issues raised in these proceedings according to the existing schedule.
The objectors (not CPCC) are asked to inform the Board of their preference and the reasons therefor no later than on Friday, July 27, 2012. If all the objectors select the same option, the matter will proceed accordingly. If not, the Board will advise the parties of its decision shortly thereafter.
July 6, 2012
NOTICE OF THE BOARD
CPCC shall respond to the attached Coalition's request, supported by Samsung and the Retail Council of Canada, by no later than Thursday, July 12, 2012 at noon. The objectors may reply by no later than Monday, July 16, 2012.
Attachment: E-mail from D. Kent to G. McDougall (July 4, 2012) Re: Private copying 2012-2014.pdf
May 7, 2012
NOTICE OF THE BOARD
The May 3, 2012 letter of CPCC contains a "formal request" that certain information be treated as confidential or highly confidential. A request must be supported by arguments.
Where information was supplied to CPCC by a party to the proceedings, that party, not CPCC, is best positioned to argue in favour of confidential treatment of that information.
Consequently, with respect to information filed by CPCC that was supplied by a party to the proceedings, the information shall be put on the public record unless that party files, no later than on Friday, May 11, 2012, arguments to support confidential treatment. All other information shall be put on the public record unless CPCC files, by that same date, such argument.
The matter will be disposed of on the basis of those sole arguments unless the Board rules otherwise.
May 3, 2012
NOTICE OF THE BOARD
1) The January 12, 2012 confidentiality order and all confidentiality agreements signed pursuant to it apply to the merged proceedings.
2) Any information received as a response to interrogatory that CPCC intends to file with the Board shall remain subject to the January 12 order until the Board rules on the confidentiality of such information.
3) With respect to any other information that CPCC intends to file with the Board and that CPCC wishes to be treated as confidential or highly confidential, CPCC was expected to comply with the directive on procedure. Given the timelines, this will be impossible. Parties are ordered to treat such information in confidence until the Board rules on the matter.
May 2, 2012
RULING OF THE BOARD
CPCC has asked the Board to merge the examination of its proposed Private Copying Tariffs for 2012-2013 and 2014. Hearings in the first matter are scheduled to begin on October 9, 2012.
Samsung, the Retail Council of Canada and Sean Maguire either raised concerns about CPCC's request or objected to it. They essentially argue that data gathered with respect to the 2012-2013 tariff proposal may not be suitable for that of 2014.
The application of CPCC is granted. Merging the examination of the matters will provide the Board with the flexibility required to decide, in light of the evidence that will be put before it, whether or not the next tariff should be for two or three years. The parties will be allowed to argue whether the evidence gathered in the process is sufficiently reliable to set the tariff for 2014 at the same time as for 2012-2013.
By contrast, if the Board refuses to merge the examination of the matters and the evidence is such that it would have been in a position to certify a three-year tariff, it will not be possible to do so, if only because Nokia, who currently objects only to the 2014 proposal, would not have been a party to the proceedings.
There remains the matter of how to allow Nokia to join the process. Nokia abandoned its objection to the 2012-2013 tariff and did not provide answers to certain interrogatories from CPCC. CPCC proposes that Nokia be allowed to participate as long as it complies with the February 28, 2012 ruling of the Board dealing with deficiency claims. Since CPCC is about to file its main case, some procedure must be set to allow it to file additional evidence in relation to whatever information Nokia may now provide and on which CPCC may wish to rely. Consequently, no later than on Monday, May 7, 2012, Nokia shall inform the Board of whether it intends to participate in the merged proceedings and to comply with the Board's ruling of February 28, 2012. At the same time, Nokia shall provide any comment it may have on CPCC's proposed approach to its participation. CPCC shall reply by no later than Wednesday, May 9, 2012.
April 20, 2012
NOTICE OF THE BOARD
For the reasons set out in CPCC's request described below, the Board adopts the following revised schedule for the remainder of the proceeding:
Filing of Collective's Case (CPCC): no later than Friday, May 4, 2012
Filing of Objectors' Case: no later than Friday, August 17, 2012
Filing of Collective's (CPCC) Supplementary Case: no later than Wednesday, September 19, 2012
Filing of Legal Briefs (if required): no later than Friday, September 28, 2012
Beginning of hearing: Tuesday, October 9, 2012 at 10:00 a.m., Copyright Board's hearing room.
CPCC's request:
Monsieur le Secrétaire général,
I am writing on behalf of the CPCC to inform the Board of the result of discussions that have taken place between the parties in the last few days, due to the CPCC's need to postpone the April 27 deadline to produce its Statement of Case. Unexpected out-of-the-country obligations of one of the CPCC's experts, Mr. Stohn, has made it impossible for our value experts to finalize their work in time for the April 27 deadline.
Following the CPCC's request that its deadline be postponed to May 4, the parties have negotiated the following changes in the current schedule:
- Filing of the CPCC's Statement of Case: May 4 (Friday) - instead of April 27;
- Filing of the Objectors' Statements of Case: August 17 (Friday) - instead of August 10;
- Filing of the CPCC's Supplemental case: September 19 (Wednesday) - instead of September 14, the rest remaining the same.
All objectors have agreed to the May 4 and September 19 dates.
With respect to the August 17 deadline, only Mr. Knopf on behalf of the RCC is requesting that it be moved to August 20 (the next Monday).
Mr. Knopf's proposal would take away a week-end and a business day from the CPCC to prepare its response to four cases. The new deadline of August 17 is already giving the Objectors an additional week from the initial deadline, whereas the CPCC's deadline to reply has only been extended by 5 days (including a weekend). A four and a half week delay to respond to 4 cases is very tight, and each day will count at that point, including week-ends. We, the CPCC and its experts were planning on using the week-end of August 18-19, as well as Monday the 20th, to prepare the CPCC's supplemental case.
Because the proposed schedule above is fair and reasonable, and that only the RCC is objecting to part of it, we respectfully request that the Board adopt the schedule above as is, i.e. with a deadline of August 17 for the Objectors to respond to the CPCC's case.
April 20, 2012
NOTICE OF THE BOARD
The following are Objectors to the proposed Private Copying Tariff, 2014
- LG Electronics Canada, Inc.
- Micron Technology, Inc.
- Nokia Products Limited
- Research in Motion Limited
- Retail Council of Canada
- Samsung Electronics Canada Inc.
- SanDisk Corporation
- Mr. Sean Maguire
These Objectors as well as the Objectors to Private Copying 2012-2013 are asked to respond to CPCC's request, described below and in the attached letter, to merge the two files, by no later than Tuesday, April 24, 2012.
CPCC may reply by no later than Friday, April 27, 2012.
CPCC's request:
Monsieur le Secrétaire général,
As you know we filed the proposed private copying tariff for 2014 on behalf of the CPCC on January 16, 2012. Given that the CPCC's tariff application for the period 2012-2013 will now only be heard by the Board in October 2012 and that a decision may not be issued prior to the beginning of 2013, we asked in our letter of January 16 that the application for the 2014 tariff be heard jointly with the proposed tariff for 2012-2013.
The delay within which to oppose the 2014 tariff application published in th Canada Gazette on February 11 is now expired, and we note that none of the objectors to the proposed tariff for 2014 objected to this specific request by the CPCC the the 2012-2013 and 2014 applications be treated together.
In light of the above, the CPCC respecfully requests that the Board confirm that the current proceeding, including the hearing of October 2012, will now be extended to cover the 2014 tariff proposal.
Attachment: DOCSMTL-#4585130-v1-L_-_Copyright_Board_of_Canada_-_January_16__2012.pdf
March 15, 2012
RULING OF THE BOARD
This ruling disposes of CPCC's claim that the following documents are subject to litigation privilege:
- December 8, 2009 Circum Network report entitled: The Use of Cellular Phones for the Private Copying of Music, Survey Report; and the related February 1, 2010 Circum Network memorandum regarding "Estimation of tracks copied to cell phone-attached memory cards"; and
- August 15, 2011 draft Circum Network report entitled: Étude spéciale sur les cartes mémoire électroniques
The claim is allowed. The documents were prepared for the dominant purpose of the proceedings. There is no need to rule whether disclosure would also disclose counsel's strategy.
- June 2011 Santa Clara Consulting Group report entitled: "The Flexible Media Industry for Data Recording, Canadian Market: 2011"
CPCC is not required to produce the document at this stage. CPCC does not control the document. The Board may order it to be produced as part of CPCC's case. There is no need to rule on the claim of privilege.
- Custom report of memory card sales in Canada, 2010, from NPD Group; and
- Custom report of historical and forecast microSD sales in Canada, Web-Feet Research, Inc.
To the extent that CPCC controls the custom-made elements of the documents, the claim of privilege is allowed. The documents were prepared for the dominant purpose of the proceedings. There is no need to rule whether disclosure would also disclose counsel's strategy.
To the extent the documents use pre-existing data, CPCC is not required to produce the documents at this stage. CPCC does not control the documents.
March 9, 2012
NOTICE OF THE BOARD
Please find attached a revised version of the February 28, 2012 Ruling of the Board dealing with deficiency claims.
The reference to question Q17, inserted by mistake in the second paragraph under the heading COALITION INTERROGATORIES ADDRESSED TO CPCC, was removed.
We apologize for any inconvenience this may have caused.
Attachment: Revised Order - Private Copying - Deficiency Claims.pdf
February 22, 2012
NOTICE OF THE BOARD
Attached is the Ruling of the Board dealing with deficiency claims.
Attachment: Ruling - Private copying - Deficiency Claims.pdf
February 22, 2012
NOTICE OF THE BOARD
Nokia is asked to respond to CPCC's motions (attached, for convenience) [Not attached] by no later than Monday, February 27, 2012 at 10am.
February 7, 2012
NOTICE OF THE BOARD
Nokia is asked to respond forthwith to CPCC's application relating to Nokia, below.
CPCC’s application:
In accordance with the schedule established by the Board in this proceeding, we have submitted the CPCC's motions for unsatisfactory or incomplete responses to some of the Objectors today.
We wish to advise that with respect to responses received by Samsung and Micron, no formal motion has been made. Rather, follow up questions have been sent in order to resolve a small number of issues arising from their responses. Although we believe that no motion to the Board will be required, should such motions become necessary, the CPCC reserves its right to serve them at a later date, but in time for Samsung and Nokia to meet the February 10, 2012 deadline.
We also draw to the Board's attention the fact that in the case of Nokia, we received no response whatsoever and were given no indication as to when such responses would be available.
In light of the above, the CPCC wishes to reserve its right to make motions for unsatisfactory or incomplete responses with respect to Nokia's responses at a later date, and no sooner than one week after these responses will have been received.
Because the CPCC is concerned that the responses will not be communicated in time for every party to meet the upcoming deadlines in the schedule, we respectfully request that the Board issue an order requiring Nokia to commit to a specific date for providing responses, and that such date be compatible with the next steps in the schedule and with the CPCC's reservation of rights in the previous paragraph.
February 10, 2012
[Le texte français suit l'anglais]
NOTICE OF THE BOARD
The Statement of Proposed Levies to be collected by CPCC for the year 2014 will be published in the Canada Gazette tomorrow, February 11, 2012. The proposed tariff is now posted on our Web Site (www.cb-cda.gc.ca), under the heading "What's New - Proposed Tariffs for 2014".
The deadline for objecting to the tariff proposal is Wednesday, April 11, 2012.
______________________________________________
AVIS DE LA COMMISSION
Le projet de tarif des redevances à percevoir par la SCPCP pour l'année 2014 sera publié dans la Gazette du Canada, demain, le 11 février 2012. Le projet de tarif est maintenant affiché sur notre site web (www.cb-cda.gc.ca), sous la rubrique « Quoi de neuf - Tarifs proposés pour 2014 ».
La date limite pour s'opposer au projet de tarif est le mercredi 11 avril 2012.
January 12, 2012
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.
Parties had suggested a draft order which contained new provisions and changed a number of existing provisions. Confidentiality orders should, to the extent possible, be consistent from one proceeding to another. As such, parties should refrain from departing from language contained in previously issued orders. Any proposed departure should be explained and justified by the parties.
While not an exhaustive list, with respect to the attached order, the parties’ attention is drawn to the following points.
1) The definitions of “confidential information” and “highly confidential information” have been revised to account for information provided by third parties.
2) The parties proposed to add a provision in paragraph 2 to the effect that if a supplier has inadvertently failed to designate certain information as confidential or highly confidential, the supplier could notify the recipient, who would then treat the information as Confidential Information or Highly Confidential Information. The Board considers the language superfluous as there is nothing in the current order that would prevent a supplier from advising the recipient in such circumstances and making the appropriate corrections.
3) Paragraph 6 of the parties’ 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. Parties are also reminded that Paragraph 9 of the order already allows a supplier to object to the disclosure of information to the person who has signed the agreement. No further process is required.
4) Parties also suggested adding a new paragraph 10 which introduces an express reference to the so-called implied undertaking regarding the use of confidential information and highly confidential information. The Board does not see the necessity to state the obvious.
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 shall be treated confidentially by the recipient.
6) The proposed additional provision dealing with any challenge to a supplier’s designation as confidential or highly confidential information is redundant: see s. 15.
Parties are governed by the attached order. To the extent that parties are of the view that this order does not adequately provide for the treatment of information exchanged as a result of the interrogatory process, they shall provide their comments no later than on Wednesday, January 18, 2012. Parties may respond to comments made by others no later than on Monday, January 23, 2012. The Board will modify the current order, if required, once all the comments are received.
Attachment: Confidentiality_Order_Private_copying 2012-2013.pdf
December 19, 2011
NOTICE OF THE BOARD
Objectors are given until Wednesday, December 21, 2011, to provide comments on the attached draft confidentiality order submitted by CPCC, in the file mentioned above. CPCC will be allowed to reply no later than Friday, December 23, 2011.
Attachment: DOCSMTL-#4525793-v7-Confidentiality_Order.pdf
December 19, 2011
NOTICE OF THE BOARD
Please find attached the Board’s Interim Decision for Private Copying in 2012-2013. The Interim Decision will be posted shortly on the Board's website, at: http://www.cb-cda.gc.ca/home-accueil-e.html.
AVIS DE LA COMMISSION
Veuillez trouver ci-joint la décision provisoire de la Commission à l’égard du dossier Copie privée 2012-2013. La décision provisoire sera affichée sous peu sur le site web de la Commission, à l'adresse : http://www.cb-cda.gc.ca/home-accueil-f.html.
Attachment : CP 2012-2013 - provisoire.pdf
December 7, 2011
NOTICE OF THE BOARD
Attached is the Ruling of the Board dealing with objections to interrogatories.
Attachment: Ruling Private Copying 2012-2013 Objections to Interrogatories.pdf
December 5, 2011
NOTICE OF THE BOARD
Parties are asked to provide a response to the attached CPCC's request for an interim tariff by no later than Friday, December 9, 2011, at noon. CPCC can file a reply by no later than Monday, December 12, 2011.
Attachment: DOCSMTL-#4544085-v1-Request_for_interim_tariff11182011_PDF.PDF
October 25, 2011
The Board understood the request to be for a one week extension, meaning that parties have until Friday, November 4, 2011 to file replies to objections to interrogatories.
October 25, 2011
NOTICE OF THE BOARD
CPCC's request below is granted.
AVIS DE LA COMMISSION
La requête de la SCPCP, décrite ci-dessous, est accordée.
CPCC’s request :
Monsieur le Secrétaire général,
L'échéancier arrêté par la Commission pour le tarif mentionné en rubrique prévoit que les parties déposeront auprès de la Commission les objections qu'elles auront formulées à l'encontre des demandes de renseignements qui leur ont été faites ainsi que les réponses qu'elles ont obtenues à ces objections. La prochaine étape qui implique les parties est le 13 janvier 2012.
Par ailleurs, comme vous le savez, mon ex-associé David Collier a été nommé juge de la Cour Supérieure du Québec jeudi dernier. C'est lui qui s'occupait des demandes de renseignements pour la SCPCP et je dois le remplacer à pied levé.
Pour faire l'exercice sérieusement, un exercice qui demande une période de "négociation" avec chacun des Opposants qui s'objecte aux demandes de renseignements de la SCPCP, je considère avoir besoin d'une semaine de plus que ne le prévoit l'échéancier actuel.
J'ai contacté les Opposants à ce sujet et j'ai reçu l'accord des procureurs suivants:
- David Kent
- Margot Patterson
- Howard Knof
- Robert Masson
Les autres Opposants n'ont pas répondu à ma demande.
Vu les circonstances exceptionnelles, la Commission pourrait-elle émettre une ordonnance modifiant l'échéancier et reportant au vendredi 28 octobre la date du dépôt auprès de la Commission des objections aux demandes de renseignements (et des réponses reçues à ces objections).
Je vous remercie de la considération que vous accorderez à ma demande.
October 12, 2011
NOTICE OF THE BOARD
Panasonic's request to be re-instated as a formal Objector is granted, under the following conditions:
1. The interrogatories served by CPCC on the Coalition on September 29 will be deemed to have also been served on Panasonic on that date.
2. Mr. Kent will remain Panasonic's attorney of record until further notice from Panasonic.
3. Panasonic will be subject to the schedule of proceedings for the filing of objections to interrogatories and all subsequent steps.
4. Panasonic will be foreclosed from serving interrogatories on CPCC and will not receive CPCC's interrogatory responses to other objectors.
October 7, 2011
ORDER OF THE BOARD
Panasonic and the objectors shall reply to CPCC's response no later than Tuesday, October 11, 2011.
October 7, 2011
CPCC is asked to provide a response to Panasonic's request to be re-instated as a formal Objector by no later than Tuesday, October 11, 2011.
September 27, 2011
[Le texte français suit l’anglais]
NOTICE OF THE BOARD
Further to the Board’s Notice of September 22, 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 22 septembre 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 :Copie privée 2012-2013 - Directive on procedure and Appendices.pdf
September 22, 2011
NOTICE OF THE BOARD
Further to the exchange of correspondence between the parties, the Board adopts the following schedule of proceedings with respect to the above-mentioned file, leading to a hearing beginning Tuesday, October 9, 2012:
Exchange of interrogatories: no later than Thursday, September 29, 2011
Objections to interrogatories: no later than Friday, October 14, 2011
Filing, with the Board, of replies to objections to interrogatories: no later than Friday, October 28, 2011
[Board Ruling]
Responses to interrogatories: no later than Friday, January 13, 2012
Motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, January 27, 2012
Filing, with the Board, of replies to motions: no later than Friday, February 10, 2012
[Board Ruling]
Complete/satisfactory responses to interrogatories: no later than Friday, March 9, 2012
Filing of Collective's Case (CPCC): no later than Friday, April 27, 2012
Filing of Objectors' Case: no later than Friday, August 10, 2012
Filing of Collective's (CPCC) Supplementary Case: no later than Friday, September 14, 2012
Filing of Legal Briefs (if required): no later than Friday, September 28, 2012
Beginning of hearing: Tuesday, October 9, 2012 at 10:00 a.m., Copyright Board's hearing room.
The Directive on Procedure will follow shortly.
September 20, 2011
RE: Scheduling
NOTICE OF THE BOARD
No further submissions from the parties will be allowed on the issue referred to above.
September 13, 2011
RULING OF THE BOARD
In its notice dated August 22, 2011, the Board expressed the preliminary view that the above-referenced proceedings could be scheduled for hearings starting on May 15, 2012 as CPCC proposed. On September 2, 2011, newly retained counsel for a coalition of objectors asked that the hearing start some five months later, on October 9, 2012. The reasons the Coalition offered can be stated as follows. First, the proposed timelines for interrogatories left too little time for objectors to provide complete answers. Second, the six weeks afforded to objectors to respond to CPCC’s case were too short, given the "enormous" amount of effort required to do so. Third, newly retained counsel for the coalition was unavailable from April 23 to June 7, 2012; objectors should not have their ability to retain counsel of choice constrained by the choice of a conflicting date.
Other objectors agreed. RCC in particular raised several points, including the following. First, the schedule would "culminate in a hearing in barely over 8 months". Second, CPCC was able to prepare for this hearing "many months and indeed years" in advance. Third, though experienced in proceedings before the Board, RCC was "completely taken by surprise" by CPCC’s attempt to seek a levy on electronic memory cards. Fourth, the Board’s standard procedure "confers an enormous and unfair advantage on" CPCC; objectors necessarily must wait for CPCC’s case to find out "what lies ahead". In short, "the proposed schedule is too compressed and begins far too early. It is unrealistic and would amount to procedural unfairness."
CPCC provided a thoughtful and measured response to the objectors’ issues, which it is unnecessary to review here.
The Board grants the application, with considerable reluctance. First, problems that the interrogatory process may entail probably are exaggerated. CPCC assures us that questions will be much more focussed in this instance. The objectors are quite capable of anticipating most of what they will be asked. Under the circumstances, four months to deal with interrogatories seemed sufficient. Second, any surprise caused by the request for a levy on memory cards dissipated some four months ago, when the proposed tariff was published in the Canada Gazette. Third, it is simply disingenuous to state that CPCC can prepare months or years in advance; while it may well develop one or more theories before filing a proposed tariff, it is simply unable to validate these theories and finalize its case until objectors have provided it with highly relevant information that they alone possess. Fourth, the timelines provided in the proposed schedule were realistic, as long as objectors avoided procrastinating. Fifth, the objectors’ assumption that they are to remain essentially passive (other than in reacting to interrogatories) until CPCC files its statement of case is unwarranted, unhelpful and disappointing: objectors "own" much of the information relevant to setting a fair tariff or deciding whether electronic memory cards meet the definition of "audio recording medium".
The Board notes that the attempt to deal with this matter within a time frame that is somewhat shorter than in other proceedings is being opposed by some who are also known to complain in public about the time it takes to deal with proposed tariffs.
A one-month extension would normally be sufficient to address any valid concern raised by the objectors. However, given the unavailability of counsel to the Coalition for several weeks in April, May and June, 2012 and the Board’s own schedule between June and September, 2012, it is preferable to begin hearings at the date proposed by the Coalition, October 9, 2012.
Significantly, the objectors proposed nothing that might help mitigate the prejudice CPCC and the rights holders it represents may suffer from postponing this matter from the Spring to the Fall. As the Board noted in its August 22, 2011 notice, it is especially difficult to collect retroactive levies within the private copying regime. As a result, delays in dealing with tariffs largely tend to prejudice rights holders. In this instance, given that the delay is being granted at the request of the objectors, this may lead the Board to reconsider its past practice in the matter. Consequently, objectors are strongly urged to ensure that the information required to calculate an eventual levy on memory cards is compiled starting January 1, 2012.
The hearing on this matter will begin on Tuesday, October 9, 2012. No later than on Monday, September 19, 2011, parties shall file a joint schedule proposal. If the parties are unable to come to an agreement, CPCC shall file its proposal and the objectors shall file a joint proposal.
August 30, 2011
NOTICE OF THE BOARD
The attached file provides a list of those who remain objectors in these proceedings.
Attachment: Parties of record - Private Copying 2012-2013 - new 110830.pdf
August 30, 2011
RULING OF THE BOARD
As per the Notice of the Board dated August 18, 2011 (attached for convenience) [see August 18, 2011 entry below for Notice], the following are deemed to have withdrawn from the proceedings. Their notice of objection will be treated as a letter of comment.
Andrew Doran Photography
ATTN: Andrew Doran
ARC - Architectural Photography
ATTN: Ken Wan
Coast Mountain Photography
ATTN: Brad Kasselman
Information Technology Association of Canada (ITAC)
ATTN: Bill Munson
Prince Photography
ATTN: Mark Prince
Roaring Penguin Software Inc.
ATTN: David F. Skoll
Toshiba of Canada Limited (“TCL”)
ATTN: René Zanin
B. Ross Ashley
Dr. Karen Collins
Sarah Frey
Alex Kuryliak
Jan Maklak
Rob McIntyre
Jim Rickards
Mike Risi
Ryan Robinson
Carissa Roseborough
Randal Santia
Derek So
Steve
J. Gracey Stinson
August 22, 2011
NOTICE OF THE BOARD
The Board is of the preliminary view that the above-referenced matter can be scheduled for hearings starting on Tuesday, May 15, 2012 as proposed by CPCC in its email dated July 27, 2011. Some may view this schedule as somewhat tight. The almost 9 months from the date of this Notice to the start of the hearings is sufficient. Enforcement issues inherent to the private copying regime, including the fact that it is difficult or impossible in practice to retroactively increase or decrease the amount of the levy or to retroactively impose a levy on a new type of blank audio recording medium, make it necessary to proceed expeditiously.
The Board is also of the view the parties’ burden in responding to interrogatories may be lightened if the Board filters the interrogatories to be exchanged between parties.
Parties are asked to comment on the following draft schedule no later than on Friday, September 2, 2011.
DRAFT SCHEDULE
Interrogatories (exchanged among parties and filed with the Board): Friday, September 16, 2011. Parties are expected to prepare interrogatories while discussing the draft schedule. Each question shall be accompanied by a short explanation of its relevance.
Possible Board ruling dispensing from answering certain interrogatories: Wednesday, September 21, 2011
Objections to interrogatories (served on the person asking the question and filed with the Board): Friday, September 30, 2011. Parties are expected to reflect on possible objections before receiving the Board’s ruling of September 21. The Board may rule on some objections without waiting for replies.
Filing, with the Board, of replies to objections to interrogatories: Monday, October 10, 2011
[Board ruling]
Responses to interrogatories: Friday, November 4, 2011
Motions re: incomplete/unsatisfactory responses to interrogatories: Friday, November 18, 2011
Filing, with the Board, of motions and replies to motions: Wednesday, November 30, 2011
[Board Ruling]
Complete/satisfactory responses to interrogatories: Friday, January 13, 2012
Filing of CPCC's statement of case: Friday, February 24, 2012. At a minimum, that evidence shall update, with the best data in CPCC’s possession at the time, (a) the table provided in the Appendix to the Board’s decision of December 5, 2008; (b) the paragraphs in Exhibit CPCC-5 of the Private Copying 2008-2009 proceedings that are relevant in respect of the updated table referred to in (a); and (c) tableaux 4.5, 4.10 and 5.2 of Exhibit CPCC-3 of the Private Copying 2008-2009 proceedings.
Filing of Objectors’ cases: Thursday, April 5, 2012. Objectors who wish to argue that the Copyright Act or the proposed tariff are constitutionally invalid, inoperable or inapplicable shall comply with section 57 of the Federal Courts Act by providing the required notices on the same date. Arguments on constitutional issues that have already been settled by the Federal Court of Appeal shall not be entertained.
Filing of CPCC's reply statement of case: Friday, April 27, 2012
Filing of legal briefs: Friday, May 4, 2012
Beginning of hearing: Tuesday, May 15, 2012
August 18, 2011
NOTICE OF THE BOARD
Attached is the list of those who objected to the Private Copying Tariff proposed by the Canadian Private Copying Collective (CPCC) for 2012.
If you filed a notice of objection only to ensure that your point of view would be taken into account, you may find it unnecessary to be further involved in these proceedings. If so, you may wish to withdraw your formal objection. The Board will treat your notice as a letter of comment. As such, it will be part of the official record of these proceedings. CPCC has received a copy of it. The Board members who will hear the matter will consider it before reaching their decision. You will still be allowed 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.
If you remain as objector, you will receive a copy of all the evidence and arguments to be filed by all participants. You will be entitled to address questions to other participants (in the form of interrogatories) and will be required to answer questions addressed to you, as long as they are relevant. You 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. You 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 can be found on the Board’s website at the following link: http://www.cb-cda.gc.ca/about-apropos/directive-e.html. You will have to abide by all procedural rules governing the collection, preparation and circulation of evidence and arguments, which includes providing every other participant with a copy of any document you will file with the Board.
Please inform the Board whether or not you wish to remain as an objector in these proceedings no later than Friday, August 26, 2011. Those who do not answer by that date will be deemed to have withdrawn and their notice of objection will be treated as a letter of comment.
Limitations on the powers of the Board
The Copyright Act sets out a number of limits on what the Board may or may not do. No purpose is served by objecting to the proposed statement based on grounds about which the Board can do nothing. The following paragraphs summarize some of the limits imposed on the Board’s powers in this matter.
(1) Only persons who own rights in sound recordings of musical works are entitled to share in the remuneration; owners of rights in other works (computer programs, movies, literary works, photos) are not.
(2) The remuneration must be paid by manufacturers and importers of blank audio recording media, in the form of a levy to be imposed on those media. The obligation to pay arises when media are sold or otherwise disposed of in Canada by the manufacturer or importer. The Board cannot set the levy at the retail level.
(3) The levy is payable on all media that qualify, without regard to end use. No purpose is served by asking that the tariff include a mechanism that would allow those who can prove that they use qualifying media for purposes other than reproducing musical works to be exempted from payment or to receive a refund. It is for that reason that the Board always lowers the levy to account for the fact that blank CDs are used for other purposes than copying music.
(4) The Copyright Act exempts from the levy recording media that are sold to a society, association or corporation that represents persons with perceptual disabilities. The Board cannot grant any other exemption.
Attachment: Parties of record - Private Copying 2012-2013.pdf
August 12, 2011
NOTICE OF THE BOARD
The Board is currently reviewing the issues with respect to the process and schedule in the file cited above. Parties are asked to refrain from sending comments until further notice from the Board.
Commercial Radio - SOCAN 1.A (2011-2013); Re:Sound (2012-2014); CSI (2012-2013); AVLA/SOPROQ (2012-2017); ARTISTI (2012-2014);
July 4, 2013
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, 2013
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, 2013
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, 2013
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.
If the Board wishes to review the revised survey, it is available at the following link: http://www.agdatapharm.com/Respond.
CMC
Casey M. Chisick
June 5, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
NOTICE OF THE BOARD
Please see the attached Ruling of the Board.
Attachment : Ruling of the Board (14-04-2013) EN.pdf
March 14, 2013
NOTICE OF THE BOARD
Please see the attached Notice of the Board
Attachment : Notice of the Board (14-04-2013) EN.pdf
March 14, 2013
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.
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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, 2013
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, 2013
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, 2013
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, 2013
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:
- 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).
- 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, 2013
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.
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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, 2013
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.
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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, 2013
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, 2012
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, 2012
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, 2012
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)
June 3, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2011
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, 2011
[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.
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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, 2011
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, 2011
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, 2011
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)
November 21, 2012
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, 2012
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)
November 21, 2012
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, 2012
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 6.B - Use of Recorded Music in Fitness Venues (2013)
October 12, 2012
NOTICE OF THE BOARD
The August 24, 2012 application of Goodlife for leave to intervene in the above-referenced proceedings is granted.
August 30, 2012
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)
November 8, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
[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, 2011
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, 2011
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, 2011
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, 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).
January 26, 2011
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.
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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, 2011
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 (2009-2013)
July 24, 2013
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, 2013
ORDER OF THE BOARD
Parties are asked to respond to the following questions or comments no later than on Wednesday, July 24, 2013:
- What is the purpose of adding the definition of "personal information" in section 2 and the reference to PIPEDA in section 28?
- 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.
- 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.
- The Board's preliminary view is that no purpose is served by ss. 31(5), 35 or 36.
- 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, 2013
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, 2013
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, 2013
Please see the attached Order of the Board.
Attachment: 1) Order of the Board.pdf
December 13, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2011
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, 2011
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, 2011
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, 2011
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, 2008
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://cb-cda.gc.ca/new-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://cb-cda.gc.ca/new-f.html).
Commercial and Non-Commercial Tariff (2011-2013)
June 6, 2013
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, 2013
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, 2013
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, 2012
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, 2012
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
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, 2013
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, 2013
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:
- conversion rates;
- the percentage of paying subscribers who do not subscribe through a free trial in Canada;
- the percentage of total users who are on a free trial in Canada; and
- 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, 2013
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, 2013
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, 2013
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, 2013
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
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, 2012
ORDER OF THE BOARD
The Services are to provide to SOCAN copies of the agreements requested in Interrogatories 30 and 31.
January 4, 2012
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, 2011
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, 2011
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, 2011
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, 2011
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, 2011
The Services' request for an extension is granted.
September 16, 2011
The parties' request is granted [Extension request].
June 17, 2011
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
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, 2011
[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, 2011
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, 2011
Cineplex Entertainment LP's request for intervenor status with full participatory rights is granted.
May 25, 2011
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, 2011
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, 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).
February 18, 2011
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, 2011
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
July 10, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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, 2013
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
- 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.
- 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
- 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)?
- 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
- 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, 2012
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, 2012
RULING OF THE BOARD
The parties' request, attached, is granted.
Attachment: SOCAN Tariff 4 - letter to the Board.pdf
June 15, 2012
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, 2012
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, 2012
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, 2012
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 respect of (2012), Live Nation and MLSE cases in respect of (2009-2011), already filed, and any additional evidence relied upon by Live Nation and/or MLSE in support of their case to change the rate base (other than SOCAN responses to interrogatories).
April 17, 2012
NOTICE OF THE BOARD
The parties' request described below is granted.
The parties' request:
The Board ordered the parties to submit a revised schedule to the Board by Wednesday, April 18th. Unfortunately, due to all counsels' prior commitments, including but certainly not limited to Re-Sound's tariff filing due at the end of this week, we have been unable to confer. We are, therefore, jointly requesting an extension of time until Friday, April 27th to respond to the Board's request.
April 11, 2012
RULING OF THE BOARD
Having reviewed the documents filed by the parties to date in the 2009-2011 matter, the Board concludes that issues related to the rate base are too complex to allow the debate to be limited simply to deciding the meaning of the expression "gross receipts from ticket sales". Furthermore, given that a schedule has already been set to examine all other issues for the 2012 matter, it would be more efficient to deal with all issues related to SOCAN Tariff 4 for all the period, in one proceeding.
Consequently, the above-referenced matters are merged. The documents filed to date in the 2009-2011 matter will become part of the record unless the Board indicates otherwise.
All issues (rate, rate base, reporting requirements, etc.) will be disposed of according to the schedule set for the 2012 matter, subject to what follows.
Parties are asked to agree, no later than Wednesday, April 18, 2012, on a revised schedule that will allow for an interrogatory process dealing with issues that were raised in the 2009-2011 matter but not (until now) in the 2012 matter. The parties may opt to run a parallel process for such issues or to delay some dates in the current schedule for all issues. In any event, scheduled dates from August 3, 2012 (exchange of complete/satisfactory responses to interrogatories) should remain the same.
Since interrogatories have already been exchanged, parties are asked to keep their supplementary questions focussed on issues which could not reasonably have been raised until now.
As a result of what precedes, the March 14, 2012 Order of the Board is rescinded in so far as it struck part of Live Nation's statement of case.
March 14, 2012
ORDER OF THE BOARD
There is no need to hear further from SOCAN on this issue.
The motion to strike parts of Live Nation's statement of case is granted. Live Nation shall file a statement of case amended accordingly.
The motion to strike the whole of MLSE's statement of case is denied. The motion to strike parts of the statement is granted, for the following reasons.
1) The issue in these proceedings is not whether MLSE should pay royalties, but how these royalties will be calculated if anyone, including MLSE, is liable to pay royalties.
2) In support of its October 14, 2011 application for leave to intervene in these proceedings, MLSE referred to the fact that it filed a timely objection to proposed Tariff 4 for 2012. Since only prospective users can object to a proposed tariff, MLSE is barred from arguing that it is not a prospective Tariff 4 user.
3) The Board may set royalties on any reasonable basis. Under the appropriate circumstances, the rate base may include revenue flowing to a person who is not liable under the tariff. Therefore, whether facility fees should be included in the rate base remains relevant to these proceedings whether or not MLSE is liable under the tariff.
MLSE shall file a statement of case amended accordingly.
February 29, 2012
ORDER OF THE BOARD
The two preliminary matters that SOCAN raises in its Statement of case of February 27, 2012 are in effect two motions to strike. These will be disposed of in the following manner:
1) No later than on Friday, March 2, 2012, SOCAN will file with the Board and serve on other parties copy of the statements of case of Live Nation and of MLSE on which the passages SOCAN wishes to be struck are clearly indicated.
2) Live Nation and MLSE may respond to SOCAN’s motions to strike no later than on Monday, March 12, 2012.
3) SOCAN may reply no later than on Monday, March 19, 2012.
January 26, 2012
The request below is granted.
The request:
Mr. McDougall, I respectfully request a one day extension of today’s deadline for Live Nation and MLSE to file their statements of case in their intervention in the above tariff. The logistics of completing the statement of case have taken longer than expected. SOCAN has consented to the extension.
I will continue to try meet today’s deadline for filing electronic copies of the statements of case. I request the extension out of caution in the event that I am unable to do so.
January 20, 2012
NOTICE OF THE BOARD
Further to the Board’s Notice of January 10, 2012, 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 10 janvier 2012, 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 : SOCAN 4 2012 - Directive on procedure and Appendices new.pdf
January 10, 2012
NOTICE OF THE BOARD
The matter will proceed according to the schedule proposed by SOCAN. MLSE and other objectors argue that SOCAN’s application to set a schedule is premature by reason that the tariff’s rate base issue for 2009-2011 is the subject of an expedited, separate, parallel procedure. The Board disagrees. The process outlined in the Ruling of the Board of September 30, 2011 reflects the assumption that the rate base issue is simple and focussed enough that it can be dealt with rapidly, without interrogatories and possibly without a hearing. If so, the record of the 2009-2011 proceedings may be closed as early as March 12, 2012. The schedule SOCAN proposes for the 2012 proceedings allows enough time to adjust the timelines if need be, once the Board has issued its decision for 2009-2011.
SOCAN's proposed tariff for 2012 includes significant changes that raise concerns of a different nature and that are better addressed separately. Furthermore, to the extent all participants in the 2012 proceedings will have been allowed to address the rate base issue in the 2009-2011 proceedings, the need to readdress the issue in the 2012 proceedings will presumably be greatly diminished. Consequently, parties may wish to refrain from exchanging interrogatories dealing with the rate base issue for the time being.
The Board thus adopts the following schedule of proceedings with respect to the above-mentioned file, leading to a hearing beginning Tuesday, March 12, 2013:
Exchange of Interrogatories: no later than Wednesday, February 15, 2012
Objections to Interrogatories: no later than Friday, March 2, 2012
Exchange of Motions re: Objections to Interrogatories: no later than Friday, March 30, 2012
Filing, with the Board, of replies to Motions re: Objections to Interrogatories: no later than Friday, April 20, 2012
[Board Ruling]
Exchange of Responses to Interrogatories: no later than Friday, May 18, 2012
Exchange of Motions re: incomplete/unsatisfactory responses to Interrogatories: no later than Friday, June 22, 2012
Filing, with the Board, of replies to Motions re: incomplete/unsatisfactory responses to Interrogatories: no later than Friday, June 29, 2012
[Board Ruling]
Exchange of complete/satisfactory responses to Interrogatories: no later than Friday, August 3, 2012
Filing of SOCAN's case: no later than Friday, October 5, 2012.
Filing of Objectors' and Intervenors’ Cases: no later than Friday, November 23, 2012
Filing of SOCAN's Reply Case: 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.
The Directive on Procedure will follow shortly.
December 20, 2011
NOTICE OF THE BOARD
The Board extended the December 9, 2011 deadline in recognition of the heavy workload of most counsel in the last two weeks in relation to the Supreme Court hearings. As always, the Board tries to obtain a maximum of input from the parties before reaching a decision. The new deadline set by the Board in its Notice of December 19 (reproduced below) thus remains.
December 19, 2011
NOTICE OF THE BOARD
Parties are given until Wednesday, December 21, 2011, to provide comments on the attached revised schedule submitted by SOCAN, in the file mentioned above. SOCAN will be allowed to reply no later than Friday, December 23, 2011.
Attachment: T 4 Proposed Hearing Schedule for Tariff 4 (Concerts) 2012-OTT_LAW-2938287-v6.pdf
December 2, 2011
NOTICE OF THE BOARD
The Board is not available to hear the matter referred to above in late 2012, but would be available starting on March 12, 2013.
Parties are asked to provide comments on the schedule proposed by SOCAN (attached), with all dates to be adjusted to account for a March 12, 2013 hearing starting date, by no later than Friday, December 9, 2011.
Attachment: T 4 Proposed Hearing Schedule for Tariff 4 (Concerts) 2012-OTT_LAW-2938287-v5.pdf
November 29, 2011 - SOCAN Tariff 4.A (2009-2011) - Popular Music Concerts
NOTICE OF THE BOARD
Further to the Board's Notice of November 10, 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 10 novembre 2011, vous trouverez ci-joint la directive sur la procédure à l'égard du dossier précité.
Attachment : SOCAN 4 - Directive on procedure and Appendices new.pdf
November 23, 2011
NOTICE OF THE BOARD
The Board has received SOCAN's correspondence below requesting that a schedule of proceedings be set in the above-noted matter.
The Board is presently reviewing the file and will ask the parties to comment in due course.
SOCAN’s request:
Mr. McDougall,
SOCAN has filed a proposed Tariff 4 (Concerts) for 2012. On October 25, 2011 we sent the attached proposed hearing schedule [Schedule not attached. See December 2, 2011 entry for document] to Objectors’ counsel. To date, we have had no response and SOCAN would, therefore, ask the Board to set a schedule for the hearing in accordance with SOCAN’s proposal. In the draft circulated to the objectors, we had proposed a hearing commencement date of November 13, 2012. We understand that that date may already be reserved for another hearing (Re-transmission) [although there is no reference to that hearing on the Board site as of yet]. SOCAN would be agreeable to holding the Tariff 4 hearing in December 2012, if a date in November is not available and so have simply indicated "December 2012".
[Note: we have included in the schedule the dates that the Board recently set for the paper hearing that it has ordered with respect to the interpretation of “gross receipts” for the years 2009-2011.]
November 10, 2011
NOTICE OF THE BOARD
The matter referred to above will proceed through an exchange of written evidence with the following schedule:
SOCAN to produce documents as ordered by the Board in its September 30, 2011 ruling: no later than Wednesday, November 30, 2011
Filing of Intervenors' Case: no later than Thursday, January 26, 2012
Filing of SOCAN's Case: no later than Monday, February 27, 2012
Filing of Intervenors' reply Case: no later than Monday, March 12, 2012
Applications for leave to serve interrogatories, if required: no later than Thursday, April 5, 2012
Reply to applications for leave to serve interrogatories: no later than Thursday, April 12, 2012
[Board Ruling]
The remainder of the schedule will be determined by the Board in due course. The Directive on Procedure will follow shortly.
November 4, 2011
NOTICE OF THE BOARD
Live Nation and Maple Leaf Sports and Entertainment Ltd's request, as described in the attached file, is granted.
Attachment: Letter to G McDougall re extension.pdf
October 26, 2011
SOCAN's request below is granted.
SOCAN’s request:
Given the Board’s ruling of yesterday that Maple Leaf Sports & Entertainment Ltd., L'Aréna des Canadiens inc., Sony Centre for the Performing Arts, and The Corporation of Massey Hall and Roy Thomson Hall be granted intervenor status with full participatory rights on the "gross receipts" issue, we ask for an extension of time of one week, to November 4, 2011, to file a proposed schedule of proceedings. The additional time will allow us to attempt to get the consent of the intervenors to the proposed schedule.
This request is made with the consent of Live Nation.
October 24, 2011
RULING OF THE BOARD
In view of SOCAN's position below, Maple Leaf Sports & Entertainment Ltd., L'Aréna des Canadiens inc., Sony Centre for the Performing Arts, and The Corporation of Massey Hall and Roy Thomson Hall are granted intervenor status with full participatory rights, for the sole purpose of dealing with a single question: whether the expression "gross receipts" should be defined and if so, how.
DÉCISION DE LA COMMISSION
Étant donné la réponse de la SOCAN ci-dessous, Maple Leaf Sports & Entertainment Ltd., L'Aréna des Canadiens inc., Sony Centre for the Performing Arts, et The Corporation of Massey Hall and Roy Thomson Hall se voient accorder le statut d'intervenant avec pleins droits de participation, à l'égard d'une seule question : l'expression "recettes brutes" doit-elle être définie et si oui, comment?
October 20, 2011
NOTICE OF THE BOARD
Objectors to the SOCAN Tariff 4 for 2012 have filed requests to intervene (attached) in the file referred to above. SOCAN is asked to provide a response to these requests by no later than Wednesday, October 26, 2011. The objectors can provide a response by no later than Friday, October 28, 2011.
AVIS DE LA COMMISSION
Les opposants au tarif 4 de la SOCAN pour l'année 2012 ont déposé des requêtes en intervention (ci-jointes) dans le dossier en rubrique. La Commission demande à la SOCAN de répondre à ces requêtes au plus tard le mercredi 26 octobre 2011. Les opposants peuvent déposer des répliques au plus tard le vendredi 28 octobre 2011.
Attachments : Live Nation's Application for Leave to Intervene.pdf; _2688754_v_1_2011-10-14 Demande de statut d_intervenant de L_Aréna des Canadiens inc..PDF; MLSE application for leave to intervene.pdf
October 5, 2011
ORDER OF THE BOARD
Live Nation is asked to prepare forthwith the material as indicated in its e-mail to the Board dated October 3, 2011 and send it to external counsel for Sony Centre for the Performing Arts and the Corporation of Massey hall and Roy Thomson Hall, and for L’Aréna des Canadiens inc.
September 30, 2011
SOCAN and Live Nation are asked to respond to the request below and to indicate whether they agree to disclose the information to all external counsel, by no later than Monday, October 3, 2011.
The request:
Dear Mr. McDougall,
Our clients are directly affected by the definition of “gross receipts” and therefore have an interest in the proceeding referred to in your email. However, our clients are unable to determine whether we wish to intervene in the proceeding until we know what types of revenues and deductions are in dispute. Would it be possible to obtain a copy of the “letter that somewhat clarifies SOCAN’s position and of some Excel tables documenting what SOCAN considers unwarranted deductions” referred to in your email? Our clients are content that this information be treated as highly confidential for the time being and that it be reviewed by counsel solely for the purpose of determining whether our clients wish to be involved in the proceeding.
Thank you in advance for your assistance.
September 30, 2011
The Society of Composers, Authors and Music Publishers of Canada (SOCAN) filed proposed statements of royalties for (among others) the performance in public of musical works during concerts (Tariff 4) in 2009, 2010 and 2011. Two objections were filed for 2009, one for 2010 and none for 2011. By June 17, 2011, all but one had been withdrawn. On that day, the Board initiated a paper process to dispose of the proposals. On July 15, 2011, the last objection was withdrawn.
On March 31, 2011, SOCAN filed its concert proposals for 2012. Four timely objections were filed, including the July 27, 2011 objection of Live Nation. By that date, the 2009-2011 concert proposals were ready for examination, but a panel had not been seized of the matter. None of the 2009-2011 objectors challenged the 2012 proposal and none of the 2012 objectors challenged the 2009-2011 proposals.
On August 17, Live Nation applied for leave to intervene in the examination of the 2009-2011 concert proposals and asked that the examination of the 2012 tariff be merged with these proceedings. What triggered the application was an audit by SOCAN of concerts promoted by Live Nation in 2009 and 2010. In a letter to Live Nation dated August 9, 2011, SOCAN outlined what it considers to be improper deductions from the gross receipts from ticket sales which are used to calculate the royalties payable pursuant to the tariff. Live Nation disagrees with SOCAN’s characterisation. It asks that the Board define the expression "gross receipts from ticket sales [...] exclusive of sales and amusement taxes" ("gross receipts") starting in 2009 so as to bring certainty to what constitutes the appropriate rate base. According to Live Nation, leaving the matter to the courts, as will happen if the Board does not provide a definition starting in 2009, will not be satisfactory, since a court can only interpret a tariff, not rewrite it.
SOCAN opposes the application. In its view, the meaning of "gross receipts" is obvious. The 2009-2011 concert proposals should be certified forthwith, as the Board intended to do when it issued its order on June 17, 2011. There are no objectors left for the period. Proceeding as Live Nation proposes will create delays and uncertainty for all users. Any remaining dispute is best dealt with by the courts.
Live Nation disagrees. As provided in the Copyright Act, SOCAN can still collect royalties pursuant to the 2008 tariff, which mitigates any uncertainty. The meaning of "gross receipts" clearly is disputed. It is up to the Board to resolve the dispute by exercising its power to set the terms and conditions of a tariff.
At the Board’s request, Live Nation filed the correspondence it received from SOCAN that triggered the application under consideration. This consisted of a letter that somewhat clarifies SOCAN’s position and of some Excel tables documenting what SOCAN considers unwarranted deductions. The disputed amount can only grow, since SOCAN now asks disclosure of data starting on January 1, 2006. It is also not trivial, though the tables do not allow to determine precisely how much is at stake.
Several reasons would justify rejecting the application. No objection to the 2009-2011 proposals remains. SOCAN proved especially helpful and patient in its dealing with the objectors and with the Board. The examination process could have been much shorter, had the objections been analysed and disposed of in a more timely fashion. Last minute attempts to intervene in matters that are essentially finalized should be viewed with extreme caution. A proposed change to a proposed tariff’s rate base is not of itself reason to postpone certification of the same tariffs for previous years. The dispute extends to 2008 and before; therefore, the Board cannot dispose of the matter completely.
Nevertheless, the Board will grant the application in part, for the following reasons.
First, Live Nation was diligent in this matter, filing its application only 8 days after it was notified of the audit results.
Second, there clearly exists a dispute on the meaning of "gross receipts". The dispute concerns not the interpretation of a certified tariff, but the wording of a tariff yet to be certified. As such, this is a matter better addressed by the Board than by a court of law.
Third, it is for the Board, not the courts, to decide what the rate base ought to be. That rate base has not been determined for 2009 and beyond. The issue Live Nation raises goes to the very essence of the tariff. Consequently, it may well be that, having been notified of the dispute, the Board no longer can certify a fair tariff without addressing the matter.
Fourth, even if the Board certifies the 2009-2011 tariffs as filed, it will have to deal with the issue in the context of the 2012 proposals. The parties will debate the matter once before the courts and once before the Board. Parties will incur additional costs, with little or no possible benefit to them, since the Board can settle the dispute for 2009-2011 without courts getting involved. Dealing with two decision-making streams also creates a risk of contradictory decisions. The Board, not the courts, will have to deal with the consequences: its decisions are binding on no one, while court interpretations of an existing tariff can constrain the Board’s ability to deal with the terms and conditions of a future tariff in the most efficient manner.
Fifth, this may turn out to the advantage of SOCAN just as much as of Live Nation. A decision that settles the matter once and for all for an extended period of time will avoid repeated litigation and possible variations in interpretation from one competent forum to the other.
Finally, any uncertainty other users may suffer as a result of the delay in certifying the 2009-2011 tariffs will be minimal. As noted before, SOCAN continues to collect royalties pursuant to the 2008 tariff and it should be clear by now that the 2009-2011 tariff probably will be identical to the 2008 tariff in all respects except those which the Board will examine as a result of this ruling.
That being said, what Live Nation proposes is not the most efficient way to address the issue. It would be simpler to do so in the context of the 2009-2011 proposals only. For 2012, SOCAN proposes significant changes that raise concerns of a different nature and that are better addressed separately. It is simpler and faster to confine the matter to the single question Live Nation raises: whether the expression "gross receipts" should be defined and if so, how. This way, the question is simple and focussed enough that it can be dealt with rapidly, without interrogatories and possibly without a hearing.
RULING OF THE BOARD
The August 17, 2011 application of Live Nation is allowed in part. Live Nation is granted intervenor status with full participatory rights, for the sole purpose of dealing with a single question: whether the expression "gross receipts" should be defined and if so, how.
Timely objectors to the 2012 tariff are being copied on this Ruling. No later than Friday, October 14, 2011, these objectors shall advise the Board if they wish to intervene in these proceedings. If so, they will specify whether they agree with SOCAN or with Live Nation and describe how they intent to contribute to the process. The Board will then decide whether and to what extent it will allow these interventions.
This matter shall proceed through an exchange of written evidence (preferably a joint statement) and arguments, without interrogatories or oral hearing, unless the Board orders otherwise of its own motion or on application. The process shall be as follows.
- - SOCAN shall file with the Board and serve on all other external counsel copy of any non-privileged document in its possession, dated January 1, 2006 or after, in which the interpretation of the expression "gross receipts" is addressed, as well as copy of all reports and correspondence created or exchanged with respect with any audit conducted on or after that date with respect to tariff 4. These documents shall be treated as highly confidential unless SOCAN consents otherwise or the Board otherwise orders.
- - Live Nation and others who favour defining the rate base shall file their statement of case first. The statement shall list all deductions they claim should be made from the rate base. It shall explain why, in their view, these deductions already are implicit in "gross receipts" as currently worded, and why, in their view, these deductions should be allowed even if "gross receipts" as currently worded does not provide for them.
- - SOCAN and those who agree with it will respond.
- - Live Nation and those who agree with it will be allowed to reply.
- - Discovery in any form, including interrogatories, shall be allowed only by leave, and only after replies have been filed.
No later than Friday, October 28, 2011, parties shall file a proposed schedule of proceedings (preferably a joint one) as well as any variations they may wish to suggest in the process described above.
September 1, 2011
ORDER OF THE BOARD
Live Nation shall file forthwith with the Board the communication it received from SOCAN concerning the meaning of "gross receipts" which is mentioned in its letter of August 31, 2011, as well as any other related correspondence between SOCAN and itself.
August 17, 2011
NOTICE OF THE BOARD
The Board has received the following correspondence with respect to the file cited above. SOCAN shall provide a response by no later than Friday, August 26, 2011. Live Nation can provide a reply by no later than Friday, September 2, 2011.
Attachment: letter to Board.pdf
June 17, 2011
ORDER OF THE BOARD
Following the withdrawal of the Ottawa Jazz Festival (attached for your information), the Board wishes to examine without further delay SOCAN Tariff 4.A (Popular Music Concerts) for the years 2009 to 2011.
The National Campus and Community Radio Association (NCRA) is the sole remaining objector. It objects only to the proposed minimum fee of $35, which the Board ruled to be justified and fair in its most recent decision (available at http://www.cb-cda.gc.ca/decisions/2008/20080320-m2-b.pdf). For those reasons, this matter probably can be addressed through an exchange of written documents, without interrogatories, filing of evidence and arguments or oral hearing.
As a first step in this process, NCRA shall answer the following questions by no later than Friday, July 15, 2011. SOCAN will be given until Friday, July 29, 2011 to respond, and NCRA until Friday, August 5, 2011 to reply. The Board’s intention is to then decide this matter based on the documents filed, unless circumstances require otherwise. The Board will not entertain any application to modify the process as just outlined, until NRCA has filed its reply.
1. Please provide a representative sample of the revenues and expenses for events hosted by the members you are representing which are subject to SOCAN Tariff 4.A. In particular, examples of small, medium and large-sized events should be provided if they exist. Revenues and expenses should be itemized to a level that allows comparisons to be made with the royalties payments being made to SOCAN. Feel free to contact the Board should you require assistance in streamlining the information to be provided.
2. In its March 20, 2008 Decision, the Board certified Tariff 4.A.2, a Licence for Popular Music Concerts with an annual minimum fee of $60, as opposed to a minimum fee of $35 per event. The Board’s intention was to alleviate the burden on very small users by limiting the cumulative minimum fees they would have to pay. Please indicate any specific reasons why members of your association who hold multiple events in a year would not be able to benefit from that annual licence. Please provide specific examples to that effect.
Attachment: Copyright Board_re_SOCAN Tariff 4 A.pdf
February 25, 2011
The Ottawa Jazz Festival's request is granted. Parties shall provide their comments with respect to SOCAN's position in its email of February 3, 2011, attached again for convenience, by no later than Friday, April 1, 2011
February 18, 2011
The Board wishes to receive the parties comments with respect to SOCAN's position in its email of February 3, 2011, attached [See below], by no later than Friday, March 4, 2011.
SOCAN’s email:
I am writing with respect to the above-noted tariff proposals.
Based on a review of our files, it would appear that the only objections filed to Tariff 4 for this period were those of the National Campus and Community Radio Association (NCRA) and the Ottawa Jazz Festival (OJF), each for the year 2009 only. There are no objections to the proposed tariff for 2010 and 2011.
The objection filed by OJF is once again related to the fact that Tariff 4.A (Popular Music Concerts) applies to jazz festivals. Our recollection is that this issue was raised by OJF in previous hearings involving CAPACOA as an objector. SOCAN has previously explained that the reference to Popular Music Concerts simply serves to distinguish this tariff category from the Tariff 4.B category applicable to "classical" or "serious" music concerts. Accordingly, Tariff 4.A is intended to include (and has always applied to) all genres of concert music other than classical music, including jazz. There is no reason to create a new category for jazz music (or jazz festivals), which includes a broad spectrum of copyright protected musical works forming part of SOCAN's repertoire.
For its part, NCRA raises the issue of the $35 minimum fee and takes the position that it is "excessive". However, the concert minimum fee issue has been the subject of numerous proceedings and decisions in the past, including the Board's recent decision of March 20, 2008, in which the Board concluded that the $35 minimum fee was "justified and fair".
In light of the foregoing, it is SOCAN's position that the Board should dismiss the objections of NCRA and OJF and approve Tariff 4 as proposed for the years 2009, 2010 and 2011. In the alternative, the Board should request that the objectors indicate whether they are maintaining their objections and, if so, provide the reasons why the previous decisions of the Board referred to above are no longer valid for the current tariff period.
SOCAN Tariff 4 - Popular Music Concerts (2012)
Note: For future correspondence, please refer to the Active case entitled SOCAN Tariff 4 - Popular Music Concerts (2009-2012).
SOCAN Tariff 15.A (2008-2011) - Background Music; SOCAN Tariff 15.B (2009-2011) - Telephone Music on Hold; SOCAN Tariff 16 (2010-2011) - Background Music Suppliers
June 29, 2012
NOTICE OF THE BOARD
The Copyright Board of Canada has rendered its decision with respect to the following SOCAN Tariffs:
- Tarifff No. 24 (2006-2013)
- Tarifff No. 15.A (2008-2011)
- Tarifff No. 13.A (2009-2010)
- Tarifff No. 15.B (2009-2011)
- Tarifffs Nos. 2.C, 2.D, 5.A, 12.A, 12.B, 13.B, 13.C, 23 (2009-2012)
- Tarifffs Nos. 2.B, 6 (2009-2013)
- Tarifff No. 16 (2010-2011)
- Tarifff No. 9 (2010-2012)
- Tarifffs Nos. 3.A, 3.B, 3.C, 7, 8, 10.A, 10.B, 11.A, 11.B, 14, 18, 19, 20, 21 (2011-2012).
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, along with the certified tariffs as published in the Canada Gazette.
AVIS DE LA COMMISSION
La Commission du droit d'auteur du Canada a rendu sa décision portant sur les tarifs suivants de la SOCAN :
- Tarif no 24 (2006-2013)
- Tarif no 15.A (2008-2011)
- Tarif no 13.A (2009-2010)
- Tarif no 15.B (2009-2011)
- Tarifs nos 2.C, 2.D, 5.A, 12.A, 12.B, 13.B, 13.C, 23 (2009-2012)
- Tarifs nos 2.B, 6 (2009-2013)
- Tarif no 16 (2010-2011)
- Tarif no 9 (2010-2012)
- Tarifs nos 3.A, 3.B, 3.C, 7, 8, 10.A, 10.B, 11.A, 11.B, 14, 18, 19, 20, 21 (2011-2012).
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, ainsi que les tarifs homologués tels que publiés dans la Gazette du Canada.
June 10, 2011
[Le texte français suit l'anglais]
Further to the Board's Ruling 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 la décision interlocutoire de la Commission en date 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.
Attachment : SOCAN Tariffs 15.A, 15.B & 16 - Directive on procedure and Appendices.pdf
June 1, 2011
RULING OF THE BOARD
The May 27, 2011 application of the Retail Council of Canada (RCC) that the Board re-consider its ruling of May 17 that the objectors proceed first in the above-referenced matter is dismissed, substantially for the reasons set out in SOCAN's opposition to the application.
RCC suggests that no one asked that objectors proceed first. In its April 1 email, SOCAN expressed the position that the evidentiary and procedural onus should be put on RCC to convince the Board that the tariff should be changed. The most efficient way to achieve this is to ask objectors to proceed first. In any event, there is no set order of proceeding before the Board, and no unfairness in asking the parties who raise issues with the existing state of affairs to proceed first, whether or not this has been suggested.
In its May 27 application, RCC suggests that it will ignore the deadlines set in the Board's ruling and proceed to consider whether any changes are needed to SOCAN's proposed schedule once the Board has ruled on RCC's application. This is not acceptable. RCC had until May 27 to make its views known as to a possible timetable. It did not; instead, it chose to wait until that deadline to raise an unconnected issue. In so doing, it abandoned any entitlement it may have to comment on the schedule.
No one else commented on SOCAN's proposed timetable.
The Board adopts the following schedule of proceedings leading to a hearing beginning Tuesday, June 5, 2012.
Exchange of Interrogatories: no later than Tuesday, June 21, 2011
Objections to interrogatories: no later than Friday, July 22, 2011
Filing, with the Board, of replies to objections to interrogatories: no later than Friday, August 19, 2011
[Board Ruling]
Responses to interrogatories: no later than Friday, September 16, 2011
Motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, October 21, 2011
Filing, with the Board, of replies to motions: no later than Friday, November 4, 2011
[Board Ruling]
Complete/satisfactory responses to interrogatories: no later than Friday, December 2, 2011
Filing of Objectors' Cases: no later than Friday, March 2, 2012
Filing of SOCAN's Case: no later than Friday, May 4, 2012
Filing of Objectors' Supplementary Cases: no later than Friday, May 25, 2012
Filing of Legal Briefs (if required): no later than Friday, June 1, 2012
Beginning of hearing: Tuesday, June 5, 2012 at 10:00 a.m., Copyright Board's hearing room.
The Directive on Procedure will follow shortly.
May 27, 2011
Parties shall file responses to RCC's submissions below by no later than Monday, May 30, 2011, at 5 p.m.
RCC's Submissions:
Dear Mr. McDougall:
Regarding the Board's ruling of May 17, 2011 I would note that Mr. Daigle's submission to the Board of April 1, 2011 does not ask that the Objectors go first. No party has suggested this at any time in this proceeding.
Moreover, with respect, the Board erred on the facts. SOCAN is not simply seeking the status quo. It is proposing to add in TV sets to Tariff 15, which is a very significant change.
Consequently, the Board was wrong when it ruled:
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.
The Board has no basis to unilaterally upset the normal rules of procedure, especially when not asked to do so by any party. With respect, this would be wrong on both a procedural fairness and jurisdictional basis.
Consequently, I would ask that the Board reconsider this aspect of its May 17, 2011 ruling.
Once this is done, we consider whether any changes - presumably quite minor - would be needed to Mr. Daigle's proposed schedule.
May 17, 2011
[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 Québec supporting 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, 2011
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, 2011
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, 2011
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.
SOCAN Tariff 15 - Background Music in Establishments not covered by Tariff No. 16 (2012)
October 19, 2012
RULING OF THE BOARD
The August 24, 2012 application of Goodlife for leave to intervene in the above-referenced proceedings is granted.
August 30, 2012
NOTICE OF THE BOARD
Parties are asked to comment on Goodlife Fitness Centres Inc.'s Application for Leave to Intervene dated August 24, 2012 (attached) in the above-referenced matter by no later than Friday, September 21, 2012. Goodlife may submit a reply by no later than Friday, September 28, 2012.
Attachment: Goodlife Request for Leave to Intervene Re SOCAN Proposed Tariff 19 and Re SOCAN Proposed Tariffs 15, 16
SOCAN Tariff 15 - Background Music in Establishments not covered by Tariff No. 16 (2013)
October 19, 2012
RULING OF THE BOARD
The August 24, 2012 application of Goodlife for leave to intervene in the above-referenced proceedings is granted.
August 30, 2012
NOTICE OF THE BOARD
Parties are asked to comment on Goodlife Fitness Centres Inc.'s Application for Leave to Intervene dated August 24, 2012 (attached) in the above-referenced matter by no later than Friday, September 21, 2012. Goodlife may submit a reply by no later than Friday, September 28, 2012.
Attachment: Goodlife Request for Leave to Intervene Re SOCAN Proposed Tariff 19 and Re SOCAN Proposed Tariffs 15, 16
SOCAN Tariff 16 - Background Music Suppliers (2012)
October 19, 2012
RULING OF THE BOARD
The August 24, 2012 application of Goodlife for leave to intervene in the above-referenced proceedings is granted.
August 30, 2012
NOTICE OF THE BOARD
Parties are asked to comment on Goodlife Fitness Centres Inc.'s Application for Leave to Intervene dated August 24, 2012 (attached) in the above-referenced matter by no later than Friday, September 21, 2012. Goodlife may submit a reply by no later than Friday, September 28, 2012.
Attachment: Goodlife Request for Leave to Intervene Re SOCAN Proposed Tariff 19 and Re SOCAN Proposed Tariffs 15, 16
SOCAN Tariff 16 - Background Music Suppliers (2013)
October 19, 2012
RULING OF THE BOARD
The August 24, 2012 application of Goodlife for leave to intervene in the above-referenced proceedings is granted.
August 30, 2012
NOTICE OF THE BOARD
Parties are asked to comment on Goodlife Fitness Centres Inc.'s Application for Leave to Intervene dated August 24, 2012 (attached) in the above-referenced matter by no later than Friday, September 21, 2012. Goodlife may submit a reply by no later than Friday, September 28, 2012.
Attachment: Goodlife Request for Leave to Intervene Re SOCAN Proposed Tariff 19 and Re SOCAN Proposed Tariffs 15, 16
SOCAN Tariff 19 - Fitness Activities and Dance Instructions (2013)
October 19, 2012
RULING OF THE BOARD
The August 24, 2012 application of Goodlife for leave to intervene in the above-referenced proceedings is granted.
August 30, 2012
NOTICE OF THE BOARD
Parties are asked to comment on Goodlife Fitness Centres Inc.'s Application for Leave to Intervene dated August 24, 2012 (attached) in the above-referenced matter by no later than Friday, September 21, 2012. Goodlife may submit a reply by no later than Friday, September 28, 2012.
Attachment: Goodlife Request for Leave to Intervene Re SOCAN Proposed Tariff 19 and Re SOCAN Proposed Tariffs 15, 16
SODRAC Tariff 5 (2013)
November 16, 2012
RULING OF THE BOARD
The application for leave to intervene of the Motion Picture Association - Canada (MPA-C) is granted, for the following reasons.
- The only objector of record, the Canadian Association of Film Distributors and Exporters (CAFDE), represents film distributors. MPA-C represents the major American studios, holding the lion's share of the relevant market. Earlier matters before the Board show that these two user groups have different, though complementary, points of view. MPA-C's contribution to the matter may be important.
- The Board always allow comments to be filed based on the record as perfected. MPA-C asks for little more. To allow it to receive the evidence on record will entail a low or no marginal cost for other participants, as long as they only supply it with digital copies. Oral submissions, with leave from the panel, will not much lengthen the hearings.
- The Directive on Procedure expressly provide for the scenario MPA-C proposes.
- Granting MPA-C the status it seeks will not deprive SODRAC from the opportunity to make its case. True, it will not be allowed to address interrogatories through the intervenor to its members. However, to the extent that this may be necessary to achieve the Board's purpose (to certify fair and equitable tariffs), SODRAC may apply for an order requiring their direct participation, either at the interrogatory stage or during the hearings.
- The tariff the Board certified on November 3, last includes a new formula, raising a number of issues that are alluded to in the reasons. The Board will benefit from more than one point of view in assessing whether the formula is effective.
- The arguments of MPA-C (accounting for rights cleared at source, copies made outside Canada, rate base, reporting requirements) can be made without adding evidence to the record.
- The application for leave to intervene that MPA-C had filed in June, 2009 in the preceding file asked among other things the opportunity to file a statement of case and to cross-examine witnesses in certain circumstances. These requests were not renewed here
Consequently, MPA-C will be an intervenor in the above-referenced matter. It shall receive copy of the Board's communications with other parties and vice versa. It shall receive a digital copy of the record. It may attend pre-hearing conferences as well as the hearing. It may file written, and with leave of the panel, oral, submissions. It may not file evidence or question a witness, except with leave of the panel.
DÉCISION DE LA COMMISSION
La Commission fait droit à la demande d'intervention de l'Association cinématographique - Canada) (AC-C), pour les motifs suivants.
- La seule opposante au dossier, l'Association canadienne des distributeurs et exportateurs de films (ACDEF), représente des distributeurs de films. L'AC-C représente les grands studios américains, qui détiennent la part du lion du marché pertinent. Des affaires antérieures portées devant la Commission démontrent que ces deux groupes d'utilisateurs ont des points de vue différents, quoique complémentaires. L'AC-C peut apporter une contribution importante au débat.
- La Commission permet toujours le dépôt de commentaires sur la base du dossier tel que constitué. L'AC-C en demande davantage, mais bien peu. Lui permettre de recevoir la preuve au dossier entraîne un coût marginal faible ou nul pour les autres participants, pour autant qu'ils se contentent de lui fournir des copies numériques. Plaider oralement, avec la permission de la formation, n'ajoutera pas grand temps aux audiences.
- La directive sur la procédure prévoit expressément le scénario que l'AC-C envisage.
- L'octroi à l'AC-C du statut qu'elle recherche ne prive pas la SODRAC de l'occasion de faire valoir ses moyens. Certes, elle ne pourra adresser des demandes de renseignements aux membres de l'intervenante par son truchement. Cela dit, dans la mesure où cela serait nécessaire à l'atteinte des objectifs que poursuit la Commission (l'homologation de tarifs justes et équitables), la SODRAC est libre de rechercher une ordonnance exigeant leur participation directe, soit au stade de l'échange de renseignements, soit au moment des audiences.
- Le tarif que la Commission a homologué le 3 novembre dernier comporte une formule tarifaire nouvelle, qui soulève plusieurs questions auxquelles les motifs font allusion. La Commission aura besoin de plus d'un point de vue pour être en mesure d'évaluer si cette formule est efficace.
- Les prétentions que l'AC-C avance (prise en compte de la libération des droits à la source, copies confectionnées à l'étranger, assiette tarifaire, obligations de rapport) sont des questions qu'elle est en mesure d'aborder sans amener une quelconque preuve.
- La demande d'intervention que l'AC-C avait formulée en juin 2009 dans le dossier antérieur recherchait entre autres l'occasion de déposer un énoncé de cause et la permission de contre-interroger des témoins dans certaines circonstances. Ces demandes n'ont pas été répétées en l'espèce.
L'AC-C aura donc statut d'intervenante dans l'affaire mentionnée en rubrique. Elle recevra copie des communications que la Commission adresse aux parties et vice versa. Elle recevra une copie numérique de la preuve. Elle pourra assister aux conférences préparatoires et à l'audience. Elle pourra déposer des commentaires écrits et, avec le consentement de la formation, plaider oralement. Elle ne pourra présenter de preuve ou questionner un témoin, à moins que la formation l'y autorise.
August 27, 2012
RULING OF THE BOARD
MPA-Canada's request is granted. MPA-Canada shall have until Friday, September 21, 2012 to respond to the Ruling of the Board of August 23, 2012, reproduced below. SODRAC and CAFDE can reply by no later than Friday, September 28, 2012.
ORDONNANCE DE LA COMMISSION
La requête de MPA-Canada est accordée. MPA-Canada pourra déposer sa réponse à l'ordonnance de la Commission du 23 août 2012, reproduite ci-dessous, au plus tard le vendredi 21 septembre 2012. La SODRAC et CAFDE pourront déposer leurs répliques au plus tard le vendredi 28 septembre 2012.
August 23, 2012
RULING OF THE BOARD
In its June 18, 2012 objection (attached) to the above-referenced tariff, MPA-Canada stated that it wishes to limit its participation to receiving the parties' statements of case and materials, participating in pre-hearing conferences and processes, attending any hearing and making written and, with leave, oral submissions at the close of the hearing.
In its July 5, 2012 letter (also attached), SODRAC does not oppose the application of MPA-Canada as long as it can address interrogatories to MPA-Canada. The latter's application makes no statement as to its eventual participation in any interrogatory process.
MPA-Canada is asked to specify, no later than Friday, August 31, 2012:
- whether it intends to participate in any interrogatory process and if not, how it intends to allow SODRAC to access any relevant evidence that may be in the possession of MPA-Canada or of its member users;
- the reasons that should lead the Board to come to a different conclusion than in its Ruling of July 21, 2009, which denied a similar application made by the predecessor of MPA-Canada.
SODRAC and the Canadian Association of Film Distributors and Exporters (CAFDE) can reply by no later that Friday, September 7, 2012.
***********************************************************
ORDONNANCE DE LA COMMISSION
Dans sa lettre du 18 juin 2012 (ci-jointe) à la Commission, MPA-Canada s'oppose au tarif cité en rubrique et affirme vouloir limiter sa participation à recevoir les énoncés de cause et la preuve des parties, participer aux conférences préparatoires et au processus, assister à l'audience et fournir une argumentation écrite, et orale (avec permission), à la fin de l'audience.
Dans sa lettre du 5 juillet 2012 (également ci-jointe), la SODRAC ne s'oppose pas à la requête de MPA-Canada dans la mesure où elle pourra lui adresser des demandes de renseignements. La requête de MPA-Canada reste silencieuse quant à sa participation dans un processus de demandes de renseignements.
MPA-Canada est priée d'indiquer, au plus tard le vendredi 31 août 2012:
- si elle a l'intention de participer dans un processus de demandes de renseignement et, dans la négative, si elle entend permettre à la SODRAC d'avoir accès à la preuve pertinente qui serait en possession de MPA-Canada ou de ses membres utilisateurs.
- les raisons qui pourraient mener la Commission à conclure différemment que dans sa décision du 21 juillet 2009, par laquelle elle a rejeté une requête similaire de l'association que MPA-Canada remplace.
La SODRAC et l'Association canadienne des distributeurs et exportateurs de films (CAFDE) pourront déposer une réplique au plus tard le vendredi 7 septembre 2012.
Attachment: 1) MPA-Canada Objection and request to Intervene - SODRAC 5 (2013)pdf; 2) Lettre G. McDougall 04-07-12.pdf
SOCAN Tariff 24 - Ringtones and Ringbacks (2006-2013)
January 18, 2013
NOTICE OF THE BOARD
The Copyright Board of Canada has rendered a decision in the above-noted matter. This decision is now available on the Board's web site under the heading "What's New - Recent Decisions" at http://www.cb-cda.gc.ca/home-accueil-f.html.
AVIS DE LA COMMISSION
La Commission du droit d'auteur du Canada a rendu une décision dans le dossier précité. Cette décision est maintenant disponible 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.
October 11, 2012
ORDER OF THE BOARD
The parties are asked to address the following propositions:
- Whether the August 1, 2012 application to vary the above-referenced tariffs is moot by reason that the tariffs already specify that royalties are payable only "to communicate ... a ringtone ... for which a SOCAN licence is required".
- Whether the power to vary includes the power to rescind and, if it does not, whether the August 1, 2012 application is in effect an application to rescind.
All parties shall file their arguments no later than on Friday, October 26, 2012. Responses to the arguments of other parties shall be filed no later than on Friday, November 2, 2012.
September 18, 2012
NOTICE OF THE BOARD
The Applicants' request described below is granted.
Mr. McDougall,
I am writing on behalf of the Applicants to request a two-day extension to file their Reply to SOCAN's September 10 Response and to the Board's August 10 Order (below). They wish to file their Reply on September 21, 2012 instead of on September 19.
The reason for this request is that counsel have been recently indisposed for reasons unrelated to this Application.
SOCAN consents to the proposed extension. Please see the attached email exchange between myself and Lynne Watt for SOCAN's consent.
Please let me know if you have any questions about this.
Thank you,
Ariel
September 17, 2012
NOTICE OF THE BOARD
The September 14, 2012 application of Apple for leave to intervene in the above-referenced matter is granted. Apple shall file its submissions on September 19, 2012. SOCAN may reply to any issue raised by Apple and not addressed in SOCAN's response of September 10 no later than on Monday, September 24, 2012.
September 14, 2012
NOTICE OF THE BOARD
Parties can provide a response to Apple's application for leave to intervene in the above-referenced matter by no later than Monday, September 17, 2012, at noon.
September 11, 2012
NOTICE OF THE BOARD
SOCAN has transmitted to Apple documents pertaining to the August 1, 2012 application of Bell, Rogers, TELUS and Quebecor. Presumably, this has been done on the assumption that Apple may be entitled to participate in the consideration of the application as of right. It is not. The only necessary parties to the application are the applicants and SOCAN.
If Apple wishes to participate in the consideration of the application, it must seek leave to intervene. The application for leave to intervene should explain Apple's special interest (including special interest as compared to ringtone providers other than the applicants), the additional arguments it may raise and the additional value of its envisaged contribution. The application should also explain how Apple's participation can be integrated to the process to date without unnecessary disruption.
August 10, 2012
ORDER OF THE BOARD
On August 1, 2012, Bell Mobility, Rogers Communications Partnership, TELUS Communications Company and Quebecor Media Inc. asked, pursuant to section 66.52 of the Copyright Act, that the above-referenced tariffs be varied so as to repeal them. The application relies on two decisions rendered by the Supreme Court of Canada on July 12, 2012: Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 34 ("ESA") and Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada 2012 SCC 35 ("Rogers"). In the applicants' view, since the Court ruled that the Internet delivery of a permanent copy of a file containing a musical work does not involve a communication of that work, the tariffs are nullities and should be repealed.
The application implicitly raises a number of issues, including the following:
1) When the Supreme Court of Canada or the Federal Court of Appeal rules that the Board incorrectly interpreted the law in the context of a tariff proceeding, what is the impact of that ruling on other, past tariff proceedings in which the Board relied on the same, incorrect interpretation?
2) To what extent is an otherwise voidable or void tariff binding on the collectives and the users it targets once it no longer can be challenged in a timely fashion?
3) Are the doctrines of res judicata, functus officio or estoppel relevant to the instant application? To what extent ought these rules be applied differently before the Board than before the courts, given that courts generally deal with past occurrences, whereas tariffs are meant to be prospective?
4) As a matter of law, can the Board vary the above-referenced tariffs as of January 1, 2003? As of January 1, 2006? As of July 12, 2012?
5) As a matter of discretion, should the Board refuse to entertain the application in whole or in part? In answering this question, parties are asked to address the following issues or facts:
A) Is the Board the best forum to deal with the matter?
B) Is this an enforcement issue?
C) Is the impact of ESA and Rogers on the relevant tariffs sufficiently clear to allow the Board to deal with the application efficiently? Can the application be dealt with without further evidence or argument? For example,
- Is it clear that ringtones or ringbacks are permanent copies within the meaning of ESA?
- On which evidentiary record, if any, should the Board rely in dealing with the application with respect to ringtones? To ringbacks?
- Is it clear that every transmission of a ringback to a caller is not a communication "to the public"? If not, is an evidentiary record needed to determine the issue?
D) The tariff the Board certified reflects an agreement signed by all the applicants, except possibly one (strictly speaking, Quebecor is not Videotron).
E) Eighteen days elapsed between the day on which ESA and Rogers were released and the last day on which an application for judicial review of the decision certifying the tariff for 2006-2013 could be filed as of right.
The parties remain free to address other, relevant issues.
The Board is of the preliminary view that ESA and Rogers constitute a material change in circumstances within the meaning of section 66.52 of the Copyright Act. SOCAN is free to argue the contrary if it so wishes.
The matter will proceed as follows:
- The applicants may, no later than Friday, August 24, 2012, supplement their August 1 application in order to deal with the issues raised in this order. The applicants may opt to await SOCAN's arguments with respect to issues 1 to 3 and 5, but not 4.
- SOCAN shall respond to the applicants' application no later than Monday, September 10, 2012.
- The applicants may reply to SOCAN no later than Wednesday, September 19, 2012.
Once the applicants' reply is filed, the Board will probably deal with the application in one of three ways.
1) Dismiss the application in whole or in part, without further evidence or argument.
2) Grant the application in whole or in part, without further evidence or argument.
3) Reopen the matter, in whole or in part, to hear evidence and argument that will allow the Board to determine the outcome of the application.
June 29, 2012
NOTICE OF THE BOARD
The Copyright Board of Canada has rendered its decision with respect to the following SOCAN Tariffs:
- Tariff No. 24 (2006-2013)
- Tariff No. 15.A (2008-2011)
- Tariff No. 13.A (2009-2010)
- Tariff No. 15.B (2009-2011)
- Tariffs Nos. 2.C, 2.D, 5.A, 12.A, 12.B, 13.B, 13.C, 23 (2009-2012)
- Tariffs Nos. 2.B, 6 (2009-2013)
- Tariff No. 16 (2010-2011)
- Tariff No. 9 (2010-2012)
- Tariffs Nos. 3.A, 3.B, 3.C, 7, 8, 10.A, 10.B, 11.A, 11.B, 14, 18, 19, 20, 21 (2011-2012).
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, along with the certified tariffs as published in the Canada Gazette.
AVIS DE LA COMMISSION
La Commission du droit d'auteur du Canada a rendu sa décision portant sur les tarifs suivants de la SOCAN :
- Tariff no 24 (2006-2013)
- Tariff no 15.A (2008-2011)
- Tariff no 13.A (2009-2010)
- Tariff no 15.B (2009-2011)
- Tariffs nos 2.C, 2.D, 5.A, 12.A, 12.B, 13.B, 13.C, 23 (2009-2012)
- Tariffs nos 2.B, 6 (2009-2013)
- Tariff no 16 (2010-2011)
- Tariff no 9 (2010-2012)
- Tariffs nos 3.A, 3.B, 3.C, 7, 8, 10.A, 10.B, 11.A, 11.B, 14, 18, 19, 20, 21 (2011-2012).
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, ainsi que les tarifs homologués tels que publiés dans la Gazette du Canada.
January 25, 2012
ORDER OF THE BOARD
Apple objected to some or all of SOCAN's proposed Tariffs 24 for the years 2006 to 2013, directed to the supply of ringtones and ringbacks.
On June 7, 2010, SOCAN asked that the Board certify a tariff consistent with the agreement it reached with Bell, Rogers, CRIA, MTS Allstream, Vidéotron, SaskTel and Telus. While Apple received copy of this e-mail, it is not a party to the agreement, a copy of which is attached for your convenience.
Before it decides on the appropriate course of action, the Board asks that Apple indicate, by no later than Wednesday, February 8, 2012, and in light of the agreement, if it still objects to the proposed tariffs and, if so, that it demonstrate prima facie that it is a prospective user of ringtones or ringbacks within the meaning of subsection 67.1(5) of the Copyright Act.
Attachment: Agreement.pdf
January 25, 2012
ORDER OF THE BOARD
The Canadian Wireless Telecommunications Association objected to some or all of SOCAN's proposed Tariffs 24 for the years 2006 to 2013, directed to the supply of ringtones and ringbacks.
On June 7, 2010, SOCAN asked that the Board certify a tariff consistent with the agreement it reached with Bell, Rogers, CRIA, MTS Allstream, Vidéotron, SaskTel and Telus. A copy of the agreement is attached for your convenience.
Before it decides on the appropriate course of action, the Board asks that the CWTA indicate, by no later than Wednesday, February 8, 2012, and in light of the agreement, if it still objects to the proposed Tariffs. If so, CWTA is asked to identify the members it intends to represent, to demonstrate prima facie that these members are prospective users of ringtones or ringbacks within the meaning of subsection 67.1(5) of the Copyright Act and to indicate the grounds on which it intends to rely in support of its objection.
Attachment: Agreement.pdf
January 25, 2012
ORDER OF THE BOARD
Please Hold Canada objected to some or all of SOCAN's proposed Tariffs 24 for the years 2006 to 2013, directed to the supply of ringtones and ringbacks.
On June 7, 2010, SOCAN asked that the Board certify a tariff consistent with the agreement it reached with Bell, Rogers, CRIA, MTS Allstream, Vidéotron, SaskTel and Telus. A copy of the agreement is attached for your convenience.
Before it decides on the appropriate course of action, the Board asks that Please Hold Canada indicate, by no later than Wednesday, February 8, 2012, and in light of the agreement, if it still objects to the proposed tariffs. If so, Please Hold Canada is asked to indicate whether the grounds it had raised in support of its objection remain the same or if, in light of the agreement, it wishes to change the grounds for its objection.
Attachment: Agreement.pdf
October 28, 2008
NOTICE OF THE BOARD
The Board agrees with the propositions submitted by Suzanne Morin and Randall Hofley last week. By no later than Friday, December 19, 2008, parties are expected to update the Board on the status of the settlement negotiations or to submit an agreed upon schedule of procedure leading to a hearing in the fall of 2009
October 17, 2008
May we please have your comments on SOCAN's proposed schedule by no later than next Wednesday, October 22, 2009. Thank you.
Attachment: document2008-10-17-124712.pdf
August 12, 2005
RULING OF THE BOARD
This is further to the motion filed on August 4, 2005 by Mr. Paul Carrière on behalf of CRIA, CRIA Members and Apple Canada with respect to SOCAN Tariffs 22 and 24 for 2006, and by Mr. Kenneth Steinthal on behalf of the DiMA Coalition with respect to SOCAN Tariff 22 for 2006.
The application to extend the delay in which to file an objection is denied because the Board does not have the power to extend that delay. The application by CRIA and Apple for intervenor status with full participatory rights in both files is granted. The application by the DiMA Coalition for intervenor status with full participatory rights in the Tariff 22 file is granted. The application of CRIA members is dismissed as duplicative.
Re:Sound Tariffs 5.A to 5.G - Use of Music to Accompany Live Events (2008-2012)
October 14, 2011
ORDER OF THE BOARD
On June 23, 2011, the "Sports Objectors" (Capital Sports Properties Inc. and Capital Sports & Entertainment Inc.; Gillett Entertainment Group and L'Aréna des Canadiens Inc.; Maple Leaf Sports & Entertainment Ltd.; the National Hockey League; the Canadian Football League; the National Football League; Toronto Blue Jays; and Rogers Centre) wrote to the Board, informing it that they were in negotiations with Re:Sound, inter alia, relating to Tariff 5.E (Circuses, Ice Shows, Fireworks Displays, Sound and Light Shows and Similar Events) and requesting that the Board not certify this tariff until such time that the parties reach an agreement or proceed to a hearing.
The Sports Objectors may, no later than Friday, October 28, 2011, file any evidence they wish in support of their request. The Board will then decide on the course to be followed for the rest of the proceedings.
June 24, 2011
ORDER OF THE BOARD
Considering the late filing of comments from CRFA, the "Sports Objectors" and CAPACOA, the Board extends the deadline set in the attached Order [Not attached - See Order of June 1, 2011 for details] for parties to submit comments to Monday, June 27, 2010, at 5 pm. Re:Sound may respond to the comments by no later than Monday, July 4, 2011, at 5 pm.
June 22, 2011
The Board accepts CRFA's comments, attached. Re:Sound may submit a response to these comments by no later than Wednesday, June 29, 2011.
Attachment: 2011-06-22 Objection to changes in Tariff 5.pdf
June 1, 2011
ORDER OF THE BOARD
On May 6, 2011, Re:Sound has submitted to the Board a modified version of its proposed Tariff 5, in part in response to questions of the Board sent the preceding January 26. The draft tariff, with redline changes, is attached to this order.
Parties have until no later than Friday, June 17, 2011 to comment on the proposed changes. Re:Sound may respond to these comments no later than Friday, June 24, 2011.
Attachment: DOCS-#10353824-v1-Tariffs_5A-G_(May_6_2011_revised_redline).pdf
May 5, 2011
RULING OF THE BOARD
On January 26, 2011, the Board addressed a number of questions to Re:Sound, one of which was to file agreements it signed with objectors to its proposed Tariff 5. On March 24, 2011, Re:Sound asked for confirmation that the agreements would not be treated as public documents or provided to anyone other than the respective signatories to each agreement. Re:Sound further assured the Board that the agreements had no relevance to other objectors or the general public, other than those portions which contain the agreed-upon rates and administrative terms which the parties request that the Board certify and which had already been filed as draft Tariffs 5A-G. No one challenged the assurances of Re:Sound.
It would be difficult for the Board to provide the assurances sought by Re:Sound given the general principle of open access to Board files and the Access to Information Act without engaging in a potentially long and protracted process. Furthermore, the Board has always wished to foster the conclusion of agreements, as long as they remain in the public interest. In this instance, the Board has the assurances of Re:Sound, unchallenged by any objector, that all that is relevant to setting fair royalties has been filed with the Board. There is no reason to believe otherwise. The Board is satisfied of this. Re:Sound is no longer asked to file the above-referenced agreements.
The remaining questions are to be answered by Re:Sound as soon as possible.
January 26, 2011
The Board has questions (attached) with respect to Tariffs 5.A to G as submitted by Re:Sound on June 15, 2010. The questions are to be answered by Re:Sound. The Objectors involved will be given the opportunity to provide comments should they wish to do so, in due course.
In addition, Re:Sound is asked to file a progress report on the discussions with the remaining Objectors to Tariff 5 by no later than Friday, February 18, 2011.
Attachment: Questions to ReSound.pdf
April 1, 2010
RULING OF THE BOARD
On March 18, 2010, counsel for certain sports leagues and venues asked that the Board address the following question as a preliminary issue:
For users of recorded music who have a choice of whether or not to play recorded music from the NRCC repertoire, is the NRCC obligated, by law or equity, to make known and available to such users the identity of the works that are within the NRCC repertoire?
Also made were a number of ancillary requests that would have resulted in the matter being brought to the attention of parties to other proceedings involving Re:Sound (formerly NRCC) and the determination of a process, leading to hearings, to dispose of the issue.
Re:Sound opposed the application. Counsel to certain performing arts organizations expressed general support for the application and the proposed process even before having received detailed instructions. The Board did not invite any further comments. Doing so would serve no purpose. This ruling is the only one possible, given the way the question was framed.
The application is dismissed. The question involves interpreting section 67 of the Copyright Act on a standalone basis; as such, it is ultra vires the powers of the Board. Instead, the question could have been framed in a way that involved the Board's ability to impose the contemplated obligation of disclosure as a condition of tariff; if so, the application would have been premature. The matter is better addressed in the context of examining all of the relevant elements of a certified tariff.
The comparison with the Board's decision of September 16, 2009 dealing with NRCC's tariffs 7 and 9 is not appropriate. In that instance, the ruling had the effect of ending the matter: no tariff could be certified. Here, by contrast, the Board would have to certify a tariff irrespective of the answer it would provide to the proposed question.
May 4, 2009
NOTICE OF THE BOARD
Based on Mr. Sookman's email of May 1, 2009 (below), the Board allows NRCC and the Objectors more time to discuss and reach an agreement on all or part of the proposed tariff.
NRCC shall report back to the Board on any progress of the discussions by no later than Friday, September 4, 2009.
Mr. Sookman's email:
This responds to the Board's request that NRCC and the parties report to the Board by May 1, 2009.
On March 20, 2009 the Board, at NRCC's request, did not immediately initiate a schedule of proceedings to a public hearing on NRCC Tariff 5 in order to allow NRCC to discuss the possibility of reaching an agreement on all or part of the proposed tariff.
Since that time NRCC has contacted all objectors on at least two occasions stating that NRCC would like to discuss specific concerns they may have about the proposed tariff with a view to the possibility of resolving some or all issues.
In response to these approaches NRCC has had discussions with many of the objectors or their representatives including Alliance of Beverage Licensees of BC (ABLE BC), Canadian Association of Fairs and Exhibitions (CAFE), Canadian Restaurant and Foodservices Association (CRFA), Festivals & Events Ontario (FEO), Hotel Association of Canada (HAC), Maple Leaf Sports & Entertainment Ltd., and Various Sports Leagues and Facility Owners/Operators being National Hockey League (and its Canadian Member Clubs); Canadian Football League; National Football League; Toronto Blue Jays (Rogers Blue Jays Baseball Partnership); Rogers Centre (Rogers Stadium Limited Partnership.
In some cases, objectors with whom we have had discussions have agreed to reach out to other similarly situated objectors to obtain their Input Into any proposed settlement. In other cases, for scheduling reasons we have not been able to hold meetings, but the parties have agreed to talk after May 1. This applies to The Canadian Arts Presenting Association (CAPACOA), and to "Performing Arts Organizations" [Sony Centre for the Performing Arts; The Corporation of Roy Thompson Hall and Massey Hall; Professional Association of Canadian Theatre (PACT), The National Arts Centre and La Place des Arts].
We have had productive discussions with many of the objectors in which proposals for settlement have been advanced. These proposals require further discussions between the parties to determine if settlements can be reached. In some cases, information is being exchanged between the parties with a view to narrowing or agreeing upon the issues. In some cases the objectors require time to confer with their Boards of Directors or member organisations.
We have informed all objectors with whom we have talked that it is NRCC's objective to resolve as many issues as NRCC can with respect to the proposed tariff by the end of August, 2009. These objectors agree with our proposed time frame for trying to reach a settlement.
In view of the forgoing, NRCC proposes that the Board defer scheduling proceedings to a public hearing on the proposed tariff in order to allow NRCC and the objectors more time to discuss and reach an agreement on all or part of the proposed tariff. NRCC proposes to report back to the Board by Friday September 4 on the progress of the discussions.
NRCC trusts the above is satisfactory.
March 20, 2009
NOTICE OF THE BOARD
Further to the Board's Notice of February 4, 2009, attached is the final list of parties. You will recall that NRCC asked the Board not to immediately initiate a schedule of proceedings leading to a public hearing on NRCC Tariff 5 in order to allow NRCC to discuss the possibility of reaching an agreement on all or part of the proposed tariff. Thus, the Board requests that NRCC and the parties report on any development in this regard by no later than Friday, May 1, 2009. The Board will then decide on the proper course of action.
Attachment: List of parties.pdf
February 23, 2009
NOTICE OF THE BOARD
On February 4, 2009, you were asked to inform the Board by no later than February 20, 2009, if you intended to fully participate in the proceedings leading to a hearing on NRCC Tariff 5 and therefore be granted intervenor status with full participatory rights. (please see Board's notice attached) - [Not attached. See February 4, 2009 entry]
The Board has yet to hear from you. If we do not hear from you by Wednesday, your letter will be made part of the public record of the proceedings (along with all the letters of comments received) and the Board will take it into consideration before reaching its decision.
February 4, 2009
NOTICE OF THE BOARD
On March 30, 2007, the Neighbouring Rights Collective of Canada (NRCC) filed a proposed tariff for the use of Music to Accompany Live Events (NRCC Tariff 5) for the years 2008-2012. The proposal was published in the Canada Gazette on June 2, 2007 ( (http://www.cb-cda.gc.ca/tariffs/proposed/m20070602-b.pdf) and prospective users, or their representatives, had until August 1, 2007 to object. The Hotel Association of Canada (HAC) filed a timely objection. The Board subsequently received several requests to intervene with full participatory rights and several letters of comments. The attached lists identify the objector, those who have asked to intervene as well as those who filed comments without asking to intervene.
On March 28, 2008, the Copyright Board sent to NRCC and the HAC a series of questions (attached) - [Not attached, see March 28, 2008 entry]. The HAC provided its responses on May 1, 2008. To date, NRCC has not done so.
Before the Board starts examining the tariff proposal, it needs to know whether you intend to actively participate in any upcoming proceedings on the matter. If you do, you will be granted intervenor status with full participatory rights, and will be expected to undertake a certain number of obligations, as set out in our model directive on procedure (http://www.cb-cda.gc.ca/aboutus/directive-e.html). These rights and obligations might include submitting or answering interrogatories, abiding by procedural rules governing collection, preparation and circulation of evidence and arguments and providing every other participant with a copy of any documents you will file with the Board.
If you do not intend to actively participate, your letter will be made part of the public record of the proceedings (along with all letters of comments received) and the Board will take it into consideration before reaching a decision. We therefore ask that you inform the Board by no later than February 20, 2009 if you intend to fully participate in the proceedings leading to a hearing.
NRCC has informed the Board that it intends to discuss the possibility of reaching an agreement on all or part of the proposed tariff with the parties whose "status" will have been confirmed. Once the status of the parties is confirmed, the Board will ask NRCC to report, by a date to be determined later, on any settlement that might have been reached. If settlement efforts fail, the Board will establish a schedule of proceedings leading to a hearing. NRCC will then have to answer the Board's questions of March 28, 2008 in its evidence in chief.
Attachments: List of objector and requests to intervene.pdf; Table of Comments.pdf
March 28, 2008
NOTICE OF THE BOARD
The Board has the following questions regarding the proposed NRCC Tariff 5 (Use of Music to Accompany Live Events) and NRCC Tariff 6 (Use of Music to Accompany Dance and Fitness) for the years 2008 to 2012.
Questions to NRCC
1. The Board wishes to obtain your comments on the application of NRCC Tariffs 5 and 6 to various types of music use. With respect to each example set out in the attached tables, please answer the following questions:
a. Is the event described representative of the type of activity it purports to represent? If not, please provide your own representative examples.
b. Are the SOCAN and NRCC tariffs being applied to the event the relevant ones? Have they been applied correctly?
c. How can the differences between SOCAN and NRCC payments for each event be justified?
2. What should be the correlation between NRCC Tariffs 5 and 6 and NRCC Tariff 3 (Use and Supply of Background Music)? Put another way, what should be the relation between the value of the use of a sound recording as background music and during a live event?
3. Please provide scenarios where an establishment would be subject to two or more of NRCC Tariffs 3, 5 or 6.
4. Please provide an assessment of the impact NCRR Tariffs 5 and 6 could have on users.
Questions to the Hotel Association of Canada (HAC)
HAC is asked to provide answers to above questions, but only in respect of NRCC Tariff 5 to which it objected.
The Board expects to receive the information from both parties as soon as possible. Accordingly, we would appreciate knowing when you will able to respond to the above questions. Thank you.
Attachment: SOCAN and NRCC 5 Tariff Tables.pdf
Re:Sound Tariff 6 - Use of Music to Accompany Dance and Fitness (2008-2012)
6 juillet 2012
NOTICE OF THE BOARD
The Copyright Board of Canada has rendered its decision on Re:Sound Tariff 6.B (Use of Recorded Music to Accompany Physical Activities) 2008-2012. It is posted on the Board's web site under the heading "What's New - Recent Decisions" athttp://www.cb-cda.gc.ca/home-accueil-e.html, along with the certified tariff as published in the Canada Gazette and a Fact Sheet.
AVIS DE LA COMMISSION
La Commission du droit d'auteur du Canada a rendu sa décision portant sur le Tarif 6.B de Ré:Sonne (Utilisation de musique enregistrée pour accompagner des activités physiques) 2008-2012. Elle 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 avec le tarif homologué tel que publié dans la Gazette du Canada et un Feuillet d'information.
May 28, 2012
ORDER OF THE BOARD
The ambit of targeted uses appears different in the proposed tariff filed as Exhibits NRCC-1A and NRCC-1C. Re:Sound is asked to specify, no later than on Thursday, May 31, 2012, if the text filed as NRCC-1C is intended to target:
- dance instruction; and
- every use listed in the definition of "fitness venue" found in Exhibit NRCC-1A.
January 30, 2012
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.
December 14, 2011
NOTICE OF THE BOARD
Re:Sound shall provide a response to Montage Management's application, below, by no later than Thursday, December 22, 2011. Montage Management will be allowed to file a reply by no later than Thursday, January 5, 2012.
Montage Management’s Application:
Gilles McDougall
Secretary General
Copyright Board of Canada
December 12th, 2011
Gilles;
As recently discussed, our client, Montage Management Inc (operating as Club 1234 - “1234”) in Montreal has asked us to file this Application to the Copyright Board under Section 66.52 of the Copyright Act, requesting that the Copyright Board modify the Transitional Provisions of Tariff 6.A (Use of Recorded Music to Accompany Dance). Our client contends that the aggressive manner in which Re:Sound has attempted to enforce this Tariff (without appropriately engaging and considering the music users subject to the Tariff) has created a “material change to the circumstances” under which the Tariff was initially certified.
Attached [Documentation not attached] you will find all of the correspondence from Re:Sound which 1234 currently has in its possession:
- An invoice issue to 1234 by Re:Sound dated September 1st, 2011 and due on October 1st, 2011 (“Invoice”).
- A letter from Re:Sound dated October 17th, 2011.
- A letter from the Collection Agency “North American Receivable Management Services Company” dated November 2, 2011 (“Collection Agency”).
- An e-mail from a representative from the Collection Agency dated November 3rd, 2011.
In the context of the roll-out of this newly certified Tariff, it is stunning how quickly this initial invoice was escalated to a third party collection agency.
First, we suggest it best that we place this into the proper context:
Our client, not surprisingly, had no idea who Re:Sound is, or that this Tariff even existed. We trust this to be understandable given that we would surmise that a vast majority of Canadian night-club operators are not regular readers of the Canada Gazette. In fact our client has related that when they first became concerned about the Invoice after the escalated communication from Re:Sound and the Collection Agency, they communicated with other colleagues in their industry who were similarly perplexed on what this was all about. There was even those who speculated that this whole initiative was a fraud. This should not be surprising given that most of the music users subject to this Tariff are likely unaware that a collective representing master recordings even exists. Again, not surprisingly, there seemed to be a general consensus that the amount already being paid to SOCAN under Tariff 18 fully addressed their licensing requirements for the public performance of music in their establishments.
In other words, it seems obvious that Re:Sound should have deployed a far superior “educational” effort before sending off invoices, warning letters and deploying collection agencies; all within an incredibly compact period of time.
Our client relates a story that underscores this well: When Montage Management re-opened 1234 in 2004 (it had been previously closed and dormant for a number of years), SOCAN was incredibly diligent on making sure that they made direct contact with management of the club and sent a representative for an on-site visit. The SOCAN representative toured the entire facility and explained in detail the requirement for paying the SOCAN license fee under Tariff 18.
With regards to the amount on the Invoice itself, you will note that Re:Sound invoiced 1234 immediately for all four years (2008-2011). We understand that under the strict reading of Tariff 6A that Re:Sound was entitled to do so. However, we suspect that the Board did not envision that Re:Sound would roll-out this Tariff in this kind of manner without a more diligent attempt at educating the music users and without affording a user like 1234 payment terms that would be more reasonable in this circumstance. Further, the fact that the Tariff for 2012 is due at the end of January 2012, results in Re:Sound’s expectation that an establishment like 1234 should be paying $ 8,000.00 within a period of four months.
What is also particularly troubling about this invoicing issue, is that we are fully aware (through other clients of this office and other similar establishments who have communicated with 1234) that Re:Sound’s practice of invoicing the music users under the Tariff has not been consistent. We are aware of other music users who have only been invoiced for the year 2011; and not the years 2008 through 2010. We suspect that an entity like 1234 has been somewhat singled out for the full “four year” treatment given its position as one of the largest establishments of its kind in Montreal and the assumption that it has adequate financial resources to immediately pay all of the years of this Tariff given the size of its operation. Regardless though of whether this speculation is correct, we would expect at minimum that this Tariff would be enforced equally across all music users.
Therefore 1234 requests that the Board consider modifying the Transitional Provisions (Section 11) of Tariff 6A to allow for a mandated schedule of payments for the years 2008 through 2011. We would suggest that there should be a three month period for payment of each year (i.e. Year 2008 due by December 31st, Year 2009 due by March 31st, etc...) which would allow for the four years to be paid over a period of one year (we fully realize that this would ‘push-out’ the original October 1st date, but believe this reasonable given Re:Sound’s minimal educational effort and engagement with these music users prior to October 1st).
We are requesting this modification to the Tariff under Section 66.52 of the Copyright Act as we contend that the facts submitted herein have created a “material change in circumstances” since the Tariff was certified
For the record, our client 1234 will pay this Tariff in its entirety. The President of 1234 ,Mario Tremblay (also professionally known as “MC Mario”) happens to be someone who has been actively engaged in the Canadian recording industry for close to twenty years and is also a recipient of monies of this nature through his record company which is a member of the AVLA. Therefore, he well knows the distress of the Canadian music recording sector and how important that these kind of monies are to fairly compensate this sector.
However, that does not diminish 1234’s belief that this Tariff has been rolled-out by Re:Sound inappropriately and would like to ensure that it is permitted to comply with this Tariff in a more reasonable manner. We have frankly been concerned that at the rate in which Re:Sound has been escalating this matter, Re:Sound could soon move to enforce these rights using the draconian provision of Section 38.1(4) of the Copyright Act in regards to statutory damages.
Given that we have currently no indication to the contrary to suggest that the Collection Agency has been removed from the collection of this Invoice, it would be appreciated if the Board could indicate at its earliest possible convenience if it is agreeable to consider this matter under Section 66.52.
Finally, we would encourage you to also reference some our more detailed notes below which provide additional facts and comments in regards to this over-all matter. We of course would also be pleased to provide the Board with additional information if requested.
November 3, 2011
ORDER OF THE BOARD
On July 26, in accordance with an order of the Board dated June 23, SOCAN responded to a number of questions posed by the Board by supplying, inter alia, a number of agreements between it and parties otherwise subject to SOCAN Tariff 19 (Fitness Activities and Dance Instruction) as well as an Excel file summarizing some aspects of these agreements. Later that day, Goodlife moved to have those agreements and the Excel file treated in accordance with the Board’s order on confidentiality.
The Board agrees with Goodlife that the agreements and the Excel file should remain confidential. The parties should govern themselves accordingly.
September 9, 2011
NOTICE OF THE BOARD
The Copyright Board of Canada has issued an erratum regarding Re:Sound Tariff 6.A (Use of Recorded Music to Accompany Dance) certified for the years 2008-2012 and published in the Canada Gazette on July 16, 2011. The erratum is now published in the Canada Gazette and is also 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 publié un erratum à l’égard du tarif 6.A de Ré:Sonne (Utilisation de musique enregistrée pour accompagner des activités de danse) homologué pour les années 2008-2012 et publié le 16 juillet 2011 dans la Gazette du Canada. L’erratum est maintenant publié dans la Gazette du Canada et affiché 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.
July 22, 2011
NOTICE OF THE BOARD
The Board acknowledges your correspondence below [Correspondence not attached] requesting an extension of two business days to file your response to the Board's questions raised in our Order of June 23, 2011.
Your request for an extension is granted. SOCAN is to file their response to the Board's questions raised in our June 23, 2011 Order by Tuesday, July 26, 2011.
July 15, 2011
NOTICE OF THE BOARD
The Copyright Board of Canada has rendered its decision on Re:Sound Tariff 6.A (Use of Recorded Music to Accompany Dance) 2008-2012. 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, along with the certified tariff as published in the Canada Gazette.
AVIS DE LA COMMISSION
La Commission du droit d’auteur du Canada a rendu sa décision portant sur le Tarif Ré:Sonne 6.A (Utilisation de musique enregistrée pour accompagner des activités de danse) 2008-2012. Elle 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 avec le tarif homologué tel que publié dans la Gazette du Canada.
June 23, 2011
ORDER OF THE BOARD
The Board thanks SOCAN for its response on June 2, 2011 to the Order of the Board dated May 16. The Board has further related questions on this matter. SOCAN should provide answers to these questions by no later than Friday, July 22, 2011. Should SOCAN decide to retain an expert to assist in answering these questions, it should inform the Board as soon as possible of the date it expects to receive the expert’s report. In that case, SOCAN is to supply the responses to the questions no later than two weeks after receipt of the expert’s report.
In the response given on June 2, SOCAN supplied updated data for SOCAN Tariff 19 for the year 2007, as shown in the chart below.
Licensees reporting fewer than 60 average weekly participants in the licensed room |
Licensees reporting 60 or more average weekly participants in the licensed room |
TOTAL |
|||
# of licences |
Revenues |
# of licences |
Revenues |
# of licences |
Revenues |
2,814 |
$150,638 |
2,180 |
$636,038 |
4,994 |
$786,676 |
In Re:Sound’s Statement of Case for Tariff 6, it stated that there are 5,047 fitness clubs in Canada, having a total of 4,635,000 members. The source of this figure is a response to a Re:Sound interrogatory by the Objector Fitness Industry Council of Canada based on a 2008 report.
During the hearing for Re:Sound Tariff 6, evidence was provided about passive members of fitness clubs, that is, those who do not attend at all. While estimates of this figure are uncertain, it was generally accepted to be about 30 per cent. Other evidence filed by Re:Sound suggests that about 32 per cent of non-passive members attend fitness classes 3 times per week on average.
If these figures are correct, there are 3,244,500 non-passive fitness club members in Canada. Of these, 1,038,240 attend fitness classes on average three times per week for an average weekly attendance in fitness classes of 3,114,720 persons nationwide. If all the fitness clubs in Canada were paying SOCAN Tariff 19 for their fitness classes according to the interpretation SOCAN said it applies in its response of June 2, SOCAN should be collecting, at a minimum $6,665,501 per year under Tariff 19, or approximately 8.5 times the amount SOCAN reported collecting in 2007.
Several factors could account for this discrepancy.
1. Compliance with and enforcement of the tariff is substantially lower than total.
2. As a result of agreements, some clubs pay a small fraction of the amount they would otherwise pay under the tariff.
3. There is confusion as to how the tariff should be interpreted. Some of the interpretations used by licensees include:
(a) calculating average weekly attendance per class;
(b) using one representative week out of the entire year;
(c) calculating the number of participants based on the number of paid club memberships or active members and failing to account for the fact that a member may attend an activity multiple times over the course of a year and may also attend different activities in different rooms;
(d) calculating the average number of participants based on each unique individual attending an activity each week; and
(e) averaging the number of weekly participants based on 52 weeks per year as opposed to the actual number of weeks per year (e.g. 30 weeks) the room is actually used.
SOCAN is asked to answer the following questions:
1. Please comment on the discrepancy between the Board’s calculations and SOCAN’s revenues under Tariff 19. More specifically, please comment on the relative importance and relevance of the factors mentioned above and provide any other known explanation for the discrepancy.
2. Please supply copies of any agreement between SOCAN and other parties pertaining to uses targeted in Tariff 19. For each agreement, please indicate whether the amount collected under the agreement is included in the $786,676 reported by SOCAN.
3. Please indicate the number of unique addresses to which SOCAN sends bills for Tariff 19, the number of clubs licensed under Tariff 19 and the number of clubs that license 1 room, 2 rooms, 3 rooms, and 4 or more rooms.
4. Please indicate the number of times that licensees have revised their submitted licensing form for Tariff 19 since January 1, 2008. Please indicate the number of times that SOCAN has audited a Tariff 19 licensee since January 1, 2008. Please supply all licensing forms that were submitted twice or more, including both the initial submission and the final submission, if there are no more than 100 instances of such revisions. Otherwise, please submit a representative sample thereof.
5. In the data included above, SOCAN lists 2,814 licences issued where the average number of participants is fewer than 60 per week. SOCAN identifies the revenue from these licences as $150,638. The current minimum fee is $64. Currently, the minimum fee applies only where the average weekly attendance is fewer than 30. Where the average weekly attendance is between 30 and 60, the fee is higher. Yet on the assumption that all the licensees in the category of 60 or fewer participants per week paid the minimum fee, the minimum fee should generate $180,096, almost $30,000 more than what the category currently generates.
Please indicate the number of licences issued for the minimum fee and the amounts paid under these licences. Also, please explain why the small user category is generating less than the minimum fee would imply.
June 13, 2011
SOCAN's responses, indicated below in blue, have been received with respect to the Board's questions. The Board will issue further directions in due course.
ORDER OF THE BOARD
As part of its deliberation in the file mentioned above, the Board has the following questions with respect to SOCAN Tariff 19 (Fitness Activities and Dance Instruction) which are addressed to SOCAN. Once a response is obtained, the Board will issue further directions as to what it will want to obtain from the parties.
SOCAN is asked to answer the questions below by no later than Friday, June 3, 2011.
1. The Board has the following data on SOCAN's Tariff 19 for the year 2007.
Licensees reporting fewer than 60 average weekly participants in the licensed room |
Licensees reporting 60 or more average weekly participants in the licensed room |
TOTAL |
|||
# of licences |
Revenues |
# of licences |
Revenues |
# of licences |
Revenues |
2,578 |
$136,114 |
2,253 |
$646,072 |
4,831 |
$782,186 |
a) Please confirm that the data for 2007 is correct, or provide the new numbers if it has been revised.
The data for Tariff 19 for the year 2007 has been updated as follows:
Licensees reporting fewer than 60 average weekly participants in the licensed room |
Licensees reporting 60 or more average weekly participants in the licensed room |
TOTAL |
|||
# of licences |
Revenues |
# of licences |
Revenues |
# of licences |
Revenues |
2,814 |
$150,638 |
2,180 |
$636,038 |
4,994 |
$786,676 |
b) Please provide updated data for the year 2010.
As of this date, we have not compiled 2010 data on tariff 19.
2. The first paragraph of the text of SOCAN’s Tariff 19 certified for the years 2007 to 2010 reads as follows:
For a licence to perform, at any time and as often as desired in the years 2007 to 2010, any or all of the works in SOCAN’s repertoire, in conjunction with physical exercises (dancercize, aerobics, body building and other similar activities) and dance instruction, the annual fee for each room in which performances take place is $2.14 multiplied by the average number of participants per week in the room, with a minimum annual fee of $64.
For the purposes of this question, SOCAN shall consider a fitness club that has a single room in which its repertoire is played. In this room, fitness classes take place. In particular, this club offers 20 classes throughout the week, each of which has 15 participants, or a total of 300 people. These attendance figures are the same every single week of the year.
a) Please indicate the interpretation(s) that SOCAN and the users are making of the application of Tariff 19 with respect to the notion of "the average number of participants per week in the room".
SOCAN has always interpreted tariff 19 to mean the average number of participants in a room, per week.
This average is calculated by taking the total number of participants in each room over a calendar year, and dividing by 52 weeks, if the room is used every week of the year. Establishments that have fitness activities during only part of the year must calculate their average by taking the total number of participants in a room for the period during which they had activities in that room and dividing that number by the number of weeks the room was actually used. For example, 500 participants divided by 42 weeks. In all cases, each room is subject to the minimum annual fee of $64, regardless of how many weeks per year it is operating.
Participants should be counted towards the total every time they attend, in every room they use. The same person could therefore be counted more than once on the same day if they attended more than one activity on the same day in different rooms.
Therefore, based on the example provided, the fee would be $642, which corresponds to the $2.14 multiplied by the average number of participants per week in the room.
b) In particular, please indicate if any or all of the following interpretations has been used by a licensee of SOCAN's Tariff 19 in the past:
(i) The fee to be paid is $32.10 which corresponds to $2.14 multiplied by the average number of participants in a class (15), recognizing that there is a minimum fee of $64;
Yes. However, in those cases, SOCAN will speak with the Licensee and inform them of the proper basis of calculation and require revised reports from them.
(ii) The fee to be paid is $91.72, which corresponds to $2.14 multiplied by the daily average number of participants in a week (300 divided by 7, equal to 42.86);
No, not as far as we know.
(iii) The fee to be paid is $642, which corresponds to $2.14 multiplied by the average number of participants per week in the room (300).
This is how we ask that the fee be calculated.
c) Please provide examples of each of the interpretations (such as applications received from licensees).
Applications received from licensees do not include how they calculate their average number of participants.
Enclosed is a copy of SOCAN's tariff 19 licence report.
SOCAN initially realizes that an error in calculation may have been made when it receives a report form that sets out a low number of participants despite the fact that the establishment is known to have a large number of participants. Only upon further inquiry (by calls or ultimately by virtue of an audit) is SOCAN able assess how the average number of participants have been calculated.
d) Are there any differences between the application of Tariff 19 pertaining to Fitness activities as opposed to Dance instruction?
We believe it is easier for Dance Studios to report their average number of participants as they generally have persons registered for certain classes for a set number of weeks, taking place in the same room. Having said this, they typically don't report at all.
Fitness institutions' programs are often drop-in classes, which make the numbers fluctuate from week to week and make it more difficult to track the number of participants.
e) Please provide any available information on the number or proportions of licensees who use interpretations (i), (ii) and (iii) above, as well as any other interpretations referred to in a). In particular, please provide the royalties generated by each of the types of applications.
We do not break down the data in the manner in which you ask and it is not possible to go back and obtain that information.
Some of the other ways the tariff is interpreted by our Licensees include:
-calculating the tariff based on one representative week out of the entire year;
-calculating the number of participants based on the number of paid club memberships or active members and failing to account for the fact that a member may attend an activity multiple times over the course of a year and may also attend different activities in different rooms;
-in the same vein as the previous bullet, calculating the average number of participants based on each unique individual attending an activity each week;
-averaging the attendance of multiple rooms into one room;
-averaging the number of weekly participants based on 52 weeks per year as opposed to the actual number of weeks per year (e.g. 30 weeks) the room is actually used.
May 16, 2011
ORDER OF THE BOARD
As part of its deliberation in the file mentioned above, the Board has the following questions with respect to SOCAN Tariff 19 (Fitness Activities and Dance Instruction) which are addressed to SOCAN. Once a response is obtained, the Board will issue further directions as to what it will want to obtain from the parties.
SOCAN is asked to answer the questions below by no later than Friday, June 3, 2011.
1. The Board has the following data on SOCAN's Tariff 19 for the year 2007.
Licensees reporting fewer than 60 average weekly participants in the licensed room |
Licensees reporting 60 or more average weekly participants in the licensed room |
TOTAL |
|||
# of licences |
Revenues |
# of licences |
Revenues |
# of licences |
Revenues |
2,578 |
$136,114 |
2,253 |
$646,072 |
4,831 |
$782,186 |
a) Please confirm that the data for 2007 is correct, or provide the new numbers if it has been revised.
b) Please provide updated data for the year 2010.
2. The first paragraph of the text of SOCAN’s Tariff 19 certified for the years 2007 to 2010 reads as follows:
For a licence to perform, at any time and as often as desired in the years 2007 to 2010, any or all of the works in SOCAN’s repertoire, in conjunction with physical exercises (dancercize, aerobics, body building and other similar activities) and dance instruction, the annual fee for each room in which performances take place is $2.14 multiplied by the average number of participants per week in the room, with a minimum annual fee of $64.
For the purposes of this question, SOCAN shall consider a fitness club that has a single room in which its repertoire is played. In this room, fitness classes take place. In particular, this club offers 20 classes throughout the week, each of which has 15 participants, or a total of 300 people. These attendance figures are the same every single week of the year.
a) Please indicate the interpretation(s) that SOCAN and the users are making of the application of Tariff 19 with respect to the notion of "the averagenumber of participants per week in the room".
b) In particular, please indicate if any or all of the following interpretations has been used by a licensee of SOCAN's Tariff 19 in the past:
(i) The fee to be paid is $32.10 which corresponds to $2.14 multiplied by the average number of participants in a class (15), recognizing that there is a minimum fee of $64;
(ii) The fee to be paid is $91.72, which corresponds to $2.14 multiplied by the daily average number of participants in a week (300 divided by 7, equal to 42.86);
(iii) The fee to be paid is $642, which corresponds to $2.14 multiplied by the average number of participants per week in the room (300).
c) Please provide examples of each of the interpretations (such as applications received from licensees).
d) Are there any differences between the application of Tariff 19 pertaining to Fitness activities as opposed to Dance instruction?
e) Please provide any available information on the number or proportions of licensees who use interpretations (i), (ii) and (iii) above, as well as any other interpretations referred to in a). In particular, please provide the royalties generated by each of the types of applications.
March 3, 2011
RULING OF THE BOARD
On February 18, 2011, Goodlife filed a letter (attached) [not attached] purporting to draw the Board's attention to one recent decision of the Federal Court and one of the Federal Court of Appeal pertaining to the precedential value of foreign decisions and the timeliness of amendments to the tariff. On February 25, Re:Sound objected to the letter being made part of the record in part because it constitutes new argument on issues that have already been canvassed.
We agree with Re:Sound. The matters raised in the February 18 letter have been fully canvassed. The decisions, if they stand for the propositions Goodlife advances (something with which Re:Sound does not agree), add nothing to the principles found in earlier cases.
Accordingly, Goodlife’s letter of February 18, 2011 is returned and will not be made part of the record.
September 22, 2010
NOTICE OF THE BOARD
The documents filed by Re:Sound on August 18, 2010 were filed in response to questions from the Board. Therefore, the documents are part of the record.
The Board has duly noted the submission which states that the agreements, without the analysis, are hearsay.
Goodlife is free to identify deficiencies and gaps in titles and to provide alternate analysis, by noon on Friday, October 8, 2010. Goodlife shall not file any other material (e.g. clarification of the IHRSA material).
July 20, 2010
Given the circumstances, the Board agrees to extend the deadline to Monday, July 26, 2010 for submissions of reply comments for all parties.
July 7, 2010
RULING OF THE BOARD
The application of Re:Sound is granted. All parties may reply to any new issue raised in an opposing party's reply of June 28, 2010, and only on such issues, by no later
than Wednesday, July 21, 2010.
May 26, 2010
NOTICE OF THE BOARD
This confirms that Parties shall file their legal briefs by no later than Monday, June 14, 2010. Parties are allowed to raise any legal issues they consider relevant. Replies to the legal briefs shall be filed by no later than Monday, June 28, 2010.
May 19, 2010
The outline of arguments requested by the Board in its Order of May 12, 2010 should be filed only with the Board by tomorrow at noon, and shared with the parties at the start of argumentations.
May 12, 2010
ORDER OF THE BOARD
Parties shall file their outline of arguments (of no more than 10 pages) by no later than Thursday, May 20, 2010 at noon.
April 26, 2010
ORDER OF THE BOARD
The parties are asked to answer the following questions in writing by no later than Friday, April 30, 2010.
Questions to Re:Sound
To Ms. Doris Tay
If a maker declares that a title qualifies for the purposes of section 19 of the Act, do you verify whether it is true on a case by case basis? On a sample basis?
Produce the underlying documents that support each conclusion you reached in Exhibit NRCC-8.
Document the chain of title between the corporations referred to in paragraphs 8 to 10 of NRCC-22 (e.g. BT5, Countdown Media, Madacy and AVLA).
How many requests pursuant to s. 67 do you get in a year? What do they ask for? How do you respond to them?
To Mr. Barry Fong
Among other things, exhibit NRCC-9 provides information on the capacity of dance venues in Canada. Can you comment on the representativeness of the sample of dance venues, given that the majority of venues sampled are in two provinces - Ontario and British Columbia? Can you confirm whether any bar, hotel, restaurant, or other similar establishments to which Re:50und Tariff 6 would apply were sampled in this survey? Can you confirm whether adult entertainment venues have a larger capacity, on average, than discotheques, in the sample provided as an appendix to Exhibit NRCC-9?
Questions to Goodlife Fitness Centres Inc. and the Fitness Industry Council of Canada
To Mr. Richard P. Boggs
Provide a copy of the standard recording contract performers sign before making a recording with you.
To Mr. Dan Brodbeck
Provide a copy of the standard recording contract performers sign before making a recording with you.
To Mr. Malcolm Black
How many sound recordings, other than sound recording you produce yourself, do you licence in any given year?
Is Les Mills Music Licensing Limited represented by Phonographic Performances New Zealand (PPNZ)? If so, provide the representation agreement.
Are some of the licensed recordings you use owned by persons represented by PPNZ? If so, can you provide the Board with a copy of the standard PPNZ representation agreement.
Questions to all parties
Question A
Document the chain of title for the rights in performers' performances or sound recordings contained in any of the 11 recordings the entitlement to which Ms. Tay and Mr. Black have debated (in exhibits GL/FIC-14 and Re:Sound 22), including
- performers' contracts;
- any contract between a performer or maker (or their successors in title) and a collective;
- any licensing agreement between the original maker and a Canadian entity; and
- an indication of whether the recording is eligible for the purposes of s. 19.
The intention is to provide the Board with a complete paper trail to determine whether or not, and to what extent, a recording may be in the repertoire of Re: Sound.
Question B
According to paragraph 67 of Exhibit NRCC-6, the equitable tariff rate is identified as the product of four terms:
1. The share of value (i.e. incremental profit) due to rights holders;
2. The proportion of willingness to pay that is due to the use of recorded music;
3. The absolute value of the price elasticity of demand for the product of a profit-maximizing fitness club; and
4. Qne minus the ratio of total variable cost to total revenue for a fitness club.
However, equation (5") on page 19 of the Exhibit appears to imply that the product of the third and the fourth of these pieces of information is always equal to one (1). If so, the equitable tariff would be independent both of the cost data supplied in the interrogatories and of the elasticity of demand. Moreover, given a proportion of willingness to pay due to the use of recorded music, the only determinant of the equitable tariff would appear to be the assumed share of value due to rights holders.
Is this interpretation of the model correct? If not, please explain why.
Question C
Qn page 16 of Exhibit NRCC-2, the following statement is made:
"For the past several years, the percentage of underground clubs in North American cities has declined to the point where I would estimate that 90% of all Canadian clubs largely program Top 40 recordings, 5% exclusively feature underground forms of EDM while another 5% could be termed mixed clubs where, depending on the night, either Top 40 or underground EDM will be played."
Can the parties supply evidence of the prevalence of Top 40 music in Canadian clubs other than the statement of the author of NRCC-2? Given that Tariff 6 would apply to all dance venues, including restaurants, hotels, bars, and adult entertainment venues, and not just dance clubs, can the parties supply evidence of the prevalence of Top 40 music in this broader set of locations?
April 14, 2010
RULING OF THE BOARD
The April 6, 2010 application by Re:Sound to strike the last sentence of paragraph 43 of the statement of case of ABLE BC and to prohibit ABLE BC from introducing testimony and making recommendations at the hearing regarding the ability to pay of dance venues is denied.
As was stated in the Ruling of November 25, 2009, since ABLE BC provided very little information in response to some interrogatories, its ability to address certain issues may be significantly curtailed. That being said, to curtail and to deny are two different things. ABLE BC will be allowed to proceed with its evidence and argument, subject as usual to the directions of the panel. It will
also be up to the panel to determine whether, and to what exent, the (lack of) responses on the part of ABLE BC should influence the weight or credibility to attribute to its evidence and arguments.
March 12, 2010
RULING OF THE BOARD
The March 8, 2010 application of the intervenors FIC (The Fitness Industry Council of Canada) and Goodlife (Goodlife Fitness Centres Inc.) is dismissed, substantially for the reasons set out in the March 9, 2010 response of Re:Sound to the application.
This is a further attempt to delay the proceedings well beyond what is reasonable. The Board has been more than accommodating in granting FIC adjournments and extensions of time in these proceedings. Public interest commands that this matter now proceed according to the established timetable.
The extremely remote possibility that the intervenors or unrepresented users may be prejudiced as a result of Re:Sound's proposed changes is best dealt with in the final decision. If the proposed changes are procedurally problematic, they can simply be ignored. If the new proposed rate is too Wide, it can be narrowed. If the proposed changes result in some users being asked to pay more royalties than under the published proposed tariff, royalties can be capped. Nothing is achieved by taking the intervenors' proposed course of action, except giving them the time extension they have already been denied in previous applications.
The intervenors' argument based on the difference in wording between subsections 67.1(5) and 66.6(2) and (3) of the Copyright Act is entirely without merit. The obligation to publish proposed statements of royalties has been worded in similar terms since the 1930'S, long before subsection 66.6(3) was introduced in 1988. The Board has frequently made substantial changes to proposed tariffs without re-publishing the new proposals. Court decisions that pre-date the adoption of subsection 66.6(3) have recognized that the Board may do so.
If intervenors' submission was correct, Parliament could have changed the way the Board has conducted the examination of tariffs for nearly 75 years, with the approval of the reviewing courts, by means of a simple modification.
The intervenors are reminded that their participation is allowed "in so far as the Board finds it useful". Dilatory applications are not useful.
March 11, 2010
ORDER OF THE BOARD
Goodlife's request (attached) is granted:
Please find attached a corrected version of the letter sent to you this morning by Goodlife. The first sentence of the second paragraph now reads: "Therefore, Goodlife proposes an amendment to the September 30 Board order, to the effect that the order will also apply to the Highly Confidential information disclosed by Goodlife to external counsel retained by FIC and to experts jointly retained by Goodlife and FIC." Please reply directly to arush@he.man.ca with any questions.
Attachment: NRCC Dance and Fitness Tariff 10 mars 2010.pdf
March 1, 2010
ORDER OF THE BOARD
Substantially for the reasons set out in NRCC's letter of February 19, 2010, the application by the FIC and Goodlife for an extension of time to file their case and to postpone the start of the hearings in the above-referenced matter is denied.
Given that NRCC now consents to Dr. Corbin being retained by the intervenors, there is no need to deal with the intervenors' application in this respect. It will be sufficient for Dr. Corbin to confirm that she has destroyed all copies of the materials she received from Ms. Perfetto in relation to NRCC's proposed retainer in these proceedings.
February 22, 2010
RULING OF THE BOARD
NRCC’s request to file the report is granted.
February 4, 2010
ORDER OF THE BOARD
If NRCC wishes Mr. Mak to access Goodlife's unredacted financial statements, it shall first provide Goodlife a list of clients which Rosen & Associates or Mr. Mak have represented in the fitness or related industry, but only to allow Goodlife to identify any possible conflict of interest. If Goodlife is of the view that a conflict exists, it shall so inform NRCC forthwith, with reasons for this conclusion. If NRCC still wishes Mr. Mak to access the statements, it shall, within 48 hours of receiving Goodlife's reasons, provide the Board with these reasons and with NRCC's response.
The Board has no intention to impose any of the other conditions Goodlife wishes to be applied before allowing disclosure of its financial statements to Mr. Mak.
January 29, 2010
NOTICE OF THE BOARD
Further to the parties' requests, the schedule of proceedings is revised as follows:
Filing of NRCC's case: no later than Friday, February 5, 2010
Filing of Objectors' case: no later than Thursday, April 1, 2010*
Filing of NRCC's reply to ABLE BC: no later than Friday, April 16, 2010
Filing of NRCC's reply to others: no later than Wednesday, April 21, 2010
Beginning of hearing: Tuesday, April 27, 2010 at 10:00 a.m., Copyright Board's hearing room.
* Friday, April 2, is a holiday (Good Friday).
January 27, 2010
RULING OF THE BOARD
The Order requiring Goodlife to provide forthwith unredacted versions of its financial statements is confirmed.
January 25, 2010
The January 22, 2010 application of Goodlife for consideration of the extent of its productions to date is granted. Goodlife shall produce forthwith the documents referred in paragraphs (i) to (iii) of its letter. The Board will decide how to proceed with this mater after having examined the documents.
January 15, 2010
RULING OF THE BOARD
The December 23, 2009 application by NRCC to reconsider the Board's ruling of November 25, 2009 respecting its question 26 is denied.
Goodlife's letter of January 8, 2010 raises again the issue of whether Goodlife can supply redacted financial statements in response to NRCC's question 5. The Board's ruling of November 25, 2009 stands. NRCC is entitled to unredacted statements if it so wishes. Goodlife is asked not to raise the issue any more.
Goodlife's letter also engages in a further discussion about obtaining the catalogue of NRCC's repertoire. This is a new question that need not be addressed, if only to state two things. NRCC is of course free to provide evidence of the use of its repertoire in that market with its case. Second, Goodlife can readily develop a fairly precise understanding of the extent of NRCC's repertoire by reading the Board's decision of August 13, 1999 which can be found at http://www.cb-cda.gc.ca/decisions/1999/19990813-m-b.pdf especially part V.B.
January 4, 2010
This is further to NRCC's request of December 23 (on which you were copied) to have the Board reconsider its ruling of November 25, 2009 in respect of NRCC's Interrogatory 26, The Board would appreciate your comments by no later than noon Friday, January 8, 2010, Thank you.
November 25, 2009
RULING OF THE BOARD
This ruling deals with the motions of NRCC and Goodlife Fitness Centres Inc. ("Goodlife") regarding incomplete and unsatisfactory responses to interrogatories as well as with NRCC's request to provide Professor John McHale with Highly Confidential Information.
A) NRCC Interrogatories to Goodlife
Question 5: The information is relevant and potentially useful. Confidentiality is not a ground on the basis of which a party can refuse to respond to an interrogatory.
The confidentiality issues Goodlife raises are legitimate but can be addressed at a later stage in the proceedings. They do not justify preventing NRCC's expert from having access to the information to prepare his evidence. Once the report is ready, Goodlife can be given the opportunity to review it to ensure that its confidential information is not disclosed on the public record or circulated to potential competitors. A refusal to disclose the information will result in Goodlife’s ability to advance any argument dealing with ability to pay or financial hardship being heavily curtailed.
Question 6: Goodlife shall obtain SOCAN's consent to disclose the information.
Question 25: The complaint is dismissed. The question has been answered.
Question 15: Goodlife shall identify with precision the orientation package. Otherwise, the complaint is dismissed. The question has been answered, though it is difficult to believe, based on what the Board knows of the operations of health clubs in general and of Goodlife in particular, that a T-shirt and gym bag constitute all of the orientation materials used by Goodlife. If anything else is available to potential and new members in the clubs that will be selected to respond to question 23, it should be provided.
Question 17: Goodlife shall provide the list it proposes wherein the locations shall be identified. The list shall be treated as confidential.
Question 18: The alternative Goodlife proposes is sufficient.
Question 26: Respecting financial statements, see question 5. The complaint respecting quantification is dismissed as it requests information in a form that does not exist.
B) NRCC Interrogatories, Part A
CRFA Answers to Part A of NRCC Interrogatories
Questions 6-7:The complaints are dismissed. The questions have been answered.
C) NRCC Interrogatories, Part B (Questions to individual members)
There is no threshold to meet insofar as membership participation rate to have standing before the Board as representative of prospective users. The objectors made reasonable efforts to secure and provide answers from their members; they are not required to make further efforts to maintain their standing in these proceedings. However, the objectors' ability to address certain issues may be significantly curtailed if they cannot secure a higher rate of participation from their members.
FIC is asked to contact the following witness venues: Woman's Place Fitness group to inquire about the schedules NRCC reports as missing; Fitness Unlimited to specify which venue is described and to provide the specification requested in respect of Interrogatory 14.
D) Goodlife's Interrogatories to NRCC
With the exception of questions 60 and 61, Goodlife/FIC did not submit any of NRCC's objections to the Board for a ruling in accordance with the procedure set by the Board, even after having been granted an extension of time. Consequently, Goodlife's motion is dismissed on the grounds that the objections are untimely.
In any event, interrogatories 15, 17, 20, 21, 26, 30, 57 and 59 would be dismissed on the basis that they are not relevant, as would interrogatories 22-25, 27-29, 37-41, 43-46, 48-51 and 53, some of which may be appropriate in the context of discoveries but are not in the context of interrogatories, while others are the equivalent to motion for particulars. In due course, the information being sought may be filed as part of NRCC's case. Where NRCC has stated that it will file the requested information with its case (interrogatories 34, 35, 60 and 61), the Board expects it to do so.
Interrogatory 54 is relevant and had the objection been filed in a timely fashion, NRCC would have been ordered to provide what it has, as it is.
E) Continuing Participation of Gillett, BCRFA and VHA in the Proceedings
NRCC served interrogatories on Gillett Entertainment Group and L'Aréna des Canadiens Inc. ("Gillett"), British Columbia Restaurant and Foodservices Association (BCRFA) and Vancouver Hospitality Association (VHA) on July 10, 2009. None of these objectors responded or objected to the interrogatories. Unless the objectors respond by November 27, 2009, they will be precluded from further participating in the proceedings without leave from the Board.
F) Professor McHale's Access to Goodlife Financial Data
Professor McHale shall be entitled to have access to all of the information filed by Goodlife. Confidentiality issues raised by the evidence Professor McHale might file can be addressed in due course.
September 30, 2009
ORDER OF THE BOARD
This is further to Ms. Rush's letter of September 25, 2009 (attached).
This order deals strictly with responses to interrogatories. Responses are not provided to the Board. Consequently, references to the Board receiving interrogatories have been removed.
The way in which the parties propose to deal with highly confidential information is acceptable at this stage. Parties are reminded however that in documents filed with the Board as part of the evidence, the specific passages of a document or page which are claimed to be confidential must be highlighted in yellow or blue as appropriate. Claiming confidential treatment for every element of a document or page is not acceptable.
ORDER
The Order of September 21, 2009 is amended by adding the following, which applies only to information supplied by Goodlife to NRCC and vice versa.
16. Any information/materials characterized by a Supplier as "Highly confidential Information" shall be marked as such, and released only to NRCC (external and internal) counsel who have executed a confidentiality agreement ("Authorized Persons") and to no other person. No copies shall be made by or under the direction of any persons other than Authorized Persons.
17. The Highly Confidential Information shall be highlighted in blue or printed on blue paper and shall be delivered and retained by the Authorized Person in a sealed envelope. Without limitation, there shall be no disclosure of such highly confidential information to any person other than an Authorized Person, without prior written authorization of the Supplier or order of the Board.
18. The sealed envelope shall only be opened and viewed by an Authorized Person and by no other person (i.e., anyone including experts who are not Authorized Persons).
19. Once an Authorized Person has opened a sealed envelope and reviewed the contents of the envelope, the Highly Confidential Information shall then be returned to the envelope and retained in the sealed envelope, which will be resealed, where it will be retained throughout the proceedings.
20. Once the proceedings are terminated for any reason, all sealed envelope(s) shall be returned to the Supplier.
Attachment: Letter of September 25, 2009.pdf
September 21, 2009
ORDER OF THE BOARD
As requested by NRCC on September 16, 2009, attached is the Board's Order dealing with information requested during the interrogatory exchange process for which confidential treatment may be claimed.
Attachment: Order of the Board September 21, 2009.pdf
September 21, 2009
The request to extend the deadline to September 30, 2009 is granted to ABLE BC only, ABLE BC shall file its responses to interrogatories by no later than Wednesday, September 30, 2009:
Given the lateness of this ruling I would like to request more time to reply. We are just now formulating the request to our members as until Thursday we did not know what we were requesting.
I would like to request the ability to reply by September 30th.
September 17, 2009
Please note the First line of the Ruling should have read as follows:
"Many of NRCC's questions to the objectors go well beyond asking existing documents and information", and not "Any of NRCC's questions ... ".:
RULING OF THE BOARD ON OBJECTIONS TO INTERROGATORIES
GENERAL
Any of NRCC's questions to the objectors go well beyond asking existing documents and information. As a rule, objectors are required to respond by providing only what they have, in the form that they have it and need not create documents. That being said, the Board appreciates any effort on the objectors' part to address questions that are relevant for which a straightforward answer can be readily prepared.
Furthermore, discovery before the Board need not be as thorough as before a court of law: objectors need only provide a reasonable amount of relevant information.
QUESTIONS TO THE FITNESS INDUSTRY COUNCIL OF CANADA (FIC)
NRCC's consent to the offer of FIC to make reasonable efforts to get answers makes it unnecessary to deal with the objections for the time being.
Questions 43 and 44 clearly are not appropriate and need not be answered, unless a person already maintains that information.
OUESTIONS TO GOODLIFE FITNESS CENTRES
The objections are dismissed substantially for the reasons set out in NRCC's reply. The information asked is potentially relevant. To the extent the questions are duplicative, Goodlife can indicate the way in which the answer has already been provided.
Again, any question asking Goodlife to develop or keep a log of sound recording uses would be inappropriate and need not be answered, unless Goodlife already maintains that information.
QUESTIONS TO ABLE BC
Question 5: the objection is dismissed.
Question 6: the list of ABLE members involved in operating dance venues shall be provided if it exists. ABLE is not required to inquire of its directors, officers and employees about the identity of ABLE members known by them to operate dance venues.
Questions 9 to 36 and 39: ABLE shall make reasonable efforts to contact a sample of no more than 10 members, to be agreed upon with NRCC, to obtain a reasonable amount of information. In order to avoid confidentiality issues that might arise because ABLE is not represented by counsel, members who are asked to answer questions shall have the option of sending the information directly to NRCC.
Questions 37 and 38 clearly are not appropriate and need not be answered, unless a person already maintains that information.
April 27, 2009
NOTICE OF THE BOARD
Further to the Board's notice of March 31, 2009, attached is the Directive on Procedure. We draw your attention to the fact that the electronic version of evidence (on CD-ROM, DVD or USB key) must be filed with the Board with the hard copies 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.
Attachment: Notice of the Board (27-04-2009).pdf
March 31, 2009
NOTICE OF THE BOARD
The Board adopts the following revised schedule of proceedings which has been agreed upon by all interested parties, leading to a hearing beginning April 27, 2010.
Filing of interrogatories: no later than Friday, July 10, 2009
Filing of objections to interrogatories: no later than Friday, July 31, 2009
Filing of replies to objections to interrogatories: no later than Friday, August 14, 2009
[Board ruling on objections to interrogatories]
Filing of responses to interrogatories: no later than Friday, September 25, 2009
Filing of motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, October 16, 2009
Filing of replies to motions: no later than Friday, October 30, 2009
[Board ruling on motions]
Filing of complete/satisfactory responses to interrogatories: no later than Friday, November 27, 2009
Filing of NRCC's case: no later than Friday, January 29, 2010
Filing of Objectors' cases: no later than Friday, March 26, 2010
Filing of NRCC's reply case: no later than Friday, April 16, 2010
[To be determined: pre-hearing conference]
Beginning of hearing: Tuesday, April 27, 2010 at 10:00 a.m., Copyright Board's hearing room.
The Directive on Procedure will follow shortly.
March 3, 2009
NOTICE OF THE BOARD
In light of the recent correspondence received from NRCC and the Fitness Industry Council of Canada, the Board adopts the following schedule of proceedings leading to a hearing beginning February 9, 2010.
Filing of interrogatories: no later than Friday, May 29, 2009
Filing of objections to interrogatories: no later than Friday, June 5, 2009
Filing of replies to objections to interrogatories: no later than Friday, June 12, 2009
[Board's ruling on objections to interrogatories]
Filing of responses to interrogatories: no later than Friday, July 31, 2009
Filing of motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, August 14, 2009
Filing of replies to motions: no later than Friday, August 21, 2009
[Board's ruling on motions]
Filing of complete/satisfactory responses to interrogatories: no later than Friday, September 11, 2009
Filing of NRCC's case: no later than Friday, October 16, 2009
Filing of Objectors' cases: no later than Friday, December 18, 2009
Filing of NRCC's reply case: no later than Friday, January 22, 2010
[To be determined: pre-hearing conference]
Beginning of hearing: Tuesday, February 9, 2010 at 10:00 a.m., Copyright Board's hearing room.
The Directive on Procedure will follow shortly.
February 9, 2009
NOTICE OF THE BOARD
This is further to Mr. Rob McDonald's email of February 9, 2009 requesting on behalf of FIC that they be allowed until February 27, 2009 to file a proposed schedule. The request is granted.
February 2, 2009
RULING OF THE BOARD ON NRCC TARIFF 6
Further to Mr. Bloom's letter of October 24, 2008 (attached), the Board severs the examination of Tariff 5 (Use of Music to Accompany Live Events) from that of Tariff 6 (Use of Music to Accompany Dance and Fitness).
The application for leave to intervene, with full participatory rights, of the persons mentioned in the attached list is granted.
No later than on Friday, February 13, 2009, the parties shall file with the Board either an agreed proposal for a schedule of proceedings leading to a hearing starting no later than in December 2009, or a statement or statements explaining why they were unable to come to an agreement on a proposed schedule.
To help in preparing the schedule, attached is a document listing all the steps to be taken into consideration. The model directive on procedure can be found at: http://www.cb-cda.gc.ca/aboutus/directive-e.html.
NRCC shall answer the Board’s questions of March 28, 2008 (attached) in its evidence in chief.
Attachments: Majeau Letter.pdf; List of Parties.pdf; NRCC Tariffs 5 and 6 (2008-2012) - Questions of the Board.pdf; NRCC Tariffs 5 and 6 Tables.pdf
March 28, 2008
NOTICE OF THE BOARD
The Board has the following questions regarding the proposed NRCC Tariff 5 (Use of Music to Accompany Live Events) and NRCC Tariff 6 (Use of Music to Accompany Dance and Fitness) for the years 2008 to 2012.
Questions to NRCC
1. The Board wishes to obtain your comments on the application of NRCC Tariffs 5 and 6 to various types of music use. With respect to each example set out in the attached tables, please answer the following questions:
a. Is the event described representative of the type of activity it purports to represent? If not, please provide your own representative examples.
b. Are the SOCAN and NRCC tariffs being applied to the event the relevant ones? Have they been applied correctly?
c. How can the differences between SOCAN and NRCC payments for each event be justified?
2. What should be the correlation between NRCC Tariffs 5 and 6 and NRCC Tariff 3 (Use and Supply of Background Music)? Put another way, what should be the relation between the value of the use of a sound recording as background music and during a live event?
3. Please provide scenarios where an establishment would be subject to two or more of NRCC Tariffs 3, 5 or 6.
4. Please provide an assessment of the impact NCRR Tariffs 5 and 6 could have on users.
Questions to the Hotel Association of Canada (HAC)
HAC is asked to provide answers to above questions, but only in respect of NRCC Tariff 5 to which it objected.
The Board expects to receive the information from both parties as soon as possible. Accordingly, we would appreciate knowing when you will able to respond to the above questions. Thank you.
Attachment: NRCC Tariffs 5 and 6 Tables.pdf
Private Copying 2011
December 17, 2010
(Le texte français suit/The French text follows)
Please be advised that the Board has certified a Tariff and issued Reasons for Decision with respect to the above captioned file. A copy of the Reasons for Decision is attached.
As required, the Tariff will be published in the Canada Gazette on Saturday December 18, 2010. Both the Reasons for Decision and Tariff documents will be posted on the Board's Website shortly.
______________________________
Par la présente, je vous informe que la Commission a homologué un tarif et émis des motifs de décision dans le dossier cité en rubrique. Une copie des motifs est annexée.
Tel que requis, le tarif sera publié dans la Gazette du Canada le 18 décembre 2010. Le tarif et les motifs seront également disponibles sur le site Web de la Commission, d'ici peu.
Attachment: Reasons / Motifs
October 4, 2010
In response to CPCC's letter of September 20, 2010, CPCC is asked to provide updates, with the best data already in its possession, of the following evidence which was submitted for Private Copying 2010:
A) CPCC-11: Update of Table Provided in the Appendix to the Board's Decision of December 5, 2008, filed in Response to Question 9(a) of the Board's Order of September 22, 2009.
B) CPCC-12: Updated Paragraphs from Exhibit CPCC-5, Private Copying Tariff: 2008-2009, Relevant to Recalculations of the 2010 CPCC Tariff filed in Response to Question 9(b) of the Board's Order of September 22, 2009. In particular, CPCC shall update paragraph 84A to 84L of CPCC-12 which pertains to the adjustment for value added through selection of individual tracks. CPCC shall also provide possible alternative proxies that would tend to confirm that the price structure used by the online music services is a reflection of both the value of the selection of individual tracks and of the adjustment needed to account for this value.
C) CPCC-14: Update of tableaux 4.5, 4.10 and 5.2 of Exhibit CPCC-3 of the Private Copying 2008-2009 Proceeding, filed in Response to Question 9(c) of the Board's Order of September 22, 2009.
In addition, CPCC shall provide any information pertaining to the use of MiniDiscs for the purpose of private copying, and in particular, an update of Table 5 of CPCC-12 with respect to MiniDiscs.
CPCC shall file the requested information by no later than November 12, 2010. CPCC is not required to supply a Statement of Case at this time.
Attachment: CPCC Letter of September 20, 2010
Private Copying 2010
November 2, 2010
[La version française suit l'anglais]
Please find attached a copy of the Reasons issued today with respect to the Private Copying Tariff for the year 2010, which was certified on May 29th. These reasons will be posted shortly on the Board's Web site under "What's New" at the following address: http://www.cb-cda.gc.ca/home-accueil-e.html.
______________________________
Vous trouverez annexée au présent courriel une copie des motifs à l'égard du tarif de la copie privée pour l'année 2010, lequel a été homologué le 29 mai dernier. Ces motifs seront affichés sous peu sur le site Web de la Commission sous « Quoi de neuf» à l'adresse suivante: http://www.cb-cda.gc.ca/homeaccueil-f.html.
Attachment: Reasons / Motifs
May 28, 2010
[Le texte français suit l'anglais]
The Board has certified the Private Copying Tariff for the year 2010. It is posted on the Board's Web site under the heading "What's New, Recent Decisions" at: http://cb-cda. gc.ca/home-accueil-e.html. Reasons will follow shortly.
The following "Note to readers" will appear in the tariff:
"(2) In this tariff, the rate for CD-Rs, CD-RWs, CD-R Audios, CD-RW Audios and MiniDiscs remains the same as in the interim Private Copying Tariff for 2010. All CD-Rs, including so-called professional CDs, remain subject to the tariff. Audio cassettes of 40 minutes or more in length are no longer subject to the tariff. The distribution of levies to collective societies is modified."
______________________________
La Commission a homologué le tarif pour la copie privée pour l'année 2010. Il est affiché sur le site Web de la Commission sous « Quoi de neuf, Décisions récentes » à : http://cb-cda. gc.ca/home-accueil-f.html. Les motifs suivront sous peu.
La « Note au lecteur » suivante paraîtra dans le tarif :
« (2) Dans le présent tarif, le taux de la redevance pour les CD-R, CD-RW, CD-R Audio, CD-RW Audio et MiniDisc demeure le même que celui du tarif provisoire pour la copie privée 2010. Tous les CD-R, y compris ceux dits CD professionnels, demeurent assujettis au tarif. Les cassettes audio d'une durée de 40 minutes ou plus ne sont plus assujetties au tarif. La répartition des redevances entre les sociétés de gestion est modifiée.»
November 23, 2009
Please be advised that the attached letter of comments, filed with the Board on November 23, 2009 by Mr. Chris Tran, Sales Manager, Computer Ultra Dist. Inc., has been made part of the public record of the Private Copying 2010 proceedings.
Attachment: Letter of Comment
November 23, 2009
Please be advised that the Board will not need to hear any witness.
November 20, 2009
CPCC's application to file supplementary material is granted. The material shall be served to ZEI and filed with the Board by noon, Monday, November 23, 2009.
November 19, 2009
In response to CPCC's email of November 16, 2009 and ZEI's response of November 18, Messrs. Malcolm and Kuczynski are dispensed from attending the hearing.
November 18, 2009
For ease of reference during the upcoming hearing, parties are asked to submit at the beginning of the hearing, six copies of a compendium of the excerpts from evidence they intend to refer to during the hearing.
ZEI's compendium shall consist of and be tabbed as follows:
1. ZEI Memorandum
2. Danielle Gravel Affidavit of September 5, 2008
2.A (DG-2), (DG-3), (DG-4), (DG-5), (DG-14) and (DG-15): Relevant excerpts from the
corresponding exhibits to Danielle Gravel Affidavit of September 5, 2008
3. Laurie Gelbloom Affidavit dated October 21, 2008
3.A (LG-2), (LG-3) and (LG-5): Relevant, limited excerpts from the corresponding exhibits to Laurie Gelbloom Affidavit dated October 21, 2008
4. Laurie Gelbloom Affidavit dated December 11, 2008
4.A (LG-2), (LG-3), (LG-4), (LG-6) and (LG-7): Relevant, limited excerpts from the corresponding
exhibits to Laurie Gelbloom Affidavit dated December 11, 2008
5. Relevant excerpts of Cross-Examination of Laurie Gelbloom of November 13, 2008
6. Relevant excerpts of NextMedia report (tab H28)
7. Relevant, limited excerpts from the two most recent SCCG reports
And thereafter, relevant excerpts of any other evidence ZEI intends to refer to.
CPCC's compendium shall consist of and be tabbed as follows:
1. CPCC's Memorandum
2. Benoit Gauthier Affidavit
3. (LG-7): Relevant, limited excerpts from the corresponding exhibit to Laurie Gelbloom Affidavit
dated October 21, 2008
4. Relevant excerpts of Danielle Gravel Cross-Examination
5. (LG-3), (LG-4), (LG-5), (LG-6) and (LG-7): Relevant, limited excerpts from the corresponding
exhibits to Laurie Gelbloom Affidavit dated December 11, 2008
And thereafter, relevant excerpts of any other evidence CPCC intends to refer to.
There is no need to produce the Report by Media Sciences Inc., the ZEI Preliminary Statement of June 16, 2008 or any of the evidence recently filed by the parties.
November 13, 2009
RULING OF THE BOARD
There is no need for CPCC to respond to ZEI's application to file three documents as additional evidence. The application is granted. ZEI shall file and serve the required copies of the documents no later than by noon on Monday, November 16, 2009.
November 3, 2009
ORDER OF THE BOARD
Please find attached the Board's Order dealing with information exchanged during the 2010 tariff hearing for which confidential treatment may be claimed.
Attachment: Confidentiality Order
October 29, 2009
ORDER OF THE BOARD
This order deals with the issues raised in CPCC's letter of October 21, ZEl's response of October 22 and CPCC's further letter of October 27 with respect to the Board's order of September 22, 2009 and the upcoming hearing of November 24, 2009.
No later than on Tuesday, November 3, 2009, CPCC shall file the information requested in paragraph 8 of the Board's order, Mr. Malcolm's witness statement and a written explanation of the justification, methodology and calculation for the value CPCC proposes to be attached to the option to reproduce a single music track.
No later than on Friday, November 6, 2009, CPCC shall file the information requested in paragraph 9 of the Board's order. By that same date, CPCC shall (a) produce with the Board every CD product (i.e., multiple CDs being sold in a single package) containing 50 units or more, still in CPCC's possession, purchased by CPCC or its agents (including investigators) and referred to in the evidence of Ms. Gelbloom or of the investigators, and (b) supply to ZEI and the Board colour photos of these CD products showing both how the product is packaged and (to the extent that this can be done without opening the packaging) whether the blank CD contained in the product bear individual markings.
After examining the documents filed by CPCC on November 3 and 6, the Board will determine whether CPCC's proposed single music track option might affect the conduct of the proceedings and if so, to what extent.
Any application to file additional evidence on the part of ZEI shall be filed no later than on Friday, November 13, 2009. By that same date, ZEI shall (a) produce with the Board three to five CD products each of what it considers to be branded and unbranded CDs, and (b) supply to CPCC and the Board colour photos of these CD products showing both how the product is packaged and whether the blank CD contained in the product bear individual markings.
The parties may deliver their responses to question 7 as part of the outline of argument to be filed no later than on November 17, 2009, which need not be limited to 10 pages.
CPCC shall ensure that Ms. Gelbloom and Messrs. Audley, Gauthier and Malcolm are available for questioning. ZEI shall ensure that Ms. Gravel is available for questioning. The Board will advise the parties no later than on Friday, November 20, 2009 whether these persons must attend the hearing.
September 22, 2009
ORDER OF THE BOARD
1. The application by Z.E.I. Media Plus Inc. (ZEI) to vary the private copying tariffs for 1999 to 2007 is denied. Reasons will follow.
2. The 2008-2009 tariff has been certified. Consequently, the matter is no longer before the Board. The decision to certify the tariff was partly based on CPCC's undertaking to return to reporting companies, with interest, any levies which may have to be refunded as a consequence of the Board's decision in the ZEI matter. Now that the application to vary the 1999-2007 tariffs has been denied, two courses of action are open to ZEI in dealing with the issue of professional CDs for 2008-2009. It can rely on CPCC's undertaking. Alternatively, it can file an application to vary the 2008-2009 tariff. If such an application is filed, it will be addressed at the same time as the proposed tariff for 2010.
3. Since the issues for 2010 are essentially the same as those raised by ZEI in the 2008-2009 proceedings, and since all that CPCC asks for in 2010 is what the Board certified for 2008-2009, the matter will proceed on the basis of the filings of ZEI and CPCC for 2008-2009, subject to what follows. The parties will not be allowed to file additional evidence, unless with leave or at the request of the Board.
4. The memoranda that ZEI and CPCC respectively filed on March 9 and March 27, 2009 are amended as follows, to remove materials that are no longer relevant to the matters that remain under examination.
ZEI MEMORANDUM: Only paragraphs 12, 16 to 22, 24, 80 to 101, 104 to 112, 116 to 126, 130 to 151 and 243 remain. The introductory clause of paragraph 140 is amended to read: "Z.E.I. submits that, in light of the evidence, the definition of 'blank audio recording medium', item (ii) should be amended to read:". The introductory clause of paragraph 243 is amended to read: "For all the foregoing reasons, Z.E.I. respectfully requests that the definition of 'blank audio recording medium', item (ii) of the private copying tariff read:"
CPCC MEMORANDUM: Only paragraphs 17, 42 to 48, 49 (first two sentences), 70 to 81, 83 to 105 and 109 (second sentence) remain.
Amended versions of the memoranda are attached.
5. The Board is available to hear this matter beginning on Tuesday, November 24, 2009.
6. The object of the hearing will be to lead any additional evidence the Board might allow or request be filed, to obtain answers to any questions the Board might have and to hear arguments.
7. More specifically, the parties will be expected to address the following issues:
(a) Which characteristics can be used to distinguish between various types of recording media?
Tangible? Intangible?
Intrinsic or non-intrinsic?
Physical?
Material form?
Branding?
Technology?
Storage capacity?
Packaging? (jewel vs. shrinkwrap, amount of units, appearance, sturdiness, compliance with packaging legislation and regulations)
Labelling?
Distribution channels?
Marketing strategy?
Client identity?
Other characteristics? (GST registration)
(b) Is there sufficient evidence on the record of these proceedings to conclude that there exists a type of blank CDs that presents one or more relevant characteristics which have not been accounted for to date and that are not ordinarily used by individual consumers to copy music?
(c) If the answer to (b) is yes, should the tariff account for this type of CDs? And If so
(i) how should the tariff be worded to account for such CDs?
(ii) how can the current reporting requirements be modified to minimize grey or black market transactions and to otherwise ensure the integrity of the regime?
8. CPCC shall prepare a table that breaks down separately, for 2008, levied and zero-rated blank CDs according to any information obtained by CPCC pursuant to paragraph 8(d) of the tariff including brand, packaging (Jewel vs. shrinkwrap, amount of units, appearance, sturdiness, compliance with packaging legislation and regulations), branding and "any other characteristics according to which the entity filing the report seIls the medium or identifies it in its inventory."
9. CPCC shall also update, with the best data already in its possession,
(a) the table provided in the Appendix to the Board's decision of December 5, 2008,
(b) the paragraphs in Exhibit CPCC-5 of the Private Copying 2008-2009 proceedings that are relevant in respect of the updated table referred to in (a),
(c) tableaux 4.5, 4.10 and 5.2 of Exhibit CPCC-3 of the Private Copying 2008-2009 proceedings.
10. The parties will not be asked to file a further memorandum. Subject to what follows, CPCC shall file the evidence referred to in paragraphs 8 and 9 no later than on Tuesday, November 3, 2009 and earlier if at all possible. Parties shall file an outline of argument addressing the issues relevant to these proceedings no later than on Tuesday, November 17, 2009. The application of April 3, 2009 of ZEI to file a supplementary record is denied. ZEI can reply to CPCC's response during its argument.
11. The Board will consider a revised schedule if CPCC concludes that it cannot comply with the timetable set out in this order without compromising the quality of the additional evidence it will be filing. In deciding whether to file a revised schedule, CPCC should keep in mind that the Board may not be able to certify the 2010 tariff before the end of 2009 even if the parties comply with the timetable set out in this order.
Attachments: CPCC Response Amended ; ZEI's Memorandum of Fact and Law Amended
Private Copying (2008-2009)
May 22, 2009
Mr. Collier,
The Board will dispose of the matter in due course.
Attachment: CPCC Letter of May 22, 2009
April 8, 2009
Please be advised that the Board will not dispose of either requests before it has fully analyzed the file.
Attachment: Requests
March 25, 2009
The Board authorizes CPCC to file a 35-page memorandum.
March 5, 2009
This is further to Z.E.I.'s request of March 4, 2009. The Board allows Z.E.I. to file, no later than by 5 p.m. on Monday, March 9, 2009, a document indicating, next to the number of each paragraph in its memorandum, the reference to the relevant passages in its application record which, according to Z.E.I., support the statement made in the paragraph.
March 2, 2009
Me Collier:
The Board relieves CPCC of the obligation to include additional copies of what was previously filed when it replies to Z.E.I.'s application record.
Attachment: CPCC Email of February 27, 2009
February 26, 2009
Motion is granted.
Attachment: ZEI Motion
February 25, 2009
RULING OF THE BOARD
Z.E.I.'s request is granted.
Attachment: ZEI Request
February 19, 2009
Z.E.I.'s application for additional time to file its application record is granted. CPCC's opposition to the application is noted. Z.E.I. remains free to apply for leave to file a longer memorandum if it so wishes.
February 11, 2009
RULING OF THE BOARD
The application of Z.E.I to produce supplementary materials is allowed. Z.E.I. shall file the documents without an accompanying affidavit. The relevance of the documents will be assessed in due course.
February 10, 2009
ORDER OF THE BOARD
Further to the emails received today, the Board orders as follows.
Z.E.I. shall comply with CPCC's request and supply the additional information it now wishes to file to Mr. Collier so that he can decide on his course of action.
February 6, 2009
Granted.
______________________________
Dear Mr. Majeau:
We write to the Board further to the receipt this day of a copy of a letter from Me Collier to the Board disclosing additional documents. From the outset, the undersigned does not believe that its will be necessary to cross-examine Ms. Gelbloom on these additional documents or that these additional documents will prejudice Z.E.I. in connection with the deadline to file its Application Record. We nevertheless request that the Board allow us until Monday February 9, 2009 at noon to consider the impact of these additional documents on Z.E.I.'s Application.
Regards,
Louis Chronopoulos, avocat/attorney
GROSS, PINSKY
2 Place Alexis Nihon
3500 De Maisonneuve, suite 1000
Montréal, Québec
H3Z3C1
January 19, 2009
RULING OF THE BOARD
This is further to Z.E.I.'s letter of January 16, 2009 seeking direction on the conduct of proceedings.
Z.E.I. shall file its application record no later than Friday, February 20, 2009. CPCC shall file its reply no later than Monday, March 23, 2009.
November 27, 2008
RULING
CPCC's application of November 20, 2008 is granted.
Attachment: CPCC Application of November 20, 2008
November 5, 2008
RULING OF THE BOARD
The application of Z.E.I. Media Plus Inc. of November 4, 2008 is granted. The objections of CPCC to the questions asked of Ms. Gelbloom are overruled.
First, some of the documents that Ms. Gelbloom filed with her affidavit contain statements that might lead one to conclude that CPCC knew that certain brands of CDs were not ordinarily used by individual consumers to copy music. See, for example, exhibit LG-12. These statements are sufficient to open the issue to question.
Second, cross-examination is not limited to the four corners of the affidavit. The questions to which CPCC has objected are not simply relevant, they are central to the issues under consideration. Only CPCC knows whether it has information about the characteristics of certain blank CDs that may have led the Board to conclude that these CDs may not be ordinarily used by individual consumers to copy music. These characteristics have been described sufficiently clearly in earlier Board decisions to avoid this becoming a fishing expedition. Among other things, it probably is quite simple for CPCC to compare the number of units of any particular brand that are zero-rated and the number of units of the same brand on which the levy is paid.
Third, counsel for CPCC has, at least once, stated that "CPCC has never withheld relevant information from the Board or the public regarding the use made of blank CD-Rs in Canada." Ms. Gelbloom is the witness CPCC has offered to answer all questions regarding all statements of fact made by CPCC in this matter.
October 29, 2008
ORDER OF THE BOARD
CPCC's application of October 27, 2008 is dismissed as being premature. Any further such application should not be filed until at least 10 days after CPCC has filed its record, so as to allow ZEI to seek leave to file a supplementary record in reply to CPCC's memorandum of fact and law.
Attachment: CPCC Application of October 27, 2008
September 29, 2008
RULING OF THE BOARD
The application of Z.E.I. Media Plus Inc. of September 24, 2008 to file supplementary material is denied.
Counsel for Z.E.I. Media Plus Inc. should note that in matters that proceed by way of application, all evidence is filed by way of affidavit. Witnesses are not heard by the decision maker unless «special circumstances» exist: see Federal Court Rule 316.
September 10, 2008
ORDER OF THE BOARD
Z.E.I. Media Plus Inc. may file its expert report by no later than noon Monday, September 22, 2008.
July 17, 2008
ORDER OF THE BOARD
Z.E.I. Media Plus Inc. (ZEI) has applied to reopen the 2008-2009 Private Copying proceedings and to vary the earlier Private Copying tariffs.
In a notice dated June 25, 2008, the Board identified a number of issues as being raised in ZEI's application. They need not be repeated here. The notice asked the Canadian Private Copying Collective (CPCC) and ZEI to propose a process to deal with the matter. They failed to agree on one. Essentially, CPCC proposed to address the existence of a significant change (6) and ZEI's diligence (9) before anything else according to a process similar to the one the Federal Court uses to deal with applications. ZEI proposed to address the decision to reopen (1), the choice of panel (2) and interim remedies (8) first but made no firm suggestion on a timetable or process, other than that witness statements, not affidavits, be secured.
The order that follows sets out the process according to which this matter will be addressed. It is informed by the following principles and propositions.
First, issues 1 and 2 must be disposed of at the outset. Interim relief can be addressed as and when required. As for the rest, neither ZEI nor CPCC have convinced the Board that the examination of the issues should be split.
Second, since the Board must examine an application to vary earlier tariffs that raises essentially the same issues, it would be awkward to treat the 2008-2009 tariffs differently. Furthermore, as the issues are the same, they are better addressed by a single panel.
Third, ZEI's applications are not plainly without merit.
Fourth, the process CPCC proposed to deal with the issues involved is suited to the purpose, on the whole. For one thing, securing affidavits (on which affiants can be cross-examined) rather than statements might help accelerate the process.
Fifth, the dates set out herein take into account the availability of counsel.
Therefore, the Board orders as follows.
1) The application to reopen the examination of the 2008-2009 tariff is granted.
2) The panel currently examining the 2008-2009 tariff shall dispose of the application to vary the earlier tariffs.
3) The matter shall proceed in a manner consistent with applications to the Federal Court. ZEI shall file its supporting material no later than on Friday, September 5, 2008. The other applicable delays shall be those set out in Federal Court Rules 307 to 310. However, contrary to Federal Court Rule 7, any extension of period shall be only by leave of the Board.
4) The parties are advised that the matter will end if the record leads the panel to conclude, at any time, that professional CDs do not "deserve" to be singled out, that there has been no material change in circumstances or that ZEI's lack of diligence is such that the matter should not proceed as a matter of public policy.
5) With respect to interim relief, it is up to ZEI to demonstrate that it meets the conditions usually applied before the Board, and especially to demonstrate the prejudice that an interim decision would cure.
June 25, 2008
NOTICE OF THE BOARD
On June 16, 2008, the Board received a preliminary statement of case from Z.E.I. Media Plus Inc. (hereafter "Z.E.I"). The statement informs the Board that Z.E.I. intends to seek interim and final relief which would require the Board to reopen the proceedings dealing with CPCC's proposed tariffs for 2008-2009 and to decide whether to vary the private copying tariffs going back to 1999. If the relief sought was granted, the tariffs would no longer apply to some heretofore leviable blank audio recording media because these media are not ordinarily used by individual consumers to reproduce sound recordings. The application is being made in while pre-existing litigation between CPCC and Z.E.I. before the Federal Court of Canada continues.
The Board has examined the preliminary statement. Taking the alleged facts as proven, as would be the case when considering a motion to quash, it appears that the relief being sought is neither plainly frivolous nor, on its face, ultra vires the jurisdiction of the Board.
A first reading leads the Board to conclude that the preliminary statement raises the following issues.
1) Should the Board reopen the examination of CPCC's proposed tariffs for 2008-2009 so as to allow Z.E.I. to argue that certain blank CDs are not "audio recording media"?
2) Should the application to vary the tariff be examined by the panel that is already examining CPCC's proposed tariffs for 2008-2009?
3) Can the private copying tariffs treat certain blank CDs differently than others? If so, on what basis can distinctions be made? Are so-called professional blank CDs a type of CDs that should be treated differently than others?
4) Does the Board have the power to vary now the certified private copying tariffs that applied to the years 1999 to 2007?
5) When a material change in circumstances occurs, how far back can the Board vary the tariffs so as to reflect that change? If the Board were told now of a change that occurred (say) two years ago, could the Board vary the tariff only as of now or could it vary it back to the date then the change actually occurred?
6) If the Board has the power to vary now the certified private copying tariffs that applied to the years 1999 to 2007, is it appropriate to do so in this instance? Specifically, did the examination of Ms. Gelbloom result in a material change in circumstances?
7) What wouId be the impact any changes the Board might make to certified tariffs as a result of the application to vary?
8) Should the application for interim relief be granted?
9) Could Z.E.I. reasonably have been expected to make its application earlier on?
10) Is the Board the appropriate forum to deal with the issues raised by Z.E.I.?
The issues may not have been described with as much precision as required but the essence probably has been identified. The preliminary statement of case may raise other issues that the Board has not identified.
The Board now needs to determine how to best deal with the matter. With this in mind, the Board asks that CPCC and Z.E.I. attempt to jointly propose, no later than Friday, July 11, 2008, how the matter should proceed. Absent such a joint proposal, each party will advise the Board by the same date of the course of action it wishes the Board to follow.
May 28, 2008
NOTICE OF THE BOARD
The Board intends to make the following statements part of the record of these proceedings:
The 1 minute of music = 1MB of memory is the rounded result for a file encoded at 128kbit/s. It applies to both most MP3 and the standard AAC song sold on iTunes. That bitrate also is the default rate at which filed are ripped onto an iPod.
Files sold DRM free on iTunes as part of their iTunes Plus offering are encoded at 256kbit/s and are sold at the same price as "standard" iTunes files.
Songs sold on Amazon.com are sold as MP3s encoded at a variable bitrate of 256kbit/s. Amazon gives an estimate for its product of 3 minutes = 5MB of memory (a ratio of 1.67).
Please forward any comment you might have on these statements by Friday, June 13, 2008.
April 24, 2008
QUESTIONS OF THE BOARD / QUESTIONS DE LA COMMISSION
The Board wishes to address the following questions in preparation for the hearing of Tuesday, April 29, 2008. Questions which the Board wishes to be addressed by the relevant witnesses at the hearing are so indicated. Otherwise, responses can be provided in writing, either before or after the hearing.
1) Exhibit CPCC-2 states that over 94,000 rights holders have received private copying royalties to date. In so far as this is possible, please indicate, with respect to each reporting year, the number of composers, publishers, performers, sound recording makers and other rights holders who received royalties. In the case of composers and publishers, please indicate, if possible, the number of those who were Canadian.
2) Please indicate what are the various steps involved in effecting royalty distributions to member collectives. The object of this question is to better understand the time Iines involved in such distributions. If possible, please also provide the same information with respect to royalty distributions from member collectives to individual rights holders.
3) Please explain the statement found at page 3 of Exhibit CPCC-2 that "Distribution for all years is continuing". With respect to each reporting year, please indicate what remains to be distributed, with an explanation of why these amounts remain undistributed.
4) At page 9 of Exhibit CPCC-2, it is stated that CPCC has recovered $1.9 million in unpaid levies as a result of audits. If that amount is different from the amount billed as a result of audits, please provide the amount billed.
5) Has it occurred that an audit did not allow CPCC to establish precisely how much was owed? If so, is CPCC able to provide an order of magnitude of the amounts involved?
6) Lors de l'audience, la formation entend adresser à M. Gauthier la question suivante.
Le rapport Circum fait généralement état de l'activité de copie à usage personnel non seulement sur les supports déjà assujettis à une redevance (cassettes, CD et MiniDisc), mais aussi sur tous les autres supports (EAP, cartes mémoire amovibles et DVD).
Serait-il possible de recalculer pour 2006-2007, uniquement par rapport aux copies effectuées sur des supports assujettis à une redevance (cassettes, CD et MiniDisc) :
- les Tableaux 4.1, 4.3, 4.4, 4.5, 4.6, 4.10, 4.11, 4.12, 4.13;
- le pourcentage de pistes copiées provenant d'exemplaires propriété du copiste;
- le pourcentage des pistes copiées achetées en ligne;
- le nombre de pistes obtenues sur une base promotionnelle?
Serait-ce un processus coûteux en temps ou en ressources? Est-il possible de fournir les données pour la pièce CPCC-4 uniquement à l'égard de ces mêmes supports?
7) La formation aimerait obtenir des renseignements additionnels afin de concilier les données sur les copies sur support (chapitre 5) et celles sur disque dur d'ordinateur (chapitre 6).
(a) Comment ces données se rejoignent-elles?
(b) Quelles copies sur disque dur sont incluses dans le tableau 4.10 et quelles copies sont en sus?
(c) Les copies intermédiaires sur disque dur sont-elles comptabilisées séparément et si oui, comment ?
(d) Le 20 pour cent de copies sur disque dur provenant de sites commerciaux (tableau 6.2) sont-elles incluses dans les copies payées rapportées à la partie 4.3 ou sont-elles en sus?
(e) Comment concilier les tableaux 4.10 et 6.2?
(f) L'ordinateur n'est pas identifié comme destination spécifique dans le tableau 4.10 mais semble l'être dans les questions 44, 45 et 59. Pourquoi?
8) La formation aimerait obtenir davantage de renseignements concernant le tableau 3.1, qui rapporte l'évolution dans la propriété d'équipements associés à « la copie privée ».
(a) Doit-on comprendre que le quart des répondants en 2006-2007 auraient dit posséder un graveur de cédéroms non incorporé à un ordinateur multimédia?
(b) Est-il possible d'établir, à partir de données disponibles ailleurs (Statistique Canada, par exemple), le pourcentage d'ordinateurs vendus en 2006 qui ne possédaient pas de graveur (CD/DVD/combiné)?
9) The panel intends to address the following questions to Messrs. Stohn and Audley.
(a) Would it be possible to use a digital download proxy (such as the price paid by online music services to record companies) to establish the value of the performers' and makers' private copying remuneration? What would this involve?
(b) To your knowledge, what is the typical artist royalty for a download? What is the typical "uplift" from that royalty when a recording artist, or an independent label, having produced a master recording, licences it to a record company?
(c) What account does your approach take of the Board's past statement that a first copy is worth more than a subsequent copy?
(d) Does the amount of the performers' and makers' remuneration for a typical prerecorded CD remain the same when the CD is sold through a very large retailer such as Wal-Mart. If not, what is that remuneration?
(e) According to the Circum Report, virtually all copies made onto cassettes are sourced from CDs or radio. Does that affect the validity of using the digital download proxy for setting the value of private copies on cassettes?
(f) On what do you base the assumption that one minute of music requires 1MB of memory in a compressed format?
(g) Should the model ascribe value not only to the copies actually made, but also to the option to make additional copies? If so, how?
(h) According to the Circum Report, approximately 700 million personal use copies were made onto CDs in 2006. The model you propose implicitly remunerates 2.1 billion copies. This number is arrived at in the following manner. You suppose that a total of 161 million blank CD were sold in 2006-2007. Of that amount, 54.1% were bought by individuals; of those 53% were used to copy music. A further 3% are spoiled. This leads to a total of 44.8 million blank CDs onto which music tracks were copied. You further assume that a total of 47 tracks (14.5 uncompressed, 32.3 compressed) were copied on each CD.
Are the calculations correct? Is there a reason for this discrepancy?
January 17, 2008
CPCC's application is granted. The August 29, 2007 Order applies mutatis mutandis to the filing of information as part of a party's statement of case. Parties are reminded that the Board's practice is to treat as confidential specific information only. Filed documents should be redacted accordingly. Failure to do so may result in a party being asked to re-file a document.
December 13, 2007
[Le texte français suit l'anglais]
RULING OF THE BOARD
The application of CPCC and CSMA to modify the schedule of proceedings in the above-referenced matter is granted. The revised schedule follows.
The application of the RCC to postpone the hearings until September 2008 is denied. The examination of the application for judicial review of the Board's decision of July 19, 2007 has been expedited no doubt, in part, so as not to slow down the process leading to the certification of a tariff. It is quite common for an administrative process to continue in parallel with the examination by a court of an interlocutory ruling made during that same process. The balance of inconvenience clearly favours CPCC on at least two counts. First, CPCC has waived the collection of the tariff on digital audio recorders (DARs) until the tariff is certified, and the RCC clearly suggests that a postponement of the hearings should extend the waiver accordingly. Any delay results in money not being paid to which rights holders are entitled if DARs are indeed audio recording media. Second, it is easier for CPCC to refund money than to collect levies retroactively.
The revised schedule is as follows:
- Filing of CPCCs Statement of Case: no later than Wednesday, January 16, 2008
- Filing of Objectors' Cases: no later than Friday, April 4, 2008
- Filing of CPCC's Supplementary Case: no later than Monday, April 21, 2008
- Beginning of hearing: Monday, April 28, 2008 at 10:00 a.m., Copyright Board's hearing room.
The Board expects that the hearing will be completed by Friday, May 9, 2008.
______________________________
DÉCISION DE LA COMMISSION
La demande de la SCPCP et de CSMA visant à modifier l'échéancier de la procédure mentionnée en rubrique est accordée. Le nouvel échéancier suit.
La demande du CCCD visant à retarder les audiences jusqu'en septembre 2008 est rejetée. Si la Cour a accéléré l'examen de la demande de révision judiciaire de la décision de la Commission du 19 juillet 2007, c'est sans doute en partie dans le but de ne pas ralentir le processus menant à l'homologation du tarif. Il arrive souvent qu'un processus administratif se déroule pendant qu'une cour examine une décision interlocutoire rendue durant ce même processus. La balance des inconvénients favorise nettement la SCPCP sous au moins deux aspects. D'abord, cette dernière a renoncé à percevoir la redevance sur les enregistreurs audionumériques jusqu'à ce que le tarif soit homologué, et le CCCD demande expressément que le report des audiences prolonge d'autant cette renonciation. Un délai, quel qu'il soit, fait en sorte que les titulaires ne reçoivent pas des sommes d'argent auxquelles ils ont droit si les enregistreurs audionumériques sont des supports audio. Ensuite, il est plus aisé pour la SCPCP de rembourser des redevances que de les percevoir de façon rétroactive.
Le nouvel échéancier est le suivant :
- Dépôt de la preuve de la SCPCP : au plus tard le mercredi, 16 janvier 2008
- Dépôt de la preuve des opposants : au plus tard le vendredi, 4 avril 2008
- Dépôt de la preuve supplémentaire de la SCPCP : au plus tard le lundi, 21 avril 2008
- Début de l'audience : le lundi, 28 avril à 10h00 à la salle d'audience de la Commission du droit d'auteur.
La Commission s'attend à ce que l'audience se termine le vendredi, 9 mai 2008.
August 29, 2007
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.
We bring your attention to paragraph 13 of the Order which reads: "Counsel to a recipient wishing to retain part of all of the information subject to this order and of materials derived therefrom once the proceedings are completed shall file a motion to this effect in due course."
Attachment: Confidentiality Order
July 27, 2007
NOTICE OF THE BOARD
The application on the part of the Retailers Council of Canada to postpone the proceedings is dismissed.
The new schedule that CSMA and CPCC have agreed upon is accepted. The timelines for the examination of the above-referenced matter are now as follows:
Filing of Responses to Interrogatories: no later than Friday, August 31, 2007
Filing of Motions re: Unsatisfactory/Incomplete Responses: no later than Friday, September 21, 2007
Filing of Replies to Motions: no later than Friday, October 5, 2007
[Ruling of the Board on Motions]
Filing of Complete Responses to Interrogatories: no later than Friday, October 26, 2007
Filing of CPCC's Case: no later than Wednesday, December 19, 2007
Filing of Objectors' Cases: no later than Friday, March 7, 2008
Filing of CPCC's Supplementary Case: no later than Friday, March 28, 2008
Beginning of hearing: Tuesday, April 8, 2008 at 10:00 a.m., Copyright Board's hearing room.
July 19, 2007
NOTICE OF THE BOARD
As a result of today's decision on preliminary motions, the Board will entertain CPCC's request for a levy on digital audio recorders.
In its Order of April 30, 2007, the Board stated that the interrogatory process for digital audio recorders would be dovetailed into the main schedule. The ruling on objections to interrogatories has also been issued today. The date set to respond to interrogatories is July 27. The Board therefore expects a request to delay the date for filing responses to interrogatories.
Under the circumstances, the date to respond to interrogatories is postponed. Parties have until noon on Friday, July 27, 2007 to agree on a new timetable that will not change any deadline starting with the November 9, 2007 filing of CPCC's case. If parties do not come to an agreement, the Board will issue a new schedule forthwith.
July 19, 2007
RULING OF THE BOARD
Further to objections to interrogatories filed, the Board rules as follows.
General Comments
1. The persons who are required to answer interrogatories are the objectors of record.
Anyone can object to the proposed tariff. A trade association can object on its own behalf. Unless indicated otherwise, it will not be required to seek answers from its members. This being said, if an association refuses to seek answers from its members, its ability to then file evidence that would have been responsive to interrogatories directed to its members may be seriously curtailed. A person retains the option of asking the Board to issue subpoenas to non-parties if they feel that the information is necessary to the preparation of her case.
2. Unless indicated otherwise, CPCC is required to respond only in respect of itself, its member collectives and the member collectives of NRCC.
3. Parties are reminded of the following principles and rules which the Board has applied in the past to litigation privilege.
First, litigation privilege exists to facilitate a process. The Board controls its processes. As long as the process remains fair, the Board is not required to apply litigation privilege in the same manner as ordinary courts of law. Solicitor-client privilege exists to protect a relationship irrespective of any process and cannot be overridden as a matter of procedural discretion.
Second, litigation privilege as applied before ordinary courts of law exists to facilitate the adversarial process. Board proceedings are not inherently adversarial. Since disclosure ought to be the rule, claims of litigation privilege in Board proceedings ought to be scrutinized closely.
Third, litigation privilege exists primarily to protect the lawyer's strategy. Anything that is not likely to disclose that strategy is not covered by the privilege.
Fourth, authorities are divided on whether litigation privilege ought to apply to existing documents and if so, to what extent. The Board intends to apply litigation privilege to pre-existing information only if revealing the information or the fact that counsel has the information is likely to disclose counsel's strategy. Furthermore, pre-existing information will be privileged only if creating the information or obtaining it involves a selective copying or results from research or the exercise of skill and knowledge on the part of a solicitor. So, for example, if a document (other than a document counsel provided to the client) is in the possession of the client, it must be provided even if counsel also has copy of it, unless the fact that the client has the information is likely to disclose counsel's strategy.
Consequently, parties shall address claims of litigation privilege as follows:
(a) A person claiming litigation privilege bears the burden of proving, on a balance of probabilities, either (i) that the information was prepared for the dominant purpose of these proceedings or, (ii) 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;
(b) A person claiming litigation privilege shall provide to the person asking the relevant question 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 a person believes that simply knowing the fact that information is available to counsel might reveal counsel's strategy, she shall provide to the person asking the relevant question as much details about the information as possible without defeating the purpose of the privilege;
(c) After receiving the list of information for which privilege is claimed, the person asking the relevant question may ask the Board to rule on the validity of the claim of privilege. If this happens, the person claiming litigation privilege shall provide the Board with a copy of the relevant information for the purpose of ruling on the claim;
(d) In the case of CPCC, litigation privilege shall extend only to information obtained or produced in the process of finalizing the proposed tariff or in preparation for the hearings themselves. Material obtained or produced at any time for any other purpose is not subject to the privilege.
4. Respondents are only required to provide the information that they have, and in the form that they have it.
5. Respondents are not required to provide questioners with a research service. Respondents are not required to provide information that is publicly available. This being said, if respondents know of a document that is publicly available and responsive to a question (including documents that are part of the record of earlier proceedings before the Board), they shall disclose the existence of the document and provide the questioner with any information that may help in obtaining copy of the document.
6. A person who is ordered to provide an answer remains entitled to claim any litigation or other privilege that may apply.
RCC to CPCC
Interrogatories 1, 4, 8 and 28 to 41: No need to address.
Interrogatories 3, 5, 6, 7: The objection is sustained. CPCC's distribution practices are not relevant to what constitutes a fair and equitable tariff. They can be relevant to its designation as collecting body. CPCC shall provide the general description it offers, any formula it uses to distribute royalties and an indication of the time it requires to distribute royalties. The distribution practices or governance mechanisms of CPCC's member collectives are not relevant.
Interrogatories 9, 10, 11: The objection is sustained in part. Anything related to the issues to be addressed during the June 5, 2007 hearing is no longer relevant. Documentation on which CPCC relies to contend that digital audio recorders are ordinarily used by individual consumers to copy sound recordings is relevant. On litigation privilege, see General Comment 3. Information obtained or produced in the normal course of CPCC's activities (e.g., the Media Monitor Survey) is not covered by privilege, even if it was prepared after CPCC started developing the tariff. Referring to the existence of a legal opinion does not waive privilege on the opinion.
Interrogatory 12: The objection is sustained in part. The issue is relevant only in respect of material differences that may help to determine whether recorders are "ordinarily used". CPCC shall provide any non-privileged information of a technical or factual nature.
Interrogatory 13: CPCC shall provide on a without prejudice basis, a list of the types of media or devices that CPCC believes are (a) covered by the proposed tariff, (b) currently qualify as blank audio recording media but are not covered in the tariff, (c) currently do not qualify as blank audio recording media. Otherwise, the objection is sustained.
Interrogatory 14: Subject to General Comment 3, answered.
Interrogatory 15: The objection is sustained. This requires an opinion which is not the subject of a valid interrogatory.
Interrogatory 16: It is difficult to believe that CPCC has nothing (e.g., learned articles) dealing with the issue. Subject to litigation privilege, CPCC shall provide a list of the learned publications it has.
Interrogatory 17: The objection is sustained. CRIA's legal views are irrelevant in these proceedings.
Interrogatory 19: The issue may have acquired new relevance as a result of CCH v. LSUC. The objection is dismissed.
Interrogatories 20 to 23: The Board deals with the law as it exists. The objection is sustained.
CSMA to CPCC
Questions to CPCC's member collectives and their members: the objection is sustained. See General Comment 2. The offer to seek information from rights holders in earlier proceedings is not binding on CPCC in this proceeding.
Interrogatories 2, 3, 4, 5, 19, 20, 21, 30: Generally, the objection is sustained. See General Comment 2. CPCC's distribution practices are not relevant to what constitutes a fair and equitable tariff. They can be relevant to its designation as collecting body. CPCC shall provide the general description it offers, any formula it uses to distribute royalties and an indication of the time it requires to distribute royalties. Information tending to show that significant amounts of private copying levies are being paid to foreign performers and makers would also be relevant; CPCC shall provide any information it or NRCC has about such distributions of private copying levies to such performers or makers, with an explanation of why the distributions are being made.
Interrogatories 6, 7, 8: CPCC shall provide on a without prejudice basis, a list of the types of media or devices that CPCC believes are (a) covered by the proposed tariff, (b) currently qualify as blank audio recording media but are not covered in the tariff, (c) currently do not qualify as blank audio recording media.
Interrogatories 10, 11, 14, 22, 28, 29, 31, 32: CPCC shall respond as per the Board's ruling of June 27, 2002 dealing with the same or similar interrogatories. With respect to interrogatories 28 and 29, CPCC can expect to be asked to provide all relevant information, including information that is subject to litigation privilege, as part of its case.
CPCC to CSMA
Introduction: No need to address.
Interrogatories 1, 2, 14, 30: If the information exists, it shall be provided to the same extent as it was provided in Private Copying III.
CPCC to RCC
General comment: RCC's objection to responding on behalf of its members is sustained. See General Comment 1.
Interrogatories 1, 2: RCC shall respond as per the Board's ruling of June 27, 2002 dealing with the same or similar interrogatories, only with respect to digital audio recorders. If RCC fails to answer any element of those interrogatories, RCC will not be allowed to address the consequences of imposing a levy on digital audio recorders in any respect and in any form. It will not be allowed to ask any question, to introduce any evidence or to file any information that would be responsive to any of the questions asked of them by CPCC.
Interrogatory 3: Answered.
Interrogatories 4 to 13: The objection is sustained. Questions are not directed to RCC but to its members. See General Comment 1.
July 5, 2007
Please be advised that the Board will not need to hear from CPCC or CSMA on the decision that counsel to RCC forwarded to the Board this morning or the arguments that RCC filed in this respect, until such time as the Board otherwise advises.
June 15, 2007
ORDER OF THE BOARD
CPCC is granted the right to reply to the June 8 submissions only, it shall not address in any way the objectors' replies filed on June 13. CPCC's reply shall be filed no later than noon today, Friday, June 15.
June 4, 2007
The following provisions in federal statutes use the word "medium" (in English) or « support » (in French), either separately or in combination. Counsel are asked to identify any other provision in Federal statutes that they may know of. Counsel are also asked to identify among all these provisions (a) those which, either expressly or by necessary implication, must include DARs and (b) those which, either expressly or by necessary implication, must include media such as blank CDs but may exclude DARs.
Access to Information Act, s.3 ("record"; « support de substitution ») 11 (c), s.143, s. 163
Air Travellers Security Charge Act, s. 2 (« registre »),23 (1)
Anti-Personnel Mines Convention Implementation Act, s. 13 (2)
Assisted Human Reproduction Act, s. 45 (« document »)
Bank Act, s. 992 ("electronic document")
Bankruptcy and Insolvency Act, s. 5 (3) (e), 14.03 (1) (b), 16 (5), 253 (« valeur mobilière »)
Canada Business Corporations Act, s. 252.1 ("electronic document")
Canada Cooperatives Act, s. 361.1 ("electronic document")
Canada Elections Act, s. 18 (2), 319 (« publicité électorale »), 407 (3)
Canada Evidence Act, s. 10 (1), 31.8 ("electronic document")
Canada Labour Code, s. 125 (1) (e), (f)
Canada Pension Plan, s. 90.2 (« document »)
Canada Petroleum Resources Act, s. 101 (« renseignements »)
Canada-Ireland Tax Convention Act, 2004, Appendix, Article 12 (4)
Canada-Newfoundland Atlantic Accord Implementation Act, s. 119 (« renseignements »)
Canada-Nova Scotia Offshore petroleum Resources Accord Implementation Act, s. 122 (« renseignements » )
Canadian Environmental Assessment Act, s. 2 (« document »)
Canadian Environmental Protection Act, 1999, s. 157 (4) (a)
Canadian Transportation Accident Investigation and Safety Board Act, s. 19 (16) (« renseignement »)
Centennial Flame Research Award Act, s. 7 (3)
Chemical Weapons Convention Implementation Act, s. 14 (1) (c)
Companies' Creditors Arrangement Act, s. 11.7 (3) (a), 24, 29
Competition Act, s. 2 ("document"), 53 (1)
Controlled Drugs and Substances Act, s. 59
Cooperative Credit Associations Act, s. 487.01 ("electronic document")
Copyright Act, s. 2 ("sound recording", « déficience perceptuelle »), 3 (1) (d), 13 (4), 15 (1) (iii), 18 (1) (b), 29.4 (3), 30.1 (1) (c), 30.1 (2), 30.9 (1), 32, 38 (4), 38.1 (3), 64 (1) ("utilitarian function"), 64.1 (2)
Criminal Code, s. 487.011 (« document »), 487.09, 841 ("electronic document")
Customs Act, s. 2 ("document", « marchandises »), 8.1 (1)
Department of Public Works and Government Services Act, s. 18 (1)
Department of Veterans Affairs Act, s. 6.5
Employment Equity Act, s. 18 (3)
Excise Act, 2001, s.2 (« registre »), 166 (1)
Excise Tax Act, s. 278.1 (1)
Export and Import Permits Act, 2. (« register »)
Extradition Act, s. 31
Firearms Act, s. 91, 117
Foreign Extraterritorial Measures Act, s. 2 (« document »)
Foreign Publishers Advertising Services Act, s. 5
Immigration and Refugee Protection Act, s. 127 (b)
Insurance Companies Act, s. 1034 ("electronic document")
International Interests in Mobile Equipment (aircraft equipment) Act, Appendix 1, Article 1 nn), Appendix 3, Article 1 bbb)
Library and Archives of Canada Act, s.2 « document », "publication", "record"), 8 (2), 10 (2) (b), 11 (2)
National Defence Act, s. 196.23
Old Age Security Act, s. 44.2 ("document")
Pension Act, s. 93
Pension Benefits Standards Act, 1985, s. 34 (1)
Personal Information Protection and Electronic "document"s Act, s. 2 (« document », « support de substitution », "electronic document")
Preclearance Act, s. 2 (« marchandises »)
Privacy Act, s. 3 (« renseignements personnels », « support de substitution »), 34 (2), 45
Proceeds of Crime (Money Laundering) and Terrorist Financing Act, s. 60 (3) (c), 60.1, 60.3
Railway Safety Act, s. 28 (1) (a.1)
Shipping Conferences Exemption Act, 1987, s. 19 (1)
Softwood Lumber Products Export Charge Act, 2006, s. 2 (« registre »)
Standards Council of Canada Act, s. 4 (2) (k)
Statutory Instruments Act, s. 10 (2)
Tobacco Act, s. 35 (2) (f), 55
Trust and Loan Companies Act, s. 539.01 ("electronic document")
War Veterans Allowance Act, s. 34.2
Youth Criminal Justice Act, s. 2 (« dossier »), 128 (7)
Yukon Act, s. 67 (1)
Yukon Environmental and Socio-economic Assessment Act, s. 2 (« ressources patrimoniales »).
May 17, 2007
[Le texte français suit l'anglais]
Please note that Section B.7 (Supplementary Evidence) of the Directive on Procedure sent on May 7, 2007 should have read as follows:
7. Supplementary Evidence
The collective society can file supplementary evidence by the date provided for this in the timetable. That evidence should only be in response to the evidence filed by the objectors. The collective society should not introduce evidence that is unrelated to the objectors' evidence or evidence it could reasonably have chosen to file earlier with its evidence in chief.
______________________________
Veuillez prendre note que le paragraphe B.7 (Preuve supplémentaire) de la directive sur la procédure acheminée le 7 mai dernier aurait dû se lire comme suit:
7. Preuve supplémentaire
Tel que prévu à l'échéancier, la société de gestion est autorisée à déposer une preuve supplémentaire. Cette preuve supplémentaire doit toutefois servir uniquement à répondre à la preuve des opposants et non à introduire de la preuve sans rapport avec celle de ces derniers ou, encore, de la preuve que la société de gestion aurait pu raisonnablement décider de produire au moment du dépôt de sa preuve principale.
May 11, 2007
Mr. Knopf's motion is denied. Participants may, no later than by noon on Tuesday, May 15, 2007, file a motion to send additional interrogatories if they believe that the decision to be issued today justifies them to do so.
Attachment: Motion
May 11, 2007
This is further to the Board's notice of May 7 transmitting the Directive on Procedure.
You will note that in the Directive new elements have been added, more specifically in relation to the electronic versions of documents filed with the Board (section A.1), the filing of motions re: incomplete/unsatisfactory responses to interrogatories (section B.5) and the filing of confidential and sensitive confidential information (section B.6).
We have also added that participants should file as evidence only the responses to interrogatories to which they know they intend to refer during the hearing (section B.6). You will however find in section B.9 that participants are allowed to refer to a response that was not filed as part of their evidence, if this becomes necessary.
May 7, 2007
[Le texte français suit l'anglais]
As per the Board's order of April 30, 2007, please find attached the Directive on Procedure and relevant appendices.
______________________________
Suite à l'ordonnance de la Commission du 30 avril dernier, veuillez trouver en annexe la directive sur la procédure et les annexes y afférents.
Attachment: Directive on Procedure
April 30, 2007
ORDER OF THE BOARD
As of today, the Retail Council of Canada (RCC) and the Canadian Storage Media Alliance (CSMA) have asked that the Board hear certain preliminary motions. These motions address the question of whether the Board can entertain the proposed levy on "digital audio recorders" (DARs).
The matter of whether DARs can be levied was addressed by the Federal Court of Appeal in 2004: see Canadian Private Copying Collective v, Canadian Storage Media Alliance et al. (C.A.), [2005] 2 F.C. 654, Relying on this decision, RCC and CSMA maintain that it is now settled law that DARs are not "media", Alternatively, they maintain that either issue estoppel or cause of action estoppel should prevent CPCC from raising the matter anew. The relevant documents are attached to this order.
These issues should be addressed as early as possible. However, addressing them as raised will not fully address the problem the objectors raise. If the Board rules that the principles they invoke do not apply, it will then have to rule on the core issue: is a DAR "a recording medium"? This is a purely legal question that is better disposed of at the outset, to avoid the need to lead a large volume of potentially unnecessary evidence at a later stage.
Consequently, the Board will entertain preliminary motions in the following fashion.
A) The Board will address the following issues immediately:
1) Is it now settled law that a digital audio recorder is not a "medium", as this word is used in the definition of "audio recording medium" set out in section 79 of the Copyright Act?
2) Does issue estoppel or cause of action estoppel prevent CPCC from arguing that a digital audio recorder is a medium?
3) Assuming that the answer to questions 1 and 2 is no, is a digital audio recorder a "recording medium, regardless of its material form, onto which a sound recording may be reproduced"? Put another way, if a digital audio recorder is ordinarily used by individual consumers for the purpose of reproducing sound recordings onto it, is it an "audio recording medium" as defined in section 79 of the Copyright Act?
B) No later than on Friday, May 4, 2007, CPCC shall file its memorandum of argument on issue No. 3. By that same date, the objectors shall file their memorandum of argument on issues Nos. 1 and 2.
C) Also no later than on Friday, May 4, 2007, anyone wishing to move that another issue be disposed of as a preliminary matter shall file a memorandum that identifies the issue, explains why the issue should be disposed of at this time and sets out the arguments in support of the position advanced by the moving party on the issue.
D) Responses to memoranda filed pursuant to paragraphs B or C of this order shall be filed no later than on Friday, May 18, 2007.
E) Replies to memoranda filed pursuant to paragraph D of this order shall be filed no later than on Wednesday, May 30, 2007.
F) The hearing dealing with preliminary motions will be held on Tuesday, June 5, 2007, at 10:00 a.m., at the Board's hearing room in Ottawa.
SCHEDULE OF PROCEEDINGS
The rest of the schedule for these proceedings shall be as follows:
Filing of Interrogatories: Friday, May 11, 2007 *
Filing of Objections to Interrogatories: Friday, June 1, 2007
Filing of Replies to Objections to Interrogatories: Friday, June 29, 2007
[Ruling of the Board on Objections to Interrogatories]
Filing of Responses to Interrogatories: Friday, July 27, 2007
Filing of Motions re: Unsatisfactory/Incomplete Responses to Interrogatories: Friday, August 17, 2007
Filing of Replies to Motions re: Unsatisfactory/Incomplete Responses to Interrogatories: Friday, August 31, 2007
[Ruling of the Board on Motions re: Unsatisfactory/Incomplete Responses to Interrogatories]
Filing of Complete/Satisfactory Responses to Interrogatories: Friday, September 21, 2007
Filing of CPCC's Case: Friday, November 9, 2007
Filing of Objectors' Cases: Friday, February 15, 2008
Filing of CPCC's Supplementary Case: Friday, March 14, 2008
Beginning of hearing: Tuesday, April 8, 2008 at 10:00 a.m., Copyright Board's hearing room in Ottawa
* INTERROGATORIES CONCERNING DARs
Interrogatories concerning DARs shall be filed by the date indicated above as for any other interrogatory. So shall objections to such interrogatories and the replies thereto. The date by which responses to interrogatories on DARs are due shall be determined, if need be, after the Board has ruled on preliminary motions. Parties are able to determine right now the information they would wish to get if DARs can be levied. Those to whom questions are addressed suffer no prejudice by knowing in advance what others wish to know about DARs and should be able to identify most objections that would justify their not responding to a question. Any objection that is specific to DARs can be addressed later. The process can then be dovetailed into the main schedule at some point in time.
The Directive on Procedure will follow shortly.
Commercial Radio - SOCAN 1.A (20008-2010); Re:Sound (2008-2011); CSI (2008-2012); AVLA/SOPROQ (2008-2011); ARTISTI (2009-2011)
December 21, 2012
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 Association of Broadcasters (CAB) 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'Association canadienne des radiodiffuseurs (ACR). 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.
SODRAC Tariff 5 - (2009- 2012)
July 25, 2013
RULING OF THE BOARD
The July 12, 2013 application of CAFDE to extend the period set out in subsection 22(1) of the SODRAC Tariff No. 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition), 2009-2012 is denied.
Modifying the tariff as requested requires an application to vary pursuant to section 66.52 of the Copyright Act. The July 12 application does not invoke a material change in circumstances since the decision was made; without this the application is not receivable on its face. In the Board's preliminary view, it is highly improbable that such a change exists in this instance.
So as to allow CADFE to better assess its course of action, the Board offers preliminary views on certain factors that may weight heavily in any decision whether or not to grant an application to vary, even if a material change in circumstances were established.
Essentially, CAFDE may misconstrue the purpose and nature of the option provided to distributors in the tariff.
The s.7 formula of the tariff makes no distinction between background and foreground music because CADFE feared such distinction would be difficult to apply. The formula sets tiered rates because CADFE thought this would make the tariff easier to apply and would avoid the need to split hairs about music duration. Though the Board doubted the validity of either argument, it accommodated CAFDE on these points by offering the option referred to in the application.
The purpose of the accommodation thus seems clear: to make things simpler for distributors who wish to avoid any potential hair-splitting about background vs foreground music or about music duration. It is not to allow distributors to minimize their royalties. The choice offered is between simplicity and precision, a choice which does not require any analysis of historical records. This interpretation accords perfectly with section 5 of the tariff: absent transitional provisions, it requires distributors to exercise the option for any given year before the beginning of that year.
The option offered to distributors in the tariff thus appears to be an attempt to accommodate CADFE's misgivings, for what they were worth. If so, it would seem that granting CADFE's application would only serve to pervert the purpose of the accommodation and to allow distributors to game the tariff. It would also presuppose that distributors would now collect and analyse data which, throughout the process, they claimed was neither in their possession nor readily available.
CADFE was not consulted about the option or the election period within which to exercise it. This seems to be of little consequence. Substantially, the option exists solely to accommodate distributors, who therefore cannot complain of its existence. Procedurally, to the extent that the purpose of the accommodation is clear, the delay provided to exercise the first option is amply sufficient.
July 16, 2013
NOTICE OF THE BOARD
SODRAC may respond to the attached CAFDE's request no later than Friday, July 19, 2013. CAFDE may reply no later than Wednesday, July 24, 2013.
Attachment: Letter to Copyright Board re Election under Redetermination Decision July 12, 2013.pdf
July 5, 2013
NOTICE OF THE BOARD
The Copyright Board of Canada has rendered its decision on the Redetermination of SODRAC Tariff 5 (Reproduction of Musical Works in Cinematographic Works for Private Use or for Theatrical Exhibition), 2009-2012. The decision on the redetermination is now available 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 tariff (Redetermination) as published in the Canada Gazette.
May 23, 2013
NOTICE OF THE BOARD
After reviewing the record, and subject to any material change in circumstances, the Board intends to certify a new SODRAC Tariff 5 on the basis of the existing record, without any additional evidence or arguments being filed. Parties will be notified of publication of the tariff and of the reasons in the usual fashion.
December 4, 2012
NOTICE OF THE BOARD
SODRAC shall respond to CAFDE's application, attached, no later than Tuesday, December 11, 2012. CAFDE can reply no later than Tuesday, December 18, 2012.
*******************************************
AVIS DE LA COMMISSION
La SODRAC peut répondre à la requête ci-jointe de l'Association canadienne des distributeurs et exportateurs de films (ACDEF) au plus tard le mardi, 11 décembre 2012. L'ACDEF peut répliquer au plus tard le mardi, 18 décembre 2012.
Attachment: CAFDE Application to Copyright Board re SODRAC Tariff 5 (Dec 3 12). pdf
July 22, 2010
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, 2010
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, 2010
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, 2010
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, 2010
[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, 2010
[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
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.
December 22, 2009
[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, 2009
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.
October 30, 2009
The Board agrees with the request. [Extension request]
September 16, 2009
ORDER OF THE BOARD
This is further to SODRAC's motion re: CAFDE's unsatisfactory/incomplete responses to its interrogatories. CAFDE shall provide forthwith unredacted copies of all documents supplied to SODRAC in redacted form.
__________________________
ORDONNANCE DE LA COMMISSION
Ceci fait suite à la requête de la SODRAC portant sur les réponses insatisfaisantes/incomplètes de la CAFDE à ses demandes de renseignements. La CAFDE fournira sans délai des copies non caviardées de tous les documents caviardés qu'elle a remis à la SODRAC.
July 21, 2009
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.
June 22, 2009
ORDER OF THE BOARD
Attached is the Board's Order dealing with the interrogatory exchange process for which confidential treatment may be claimed.
__________________________
ORDONNANCE DE LA COMMISSION
Vous trouverez ci-joint l'ordonnance de la Commission portant sur la procédure de demandes de renseignements pour lesquels un traitement confidentiel peut être exigé.
Attachments : Confidentiality Order.pdf; Ordonnance sur la confidentialité.pdf
June 2, 2009
NOTICE OF THE BOARD
The May 21, 2009 Order of the Board dealing with objections to interrogatories is amended by deleting the second paragraph of the ruling dealing with SODRAC question 33.
AVIS DE LA COMMISSION
L'ordonnance de la Commission du 21 mai 2009 disposant des oppositions aux demandes de renseignements est modifiée en supprimant le deuxième paragraphe du dispositif traitant de la question 33 de la SODRAC.
May 26, 2009
[Le français suit l'anglais]
Ruling of the Board
For the reasons set out in paragraph 3 of the Board's Order of May 21, 2009, CMPDA's application of the same day to adjourn the proceeding pending the final determination by the courts of certain legal positions advanced by SODRAC (through CSI) in CSI's recent application for judicial review of the Board's April 8, 2009 Satellite Radio Services decision, is dismissed.
Décision de la Commission
Pour les motifs énoncés au paragraphe 3 de l'ordonnance de la Commission du 21 mai 2009, la demande de la CMPDA du même jour visant à suspendre la présente affaire jusqu'à ce que les tribunaux judiciaires tranchent certaines positions juridiques mises de l'avant par la SODRAC (via CSI) dans sa récente demande de révision judiciaire de la décision de la Commission du 8 avril 2009 portant sur les services de radio par satellite, est rejetée.
May 21, 2009
ORDER OF THE BOARD
You will find attached the Board's Order on objections to interrogatories.
__________________________________
ORDONNANCE DE LA COMMISSION
Vous trouverez ci-joint l'ordonnance de la Commission portant sur les oppositions aux demandes de renseignements.
Attachment : Order re Objections to Interrogatories.pdf; Ordonnance re oppositions aux demandes de renseignements.pdf
April 29, 2009
NOTICE OF THE BOARD
The Board wishes to receive as soon as possible a complete package of interrogatories sent by all parties. Thank you.
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AVIS LA COMMISSION
La Commission désire recevoir des que possible l'ensemble des demandes de renseignements envoyées par chaque partie. Merci.
April 8, 2009
[Le texte français suit l'anglais]
NOTICE OF THE BOARD
Further to the parties' request, the Board agrees to modify the deadlines for the filing of objections to interrogatories and the replies to the objections, as follows:
Filing of objections to interrogatories: no later than Tuesday, April 21, 2009
Filing of replies to objections to interrogatories: no later than Tuesday, April 28, 2009
The rest of the schedule issued March 3, 2009 remains unchanged.
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AVIS LA COMMISSION
Suite à la demande des parties, la Commission est d'accord pour modifier les dates d'échéance du dépôt des oppositions aux demandes de renseignements et des répliques à ces oppositions, comme suit :
Dépôt des oppositions aux demandes de renseignements : au plus tard mardi, 21 avril 2009
Dépôt des répliques aux oppositions aux demandes de renseignements : au plus tard mardi, 28 avril 2009
Le reste du calendrier émis le 3 mars dernier demeure inchangé.
March 13, 2009
[Le texte français suit l'anglais]
Further to the Board's notice of March 3, 2009, attached is the Directive on Procedure. We draw your attention to the fact that the electronic version of the evidence (on CD-ROM, DVD or USB key, and no longer by email) must now be filed with the Board with the paper 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.
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Suite à l'avis de la Commission du 3 mars dernier, vous trouverez ci-joint la directive sur la procédure. Nous attirons votre attention au fait que la version électronique de la preuve (sur CD-ROM, DVD ou clé USB, et non plus par courriel) doit maintenant 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 version papier et électronique le même jour que les documents sont déposés auprès de la Commission.
Attachment : Sodrac 5 - Directive on procedure and Appendices (2).pdf
March 3, 2009
Le texte français suit l'anglais]
NOTICE OF THE BOARD
The Board agrees with the schedule of proceedings proposed by the parties, leading to a hearing beginning March 2, 2010. The timetable for the proceedings is therefore as follows:
Filing of interrogatories: no later than Friday, March 20, 2009
Filing of objections to interrogatories: no later than Tuesday, April 14, 2009
Filing of replies to objections to interrogatories: no later than Friday, April 24, 2009
[Board's ruling on objections to interrogatories]
Filing of responses to interrogatories: no later than Friday, June 12, 2009
Filing of motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, June 19, 2009
Filing of replies to motions: no later than Friday, June 26, 2009
[Board's ruling on motions]
Filing of complete/satisfactory responses to interrogatories: no later than Friday, September 4, 2009
Filing of SODRAC's case: no later than Friday, November 6, 2009
Filing of Objectors' cases: no later than Friday, January 22, 2010
Filing of SODRAC's reply case: no later than Friday, February 12, 2010
[To be determined: pre-hearing conference]
Beginning of hearing: Tuesday, March 2, 2010 at 10:00 a.m., Copyright Board's hearing room.
The Directive on Procedure will follow shortly.
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AVIS LA COMMISSION
La Commission est d'accord avec le calendrier des procédures proposé par les parties, menant à une audience débutant le 2 mars 2010. L'échéancier de l'affaire est donc le suivant :
Dépôt des demandes de renseignements : au plus tard vendredi, 20 mars 2009
Dépôt des oppositions aux demandes de renseignements : au plus tard mardi, 14 avril 2009
Dépôt des répliques aux oppositions aux demandes de renseignements : au plus tard vendredi, 24 avril 2009
[Ordonnance de la Commission sur les oppositions aux demandes de renseignements]
Dépôt des réponses aux demandes de renseignements : au plus tard vendredi, 12 juin 2009
Dépôt des requêtes re : réponses incomplètes/insatisfaisantes aux demandes de renseignements : au plus tard vendredi, 19 juin 2009
Dépôt des répliques aux requêtes : au plus tard vendredi, 26 juin 2009
[Ordonnance de la Commission sur les requêtes]
Dépôt des réponses complètes/satisfaisantes aux demandes de renseignements : au plus tard vendredi, 4 septembre 2009
Dépôt de la preuve de la SODRAC : au plus tard vendredi, 6 novembre 2009
Dépôt de la preuve des opposants : au plus tard vendredi, 22 janvier 2010
Dépôt de la réplique de la SODRAC : au plus tard vendredi, 12 février 2010
[À déterminer : conférence préparatoire]
Début de l'audience : mardi, 2 mars 2010 à 10:00, à la salle d'audience de la Commission.
La directive sur la procédure suivra sous peu.
October 15, 2008
[Le texte français suit l'anglais]
RULING OF THE BOARD
The July 14, 2008 application of SODRAC that the objection of MPTAC to the above-referenced tariff be ruled inadmissible and that its request for intervener status in the same matter be dismissed is denied.
Prospective users or their representatives are entitled to object to a proposed tariff. MPTAC represents movie house owners. The proposed tariff targets, among other things, the reproduction "intended for distribution for the purpose of exhibition in a theatre" of a musical selection already embedded into a cinematographic work that is made when that work is copied. Currently, cinema owners do not make such reproductions. That said, the proposed tariff is intended to apply until the end of 2012. Given the increasing importance of digital technology in the operation of movie houses, the role played by cinema owners may change to the point where they may "eventually" be using works as contemplated in the proposed tariff. Accordingly, and until contrary evidence is adduced, the Board considers that MPTAC members are prospective users and as such, authorized to object to the proposed tariff.
Alternatively, we allow MPTAC's application for leave to intervene on the grounds that we find its participation useful. On one hand, the tariff may have an impact on the activities of MPTAC members, an impact that the Board may wish to take into account. On the other hand, the perspective offered by MPTAC will allow us to better understand the retail motion picture industry market and the impact of the tariff on that market. The fact that the association relies on the same grounds as other objectors is not determinative in the present case.
We take note of MPTAC's intention to coordinate its efforts with other objectors to minimize the administrative burden that its participation may impose on the Board and on SODRAC.
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DÉCISION DE LA COMMISSION
La demande de la SODRAC du 14 juillet 2008 visant à faire déclarer irrecevable l'opposition de la MPTAC au projet de tarif cité en rubrique et à faire rejeter sa demande d'intervention dans le même dossier est rejetée.
Sont autorisés à s'opposer à un projet de tarif les utilisateurs éventuels ou leurs représentants. La MPTAC représente les exploitants de salles de cinéma. Le projet de tarif vise, entre autres, la reproduction dans une ouvre cinématographique d'une pièce musicale qui y est déjà incorporée « en vue de la livrer de quelque manière que ce soit pour présentation en salle ». Les exploitants de salle ne se livrent pas à de telles reproductions en ce moment. Cela dit, le projet de tarif prévoit s'appliquer jusqu'à la fin de 2012. Or, il est possible que d'ici là, l'importance croissante de la technologie numérique dans l'exploitation des salles fasse en sorte que le rôle de leurs propriétaires change au point où « éventuellement », ces derniers pourraient se livrer à des utilisations visées par le projet de tarif. Par conséquent, et jusqu'à preuve du contraire, la Commission considère que les membres de la MPTAC sont des utilisateurs éventuels, autorisés à s'opposer au projet de tarif.
Subsidiairement, nous faisons droit à la demande d'intervention de la MPTAC au motif que nous jugeons utile sa participation. D'une part, il est possible que le tarif ait un impact sur les activités des membres de la MPTAC, impact dont la Commission voudra peut-être tenir compte. D'autre part, le point de vue qu'offrira la MPTAC nous permettra de mieux comprendre le marché de détail de l'industrie cinématographique ainsi que l'impact du tarif sur ce marché. Le fait que l'association invoque au départ les mêmes motifs pour s'opposer au projet n'est pas déterminant en l'espèce.
Nous prenons acte de l'intention de la MPTAC de coordonner sa démarche avec celle des autres opposants afin de réduire au strict minimum le fardeau administratif que sa participation imposera à la Commission et à la SODRAC.
Access Copyright - Educational Institutions (2005-2009)
18 janvier 2013
AVIS DE LA COMMISSION
La Commission du droit d'auteur du Canada a rendu sa décision portant sur le réexamen du tarif d'Access Copyright pour les établissements d'enseignement (2005-2009). Cette décision est maintenant disponible 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 avec le tarif homologué tel que publié dans la Gazette du Canada.
NOTICE OF THE BOARD
The Copyright Board of Canada has rendered its decision on the Redetermination of Access Copyright's Tariff for Educational Institutions (2005-2009). This decision is now available 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 tariff as published in the Canada Gazette.
September 19, 2012
RULING OF THE BOARD
On July 20, 2012, the Board asked the parties to the above-referenced file how it should proceed to comply with the decisions of the Federal Court of Appeal and of the Supreme Court of Canada that ordered the Board to reconsider certain aspects of the tariff. Specifically, the Board asked the parties to answer the following questions:
- What issues must be addressed by the Board to comply with the decisions of the Federal Court of Appeal and of the Supreme Court of Canada?
- Can these issues be determined on the basis of the existing record? Will it be necessary for the parties to file argument or additional evidence?
- If the parties require an opportunity to file additional argument or evidence, how can this be achieved most efficiently? A proposed timetable would be welcome.
- Are the instructions of the Federal Court of Appeal sufficiently precise or should the parties ask the Court for further directions?
August 20, 2012
RULING OF THE BOARD
Access and the Objectors may, no later than Wednesday, August 29, 2012, respond to each others' submissions on the single question of the issue the Board should address in order to deal with the decision of the Supreme Court of Canada in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) 2012 SCC 37.
July 20, 2012
ORDER OF THE BOARD
On July 23, 2010, the Federal Court of Appeal remitted the above-referenced decision of June 26, 2009 to the Board "(a) to determine the meaning of the words «in a medium appropriate for the purpose», as found in subsection 29.4(3) [of the Copyright Act]; and (b) to assess whether category 4 copies come within the meaning of these words."
On July 12, 2012, the Supreme Court of Canada remitted that same decision to the Board to reconsider the result having regard to the reasons of the majority in Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37.
The parties are asked to provide the Board, no later than Friday, August 17, 2012, their opinions on the following questions:
a) What issues must be addressed by the Board to comply with the decisions of the Federal Court of Appeal and of the Supreme Court of Canada?
b) Can these issues be determined on the basis of the existing record? Will it be necessary for the parties to file additional argument or additional evidence?
c) If the parties require an opportunity to file additional argument or evidence, how can this be achieved most efficiently? A proposed timetable would be welcome.
d) Are the instructions of the Federal Court of Appeal sufficiently precise or should the parties ask the Court for further directions?
A joint filing would be welcome.