ACCESS COPYRIGHT ELEMENTARY AND SECONDARY

SCHOOL TARIFFS (2010-2012 & 2013-2015)

ACCESS COPYRIGHT REPLY LEGAL SUBMISSIONS
(FILED PURSUANT TO BOARD NOTICE DATED JUNE 6, 2014)







August 29, 2014 THE CANADIAN COPYRIGHT
LICENSING AGENCY
1 Yonge Street, Suite 800
Toronto, ON M5E1E5

Arthur B. Renaud LSUC #26331F
Tel: (416) 868-1620 ext. 294
arenaud@accesscopyright.ca

Erin Finlay LSUC #48054B
Tel: (416) 868-1620 ext. 234
Fax: (416) 868-1621
efinlay@accesscopyright.ca

Lawyers for Access Copyright


1

OVERVIEW
156. In their August 8, 2014 legal submissions, the Objectors:

a) have misconstrued the Act and Canadian copyright law jurisprudence;

b) have ignored much of the relevant evidence of record that distinguishes these
proceedings from earlier proceedings in which the fair dealing exception was
considered; and

c) have proposed a transactional licensing tariff, the plausibility of which is belied by
the uncontradicted evidence of record.

157. The Objectors have made submissions concerning foreign law despite having led no
evidence in this regard at the hearing. Absent evidence, the Board cannot reliably consider
foreign law. Moreover, based upon a review of the extracts from the foreign authorities the
Objectors have selectively placed before the Board, the Objectors appear to have so
misrepresented those authorities that the Board ought not give any credence to the Objectors
submissions.
1. Education means student instruction
158. Access Copyright provided its response to the Boards Post-Hearing Question 1.1 in its
Legal Submissions.
1
At the time that Parliament passed Bill C-11, and at the time it received
Royal Assent, the judicial consideration of the existing allowable fair dealing purposes,
research and private study was reflected in the Federal Court of Appeals affirmation
2
of
the Boards 2009 Decision.

159. In paragraphs 8 to 11 of their legal submissions, the Objectors assert that the new
allowable purpose education should be given an expansive interpretation beyond the
immediate student-teacher relationship because the Supreme Court of Canada in Alberta
already found copies made at a teachers initiative for students was encompassed by the
existing research and private study allowable purposes.

160. The Objectors argument is incorrect. The meaning of words used in legislation is fixed
at the time of enactment and not some later time.
3
The addition of education to section 29 of
the Act was to qualify copies made for instruction of students as an allowable fair dealing
purpose. The Supreme Courts broad interpretation of research and private study,
pronounced subsequent to Parliaments introduction of education as an allowable purpose,
cannot assist the Board in discerning Parliaments intent as to the meaning to be given to
education. The word ought to be given its plain, ordinary meaning which is the instruction of
students.


2


161. Moreover, the Objectors expansive definition of educational fair dealing, which
triggered their decision to stop paying royalties under the tariff, is completely at odds with
Parliaments intention reflected in section 30.02 of the Act that affords an exception to
infringement to educational institutions in respect to digital copying but only if they are
operating under a collective society licence.
4


162. Therefore, and contrary to paragraph 12 of the Objectors submissions, Parliament did
not intend to expand educational fair dealing by adding education to section 29 of the Act
but intended simply to establish that copying for the purposes of student instruction was an
allowable fair dealing purpose, the ultimate fairness of which is to be decided on a case-by-case
basis by the trier of fact in accordance with the judicially recognized factors.

2. The Fair Dealing Guidelines are not presumptively fair
163. In paragraphs 15 and 16 of their submissions, the Objectors assert that the Board can
treat the Fair Dealing Guidelines in Copyright Matters! as a policy or practice, the fairness of
which can be assessed on its face. The Objectors rely on CCH as support for this assertion. As
previously submitted by Access Copyright
5
, the facts and circumstances underlying the Access
to Law Policy in CCH are markedly different from the facts and circumstances of the present
proceedings. The Guidelines cannot be considered to be presumptively fair. Moreover, as they
only consider the quantitative amount of the copying to the exclusion of all other relevant fair
dealing factors, the Guidelines are incapable of being declared a fair policy or practice.

3. Proper evidentiary assessment of fair dealing factors points to unfairness
A) Purpose of the dealing
164. The Objectors cursory assessment of purpose is restricted to a restatement that the
purpose of the copying is educational. As such, according to the Objectors, the Boards
assessment of this factor should favour fairness. If the Objectors restricted assessment of
purpose was sufficient, this factor would be conflated with the threshold allowable purpose
of education, thereby depriving this factor of any utility whatsoever.

165. In contrast, Access Copyright conducted the required in-depth assessment of this factor,
in particular, whether or not the copying is, or is not, transformational in nature.
6


166. The Objectors purport to rely on international precedents
7
in support of their
assessment of the amount of the dealing factor. To the extent these precedents are
relevant or capable of being relied upon
8
, both the Australian Law Reform Commission
(ALRC)
9
and the university academics in Israel
10
emphasize the significance of
transformational use when considering the fairness of copying. In the words of the ALRC,
3

whether a use is transformative should be a key question when applying the fair use exception
- or the new fair dealing exception (underlining added for emphasis)
11


B) Character of the dealing
167. The Objectors cite paragraph 55 of CCH. To paraphrase, that paragraph stands for the
proposition that the wide distribution of multiple copies of works that are not destroyed after
use tends toward unfairness. That is precisely the character of the copying behaviour in K-12
schools.
12


168. The Objectors assert that the distribution of all copies of published works made under
the Guidelines, including the posting of a copy in a Ministry database accessible by hundreds of
thousands of students and parents of that province,
13
is a narrow distribution. This level of
distribution does injustice to the word narrow and is a far cry from the fact situation
considered by the Supreme Court in Alberta (Education) where little bits from published
works were being spontaneously copied by individual teachers to meet the situational
educational needs of one student or, at most, one classroom of students.

169. In paragraphs 27-35 of their submissions, the Objectors ask the Board to ignore the
Supreme Courts clear findings in CCH
14
and Alberta
15
that the quantification of the total
number of pages copied is to be considered under the character of the dealing factor. The
Board is bound to follow this finding under the principle of stare decisis.

170. Even if the character of the dealing were to be considered solely from an individual
students perspective, the Volume Study establishes that, on average, each single student
receives more than 90 copied pages of copyright-protected material in Access Copyrights
repertoire each year.
16
Whether legitimately viewed in the aggregate from the education
sector as a whole, or narrowly viewed from the perspective of the individual student, the
character of the dealing is unfair.
C) Amount of the dealing
171. The Objectors have ignored completely any qualitative assessment of that which has
been copied. Moreover, their submissions in paragraphs 37 and 71-72, if correct, would run
afoul of Parliaments instruction in section 2.1(2) of the Act, the ratio in Robertson
17
and the
guidance of the Federal Court of Appeal in CCH.
18


172. In paragraph 71 of their submissions, the Objectors cite a paragraph from the minority
judgment in Robertson that merely confirms the uncontroversial proposition that an individual
work and a collective work can both have the requisite degree of originality to warrant their
own separate copyright protection.

4

173. The Objectors otherwise ignore the reasons of the majority of the Court in Robertson
which reaffirm Parliaments intention expressed in section 2.1 (2) of the Act that the mere fact
that a work is included in a compilation does not increase, decrease or otherwise affect the
protection afforded the individual work under the Act.

174. The Objectors submissions in paragraphs 72-77 would, if correct, eliminate the
protection afforded the individual works used in the compilation, contrary to the Act and
Robertson. The fact that certain works, for example a newspaper article, or more broadly,
poems and short stories, are typically published together with other articles, poems or stories
cannot prejudice their protection under the Act.

175. Moreover, if an educational institution were permitted under section 29 to copy entire
works, such as newspaper and magazine articles, the exception provided under section 29.4
would be completely superfluous.

176. In paragraphs 78-80 of their submissions, the Objectors refer to CCH as apparent
support for their position that the copying of entire newspaper articles may be fair. The
Objectors do not appear to recognize that the Courts statements in CCH, made in the context
of single copies of legal decisions and legal treatises for the purpose of lawyers research and
private study, must now be read in light of the Courts subsequent pronouncements in
Robertson that reaffirmed that an author of a newspaper article is entitled to full, unimpaired
copyright protection, regardless of its inclusion in a compilation of newspaper articles.

177. Access Copyright referred one of the Objectors witnesses to a learning resource
comprised of lengthy chapters, at least one of which comprised more than 10 % of the book
19
.
The Objectors assert in paragraph 38 of their submissions that it is likely rare for a book to
have so few chapters such that each chapter would be greater than 10% of the book. This
assertion is contradicted by the evidence. The Objectors witness, Mr. George, testified that I
would suspect that theres a number of examples like that.
20


178. In addition, it is clear from Ms. Delbridges evidence that she understood the Guidelines
to allow the copying of 84 pages from a textbook
21
, which was far in excess of 10% of the work.
In paragraph 39 of their submissions, the Objectors improperly provide counsels own fresh
interpretation of Exhibit AC-85, an interpretation that no witness proffered in evidence, in an
unsupported attempt to minimize the damaging admissions of Ms. Delbridge and Mr. George
who admitted that teachers would understand from the Guidelines that copying well in excess
of 10% was an act of fair dealing.
22


179. In paragraphs 56 to 64 of their submissions, the Objectors do not contest the relevance
of compound copying nor contest that the Volume Study disclosed such behaviour. However,
the Objectors assert that the Board should essentially ignore this behaviour in assessing the
amount of the dealing factor. The principal basis for that assertion is the limited nature of the
information available.
23
The reason that there is limited information is because the
Objectors did not produce a single witness, a panel of witnesses or the results of any polling of
5

teachers witnesses/evidence they were exclusively capable of calling to resolve any
uncertainty about the frequency of that behaviour. The Objectors cannot legitimately ask the
Board to discount evidence that they acknowledge is relevant and reliable because they failed
to lead evidence available to them on the issue.

180. The Objectors are correct that the Supreme Court of Canada in Alberta declined to
define short excerpt in solely quantitative terms. The Court also declined that opportunity in
CCH. Nonetheless, the Objectors appear to suggest
24
that, in not disavowing the Objectors
submissions concerning their interpretations of Australian and US law, the Court implicitly
accepted those submissions. That argument is specious.

181. The Objectors otherwise ignore completely their previous submissions to Parliament
and the Supreme Court of Canada
25
in 2011 concerning their definitions of short excerpt,
which stand in stark contrast to the definition advanced in Copyright Matters!. The latter
definition is irreconcilable with the Objectors previous formal submissions. No legitimate
justification has been advanced by the Objectors for their radical departure from their 2011
submissions.

182. Finding no support in Canadian law
26
for their definition of short excerpt, the
Objectors purported to research the laws of Australia, New Zealand, Israel and the United
States for such support. That research was woefully inadequate. In addition, even assuming the
Board is capable of considering such foreign law, the precedents cited by the Objectors,
properly considered, do not support the Objectors position.

183. As a preliminary matter, before the Board can correctly adopt foreign law precedents, it
must be satisfied as to the quality of the evidence relating to the content of the foreign law. In
Canada
27
, as in most common law jurisdictions, a party must prove the relevant content of the
foreign law as its content is treated as an adjudicative fact. Without such proof, for example,
from an expert witness who can explain the nuances and important distinctions in the foreign
law, the Board is in no position to reliably adopt or apply the foreign law. The Objectors
tendered no such evidence.

184. The wisdom of this evidentiary requirement is underscored in these proceedings as the
Objectors unqualified, incomplete, acontextual and selective analysis of foreign law is, as
discussed below, fraught with error.

185. Apart from the evidentiary requirement to prove the content of foreign law, the Board
should heed the caution expressed by the Supreme Court
28
, at least in respect to US Court
decisions, that while the Board may find some assistance in those decisions, they must be
scrutinized very carefully because of some fundamental differences in copyright concepts which
have been adopted in the legislation of that country.

186. In paragraphs 102-108 of their submissions, the Objectors simply mis-state the relevant
law in Australia. Section 40 of Australias Copyright Act 1968 has been held not to extend to
6

uses by educational institutions, but only to private research and study by individuals
29
. Other
sections of the legislation
30
, none of which were discussed by the Objectors or provided to the
Board, appear to provide specific exceptions for educational institutions. None of these
relevant sections support the definition of short excerpt advanced in Copyright Matters!

187. Moreover, in paragraph 108 of their submissions, the Objectors did not explain that
mandatory statutory licences also extend to educational institutions
31
which grant them broad
rights to use copyright material and to copy the same reasonable portions cited by the
Objectors as being fair upon the payment of a fixed royalty and the fulfillment of other
conditions (including a mechanism to monitor usage).

188. At paragraph 109 of their submissions, the Objectors selectively refer to New Zealand
copyright literature. Even if one were to assume that the authority cited is a reliable and
complete statement of the law, the up to 10% definition of short extract referred to in this
authority: a) makes clear that the permitted copying is not for the educational purposes of
the teacher; b) prohibits multiple copying or copying for students; and c) prohibits making
copies from earlier copied material. Notably, this authority provides that the fairness of the
copying is to be assessed by asking whether the work could have been obtained within a
reasonable time at an ordinary commercial price.
32
Placed in its proper context, the definition
of short extract in the cited authority does not assist the Objectors.

189. At paragraphs 110 to 113, the Objectors purport to rely on a paper written by three
academics in Israel who report on a Code of Fair Use Best Practices drafted by a number of
higher education institutions without the input and participation of copyright holders.
33
It
cannot be reliably cited as an unbiased reflection of existing law. In this sense, it is equivalent to
CMECs Copyright Matters! The authors state, it remains to be seen whether the best practices
code will have an impact on Israeli copyright law.
34
In other words, it is what these partisan
authors believe what the law should be, not what it is.

190. The Objectors also purport to rely on a consent inter partes judgment issued after the
mediation of a litigious dispute between two publishers and a university. A mediated time-
limited settlement between individual litigants has no value as a precedent, particularly when
the parties themselves agree that any fair use definition is made for the purposes of [this]
Agreement only
35
and that the resolution shall not constitute a precedent and/or admission
by either party as to the claims of the other party.
36


191. In any event, a fair interpretation of the settlement agreement is that it is a four year
paid up licence under which the University agreed to pay significant sums to two publishers for
the right to copy from their works.

192. At paragraphs 114-116 of their submissions, the Objectors seek support for their
definition of short excerpt in the Classroom Guidelines negotiated by US publishers, authors
and educational institutions. Again, the Objectors selectively extract portions of the agreement
and ignore all portions that provide context for the extracted portions and which contradict the
7

Objectors position. An objective and fair reading of the entire document
37
does not support
the Objectors position. The chapter threshold applies only to single copying for teachers, not
to multiple copies for classroom use. The Objectors also misrepresent the definition of brevity
in the Classroom Guidelines, which is 1000 words or 10% of a prose work, whichever is less.
Unlike Copyright Matters!, the negotiated US guidelines only permit the making of multiple
copies for classroom use if the copying meets all the tests of brevity, spontaneity and
cumulative effect.

193. At paragraphs 116-119 of their submissions, the Objectors purport to rely on the
Georgia State decision, a district court decision that has been appealed to the United States
Court of Appeals (11
th
circuit). Beyond not constituting the final word on the dispute between
the litigants involved, the decision was reached on the application of US law to the particular
facts, circumstances, admissions and concessions made in the evidentiary record. It is of little
precedential value in the present proceedings.

194. At paragraph 120 of their submissions, the Objectors hypothesize as to the reasoning
behind the licensing terms of the proposed tariffs. The Objectors had ample opportunity to test
that hypothesis by asking relevant questions of three witnesses from Access Copyright and two
witnesses employed by two large educational resource publishers. The Objectors failed to elicit
evidence that supports this hypothesis. Contrary to this hypothesis, the Objectors own expert
witness, Mr. Chodorowicz, testified that copying substitutes for the work copied
38
.
D) Alternatives to the dealing
195. The Objectors simply ignore all the evidence tendered in the proceedings that relate to
this factor and fail to consider how that evidence distinguishes the present proceedings from
the previous tariff proceedings. In contrast, Access Copyright
39
has provided the Board with an
analysis of the evidence relevant to this factor. In paragraphs 68 and 93 of their submissions,
the Objectors assert that teachers copy to supplement classroom instruction and that the
Board made such a finding. No such finding was made. The Board found that the copying was
done to complement the main textbook, not classroom instruction as a whole.

196. Regardless, that is not the fact scenario before the Board in the present proceedings.
The uncontradicted evidence here is that the materials used for classroom instruction are
compiled from various sources, including pages copied from, and encouraged by the Guidelines
to be copied from, published works. These copied pages can no longer be considered to be
merely complementary or supplementary. Rather, the copies now contribute to the main
teaching resources used in the classroom.
E) Nature of the works
197. The Objectors focus on the use to which the copies are put education and ignore
completely that the textbooks and consumables from which copies are made require a high
degree of skill, judgment, research and pedagogical expertise, much of which is infused with
8

indigenous content. These works are not in any sense derivative of other works, such a head-
note of a reported judicial decision.

198. By restricting their analysis to the use to which the copies are put, the Objectors fail to
consider the nature of the works entirely. If the Board were to limit its assessment as
advocated by the Objectors, the nature of the works would always tend toward fairness once a
threshold allowable purpose was established, thereby depriving this factor of any utility in the
fair dealing assessment.
F) Market impacts of the dealing
199. The Objectors label the evidence led by Access Copyright as legally irrelevant and
highly speculative and vague. To the contrary, as submitted by Access Copyright
40
, the Board
has been furnished with concrete evidence of short term and long term negative impacts on
the markets for the publishers works, including impacts on publishers, creators and, ultimately,
users.

200. The Objectors persist in their argument that the only fact that is relevant is whether
there is a causal link between the copying behaviour and the decreased sales of the works
copied. The Supreme Court in CCH
41
clearly identified as relevant the impact on the publishers
market as a whole, the only evidence of market impact is that the publishers have
continued to produce new reporter series and legal publications during the period of the
custom photocopy services operation (underlining added for emphasis). Clearly, evidence of
impacts on the publication of new works and evidence that establishes the elimination of
previous works
42
is exceedingly relevant.

201. Access Copyrights witnesses did not wholly ignore other factors that may have
contributed to the proven decrease in sales. To the contrary, the evidence filed by Access
Copyright or elicited on cross-examination
43
demonstrated that such factors could not explain
the unprecedented decrease in publishers sales in 2013 as compared to 2012.

202. In any event, if the Board were to limit its assessment of this factor as urged by the
Objectors, Access Copyright has tendered, or elicited on cross-examination, reliable evidence
44

that establishes that the copying behaviour at issue has had an impact on primary sales and will
substitute for the works from which copies are made.
G) Other factors
203. In paragraphs 50 to 55 of their submissions, the Objectors urge the Board to consider
other factors, in particular, that education is in the public interest and that the copying at
issue is non-commercial. While Access Copyright agrees that other factors may be relevant to
the assessment of fairness such as whether creators and users will likely be negatively
impacted by the copying behaviour
45
the public interests that the Objectors advocate have
already been taken into consideration by Parliaments addition of education as an allowable
9

fair dealing purpose and in the second phase of the fair dealing analysis. To weigh these factors
once again would result in the Board affording disproportionate weight to circumstances that
have already been accounted for.

204. The Objectors notion that only they represent the public interest in these proceedings,
and that a public interest fairness factor will always weigh in their favour, reflects an egocentric
and fundamental misunderstanding of the purpose of the Act. The Act is intended to balance
and serve the public interest by striving to achieve three overriding goals: the encouragement
of works of the arts and intellect; the dissemination of works of the arts and the intellect; and
obtaining a just reward for the creator.
46
Copyright protects the interests the public has in all
three of those goals, each of which are represented by Access Copyright and the rightsholders it
represents.
4. No basis to impose a transactional tariff
205. At paragraphs 88 to 91 of the Objectors Legal Submissions, they provide scant details of
a proposed transactional tariff. In paragraph 12 of their Statement of Case, the Objectors made
a request that the Board certify a transactional tariff to cover any copying in K-12 schools of
published works in Access Copyrights repertoire that is not permitted by users rights in the
Copyright Act. Despite squarely raising the issue in their Statement of Case, the Objectors led
no evidence nor elicited any evidence during the nine day evidentiary phase of this hearing that
would support any such tariff.

206. The only evidence of record that relates to the issue of transactional licences is the
evidence tendered by Access Copyright, or elicited by it in cross-examination, that clearly
demonstrates the complete unsuitability of the transactional tariff proposed by the Objectors
and indeed any alternative transactional licence.

207. First, the evidence of Mr. Chodorowicz
47
confirmed that, in the absence of a blanket
licence, it would be extremely difficult for schools to clear rights before making copies on a
transactional title-by-title, work-by-work basis. In addition, Mr. Chodorowicz reaffirmed the
benefits of a blanket licence.
48


208. Second, the uncontradicted evidence of Mr. Gauthier
49
confirmed that teachers copied
millions of pages from consumables even though the works from which they made the copies
contained an express prohibition against copying; and the 2005 edition of Copyright Matters!
expressly informed teachers that copying from these works was NOT authorized under the
Access Copyright licence then in place. The Objectors led no evidence that even one teacher
sought permission from the appropriate rightsholder before making the copies.

209. Third, the uncontradicted evidence of Mr. Gauthier
50
confirmed that teachers copied
millions of pages from sheet music even though they were expressly informed by the 2005
edition of Copyright Matters! that copying from these works was NOT authorized under the
10

Access Copyright licence then in place. The Objectors led no evidence that even one teacher
sought permission from the appropriate rightsholder before making the copies.

210. Fourth, the uncontradicted evidence of several witnesses
51
established that teachers
and administrators in a number of distinct schools have egregiously
52
copied entire works
without seeking permission beforehand from the appropriate rightsholders.

211. Fifth, the uncontradicted evidence of Mr. Rollans
53
confirmed that, historically, K-12
schools rarely, if ever, sought out transactional licences.

212. Sixth, despite the Objectors decision, effective January 1, 2013, to stop paying royalties
to Access Copyright under the certified tariff, the uncontradicted evidence
54
is that teachers
have not sought out any copyright permissions from any rightsholder.

213. Seventh, although the Objectors proposal calls for individual users to provide
reasonable bibliographic information to Access Copyright and pay a royalty for such use, the
uncontradicted evidence is that no such records are maintained at present
55
; teachers have
constrained budgets
56
; there is no supervision or monitoring of teacher copying behaviour (nor
is such monitoring even possible)
57
; and that much of this copying behaviour is undetectable,
and known by teachers to be undetectable, by publishers or their representatives
58


214. Given this body of evidence, all of it uncontradicted by the Objectors (and much of it
admitted by them), there is no reasonable prospect that the imposition of a voluntary
transactional tariff , including the one proposed by the Objectors, will fairly compensate the
rightsholders for the copying of their works, in whole or in part, in K-12 schools.

215. Lastly, the blanket licence provides a mechanism to monitor and collect information
about copying behaviour (that also assists in the distribution of royalty payments) that would
be completely absent from a transactional licensing scheme. Since the copying behaviour at
issue occurs within the relatively closed communities of K-12 schools outside the ability of
publishers to effectively indentify licence-triggering behaviour, there would be no effective
means, apart from litigation, to compel disclosure of the use of copyright materials.

216. The Objectors led no evidence, nor elicited evidence in cross-examination, that would
support a fair pricing structure for a transactional licensing scheme, choosing only to refer to
Nordicitys per page pricing arrived at in the context of a blanket or comprehensive licence. In
their reference to Access Copyrights website, the Objectors fail to alert the Board that Access
Copyrights transactional licensing prices
59
are much higher than the rates proposed by the
Objectors. Given the Objectors scant, unsupported submissions on this issue, the Board has
no basis to certify any transactional tariff. To the contrary, Access Copyright has shown that
such a tariff is completely ill-conceived.

217. In view of all the above, the Board cannot be satisfied that the imposition of a voluntary
transactional licensing scheme would be workable. The only result of such a scheme of which
11

the Board can be reasonably certain is that copyright owners would be deprived of their just
reward for the creation of the works from which the copies are made.


1
See paragraphs 57 ff of Access Copyrights Legal Submissions, Exhibit AC-105
2
Alberta (Education) et al. v. The Canadian Copyright Licensing Agency (Access Copyright) 2010 FCA 198,
Access Copyright Supplementary Book of Authorities (ACSBOA), Tab 21
3
Ruth Sullivan, Sullivan on the Construction of Statutes (5
th
Ed.) (LexisNexis Canada Inc.: Toronto, 2008) at pp.
146-147, ACSBOA, Tab 22
4
If Parliament had intended to remove the obligation on educational institutions to have a licence from a
collective, it would not have enacted section 30.02. Subsection 30.02(1) extends the reproduction collective
licence to digital reproductions and communications provided that, among other requirements, the educational
institution pays , to the collective society, the royalties equivalent to one reprographic reproduction for each
student and otherwise complies with the licence ( s.30.02(3)). Parliament could not have intended to
simultaneously extend the collective licence to digital copying under section 30.02 and remove the need for one
under section 29.
5
See paras. 65-87 of Access Copyrights Legal Submissions, Exhibit AC-105
6
See paras. 92-100 of Access Copyrights Legal Submissions, Exhibit AC-105
7
See selective excerpts of foreign authorities reproduced behind Tabs 2-5, Tabs 27-31 of Objectors Book of
Authorities (OBOA)
8
See paras. 182-185 of Access Copyrights Reply Legal Submissions, Exhibit AC-107
9
See pages 23, 25, 102 (paras. 4.71-4.72), 130 (para. 5.34) of ALRC Report 122, November 2013, Copyright and
the Digital Economy (ALRC Report), ACSBOA, Tab 23
10
See page 14 of Fair Use Best Practices for Higher Education Institutions: The Israeli Experience, ACSBOA, Tab 24
11
See para. 5.34 on p. 130 and para. 14.45 on p. 319 of the ALRC Report, ACSBOA, Tab 23
12
See para. 104 of Access Copyright Legal Submissions and the evidence cited therein, Exhibit AC-105
13
Gill Cross-examination, TRANSCRIPT, VOL. 9, p. 1846 (line 13) p. 1848 (line 17)
14
CCH at paras. 55, 67 , ACBOA, Tab 7
15
Alberta (Education) at para. 29, ACBOA, Tab 4
16
Exhibit AC-67, Table 5.2, p. 26
17
In citing from the reasons of the minority judgment, the Objectors have ignored the ratio of the judgment
expressed in the reasons of the majority judgment
18
CCH FCA at paras. 65-67, ACBOA, Tab 6
19
Exhibit AC-85, filed with the Board; Delbridge Cross-examination, TRANSCRIPT, VOL. 5, p. 895 (line 9) p. 898
(line 3)
20
George Evidence, TRANSCRIPT, VOL. 6, p. 1209 (lines 13-21)
21
Delbridge Cross-examination, TRANSCRIPT, VOL. 5, p. 895 (line 9) p. 898 (line 3)
22
George Evidence, TRANSCRIPT, VOL. 6, p. 1208 (line 17) p. 1210 (line 13)
23
See para. 64 of Objectors Legal Submissions, Exhibit 0BJ-43
24
See paras. 98-99 of Objectors Legal Submissions, Exhibit OBJ-43
25
See paras. 75-79 of Access Copyrights Legal Submissions, Exhibit AC-105; These statements constitute informal
admissions for the purposes of the present proceedings which were not explained away or contradicted by other
evidence led by the Objectors see Sopinka at paras. 19.1 19.6, ACSBOA, Tab 30
26
Clearly, had Parliament or the Supreme Court of Canada intended to prescribe a quantitative threshold for an
amount of copying that was presumptively fair, they would have done so - Parliament in the context of its detailed
exceptions to infringement introduced in 2012 and the Supreme Court in its reasons in CCH or Alberta
27
Janet Walker, Castel & Walker Canadian Conflict of Laws, (6
th
Ed.)(LexisNexis Canada Inc: Toronto, 2005) at
paras. 7.1-7.3, ACSBOA, Tab 25
28
CCH at para. 22 , ACBOA, Tab 7; Compo Company Limited v. Blue Crest Music Inc. et al., [1980] 1 S.C.R 357 at p.
367, ACSBOA, Tab 26
29
See para. 14.15 on p. 313 of the ALRC Report, ACSBOA, Tab 23
12


30
See sections 44, 135ZG, 135ZMB, 200 and 200AAA of Australias Copyright Act 1968, ACSBOA, Tab 27
31
See pp. 183-208 of the ALRC Report, ACSBOA, Tab 23
32
See Tab 28 of OBOA
33
Not unlike Copyright Matters!, the Code of Fair Use Best Practices was drafted by a coalition of all of the higher
educational institutions in Israel, without any input from rightsholders see pp, 3, 17 of ACSBOA, Tab 24
34
See p. 23 of ACSBOA, Tab 24
35
See p. 1 of the Mediation Settlement, OBOA, Tab 30
36
See para. 16 on p. 6 of the Mediation Settlement, OBOA, Tab 30
37
The Objectors have only included selective portions of the Guidelines. Access Copyright has provided the Board
with the entire document behind ACSBOA, Tab 28
38
Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1715 (line 20) p. 1717 (line 16)
39
See paras. 123- 130 of Access Copyrights Legal Submissions, Exhibit AC-105
40
See paras. 138-148 of Access Copyrights Legal Submissions, Exhibit AC-105
41
CCH at para. 72, ACBOA, Tab 7
42
Access Copyright filed such evidence, or elicited such evidence on cross-examination see paras. 140-141 and
144-145, 147 ( and the evidence cited in the end notes) of Access Copyrights Legal Submissions, Exhibit AC-105
43
Exhibit AC-45, Rollans Re-examination, TRANSCRIPT, VOL.1, p. 249 (line 18) p. 250 (line 12); Bilyk Cross-
examination, TRANSCRIPT, VOL. 9, p. 1924 (line 25) p. 1925 (line 15)
44
See paras. 140, 144-145, 147( and evidence cited in end notes) of Access Copyrights Legal Submissions, Exhibit
AC-105
45
See paras. 146 and 148 (and the evidence cited in the end notes) of Access Copyrights Legal Submissions, Exhibit
AC-105
46
Theberge v. Galerie dArt du Petit Champlain Inc., 2002 SCC 34 at paras. 30-31, ACBOA, Tab 16
47
Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1747( line 25) p. 1751 (line 11); Exhibit AC-100, p.
1459 (line 22) p. 1460 (line 3)
48
Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1748 (lines 8-20): Exhibit AC-100, p.1459 (lines 10-21)
49
Gauthier Evidence, Exhibit AC-11, Appendix B, Table 3.2 (Row 2 Prohibition from reproducing), p.92
50
Gauthier Evidence , Exhibit AC-11, Appendix B, Table 3.1 (code 4), p.9
51
See paragraph 69 ( and the evidence cited in end note # 74) of Access Copyrights Legal Submissions, Exhibit AC-
105
52
Objectors counsels own characterization of the evidence tendered by Access Copyright that establishes blatant
infringing copying behaviour by teachers and administrators see TRANSCRIPT, VOL. 9, p. 1822 (lines 2-9)
53
Rollans Cross-examination, TRANSCRIPT, VOL. 1, p. 201 (line 13) p. 202 (line 3); p. 235 (lines 13-23)
54
Gerrish Evidence, TRANSCRIPT, VOL. 2, p. 362 (lines 15-19); Delbridge Cross-examination, TRANSCRIPT, VOL. 5,
p. 887 (lines 1-6); Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1747 (lines 18-24); See Exhibit OBJ-18,
which also authoritatively confirms that publishers are not seeing any up-tick in privately agreed direct licenses
and, in fact, are experiencing attrition of overall revenues from the sale of their educational works
55
Response to Interrogatories, Exhibit AC-52
56
See para. 99 (and evidence cited in end note # 101) of Access Copyrights Legal Submissions, Exhibit AC-105
57
See para. 69 (and evidence cited in end note # 73) of Access Copyright Legal Submissions, Exhibit AC-105
58
Besse Reply Evidence, AC-65 ,para. 5
59
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