Copyright Board Commission du droit dauteur

Canada du Canada





Date: J une 6, 2014


File: Access Copyright Elementary and Secondary School Tariffs (2010-2012, 2013-2015)


NOTICE OF THE BOARD


The file mentioned above will proceed as follows:

Filing with the Board of Legal submissions including answers to the questions attached to this
Notice at Appendix A: no later than Friday, August 8, 2014.

Filing with the Board of Replies to Legal submissions: no later than Friday, August 29, 2014

Filing with the Board of Outlines of argument including any additional valuation or other
evidentiary submissions: no later than Tuesday, September 9, 2014.

Oral argument: Friday, September 12, 2014 at 9:30 a.m., Copyright Board's hearing
room.

The Board also wishes to address technical questions to the parties. The questions are found in
Appendix B to the present notice.

The parties are asked to indicate to the Board how much time they would need to answer these
technical questions: no later than: Friday, June 13, 2014.

Any issues the parties might have with respect to the technical questions should be
addressed to the Boards Director of Research, Dr. Raphael Solomon, by email at
raphael.solomon@cb-cda.gc.ca.





Gilles McDougall
Secretary General



APPENDIX A


File: Access Copyright Elementary and Secondary School Tariffs (2010-2012, 2013-2015)

LEGAL QUESTIONS FROM THE BOARD


Questions to all parties:

1. Fair dealing

1.1 Please describe the impact on fair dealing in elementary and secondary schools of the
addition of education in s. 29 of the Copyright Act and of the Alberta v. Access
Copyright and SOCAN v. Bell Supreme Court of Canada decisions. To what extent do
these developments expand fair dealing in elementary and secondary schools? In
particular, explain what the Supreme Court of Canada meant in the Alberta v. Access
Copyright decision when it used the term short excerpt.

1.2 Taking into consideration the jurisprudential and legislative developments referred to
above, analyze the document entitled Copyright Matters! and the Fair Dealing
Guidelines (exhibits Objectors 3B and 3C) in light of the fair dealing factors identified in
CCH.

In particular, please address whether,

(a) the reproduction of a single article for a class would constitute fair dealing in light
of CCH?

(b) the reproduction of one chapter, for a class, regardless of the number of pages
reproduced, would constitute fair dealing in light of CCH?

1.3 In his testimony (Volume 4, pages 735-736), Mr. Benot Gauthier described the concept
of compound copying as being copying by a person in a repeated manner or for a
person in repeated manners. In evaluating what constitutes fair dealing, please explain
how compound copying should be treated. In particular, please describe the number of
copying occurrences, the amount of each copying, and the delay between each occurrence
that would be necessary to make the copying tend to be unfair.

1.4 Should the Board consider dealings with certain works, such as those that are considered
to be core textbooks, or those on the Trillium list, to be less fair than dealing with other
works?

1.5 In evaluating if the amount of the dealing tends to be fair with respect to a compilation,
Drs Wilk and Whitehead stated in their testimony that the amount of pages copied had to
be divided by the total number of pages of the compilation. Please comment on this
position in light of the Robertson v. Thompson Corp. Supreme Court of Canada decision.
Given the fact that a newspaper is protected as a compilation and that each article is also
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protected as an individual copyrighted work, how should the amount of the dealing be
evaluated?


Questions to Access Copyright:
2. Repertoire

2.1 In its decision dated J une 26, 2009, the Board concluded that copies of works owned by
non-affiliated rights holders who have cashed their royalty cheque from Access
Copyright are to be included in the royalty calculation for that tariff. However, in the
present case, no royalties were distributed for the period starting on J anuary 1
st
2013 and
only an amount of $2.576 per FTE was distributed for the period of 2010 to 2012. Please
provide legal justification for including works of non-affiliated rights holders in the
royalty calculation for this tariff.
2.2 Please explain:

(i) how Exhibit AC-79 (Sample letter, Access Copyright Distribution Guidelines)
supports Access Copyrights assertion that an agency is created with a non-
affiliated rights holder once a cheque has been cashed;

(ii) what are the details provided in the distribution report accompanying
Exhibit AC-79;

(iii) in which situations does Access Copyright communicate with the publisher instead
of directly with the owner of copyright, and why?

(iv) how an agency can be created with non-affiliated copyright owners in the cases if
any where Access Copyright does not communicate directly with the copyright
owner, but only with the publisher of a work;

2.3 In Exhibit AC-2, Access Copyright asserts that by virtue of its bilateral agreements with
foreign RROs, its repertoire includes works whose copyright owners are in other
jurisdictions. Please explain if copies made of works owned by non-affiliated rights
holders of an RRO are authorized or infringe copyright. Limiting your response to the
RROs of Australia, the United Kingdom and the United States, please address whether an
agency can be created in situations where Access Copyright has no direct relationship
with such rights holders and does not distribute any royalties other than directly to the
foreign RRO.

2.4 Please explain how Access Copyright receives confirmation that for a particular work for
which the copyright owner is in another jurisdiction, an affiliation agreement was indeed
entered into with the foreign RRO.

2.5 With respect to sheet music and the evidence provided by Ms. Caroline Rioux, CMRRA
President, the Board understands that an affiliated publisher has to register each musical
work for their inclusion in CMRRAs repertoire. Ms. Rioux also confirmed in her
testimony (Volume 3, page 641) that it would be impossible for someone copying sheet
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music to know if it was in CMRRAs repertoire or not. In this context, please explain
what would be the value for the Objectors to have a tariff for the reproduction of sheet
music instead of operating on a transactional basis.

2.6 With respect to musical scores in books, Ms. Roanie Levy stated in her testimony that
Access Copyright represented the reproduction right for these works in accordance with
affiliation agreements with creators and publisher (Volume 1, pages 33, 88-89).
However, Ms. Caroline Rioux stated in her testimony (Volume 3, pages 632-633) that
CMRRA represented the reproduction right of these works, since CMRRAs
members/affiliates owned reproduction rights to musical scores in books and sheet music.
In light of the above, please clarify the respective mandate of Access Copyright and
CMRRA for musical scores in books.


Questions to the Objectors

3. Rates

Please explain the position of the Objectors with respect to Access Copyright proposed
Tariffs. If, and as alleged by the Objectors, reproductions by K to 12 schools are not
compensable, why do the Objectors propose rates at $ 0.49 (2010-2012) and $ 0.46
(2013-2015) per FTE and not zero? The Objectors also refer in their Statement of Case to
the certification of a transactional tariff to cover copies not authorized by the Copyright
Act. Please provide an explanation for this proposal, which should include details about
proposed rates and methodology.

4. Copyright Matters

Please explain on what basis the Objectors established their position with respect to the
definition of what constitutes a short excerpt as described in paragraph 4 of section 3 of
Copyright Matters! (Exhibit Objectors 3B).


APPENDIX B


File: Access Copyright Elementary and Secondary School Tariffs (2010-2012, 2013-2015)

TECHNICAL QUESTIONS FROM THE BOARD


Questions to all parties:


1. There is some debate as to how to treat the repertoire of Access.

(a) Please confirm that the correct interpretation of ac_pub_affiliate =1 (as used in
Exhibit Objectors-10, at para. 101) is that the works publisher has signed an
affiliate agreement with Access Copyright. Please confirm that the publisher is the
owner of copyright of the work in every such instance.

(b) Please confirm that the correct interpretation of ac_rro_bilateral =1 (as used in
Exhibit Objectors-10, at para. 101) is that an RRO with which Access Copyright
has a bilateral agreement has represented to Access Copyright that the RRO may
authorize Access to administer the reproduction rights in relation to that work.

(c) Please confirm that there is no copying transaction in the 2006 Volume Study for
which ac_pub_affiliate =1 and ac_rro_bilateral =1.

(d) Please give the joint distribution of the two variables ac_pub_affiliate and
ac_rro_bilateral weighted by transactions.

(e) Please give the joint distribution of these two variables weighted by exposures.

(f) Please comment on the appropriate use of these distributions to modify Table 5.2 in
Exhibit AC-67 or Tables 34/35 in Exhibit Objectors-10.

2. There is some debate as to how to treat the photocopier counters for the weighting of the
transactions in the Volume Study.

(a) Using Exhibit Objectors-28 as a model, please calculate the rightmost column in
the table (that is, the underreporting ratio divided by 19.4) for each of the 894
schools in the sample.

(b) Please report the unweighted distribution of the statistic calculated in part (a), as
well as the first two sample moments.

(c) Please report the distribution of the statistic calculated in part (a) weighted by
exposures, as well as the first two sample moments.

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(d) Please comment on the appropriate use of these distributions to modify Table 5.2 in
Exhibit AC-67 or Tables 34/35 in Exhibit Objectors-10.

3. According to Exhibit AC-5, McGraw Hill Ryerson has decided to stop the publication of
consumables. According to the Transcripts (Vol 2, at p. 505), Nelson Education has
decided to decrease[ ] [its] level of investment in workbooks over the last number of
years.

According to Exhibit AC-67, Table 5.2, there were 110 million exposures of
compensable consumables, based on the Volume Study. According to Exhibit Objectors-
10, Tables 34 and 35, there were 17 million exposures of compensable consumables in
the first tariff period and 14 million exposures of compensable consumables in the second
tariff period.

(a) Please comment on the adjustments necessary to the figures in AC-67 and
Objectors-10 based on the fact that there were consumables from which to copy at
the time of the Volume Study but there are fewer or no consumables from which to
copy today.

(b) Is your answer to part (a) different for the first tariff period than it is for the second
tariff period?

4. There are some disagreements as to how to compute the percentage of work copied. For
the purpose of this question, for the genres newspaper and periodical, define the work as
the article, not the issue.

(a) Please revise the page counts for each work copied, taking into account that the
work is the article, not the issue, in the case of newspapers and periodicals. Where
the total pages of the work are not known, please use the average number of pages
of works of the same genre. Please indicate separately the average values used for
this substitution.

(b) Please recompute the percentage of the work copied, following the revisions in part
(a).

(c) In the Satellite Radio decision dated April 8, 2009, the Board held that the copying
of a 4 to 6 second portion of a sound recording (being on average 3.9 minutes long)
was not a substantial reproduction. This is equivalent to 2.5 per cent of the work.
Using this definition, please indicate the number of transactions that are not
substantial copying, both in aggregate and by genre. Also, please indicate the
number of exposures that are not substantial copying, both in aggregate and by
genre.

5. There was some discussion of compound copying during the hearing. Computing the
number of compound copies would be difficult, since this would require opening each
record manually. However, an upper bound to compound copying can be computed in a
simpler manner.

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Define a potential compound copy as two (or more) transactions where the copy was
made at the same school, in the same two-week period, of the same published title. For
each potential compound copy, define the percentage of the work copied as the total
number of originals copied in all copying events in the same potential compound copy
divided by the number of pages in the work. For the number of pages in the work, please
use the revisions referred to in question 4 (a).

For each of the following cutoff values, determine the percentage of potential compound
copy transactions that exceed the cutoff in terms of the percentage of the work copied in
part (a): 1%, 2.5%, 5%, 10%, and 20%.