ACCESS COPYRIGHT ELEMENTARY AND SECONDARY

SCHOOL TARIFFS (2010-2012 & 2013-2015)

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







August 8, 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


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OVERVIEW
1. In accordance with the Copyright Boards June 6, 2014 Notice, these are Access Copyrights
Legal Submissions and answers to Questions 1 and 2 attached as Appendix A to the Notice.

2. By way of overview, Access Copyright submits that:

a) the Objectors are precluded by the evidentiary rule of issue estoppel from relitigating the
Boards previous substantive findings of fact and law relating to the breadth of Access
Copyrights repertoire and the total number of photocopied pages of published works made
per annum in elementary and secondary (K-12) educational institutions as revealed by
the Volume Study;

b) insubstantial copying cannot be determined on a solely quantitative basis and, accordingly,
no deduction from the compensable volume of published works should be made by the
Board on account of insubstantial copying;

c) the Objectors have not discharged their evidentiary and legal burdens to support a
deduction from the compensable volume of published works on account of the fair dealing
exception in section 29 of the Copyright Act (the Act), beyond the deductions advanced
by Access Copyright because:

i. the Objectors practices and policies cannot be considered to be presumptively fair
1
ii. the Objectors purported fair dealing guidelines are contrary to law and encourage
unfair dealing; and
;
iii. the Objectors actual copying behaviour is unfair.

d) the evidence in these proceedings does not support deductions under s. 29.4 and 30.04 of
the Act beyond the deductions advanced by Access Copyright; and

e) in respect to conflicts in the evidence tendered by the parties, the Board ought to afford less
weight to certain portions of the Objectors evidence because it is demonstrably unreliable
and was proffered by at least one individual, Mr. Chodorowicz, who lacked the required
independence and objectivity required of expert witnesses.
ACCESS COPYRIGHTS REPERTOIRE
a) Routes of Authorization / Boards earlier findings
3. The parties to these proceedings participated in inaugural tariff proceedings that led to the
Boards June 26, 2009 decision certifying the Access Copyright tariff for K-12 schools (the Decision)
2
. In
those proceedings, Access Copyright asserted that its legal authority under the Act to collectively
administer the reproduction right of creators and publishers of copyright-protected works stemmed

2

from a number of sources: express written grants of rights (e.g. an affiliation agreement); written
agreements with other collectives (e.g. Copyright Clearance Center, Inc.); and through its appointment
as agent, express or implied, by rightsholders who have not otherwise made an express written grant
(non-affiliated rightsholders).

4. Access Copyright provided legal justification for including the works of non-affiliated
rightsholders in the royalty calculation in the previous tariff proceeding in a detailed legal brief dated
October 9, 2007.
3

In their response to Access Copyrights position, the Objectors asserted that the
copyright-protected works of non-affiliated rightsholders ought to be excluded from Access Copyrights
repertoire.
5. The Board made a legal finding
4
, well within its jurisdiction, that the works of non-affiliated
rightsholders who actively ratify Access Copyrights collective administration of their reprographic rights
(by cashing royalty distributions made by Access Copyright arising from the copying of their works in K-
12 educational institutions) are included within Access Copyrights repertoire by way of implied agency.
The Boards finding, on the evidence, was that approximately 0.1 percent of these rightsholders did not
ratify the agency relationship. The evidence in the present proceedings is that that percentage has
remained relatively constant since that time.
5


b) Application of the evidentiary rule of issue estoppel

6. The Boards finding was not challenged by the Objectors on judicial review
6
7. In these present proceedings, the Objectors have recycled their arguments from the inaugural
tariff proceedings. The Objectors assert that the only works in Access Copyrights repertoire are those
that are the result of valid affiliation agreements

. Absent changes to
the relevant provisions of the Act or the tendering of evidence that introduces new facts that were
unascertained or unascertainable at the time of the inaugural tariff proceedings, the Boards previous
substantive findings of fact and law are binding on the parties in these proceedings.

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. All works of non-affiliated rightsholders are to be
excluded.
8. This issue of law was conclusively resolved in the inaugural tariff proceedings. To the extent the
Objectors purport to support their recycled assertion with new analyses, this evidence is not grounded
in any new facts or any facts that were unascertained or unascertainable at the time of the inaugural
tariff proceedings. Accordingly, the Objectors are precluded from proffering evidence in these
proceedings to challenge the Boards substantive legal finding and from otherwise calling into question,
once again, the breadth of Access Copyrights repertoire
8

.
9. The application of the evidentiary rule of issue estoppel ensures consistency in the Boards
decisions, respect for their finality, and allows the Board to augment its previous decisions. If the
Objectors are permitted to relitigate issues previously decided with finality, confidence in the fairness

3

and integrity of the Boards previous decisions are undermined by the possibility of inconsistent findings
in unnecessarily duplicative proceedings.

c) Answers to Boards Post-Hearing Questions 2.1-2.4

10. Should the Board decline to apply the evidentiary rule of issue estoppel, Access Copyright again
relies on the evidence of its Executive Director, Ms. Levy
9

, that explains the policy and practicalities that
support the administration of the rights of copyright holders on an exclusions basis which: a) ensures
that rightsholders whose works are copied receive fair compensation for the copying and use of their
works; and b) provides certainty to users as to which works may be copied with immunity from suit for
copyright infringement under section 70. 17 of the Act.
11. The facts and law underlying the Boards substantive findings on the breadth of Access
Copyrights repertoire remained unchanged: the parties agreed to set the royalty based on the Volume
Study data
10
; Access Copyright has distributed based on that data for the period up to 2012
11
; Access
Copyright continues to pay royalties to non-affiliated rightsholders whose works were captured during
the study
12
; the decision to do so reflects Access Copyrights past (and current) practices; and almost all
of the non-affiliated rightsholders have cashed the cheques they received
13

. The only fact that has
changed since the Decision that impacts the agency issue is that the Objectors have unilaterally decided
to stop paying royalties to Access Copyright and have deprived Access Copyright of data as to which
particular works have been copied in K-12 institutions after January 1, 2013.
12. The Board set the inaugural K-12 tariff based on evidence of the general behaviour of collectives
and users by drawing conclusions about representative copying behaviour throughout the entire period
covered by the tariff
14
. It remains appropriate that the Board include works of non-affiliated
rightsholders in the royalty calculation based upon the proven facts and reasonable inferences
therefrom that: (a) Access Copyright has continued, and will continue, to distribute royalties once they
are paid, to non-affiliated rightsholders when their works are copied; and (b) that the vast majority of
those rightsholders will cash the cheques.
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13. Access Copyright only distributed $2.576 per FTE for the 2010-2012 tariff period because the
tariff rate has not yet been finally certified by the Board. Those distributions were made to all
rightsholders for whom Access Copyright has information that their works have been copied , including
non-affiliated rightsholders. Once the tariff is certified, Access Copyright will, in accordance with its past
practices, distribute the remaining royalties to those rightsholders.

14. It would be patently unjust if the Board allowed the Objectors to copy the works of non-
affiliated rightsholders without consequence and without payment because the Objectors decided to
stop paying royalties under the Access Copyright tariff and ceased to disclose which works have been
copied. The Objectors should not, by their unilateral actions, be permitted to copy from copyright-

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protected works of non-affiliated rightsholders simply because they refuse to pay the tariff or otherwise
abide by its terms.

15. Exhibit AC-79 is the letter that accompanies Access Copyrights distribution cheques to all
rightsholders, including non-affiliated rightsholders. It explains the reasons for the distribution, the
sector that copied the rightsholders works and describes the uses made of the works (photocopying,
scanning, posting and electronic distribution). The letter is accompanied by a distribution report which
lists the individual works copied, the sector that copied the work, the number of copies made and the
amount paid for such copying. In response to the Boards request, a sample distribution report has been
filed as CONFIDENTIAL EXHIBIT AC-103. When a rightsholder accepts payment for the uses made (as
outlined in Exhibits AC-79 and AC-103), it does so with the full knowledge of what is being authorized
and the implied agency relationship is ratified.

16. For non-affiliated rightsholders, Access Copyright communicates directly with and pays the
copyright owner. In most cases, the copyright owner is the publisher
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, but sometimes the copyright is
owned by an author or authors estate. (For example, if a work is out-of-print, copyright typically reverts
to the author.) In those cases, Access Copyright pays the author. In all cases, Access Copyright
endeavors, to the best of its ability, to communicate directly with the copyright owner or its agent.
17. Copies made of works owned by non-affiliated rightsholders of an RRO are authorized by the
proposed tariffs. Australia has a statutory licence for educational and government copying of books,
magazines and newspapers that is managed by Copyright Agency, so there are no non-affiliated
rightsholders in Australia relevant to this tariff. The RROs of the United Kingdom and the United States
search for and distribute royalty distributions to non-affiliated rightsholders when the RROs are notified
that those rightholders' works have been copied. When foreign non-affiliated rightsholders accept
payment through their RRO, they ratify the agency relationship. To find otherwise would violate the
principle of National Treatment by treating foreign rightsholders differently than Canadian rightsholders
when their works are copied in Canada.

18. Access Copyright does not receive confirmation that an affiliation agreement was entered into
with the foreign RRO. It relies on the terms of its bilateral agreements, and the exchange of exclusions
and inclusions lists (e.g. for born digital works), under which the RRO represents the rights that it has.

d) Sheet music

19. The Board has asked (Post-Hearing Question 2.5) Access Copyright to explain what value
accrues to the Objectors to have a tariff for the reproduction of sheet music instead of permitting them
to operate on a transactional basis.


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20. First, the testimony of Mr. Chodorowitz in the previous tariff proceeding
17

remains apt in
respect to sheet music in the absence of the blanket licence it would be extremely difficult for schools
to clear the rights before making copies on a transactional title-by-title, work-by-work basis.
21. Second, there is no evidence in these proceedings that K-12 institutions have ever sought
copyright clearances or transactional licences from print music publishers to copy sheet music, despite
having copied millions of pages
18
from this genre per annum. Indeed, the evidence of record is that no
transactional licences or copyright clearances have ever been sought by K-12 institutions to permit
copying of works in Access Copyrights repertoire at any time
19
. The Board is entitled to draw a
reasonable inference
20

that the Objectors will not alter their behaviour and now begin to seek
transactional licences.
22. Unless the Objectors were to completely cease the copying of sheet music there was no such
suggestion, much less such an undertaking from the Objectors to that effect the Board must weigh the
practical unworkability and unenforceability of a transactional licensing scheme against the reality that
the continued substantial copying of such works at K-12 institutions will deprive owners of the
reproduction rights in sheet music all compensation whatsoever if the proposed tariffs exclude sheet
music from the compensable genres of works.

23. Third, given CMRRAs expanding authority
21
to administer its affiliates sheet music reproduction
rights, the user uncertainty expressed by Ms. Rioux will dissipate over time. As CMRRAs sheet music
repertoire expands, the value to the Objectors (including the immunity from suit afforded by section
70.17 of the Act) will correspondingly increase. This value is one of the benefits that Mr. Chodorowitz
acknowledged in the previous tariff proceedings
22

that accrued to the Objectors, albeit in relation to the
genres of works then under consideration.
24. With respect to the Boards request (Post-Hearing Question 2.6) for clarification as to the
respective mandates of Access Copyright and CMRRA for musical scores in books, the clarification was
provided to Objectors counsel and previously filed with the Board
23
. By way of summary, the CMRRA
print music right affiliation schedule
24

defines published musical works to include sheet music and
musical scores in book form. To the extent a CMRRA affiliate publishes print musical works in the form
of books, there is no expansion of Access Copyrights repertoire since the reproduction of those works
already falls within Access Copyrights repertoire.
25. Access Copyrights repertoire is only expanded through the operation of the October 2010
mandate agreements
25

when a music publisher who has subscribed to Schedule G of the CMRRA
Affiliation Agreement publishes print musical works in the form of sheet music. Any redundancy
introduced by the broad definition of published musical works used in Schedule G by CMRRA with its
affiliates to include musical scores in books does not add or subtract works from Access Copyrights
already-established collective administration mandate.

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26. The joint operation of Schedule G and the mandate agreements afford Access Copyright the
right to collectively administer the reproduction right in both sub-genres of published print musical
works, from October 2010 onward, of those music publishers who have subscribed to Schedule G to
CMRRAs Affiliation Agreement.

LEGAL /EVIDENTIARY ISSUES RELATING TO COPYING BEHAVIOUR IN K-12 SCHOOLS
a) Boards previous findings re: volume of copied published works were based on best available
evidence, are final and ought not be disturbed

27. Access Copyright and the Objectors jointly designed a comprehensive study which collected
data relating to the copying behaviour of teachers in a sample of K-12 institutions over a two week
period from February 2005 to March 2006 (the Volume Study).

28. The data captured by the Volume Study was subjected to a rigorous and comprehensive analysis
in the previous tariff proceedings by the parties respective experts. The parties tendered expert
evidence concerning those analyses. The experts were made available for cross-examination. At the end
of this process, the parties essentially agreed on the total number of photocopied pages. The parties
were afforded all opportunities to advance all relevant analyses and expert evidence and their
positions/arguments on the Volume Study.

29. The Board considered the parties evidence and arguments and made certain substantive
findings of fact. Among those findings was that approximately 10.3 billion pages were photocopied in K-
12 institutions per annum and that the volume was comprised of approximately 3.1 billion pages from
published works of various genres.
26


30. The Objectors accept that the data in the Volume Study should again be used to calculate the
volume of compensable copying in K-12 institutions for the purposes of the present proceedings
27

. In
other words, the Volume Study data serves as a satisfactory proxy for the volume of copying during the
2010-2015 tariff periods.
31. Despite that acceptance, the Objectors purport to challenge the substantive findings of fact
made by the Board in the previous tariff proceedings arising from the Volume Study. As is the case with
the Objectors challenge to the breadth of Access Copyrights repertoire, the Objectors challenge is not
grounded in any new facts that were unascertained or unascertainable at the time of the previous tariff
proceedings. The evidentiary rule of issue estoppel precludes the Objectors from challenging/re-opening
the Boards findings concerning total copying volume of published works in K-12 institutions.

32. The Objectors are not precluded from having the Board reconsider the final compensable
volumes for the purposes of the 2013-2015 tariff given the legislative and jurisprudential developments

7

relating to fair dealing and other statutory exceptions; and given the fact that the issue of fair dealing is
always a fact-based inquiry to be determined upon reliable evidence tendered in each case.

b) A party may not rely on its own responses to interrogatories unless witnesses/evidence are
unavailable

33. The Objectors tendered no evidence from current K-12 teachers concerning their copying
behaviour during the periods covered by the proposed tariffs. Instead, the Objectors and their expert
witnesses purport to rely on the answers given by the Objectors in response to written interrogatories
28


asked by Access Copyright as evidence of current copying behaviour by teachers in K-12 schools.
34. Contrary to the position advanced by the Objectors in their Opening Statement
29
, it was not
impossible for the Objectors to tender evidence concerning teacher copying behaviour circa 2013/2014.
Mr. Chodorowicz admitted
30
that he had previously conducted polls of teachers in connection with the
previous tariff proceedings. Despite having been retained for almost a year
31
, no poll of teacher copying
behaviour was undertaken for the purposes of the present proceedings. Moreover, despite the fact that
he was at complete liberty to speak to teachers (unlike Mr. Dobner to whom teachers would not
speak
32
), Mr. Chodorowicz never spoke to teachers before filling his report
33

.
35. Interrogatories are in the nature of examinations for discovery
34
. In adversarial proceedings, a
party is not permitted to read-in portions of its own discovery as evidence, unless there are no other
means to introduce the evidence, because the reliability of these out-of-court self-serving statements
cannot be tested through cross-examination; nor can the credibility of the declarants or the reliability of
the statements be assessed by the tribunal
35

.
36. The unreliability of these self-serving statements is illustrated in at least two concrete examples
in these proceedings: 1) Mr. Chodorowiczs reliance on inaccurate FTE numbers provided by the
Objectors in the interrogatory process
36
which were contradicted by the reliable data provided in
connection with the Objectors reporting obligations under section 8(4) of the certified tariff; and 2) Mr.
Chodorowiczs initial conclusion (recanted at the hearing
37
) that copying from textbooks is rare,
38
a
conclusion arrived at from his reliance on the Objectors unreliable interrogatory responses which was
again contradicted by the reliable data gathered in the bibliographic studies conducted under section 10
of the certified tariff (the Bibliographic Studies).
39
37. The rule precluding a party from relying on its own self-serving interrogatory responses, unless
supported by a live witness whose evidence may be challenged (by the opposite party) and whose
credibility and reliability may be weighed (by the Board), ensures that the Board has probative evidence
upon which to make accurate findings of fact, findings that will be afforded significant deference in any
judicial review of those findings


40

.

8

c) Adverse inferences and weighing conflicting evidence

38. The Objectors did not tender evidence within their control, in particular, the evidence of
teachers concerning their current copying behaviour. The Board ought to draw an unfavourable
inference from that failure, that is, that their evidence would not have assisted the Objectors
41

.
39. To the extent there is a conflict in the evidence tendered by the parties concerning the current
copying behaviour of K-12 teachers, the Board ought to afford determinative weight to evidence that
was put forward through a witness (Access Copyright witnesses and Mr. Gauthier) who could be
challenged through cross-examination and whose credibility could be subjected to the Boards scrutiny.
Here, to the extent there is a conflict in the evidence concerning teacher copying behaviour between
the self-serving interrogatory answers (and the Objectors expert evidence that is based upon such
answers) and the evidence of the Bibliographic Studies about which the Board heard direct evidence
from Access Copyrights witnesses, that conflict must be determined in favour of Access Copyright.

40. Moreover, in weighing any conflicts in the evidence, the Board is fully entitled to take into
consideration any evidence that suggests that any expert witness impermissibly departed from his role
as a non-partisan, objective witness and instead became an advocate for the party who retained him.

41. For decades, common law courts have insisted that experts be independent from the parties
who retain them; provide objective, unbiased opinion evidence only in relation to matters within their
expertise; and avoid assuming the role of advocates for the parties who retain them.
42
42. The Objectors expert witness, Mr. Chodorowicz, approached his mandate as an expert witness
in a non-objective, partisan manner to advocate the interests of the Objectors. As was revealed during
his cross-examination, Mr. Chodorowicz selectively extracted only those portions of an authoritative
document


43
that supported the Objectors position but inappropriately withheld from his report and his
examination in chief all mention of other relevant excerpts that were directly contrary to the Objectors
position and that were clearly relevant to his mandate. Moreover, a number of answers given to
questions asked of him on cross-examination were evasive and inconsistent
44

.
43. This conduct ought to be taken into account when the Board weighs his evidence. In particular,
where his evidence conflicts with that of Mr. Dobner in respect to the impacts of K-12 teacher copying
behaviour on the publishers markets, the evidence of Mr. Dobner - who testified in a straightforward
and forthcoming manner in accordance with his obligations as an expert witness - should be preferred.
INSUBSTANTIAL COPYING
44. In question 4(c) of the Boards technical questions in its June 6, 2014 Notice, the Board referred
to its 2009 decision in Satellite Radio
45
as apparent support for setting a threshold for uncompensable
insubstantial copying in the present proceedings. The Boards findings in that decision were specific to
those proceedings and are inapplicable to the present proceedings.

9


45. As correctly found by the Board in Satellite Radio
46
, whether or not there has been reproduction
of a substantial part of a work is a question of fact which must be determined in light of all the
circumstances of each case. In Satellite Radio, the 4-6 second byte soup was unrecognizable in terms
of audio files and was both inaccessible and completely invisible to users. Applying the then leading
jurisprudence
47
, the Board correctly determined the issue of substantiality by assessing the quality


that was taken rather than quantity. An assessment restricted to a quantitative measurement of the
percentage of the work copied would have been contrary to that jurisprudence.
46. The principles in U & R Tax Services Ltd. were reaffirmed by the Supreme Court of Canada in
Cinar Corporation v. Robinson
48
. The Court confirmed that the Act protects creators against both literal
and non-literal copying so long as the copied material forms a substantial part of the work from which it
is copied. Whether a part copied is substantial must be decided using a qualitative

and holistic approach
rather than merely considering the quantity copied. If the copying of any part, even a small quantitative
part, represents a substantial portion of the authors skill and judgment expressed in the work, the
copyright in the work is infringed.
47. On the facts and circumstances of Satellite Radio, the Board found that the 4-6 seconds were
not a substantial part of the work. The 4-6 seconds were part of a technological process, were not
chosen by the user and could not be linked together to make a longer segment of a musical work. As the
Board found, [a]t no time does a subscriber possess a series of 4 to 6 second clips which when taken
together would constitute a substantial part of the work.
49


48. The facts of Satellite Radio stand in stark contrast to the facts in the present proceedings. Here,
unlike the Satellite Radio decision, the copied portions of published educational works are completely
recognizable and accessible by users and chosen by them. The evidence in these proceedings
50


establishes that K-12 teachers return to the same published educational resource to copy additional
portions. As such, while an individual copying event may be less than 2.5% of a work, the phenomenon
of compound copying means that teachers copy more than the supposed threshold from a given work
for a given class in a given year.
49. In addition, the evidence in these proceedings
51

establishes that, in many published educational
works, a substantial amount of original skill and judgment can be expressed in one or two pages of a
work. An arbitrary 2.5% threshold, measured solely on a quantitative basis, would permit the substantial
copying of such a work.
50. In their submissions to the Supreme Court of Canada in Alberta (Education), the Objectors
identified a quote, a sentence , that is, a portion so de minimus, so unimportant that it is not within
the right of a copyright owner to control
52

as the proportion of a work that, if copied, would be
insubstantial. The Objectors conceded in oral argument that the copying at issue in that case went
beyond de minimus copying.

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51. In these proceedings, the Objectors take the contrary position, claiming that all copying below a
certain quantitative threshold significantly more than a simple quote or sentence falls within the
ambit of insubstantial copying. Moreover, the Objectors deduction for insubstantial copying ignores
completely the qualitative aspects of the portions copied
53

. That analysis ought to be given no weight by
the Board as it does not accord with the jurisprudence and with the Objectors admission in Alberta
(Education).
52. The evidence in these proceedings
54
confirms that K-12 teachers value the ability to copy from
publishers works and that the portions copied are qualitatively instrumental to meet the educational
needs of students.
55

As such, the portions copied are not unimportant or de minimus and thus
cannot constitute insubstantial copying. If, from a K-12 teachers perspective, the portions copied
have a high educational value that will benefit her students, the portions must be presumed to
represent a key portion of the authors skill and judgment whose objective in creating the work was also
to express the educational concepts in a way that benefits students.
53. For all the above reasons, an arbitrary quantitative threshold alone cannot be used to determine
substantiality. In any event, the evidentiary record confirms that the portions copied by K-12 teachers
are not qualitatively unimportant or de minimus. The Board should make no deduction from the
compensable volume on account of insubstantial copying.
FAIR DEALING
a) Overview of Access Copyrights position

54. Access Copyright supports the Statement of Principles on Fair Dealing in Education released by
the Association of Canadian Publishers (ACP) in December 2013
56
. Access Copyrights position on fair
dealing in elementary and secondary schools is also reflected in the Canadian Educational Resources
Councils (CERCs) Fair Dealing Guidelines for K-12 Setting.
57


55. The ACP principles and CERC guidelines advocate for a principled and balanced approach to fair
dealing that advance the policy objectives of copyright law. This principled and fair approach is absent
from consideration in the Fair Dealing Guidelines published by Council of Ministers of Education,
Canada (CMEC) in the third edition of Copyright Matters! (the Guidelines).

b) Legislative and jurisprudential developments

56. Since November, 2012, Section 29 of the Act has expressly identified education as one of the
eight enumerated purposes that may qualify as fair dealing, provided the person advocating fairness is
able to satisfy its evidential and legal burdens and demonstrate that the dealing is, on the facts of that
case, fair.
58



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57. In answer to the Boards Post-Hearing Question 1.1, the amendments to the legislation
expanded the first step of the fair dealing test to allow three new enumerated purposes, including
education. Neither the legislation, nor the Supreme Court of Canadas decisions in Alberta (Education)
or SOCAN v. Bell altered the second fairness step of the fair dealing test.
59
The determination of fair
dealing remains a case-by-case analysis
60
and a matter of impression
61

dependent on the facts of the
case.
58. In Alberta (Education), Access Copyright and the Objectors agreed that the copying at issue by
teachers in K-12 schools met a broad and liberal definition of research or private study under the first
step of the CCH fair dealing test.
62

Similarly, for the purposes of the present tariff proceedings, Access
Copyright concedes that the purpose of the copying in K-12 schools meets an allowable purpose under
the first step of the CCH test (other than copying made solely for the purpose of entertainment). The
Board must now engage in a second step fairness analysis and assess the evidence and arguments
advanced in these proceedings in respect to the six fair dealing factors identified in CCH.
59. Alberta (Education) turned on the issues presented to the Court, as framed by the Objectors,
and the Courts assessment of the evidence of record a record significantly different from the
evidentiary record before the Board in the present proceedings:

a) The disputed copying behaviour at issue in Alberta (Education) was limited to an assessment
of the impact of the copying of 16.9 million pages of copyright-protected works in the
context of the Objectors admission that their copying of approximately 229 million pages
should trigger the payment of millions of dollars to Access Copyright under the first certified
tariff. Relying on the Objectors submissions, the Court understood that publishers and
creators would continue to receive millions of dollars from K-12 institutions through a
collective licence for the copying of their works
63

. Here, the Objectors submit that practically
all copying in K-12 schools is exempt from royalty payments under the Acts exceptions.
b) In Alberta (Education), the copying behaviour at issue, and ultimately found to be fair,
involved a teachers situational, unplanned need to copy a few pages or little bits (and
certainly not chapters) from a book in order to assist a student struggling to understand
the educational content in the assigned textbook. Here, the Objectors submit that
practically all copying in K-12 schools non-situational, planned and organized copying of up
to 10% of a work or an entire chapter, including the compilation of various excerpts into
textbook-like collections
64

, coordinated for maximum value and designed specifically to
avoid payment is fair.
c) In Alberta (Education), the copying behaviour under consideration by the Court was limited
to the copying of little bits solely to complement or supplement the content in the core
textbook in the situational context of a struggling student(s) and thus would not substitute
or replace the need to purchase the published work. Here the evidence, including a clear
admission from the Objectors expert economist, Mr. Chodorowicz
65
, is that certain copying

12

behaviours encouraged by the Guidelines will lead to substitution for, and elimination of,
certain published works.

d) In Alberta (Education), the copying behaviour at issue was triggered by the unexpected
educational needs of the student. Here, all copying behaviour claimed by the Objectors to
be encompassed by the fair dealing exception are contextually unlimited and subject only to
the unmonitored one chapter or 10% arithmetic ceiling.

e) Unlike the evidence here before the Board, in Alberta (Education) there was scant evidence
(labeled an evidentiary vacuum by the Supreme Court
66

) in the record that the markets for
the publishers works had been negatively impacted by the copying behaviour there at issue.
f) In Alberta (Education), the Supreme Court found that the Board had erred in its assessment
of market impacts by including, in that assessment, more than a quarter billion copied
textbook pages per year for which the schools already paid a tariff.
67

Here, the Objectors do
not pay the tariff and claim that almost all copied pages are fair dealing. Unlike Alberta
(Education), the market impact assessment in the present proceedings must include the
uncompensated copying of over 300 million pages per year that the Objectors claim is fair.
60. Hence, none of the hallmarks of fairness before the Court in Alberta (Education) unplanned,
spontaneous situational copying that did not substitute for the purchase of published works and did not
otherwise negatively impact the market are part of the evidentiary record currently before the Board.
The present proceedings are a markedly different case than Alberta (Education).

61. The decision in SOCAN v. Bell was also based upon the evidentiary record and arguments
advanced by the parties. The two-fold ratio of that case is that the word research as used in section 29
of the Act is not to be restricted to creative endeavors, but includes activities that do not require the
establishment of new facts or conclusions; and that it is the ultimate user or consumers perspective to
whom the musical previews were communicated that is to be considered when determining whether
their dealing with the previews was research-based and otherwise fair.
68


62. Access Copyright submits that, at most, Alberta (Education) corrected the Boards legal error in
finding that copies made by a teacher on her own initiative without a triggering request from a student
could not be fair research or private study (which resulted in a further reduction of 16.9 million
pages from compensable volume in the Boards re-determination decision). SOCAN v. Bell instructs the
Board to consider the students (as the end-user) purpose when assessing fair dealing.

63. In addition, the evidence in SOCAN v. Bell established that the end users research-based
streaming of short previews did not compete with or adversely affect the purchase of downloads of the
works previewed. Indeed, the effect of the ISPs dissemination of low-quality and impermanent
previews to end users increased the ultimate sale and permanent downloading of the entire works by

13

end users. In other words, there was no negative impact on the market for the musical works
previewed: in fact, the converse was true.

64. The evidence of record in the present proceedings establishes, among other things, a significant
negative impact on the market for educational works. Beyond this fundamental distinction, the copies in
the present proceedings are not disseminated to end users to help them decide whether or not to
purchase the entire work from which the copies have been made. Rather, the copies are disseminated
as replacements or substitutions for the purpose of the original work. Moreover, the copies made by
educational institutions for use by students are not impermanent or of a lesser quality than the original
work from which the copies were made. To the contrary, they were made so as to provide a learning
resource of equal readability to the original and thus substitute for the need to purchase the original
work.

c) The Objectors policies and practices are not presumptively fair

65. In answer to the Boards Post-Hearing Question 1.2, the Guidelines relied upon by the Objectors
are only relevant to a fair dealing assessment if their own practices and policies are [for a fair dealing
purpose and] fair. It is only if the Board finds that the Objectors general practices are fair that the
Guidelines can serve to obviate the Objectors burden to prove that all individual dealings with the
works in Access Copyrights repertoire are fair.
69


66. While the Guidelines (clauses 5 and 6) speak of K-12 institutions designating supervisors or
other persons to evaluate copying behaviour that exceeds the prescribed copying limits; and purport to
place ambiguous limits on copying of multiple short excerpts grounded in the subjective intentions of
the teachers [an] intention [to copy]substantially the entire work is prohibited the Guidelines are
silent as to the appointment of any supervisor to monitor and enforce the limits.

67. Contrary to the Objectors stated position that there is no obligation on educators to monitor,
enforce and police the [Guidelines]
70

, the absence of any obligation to monitor and enforce the limits is
a pertinent omission.
68. The importance of monitoring and enforcement of a fair dealing policy is underscored by the
CCH decision. That decision turned on the evidence before that Court, including the nature of the works
(edited and head-noted judicial decisions and other works essential to legal research) and the
implementation by the Great Library of an Access to the Law Policy. That policy provided, on its face, a
strict procedure that controlled the nature and extent of the copying behaviour. The policy was
supported by the uncontradicted testimony at trial that the Great Library monitored and strictly
enforced the policy
71
. Such enforcement was only possible because of the single locus of the copying
activities permitted such monitoring to occur.
72
This evidence contributed to the Courts conclusion that
the Great Library could rely on the general practice set out in the policy without establishing that all

14

individual dealings were, in fact, for an allowable purpose and fair.

69. Here, there is overwhelming evidence in the evidentiary record
73
that monitoring and
enforcement of the Guidelines is completely absent and that the copying limits prescribed by the
Guidelines are illusory.
74
70. In fact, it is highly unlikely that any version of the Guidelines past, present or future could be
deemed to be fair and thereby obviate the Objectors burden to prove that each of their individual
dealings are for a fair dealing purpose and are fair. The Objectors past behaviour demonstrates that the
Guidelines will not be followed, no matter their purported limits. The second version of Copyright
Matters! was in place in K-12 institutions between 2005-2012


75

. That version prohibited the copying of
sheet music and consumables, yet the Volume Study established that K-12 teachers copied 19 million
pages of sheet music and 170 million pages of consumables per year. Based on the evidence of their
past behaviour, the only reasonable inference that may be drawn is that none of the Objectors
practices, systems or policies can ever be presumptively fair.
71. Therefore, the Objectors cannot rely on their general practices to establish that the Guidelines
are fair
76
. In the absence of language in the Guidelines or other policies which ensure that the
prescribed copying limits are followed, controlled, monitored and enforced; and evidence that copying
limits are, in fact

, followed, controlled, monitored and enforced, the Board is in no position to make any
determination that the Guidelines are presumptively fair.
d) The Guidelines ignore the jurisprudence and thus cannot be fair

72. After the Alberta (Education) decision, the Objectors published the Guidelines. In contrast to fair
use guidelines published in other jurisdictions, the Guidelines were arrived at without any negotiation or
meaningful consultation with any relevant stakeholders (e.g. educational resource publishers).
77


73. Under the Objectors definition of short excerpt, the copying of, inter alia, up to ten per cent
of a work, an article, a poem, an entire musical score and an entire chapter of a work is fair.
78
Beyond
the ambiguity or fuzziness of that definition
79
74. In attempting to delineate what constitutes fair dealing from dealing which is not, the
Guidelines advocate a bright-line arithmetic rule that defines fairness solely by the amount of the
dealing. That arithmetic ceiling finds no support in any Canadian jurisprudence and is plainly
inconsistent with the Objectors own previous solemn representations to Parliament and the Supreme
Court of Canada.
, it ignores the Supreme Court jurisprudence upon which
the Objectors purport to ground its validity.


75. In March 2011, two of the Objectors members (the Nova Scotia Minister of Education and chair
of CMEC; and Deputy Minister) and Objectors counsel, gave evidence to the legislative committee on

15

Bill C-32 that was studying, among other issues, the proposed extension of the allowable fair dealing
purposes to include education.
80

The Objectors representatives were appearing before the
committee on behalf of all education ministers other than Quebec.
76. In their testimony, the Minister and Deputy Minister identified short excerpts as a clip from a
television program for a current events class or a diagram illustrating a science or math topic
81
; or one
or two pages from [a] book
82

.
77. In December, 2011, the Supreme Court of Canada in Alberta (Education) was presented with a
very narrow issue
83

, that is, whether a teacher copying pages from a copyright-protected work for
distribution to students struggling with the course subject matter, without any prior request from
students, fell within the ambit of the research or private study fair dealing purposes.
78. As noted above, the volume associated with the disputed copying at issue was 16.9 million
pages, approximately 7% of the total compensable copying volume per annum in K-12 institutions. The
Objectors did not dispute their obligation to pay royalties to Access Copyright for the copying
behaviours that accounted for the remaining 93% (nearly quarter billion pages) of the volume of copied
pages.

79. The issue as to what proportion copied from an educational resource qualified as a short
excerpt for the purposes of fair dealing was not before the Court. However, throughout their
submissions, the Objectors variously defined short excerpt as follows:

a) a few pagesfor students having a problem with a lesson you are trying to teach
84

;
b) the copying in dispute in this case is short excerpts copied to supplement the main
textbook
85

;
c) what is a short excerpt?...in Canada, I cant give you a percentage answer or a
mathematical answer
86

;
d) we are taking short excerpts from a different resource, and it is a very short excerpt
87

;
e) [the undisputed quarter billion pages which the Objectors agreed was compensable]
would be things like chapters from a book; not short excerpts but long excerpts, if you want
to continue with the analogy that I began with that fair dealing deals with little bits
88

;
f) the [Objectors] position is not that this Court should set a mathematical formula [for
defining short excerpt]
89

; and
g) Under the [previous] negotiated licencethe [Objectors] would pay for an article, a poem,
up to 10 percent of a work, a chapter. So, the fair dealing provision under that negotiated

16

licence was not important because the licence paid for way more than what you could copy
under fair dealing (emphasis added).
90


80. Consistent with its decision in CCH (when the Court refused to grant the Law Societys claimed
declaratory relief for a 10% copying threshold
91

), the Supreme Court in Alberta (Education) did not
define short excerpt in purely arithmetic terms. The amount of the dealing was but one factor the
Court considered in the overall factual matrix in the context of the Objectors representations about
teacher copying behaviour.
81. Accordingly, and in partial answer to the Boards Post-Hearing Question 1.1, the Supreme Court
of Canada correctly declined to provide a purely mathematical definition of short excerpt in Alberta
(Education). The Courts reluctance to do so was a clear recognition that an assessment of fair dealing
cannot start and end with a quantitative limit on the amount of the dealing factor. Evidence on the
amount of dealing factor is to be considered and weighed along with the evidence relating to all other
fair dealing factors.

82. One need only compare the Objectors representations to other august bodies as to what is, and
what is not, a short excerpt to the definition of short excerpt used in the Guidelines to appreciate
the Objectors radical departure in the nature and extent of the copying that they submit in the present
proceedings falls within the scope of the fair dealing exception. The Objectors stated position in these
proceedings contradicts their own previous formal representations and, not unsurprisingly, finds no
support in Alberta (Education).

83. The manifest inconsistency and unfairness of the definition of short excerpt developed by
CMEC is captured by Mr. Georges unabashed admission in answer to a question from the Board that
the copying of a chapter comprising 45% of the source work would be fair since the teacher is not
required to choose the most restrictive option
92
84. The Guidelines otherwise ignore all other fair dealing factors. They do not encourage teachers to
seek out reasonable alternatives to copying. They place no limits on the aggregate volume of copying
that teachers may make. They place no objective limits on compound copying. They do not require
teachers to consider the qualitative aspects of the portions copied. They permit
.

93

teachers to make
textbook-like collections comprised of chapters (or other substantial portions) copied from published
works; and permit the systematic, pre-planned copying from published works that is not restricted in
any way to meet the situational needs of individual students.
85. Combined with a definition of short excerpt that permits the copying of substantial portions
of works even well in excess of the supposed 10% ceiling the Guidelines incentivize K-12 institutions
to make free self-made resources comprised of copied chapters and other substantial portions of
publishers works and dis-incentivize the purchase of resources from which these copies are made.
94



17

86. Copying from publishers works thus facilitates the Objectors adoption of the emerging
pedagogical model whereby teachers now draw on a number of different alternatives to the core
textbook model. From an economic fairness standpoint, payment for such facilitation should be
made.
95


87. Finally, as discussed further below, the evidence of record confirms that the Objectors actual
copying behaviour and the copying permitted under the Guidelines has already had significant negative
impacts on the publishers markets for their works and will very likely continue to have serious negative
impacts on those markets. Apart from the harm to the publishers, the evidence establishes that both
creators and users of such works will also be negatively impacted by the copying behaviour encouraged
by the Guidelines.

e) Assessment of the evidence of record in respect to the six fair dealing factors

A. Legal and evidentiary burdens

88. As discussed above, whether the dealing is fair is a question of fact and depends on the facts of
each case
96

. In any adversarial proceedings such as the present proceedings, the Board must, when
making its findings of fact, be mindful where the legal and evidential burdens lie in respect to the fair
dealing factors.
89. The Supreme Court of Canada in CCH
97

confirmed that the party (in these proceedings, the
Objectors) who asserts that its copying behaviour is fair bears the legal burden of establishing that fact.
This means that if, after consideration of all relevant factors, the Board remains in a state of uncertainty
as to whether the copying was fair, or finds that the parties respective positions are evenly balanced, it
must find that the copying was not fair.
90. In addition, the Objectors, who assert that their copying behaviour is fair, bear a number of
evidential burdens. They are obliged to adduce evidence, or point to evidence in the record, to permit
the first five recognized factors relating to fairness to be assessed by the Board. Should the Objectors fail
to discharge any of these evidential burdens, the Board cannot weigh any of these factors in their
favour.

91. In respect to the sixth fair dealing factor the effect of the dealing on the markets in which the
works are sold Access Copyright, the party responding to the Objectors fair dealing assertion, bears
the evidential burden to adduce evidence, or point to evidence in the record, concerning the market
impacts of the copying behaviour.



18

B. Fairness Analysis The Purpose of the Dealing

92. Access Copyright submits that the proper consideration of this factor requires the Board to do
more than merely confirm that one or more of the pre-requisite statutory allowable purposes has been
met. In identifying this fairness factor, the Courts must have intended that the fact-finders assessment
of the purpose of the dealing factor look beyond that confirmation. To redundantly restrict the
second-stage analysis of this factor to repeating that the purpose is an allowable one would rob this
fairness factor of any meaning whatsoever.

93. Assessing the fairness of the purpose requires that the Board consider all of the purposes of the
copying and weigh the evidence to determine whether the copiers purposes are, on balance, fair. In
other words, the Board must ask, Is there something about these other purposes that renders the
copying more or less fair? Whether or not the purposes are, on balance, fair requires an assessment of
copyright policy: does the purpose of the copying further the public interest in the encouragement and
dissemination of works of the arts and intellect and obtaining a just reward for the creator?
(underlining added for emphasis).
98

The balance sought in copyright must seek to balance all three of
those public policy objectives.
94. Access Copyright submits that the Board ought to consider whether or not the purpose of the
copying was transformative in nature. Canadian courts have yet to determine whether a transformative
purpose is relevant to an assessment of the fairness of the copying behaviour.
99


95. Applying copyright policy, the Board should ask, Is the copying transformative, such that a new
audience will experience the expression of the idea or an audience will experience the expression in a
new way? If yes, the copying tends toward fairness because it furthers both the encouragement and
dissemination of works of the arts and intellect without (arguably) infringing on the original authors
right to obtain a just reward for his work.

96. The Board should also ask, Is the copying for a purpose other than the purpose for which the
original work was created? If yes, the copying tends towards fairness if it encourages the creation of
works and the dissemination of works without interfering with the creators just reward. For example,
the purpose of sampling an original musical work may be to create a new transformative or derivative
work. The sample may encourage new works of the arts in terms of the new expression that is created.
In another example, the purpose of the dealing may be to encourage the purchase of the work
100

. These
facts may weigh towards fairness.
97. However, when the purpose of the copying is identical to the purpose underlying the creation of
the original work, or where no sale will result, that dealing tends towards unfairness. If the purpose of
the original work that has been copied was educational in nature and to be used for instruction, and the
portions copied from the work are used solely for the identical purpose, in particular without any
transformative or derivative benefits to the copying, none of the policy objectives of copyright law are
met. As such, the copying will tend to be less fair.

19


98. Here, K-12 institutions have copied resources intended for educational purposes and used the
copied portions for the identical purpose. There is no transformative or derivative purpose in the nature
of that copying that would advance copyright policy. Not only do the copies lack any transformative
purpose, but they are not transformative in any way. The copies at issue in this proceeding are merely
slavish, identical duplications of portions of original copyright-protected works.

99. In addition, K-12 teachers copy, and are encouraged by the Guidelines to copy, instead of
purchasing the original works in order to save money.
101
Barring an access issue (which has not been
proven or alleged in this case), such copying does not further copyright policy in the dissemination of
works of art and intellect. To the contrary, it discourages

works of art and intellect and deprives the
creator of his just reward.
100. Finally, in these proceedings, there are no safeguards in place to prevent the copies from
replacing the original work
102

. To the contrary, the copies at issue in this case are made for the purpose
of avoiding the purchase of the original work.
C. Fairness Analysis The Character of the Dealing

101. An assessment of this factor requires the Board to consider the extent of copying, in the
aggregate, and requires the Board to examine how the works were dealt with
103
. A particular dealing
might be unfair if multiple copies of works are being widely distributed....if a single copy of a work is
used for a specific legitimate purpose, or if the copy no longer existed after it was used, this would
favour a finding of fairness
104

.
102. In Alberta (Education), the Objectors did not contest the Boards findings related to the
character of the dealing factor. Because the issue was not before the Court, its reasons are silent on this
factor, other than to identify the Boards error in considering the aggregate amount of copying twice,
once under the character of the dealing factor and again under the amount of the dealing factor,
thereby conflating the two factors
105

. The Boards finding that the character of the dealing the
aggregate volume of copying tends towards unfairness was not challenged by the Objectors on judicial
review and was thus left undisturbed by the Court.
103. In their assessment of the copying behaviour in the present proceedings, the Objectors ignored
completely the evidence relating to the character of the dealing.
106
That evidence confirms that over
300 million pages from works in Access Copyrights repertoire approximately 90 pages per student
107

are copied in each academic year by K-12 institutions. K-12 teachers make multiple copies from works
for wide distribution to the entire class. It is inconceivable that the copying of 90 pages per student per
year is situational or done to help a student understand a particular concept; rather, the copying is pre-
planned and systematic. The Objectors have introduced no evidence that these copies are made to
meet the needs of individual students who are having difficulty understanding a particular concept.


20

104. Unlike the SOCAN v. Bell case, where no copy existed after the preview was heard, where users
did not receive a permanent copy and where the file was automatically deleted from the users
computer
108
, students (and teachers) keep copies for at least the entire duration of their classes, and
often beyond
109
and the copies can be (and are) further reproduced and disseminated by users.
110


105. In addition, the shift in teaching pedagogy from the purchase and use of a textbook for every
child in a class to differentiated instruction and resource-based learning means that copies are not
made to complement a core textbook, but rather, are made as the core learning resource for a class,
111

thereby substituting for the purchase of textbooks. The copying behaviour encouraged by the Guidelines
is thus substitutive and not complementary.
112


D. Fairness Analysis The Amount of the Dealing

i) Qualitative assessment essential

106. The amount of the dealing factor requires an assessment of both the quantitative amount of
the copying and the importance of the part copied
113
. The amount factoris an examination of the
proportion between the excerpted copy and the entire work
114
or the proportion of the excerpt used
in relation to the whole work
115

.
107. The Guidelines, and the Objectors position in these proceedings, presumptively fix as fair the
copying of all or portion of a work provided the amount copied does not exceed an arbitrary percentage
(10%) or other quantitative segment (e.g. a chapter or an article) of the work as published, without any
qualitative assessment of the importance of the portion copied.

108. The Objectors bear the burden to establish that the amount of the dealing, considered both
qualitatively and quantitatively, is fair. The evidence in these proceedings
116

confirms that, in assessing
this factor, the Objectors experts ignored completely any qualitative aspects of the amount copied.
109. Teachers copy any and all key aspects of an educational work. They copy entire chapters, which
may contain an entire analysis of a given topic. They copy entire poems, articles and short stories from
compilations.
117
They copy two pages of a textbook designed to contain an entire lesson which may
comprise the essence of the creators expression, created with a significant investment of time, skill and
effort, and which are pedagogically important.
118

Such copying very clearly reproduces the heart of the
work and is thus unfair. The Guidelines authorize and encourage this copying behaviour and do not
instruct K-12 teachers to assess any qualitative aspects of the portions copied.
ii) No impairment of copyright in works comprising a compilation

110. The Boards assessment of this factor must also take into consideration Parliaments clear
instruction
119
that the creation/publication of a compilation of works which enjoys its own copyright
protection does not impair the protection conferred by the Act in respect to the copyright in the

21

individual works comprising the compilation. The decision in Robertson v. Thomson Corp.
120

, re-affirmed
Parliaments instruction.
111. In these proceedings, whenever discrete works are published in a compilation, the Guidelines
10% rule permits K-12 teachers to copy the entirety of one or more works provided the portions
copied fall under the arbitrary ceiling. The 10% ceiling may encompass several poems or short stories
within the compilation. Given that K-12 teachers are not required to use the most restrictive option
121

,
the separate definitions of short excerpt are internally incongruous since the 10% rule (para. 4(a) of
the Guidelines) would permit copying behaviour that exceeds the definition of short excerpt under
paras. 4(c) (f).
112. Moreover, even assuming K-12 teachers restricted themselves to the copying behaviour
permitted by the Guidelines an assumption that is contradicted by the evidence
122
113. A finding of fairness would result in the creator/publisher of a work essentially losing all
copyright protection if he chooses to market and monetize his work other than as a stand-alone work.
Analogizing this result to musical works underscores the unfairness of that finding: a song released as a
single would be protected by copyright, but if the song was released as part of an album, the artist and
composer would lose that protection since that single work could be copied for free. That result would
be manifestly unfair and an affront to copyright policy.
compliance with
the Guidelines ignores Parliaments instruction not to impair the Acts protection in the discrete works
published within a compilation. When 100% of a discrete work contained within a compilation is copied,
that behaviour is manifestly unfair.


114. In Post-Hearing Question 1.5, the Board asked for a comment in respect to the Objectors
evidence to the effect that in calculating the amount of the dealing in respect to a compilation, the
amount copied must be divided by the total number of pages in the compilation. The relevant
proportion for newspapers and magazines is the portion copied relative to the length of the article, not
the compilation.

115. The Objectors evidence, and any argument they may advance in reliance thereon, runs contrary
to the ratio in Robertson v. Thomson Corp.
123
iii) The Objectors have not met their evidential burden on the amount of the copying factor
which recognizes that the copyright in discrete works
comprising a compilation must be respected. In the context of these tariff proceedings, and the Boards
assessment of fairness, the Board cannot overlook that the effective disaggregation of compilations into
discrete works that is permitted by the Guidelines will result in the expropriation of 100% of the
creators expression if the entirety of that discrete work is copied without compensation. There is
nothing fair about expropriating the entirety of a creators expression.


116. In Post-Hearing Question 1.3, the Board asked how compound copying should be assessed in
the fair dealing analysis. Compound copying describes copying behaviour whereby a teacher returns to

22

the same educational resource at different times to copy discrete additional portions of the work.
Access Copyright filed evidence
124

that compound copying occurs in K-12 institutions.
117. In CCH
125
, the Supreme Court of Canada observed that the dealings with a work may not be fair
if a specific patron of the Great Library submitted numerous requests for multiple reported decisions
from the same work over a short period of time, observing further that there [was] no evidence that
[such behaviour] has occurred. In Alberta (Education), the majority was concerned that the Board
looked at the overall quantity of what [was] disseminated under the amount of the dealing factor, and
thus disregarded the rights of the individual student. It found that the Board conflated its assessment of
the aggregate volume of multiple copies being distributed to entire classes (the character of the dealing)
with an assessment of the proportion between the excerpted copy and the entire work (the amount of
the dealing). As such, the amount of the dealing factor must be looked at from an individual students
perspective and in relation to the qualitative and quantitative proportions taken from the work.
126


118. Access Copyright filed evidence that, during the two-week Volume Study, teachers engaged in
compound or sequential copying; that is, copying by the same teacher from the same work.
127
The
Board may draw a reasonable inference that individual students receive copied portion after copied
portion from the same book made by the same teacher in the same class in the same year. This copying
behaviour is consistent with the evidence before the Board that K-12 schools use class sets of
textbooks
128
, (e.g. where 90 students share a set of 30 textbooks, and that those sets are copied for
students homework assignments.
129
). This behaviour is also consistent with the evidence that Ministries
of Education no longer purchase a core textbook for every child in the class.
130
Teachers copy a few
pages each time they go to the photocopier and return to copy from the same book for the same class,
over and over again.


119. In their analysis, Drs. Wilk and Whitehead conceded that they did not account at all for the
phenomenon of compound copying
131

. The Objectors led no evidence from teachers. Furthermore, the
Volume Study measured copying only for a two-week period and therefore could not capture the
amount of a work received by an individual student over the course of a school year. Thus, the Board
cannot determine the volume of compound copying.
120. In the circumstances, the amount of the dealing with respect to an individual work cannot be
assessed in this proceeding. The quantity copied by multiple visits to a photocopier by the same teacher
to copy excerpts from the same work is understated since, in the Objectors analysis, each successive
visit to the photocopier resets the amount of the copying from the work at zero instead of being added
to the percentage copied from the same work on previous visits to the photocopier. Therefore, the
uncontradicted evidence is that compound copying occurs but no quantitative estimate of the extent to
which teachers engage in that behaviour is available to the Board.

121. The Objectors were the only parties to these proceedings who could shed light on the frequency
of such behaviour and the typical amount of the work copied. The Objectors bore the burden to adduce
evidence on this phenomenon. Such evidence could have been led by calling teachers, or panels of

23

teachers, as witnesses or, better yet, polling them to gather evidence as to the incidence of compound
copying and introducing this polling evidence through Mr. Chodorowicz. He confirmed
132

that he had
polled teacher behaviour in the past in connection with the inaugural K-12 tariff proceedings. In the
absence of such evidence, the Board cannot rely on the Volume Study data or the Objectors analysis of
the data to accurately assess the amount of the dealing. An adverse inference may be drawn if, without
reasonable explanation, a party fails to adduce evidence available to it that could have resolved a
disputed issue. In this evidentiary vacuum, the Board can only find that compound copying occurs in K-
12 schools and, in the context of the amount of dealing factor, tends toward unfair dealing.
122. That finding ought to be made irrespective of the number of copying occurrences, the amount
of the copying and the delay between each occurrence. All such subsidiary details mistakenly focus
solely on the quantitative aspects of the behaviour on a particular day at a particular time, and disregard
the phenomenon of a teacher returning to the same book throughout the year
133

and the paramount
consideration of the qualitative aspects of the portions copied. Given that the portions copied are
substantial from a qualitative perspective, the particulars requested by the Board would not be helpful
to the fairness analysis.
E. Fairness Analysis Alternatives to the Dealing

123. In CCH, the Supreme Court of Canada concluded, based upon the evidentiary record before it,
that it was not apparent that there were available alternatives to the copying activities carried out by
the Great Library at the request of patrons of the Law Society who were engaged in research-based
activities. Moreover, the Supreme Court of Canada concluded that it would be burdensome to expect
remotely located patrons to travel to Toronto each time they wanted to track down a legal source and
would be unreasonable to expect them to conduct all their research from the original works physically
restricted to the Great Library. With all reasonable alternatives to copying ruled out, the copying
activities carried out tended to be fair.
134


124. In Alberta (Education), the Supreme Court of Canada understood that what was at issue was the
situational copying of little bits (and much less than what could be copied under the Access Copyright
licence) from multiple educational resources to meet the unexpected needs of particular students and
that teachers only photocopy to complement existing textbooks
135
. In that factual matrix, the Court
found that buying books for each student is not a realistic alternative to teachers copying short
excerpts to supplement student textbooks
136

.
125. In these proceedings, the evidence establishes that publishers offer reasonable alternatives to
copying the content for free (e.g. McGraw Hills iLit digital, disaggregated collection of literary
selections).
137
One of the Objectors witnesses from the Manitoba Textbook Bureau confirmed that it
could purchase individual chapters from the publishers separate from the textbook.
138

In the current
factual matrix, purchasing the content is clearly a reasonable alternative to copying it for free.

24

126. The evidence is that the copying will substitute for the purchase of the works from which copies
are made
139
and permit teachers to get around the financial shortages they are facing
140
; will lead to the
unrestricted copying of entire works published within a compilation; and will lead to entire chapters
(even if they comprise 45% of a works) being copied without any compensation to the rightsholders.
There is also evidence before the Board that K-12 schools no longer purchase a core textbook for every
child in a class and that textbook sales are declining.
141


127. The pedagogical shift to resource-based learning requires teachers to copy from a variety of
resources, including published books, magazines and newspapers. This evidentiary record is markedly
distinct from the facts and circumstances cited by the Court in Alberta (Education). In this context ,
where teachers photocopy in order to create

their core resource (as opposed to supplementing one that
has already been purchased), buying those professionally published resources is certainly a reasonable
alternative to copying them.
128. As with the assessment of all fair dealing factors, the Boards consideration of this factor ought
to promote copyright policy. If there are no reasonable alternatives to copying a work (such as was the
case in CCH) and copying must occur in order to disseminate the work or to encourage works of the arts,
then the dealing will tend towards fairness. If however, there are

alternatives to copying and copying is
not reasonably necessary to disseminate the work or to achieve the ultimate purpose of the user, the
dealing will tend to be unfair.
129. The Objectors have not introduced any evidence that there were no alternatives to the dealing.
The Guidelines do not require or instruct K-12 teachers to consider any other available alternative to the
copying from published educational resources. To the contrary, the Objectors evidence in these
proceedings is that teachers have a myriad of other alternatives to copying from published works, such
as open access content, self-created works and the purchase of individual chapters.
142

Given all of those
alternatives, it is unfair that teachers copy, and are encouraged by the Guidelines to copy, from
copyright-protected published works.
130. On this record, there is no evidence that the copying activities in question were reasonably
necessary in order to meet the students educational objectives. To the contrary, the purchase of the
original works (including excerpts thereof) or a licence to copy the original works would meet the same
objective. In the absence of such evidence that the copying was necessary to achieve the ultimate
purpose because there were no alternatives available, the Boards assessment of this issue must tend
toward unfairness.
F. Fairness Analysis Nature of the Works

131. In CCH, the court found that, if a work has not been published, the dealing may be more fair in
that its reproduction could lead to a wider public dissemination of the work one of the goals of
copyright law
143
. All of the works at issue in this proceeding are published works. This fact related to
the nature of the works tends to make the dealing unfair.

25


132. In addition, the works in CCH that had been copied in strict accordance with the Access to the
Law Policy were editorial versions of judicial decisions (including head-notes) and other legal resources
essential to legal research. The Supreme Court of Canada agreed with the Federal Court of Appeal that it
was generally in the public interest that access to judicial decisions (funded by the public purse) and
other legal resources not be unjustifiably restrained. This observation was also made in recognition of
the fact that, without permitting the copying behaviour at issue in CCH, lawyers in remote Ontario
locations without ease of access to the Great Library would essentially have to replicate the Great
Librarys holdings in order to have equal access to the law.

133. The nature of the works at issue in the present proceedings educational works created and
published for profit many of which are customized to the requirements stipulated by the Ministries of
Education triggers no access to law considerations or other public interest. The copying of the works in
question does not engage the broader public interest to ensure the public have unfettered access to the
law. These facts related to the nature of the works tend to make the dealing unfair.

134. Indeed, in the inaugural tariff proceedings, the Board held that access to classroom materials
did not raise the same public interest concerns as access to legal resources.
144

Instead, the works copied
were educational works, tailor-made for and marketed to the very users that copied them. Moreover, as
also noted by the Board, there was rarely an alternative to a legal judgment; but a textbook can always
be replaced with other resources. As a consequence, the Board found that a consideration of this factor
tended toward unfairness, a finding that the Objectors did not challenge on judicial review. The nature
of the works at issue in the present tariff proceedings has remained unchanged since the 2009 Board
decision.
135. The evidence confirms that the bulk of the copies at issue in these proceedings (44% of total
copying) are made from textbooks
145
. Consumables were the second highest source of copying in 2012,
representing 23% of the total copying in that year
146
. The works at issue are published original works,
created with skill and judgment by professional authors, many of them educators. They are of high
quality and originality and require a great deal of research, pedagogical expertise and editorial
judgment
147
. The Objectors require that the publishers works be diverse and represent Canadian
content, Canadian examples and Canadians of note, primarily authored and produced in Canada.
148

In
addition, the nature of consumables workbooks which are created and intended for one-time use
makes the copying of them manifestly unfair as the copying eliminates the need to purchase them. An
overall assessment of the nature of the works copied tends toward unfairness.
136. In Post-Hearing Question 1.4, the Board asked whether, in making its assessment of fair dealing,
it ought to make distinctions between core textbooks or those prescribed by the Ontario Ministry on
the Trillium List from other works. The answer is no. The distinction between a core and
supplemental resource is relevant only to whether it meets or exceeds a certain percentage of the
requirements of a particular curriculum. The distinction in no way dilutes the value of any resource, no
matter how K12 institutions define it. For example, a novel is not defined as a core resource but is

26

an invaluable supplemental instructional resource to teach English. The copying from such works
ought not be treated any differently than copying from a core math textbook.
149


137. As discussed below, the substantial copying from all copyright-protected works encouraged by
the Guidelines negatively impacts the publishers markets for their works, irrespective of the core vs.
supplemental definition prescribed by K-12 institutions.

G. Fairness Analysis - Effect of the Dealing on Publishers Markets

i) Overview

138. The parties appear to have a fundamental disagreement concerning the scope of this fair
dealing factor. Access Copyright submits that a plain reading of CCH, in particular paragraph 72, supports
its contention that in assessing impacts and likely impacts of the copying behaviour, the Board must
consider all likely impacts upon the markets for the publishers works, including all suppliers
(publishers and creators) of educational resources to those markets and the users (ultimately students)
of such resources.

139. The Objectors, on the other hand, contend that the only relevant consideration is whether
Access Copyright is able to make a causal or concrete link between copying behaviour and a
corresponding decrease in the sales of the works copied. That position runs counter to a plain reading
of CCH.

140. Even if the Objectors myopic position on this fair dealing factor were accepted as a correct
interpretation of CCH, the evidence on this record establishes, among other negative impacts, that since
the implementation of the Guidelines in 2013:

a) the decrease in primary sales of educational resources of the six largest publishers in 2013 has
been double the decrease in sales observed in 2012
150

;
b) at least one publisher has ceased the publication of consumables and another has ceased the
publication of books of plays and reduced the publication of anthologies
151

;
c) by Mr. Chodorowiczs own admission, that copying behaviour will, in fact, substitute for the
purchase of the works from which copies are made;
152

and
d) the copying behaviour permitted and encouraged under the Guidelines has otherwise had and
will have a direct substitutive impact on the works from which copies are made.
153


141. Access Copyright has also tendered a substantial body of evidence, much of it unchallenged by
the Objectors, that the copying behaviour, the implementation of the Guidelines and the Objectors

27

cessation of royalty payments has already had, and will likely have in the future, a number of
detrimental (in some cases dramatically so, e.g. Oxford University Press
154

) impacts on:
a) publishers, in terms of a reduction in primary sales, the elimination of secondary licensing
income, the elimination of certain genres of works (e.g. consumables and anthologies) made
particularly vulnerable to copying under the Guidelines, and a reduction of investment in the
development of new works) ;

b) Canadian creators, in terms of the loss of secondary licensing income and reduced demand ( and
primary royalties) for their services; and

c) the quantity, diversity, indigeneity and quality of educational resources available to the K-12
education system, resulting in long term negative impacts on Canadian students.

142. The Objectors summarily dismiss Access Copyrights evidence of negative market impacts as
overly dramatic and entirely speculative. The evidence upon which the Objectors exclusively rely to
respond to Access Copyrights evidence is that of Mr. Chodorowicz. The Board ought to give little or no
weight to his evidence since, in a number of respects, the facts upon which he relied to provide his
opinion were inaccurate or unreliable
155
; and the testimony he gave, both in his expert report and in
examination-in-chief, was significantly undermined through cross-examination.
156


ii) Impacts arising from the elimination of secondary licensing income

143. It is not disputed that, effective January 2013, the Objectors ceased all payments to Access
Copyright under the previous certified tariffs once the Guidelines were published. The aggregate
financial impact on publishers and creators was the loss of approximately 13.5 million dollars per
annum.

144. The loss of that income (for which publishers did not have to incur any costs they go right to
the bottom line
157

) has resulted in :
i. the shuttering of Oxford University Presss K-12 publishing division
158

;
ii. layoffs at McGraw Hill Ryerson
159

;
iii. less money to publishers to invest in new titles
160

;
iv. a strong disincentive to Canadian creators to continue making creative contributions to K-12
resources
161

; and
v. according to a report that Mr. Chodorowicz considers authoritative, problematic legal
interpretations of the previous law have nearly decimated the market for licensing

28

educational uses of copyright materials, including significant damage on the publishing
sector in particular (underlining added for emphasis).
162


iii) Impacts on primary sales

145. In addition to the evidence of such impacts referred to in the Overview, the facts provided by
the publisher witnesses and the expert opinion of Michael Dobner
163

provide clear evidence, that was
unshaken on cross-examination, of direct material impacts and likely impacts from the actual copying
behaviour, the increased copying behaviour encouraged by the Guidelines and the elimination of royalty
payments for such copying, including reduced profitability and the substitution/elimination of works.
iv) Impacts on creators

146. The creator survey
164
commissioned by Access Copyright and designed and executed by Mr.
Gauthier gave a voice to creators. Mr. Dobner opined on the results of the survey to the effect that as
a direct result of the implementation of the Guidelines and the consequential elimination of secondary
licensing income; and the likely reduction in primary royalties arising from fewer mandates from
publishers, a significant number of creators will cease their creative contributions to K-12 resources,
robbing the market of the skills and talents of the creators.
165

None of this evidence was rebutted by
the Objectors.
v) Impacts on investment in K-12 resources

147. The expert evidence of Mr. Dobner, factually supported by the publisher witnesses, clearly
established that the implementation of the Guidelines and the cessation of payments under the tariff
will likely reduce the number and diversity of new titles in Canada and the redirection of foreign-parent
investment to other foreign jurisdictions where return on investment is greater.
166


vi) Impacts on quality, diversity and indigeneity of K-12 resources

148. The expert evidence of Mr. Dobner, factually supported by the publisher witnesses, clearly
establish the likely long-term negative impacts on the quality, diversity and indigeneity of works made
available to K-12 students arising from the disappearance of Canadian creators, the disappearance of
small, specialized and unreplaceable niche publishers, the increased reliance on foreign-produced
titles, and the inevitable drop in quality between self-made teacher content and professionally created
resources customized and approved for use to meet curriculum objectives
167

.
vii) Conclusion on fair dealing

149. In answer to the Boards Questions 1.2(a) and (b), Access Copyright submits that the
reproduction of a single article or chapter for a class is possibly fair dealing, provided the Board
considers these specific copying examples in the context of the entire evidentiary record and all six fair

29

dealing factors. These questions appear to make the same legal error as the Objectors Guidelines by
considering only one fairness factor: the amount of the dealing. In order to determine whether the
dealings are fair, all other fairness factors must be assessed by weighing the evidence of record. As
noted above, when properly weighing the probative value of the evidence and after considering all the
fairness factors, the Board must conclude that the vast majority of the dealings are unfair.

150. For the reasons discussed above, the Boards deduction from the volume of compensable
copying to account for fair dealing ought to be approximately 19.2 million pages as advanced by Access
Copyright
168

. The 19.2 million pages is arrived at by adding together:
approximately 18.5 million pages arising from the ratio in Alberta (Education) (and the
Boards January 2013 re-determination decision thereon); and

approximately 700,000 pages that represent single copies of pages from a work, irrespective
of the amount copied, that are less likely to constitute systematic copying and are more
likely to fall within the parameters of copying behaviour articulated by the Objectors before
the Supreme Court and in their opening statement in these proceedings, that is, to meet the
educational needs of individual struggling students.

151. Consistent with the findings of the Supreme Court in Alberta (Education), a deduction of this
magnitude to permit fair uncompensable copying behaviour will not likely have a serious negative
impact on the markets for the publishers works since the remaining approximately 338 million (2010-
2012 tariff) or 324 million (2013-2015 tariff) copies will be compensable under the certified tariffs.

152. Access Copyright submits that it has met the evidentiary burden upon it in respect to fair
dealing. There is no evidentiary vacuum. In contrast, the Objectors have failed, in the manners
discussed above, to meet several of their evidentiary burdens. The evidence they did file was anecdotal,
unreliable and should be afforded little weight. The Objectors have not met their legal burden to
establish that actual teacher copying behaviour or the copying behaviour authorized and encouraged by
the Guidelines falls within the fair dealing exception.

OTHER STATUTORY EXCEPTIONS
a) Section 29.4(1) projection in class

153. The Objectors reduced the volume of compensable copies by approximately 2.3 million pages
169

to account for the 172 copying events that were identified in the Volume Study data as projection in
class. That reduction in volume is not supported by the evidence since the Objectors expert witnesses
included, within their analysis, those copying transactions in which the teacher made multiple copies.
The analysis was not restricted to those transactions which showed that only a single copy was made for

30

the purposes of display in class
170

. The exception in section 29.4(1) is not available if multiple copies are
made. Evidence that multiple copies were made militates against the availability of the exception.
b) Section 29.4(2) reproduction for tests and examinations

154. The Objectors reduced the volume of compensable copies by approximately 7.5 million pages
171


to account for 260 copying events that were identified in the Volume Study data as inclusion in student
tests and examinations for the second tariff period. The Objectors deduction included consumables.
Access Copyright submits that consumables do not qualify for the exception because they are
commercially available (as defined in ss. (a) of the definition in the Act) in a medium appropriate for
the purpose. Consumables are workbooks that provide space for students to perform exercises and are
intended for one time use.
c) Section 30.04 works available through Internet

155. The Objectors reduced the volume of compensable copies by approximately 107,000 pages to
account for seven copying events involving works that were available on the Internet.
172
Access
Copyright accepted that two copying events, representing approximately 66,000 pages, qualify for that
exception. Contrary to the requirement in ss.30.04 (5), the Objectors did not assess whether the works
were available from the Internet without the consent of the copyright owner.
173
On the evidence, five
of the transactions, including the unauthorized copies made from a National Geographic magazine,
174

were made available though the Internet without the authority of the copyright owner. The Board ought
to make no further deduction on account of this exception beyond the volume conceded by Access
Copyright in Table 5.2 of Exhibit AC-67.
175





31

ENDNOTES

1
CCH Canadian Ltd. v Law Society of Upper Canada 2004 SCC 13 (CCH), para. 63, Access Copyright
Book of Authorities (ACBOA), Tab 7

2
Statement of Royalties to be Collected by Access Copyright for the Reprographic Reproduction, in
Canada, Of Works in its Repertoire (Educational Institutions- 2005-2009), July 17, 2009 Decision
(Decision), ACBOA, Tab 3
3
Access Copyright Legal Brief, October 9, 2007, ACBOA, Tab 2, paras. 92-119
4
Decision, ACBOA, Tab 3, paras. 130-134
5
Levy/Duncan/Lamantia Reply Evidence, Exhibit AC-61, para. 6, Appendix 61-D
6
In addition, none of the Boards findings of fact were challenged by the Objectors see Alberta
(Education) v. Canadian Copyright Licensing Agency ( Access Copyright), 2012 SCC 37 (Alberta
(Education) at para. 54, ACBOA, Tab 4
7
Objectors Statement of Case, Exhibit OBJ-1, paras. 20-21
8
Sopinka, Lederman & Bryant, The Law of Evidence in Canada (Sopinka), Fourth Ed. 2014, paras.
19.57-19.72,19.75-19.82,19.84-19.94,19.96-19.100,19.102-19.103,19.168-19.170, ACBOA, Tab 20
9
Levy/Duncan/Lamantia Evidence, Exhibit AC-2, paras. 15-33; TRANSCRIPT, VOL. 1, p. 31 (line 9) p.
37(line 13); p. 96 (line 21) p. 105 (line 24)
10
Objectors Statement of Case, Exhibit OBJ-1, para. 25
11
Levy/Duncan/Lamantia Evidence, Exhibit AC-2, para. 91; Exhibit AC-79
12
Levy, TRANSCRIPT, VOL. 1, p. 34(line 23) p. 37(line13)
13
Levy, TRANSCRIPT, VOL. 1, p. 36(line 7) p.37 (line 13); Exhibit AC-61, para.6
14
Decision, ACBOA, Tab 3, para. 133
15
Sopinka, ACBOA, Tab 20, para. 2.86, paras. 4.5 - 4.6
16
It may be that the creator retains a copyright interest in the work, depending on the contractual
arrangements between creator and publisher. In those cases, the publisher is obligated to pass on
the applicable royalties to the creator, as outlined in Exhibit AC-79. Access Copyright does not, and
need not, inquire into those arrangements and is justified, based on decades of proceeding in this
fashion without complaint from any quarter, in presuming that creators and publishers have acted
in accordance with their respective obligations
17
Chodorowicz Cross-Examination, Exhibit AC-100, p. 1459 (line 22) 1460 (line 3); TRANSCRIPT, VOL.
8, p. 1747 (line 25) p. 1751 (line 11)

32


18


Gauthier Evidence, Exhibit AC-11, Appendix B, Table 3.1 (code 4), p.91
19
Rollans Cross-examination, TRANSCRIPT, VOL. 1, p. 201 (line 13) p. 202 (line 3); p. 235 (lines 13-
23); 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)
20
Sopinka, ACBOA, Tab 20, para. 2.86, paras. 4.5- 4.6
21
Rioux Evidence, Exhibit AC-9, para. 19; Rioux, TRANSCRIPT, VOL. 3, p. 595 (line 23) p.598 (line 20);
p. 601 (line 13) p. 604 (line 14)
22
Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8 , p.1748 (lines 8-20); Exhibit AC-100, p.1459,
lines 10-21
23
Access Copyright Response to Undertakings, Exhibit AC-102, Appendix E
24
CMRRA Affiliation Agreement, Schedule G, Exhibit AC-9A, p.25
25
Mandate agreements, Exhibit AC-2K
26
Decision, ACBOA, Tab 3, para. 136, Table 2
27
Objectors Statement of Case, Exhibit OBJ-1, para. 25
28
Objectors Interrogatory Responses, Exhibits OBJ-11 to OBJ-17
29
Objectors Opening Statement, TRANSCRIPT, VOL. 5, p. 827 (lines 15-19)
30
Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1703 (line 17) p. 1705 (line 16); Exhibit
AC-99, p. 1342 (line 10) p. 1343 (line 9)
31
Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1712 (lines 20-22)
32
Dobner Evidence, Exhibit AC-13, para. 40; Dobner Evidence, TRANSCRIPT, VOL. 7, p. 1357 (lines 14-
23)
33
Chodorowicz Cross-examination, TRANSCRIPT VOL. 8, p. 1702 (line 3) p. 1703 (line 16)
34
ONeill, J.A., December 2009, The Evidentiary Procedures of the Copyright Board of Canada, p.2 ,
ACBOA, Tab 19; Groupe Archambault Inc. v. CMRRA/SODRAC Inc. et al.2005 FCA 330 at para. 8,
ACBOA, Tab 10
35
Newfoundland Processing Ltd. v. South Angela (1995), 102 F.T.R. 300, paras. 11-16, ACBOA, Tab
12; Sopinka, paras 6.380-6.381, ACBOA, Tab 20
36
Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p.1756 (lines 7-25)

37
Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1702 (line 3) p. 1703 (line 9)

33


38
Chodorowicz Evidence, Exhibit OBJ-9, para. 32
39
Gauthier Evidence, paras. 9-27, Table 3.1, Exhibit AC-11; Gauthier Reply Evidence, paras. 12-17,
Exhibit AC-67; Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1723 (line 10)-p. 1724(line
1)
40
Alberta (Education) at paras. 37, 40, 59-60, ACBOA, Tab 4; Canadian Broadcasting
Corporation/Societe Radio-Canada v. SODRAC 2003 Inc. et al, 2014 FCA 84 (CBC) at paras. 27,
51-52, ACBOA, Tab 5
41
Sopinka, para. 6.450 6.451, ACBOA, Tab 20
42
The Advocates Society, June 2014, Principles Governing Communications with Testifying Experts,
p.1 , ACBOA, Tab 18
43
International Intellectual Property Alliance (2014) Canada: 2014 Special 301 Report on Copyright
Protection and Enforcement, issued February 7, 2014, Exhibit OBJ-18; Chodorowicz Cross-
examination, TRANSCRIPT, VOL. 8, p. 1730 (line 19) p. 1747(line 17)
44
Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p.1677 (line 6) p. 1678 (line 3) cf. p.1683
(line 25) p.1684 (line 14); p. 1681 (lines 2-24) cf. p.1683 (lines 8-24)
45
Statement of Royalties To Be Collected by SOCAN et al. In Respect of Multi-channel Subscription
Satellite Radio Services (Satellite Radio), May 6, 2009, ACBOA, Tab 14
46
Satellite Radio, para. 96, ACBOA, Tab 14
47
U & R Tax Services Ltd. v. H & R Block Canada Inc.(1995), 62 C.P.R. (3d) 257 (F.C.T.D.), ACBOA, Tab
17
48
Cinar Corporation v. Robinson, 2013 SCC 73 at paras. 25-28, ACBOA, Tab 8;
The Federal Court of Appeal in Edutile Inc. v. Automobile Protection Assn (APA), [2000] 4 F.C. 195
at para. 22, ACBOA, Tab 9) also warned against a solely quantitative assessment, To enter upon
a simple calculation of a percentage or proportion to determine whether there was an
infringement would be to unduly minimize protection given to copyright. The Federal Court of
Appeal reaffirmed the point in CCH (ACBOA, Tab 6) at para. 97 when it again declined to specify a
particular percentage of a work that delineates the substantial from the insubstantial. In respect
to one of the works in issue, the copying of 2.6% of the work was found to be substantial, despite
its comparatively small quantitative portion of the work in question, because it was qualitatively
integral to the work ( at para. 238)
49
Satellite Radio, para. 97, ACBOA, Tab 14
50
Levy/Duncan/Lamantia Reply Evidence, Exhibit AC-61, para. 4; Exhibits AC-61B & AC-61C

34


51
Gerrish Reply Evidence, Exhibit AC-64, para. 20, Exhibit AC-64B; Gerrish Evidence, TRANSCRIPT VOL.
2, p. 401 (line 4) p. 405 (line 20)
52
Levy/Duncan/Lamantia Evidence, Exhibit AC-2W, p. 8
53
Whitehead Cross-examination, TRANSCRIPT, VOL. 6, p. 1157 (line 5) p. 1158 (line 23)
54
Bilyk Cross-examination, TRANSCRIPT, VOL. 9, p. 1903 (lines 6-16)
55
Objectors Opening Statement, TRANSCRIPT, VOL. 5, p. 820 (lines 17-21); Lisi Evidence, TRANSCRIPT,
VOL. 9,p. 1815 (lines 4-5)
56
Rollans Reply Evidence, Exhibit AC-62A; Rollans Cross-examination, TRANSCRIPT, VOL. 1, p. 257 (line
7) p. 259 (line 25)
57
McIntyre Evidence, Exhibit AC-4C. As noted in the cover letter to the exhibit, the CERC Guidelines
were forwarded to every Minister of Education in the country (excluding Quebec) in March 2013.
58
CCH at paras. 25,48,72, ACBOA, Tab 7
59
SOCAN v. Bell had nothing to do with educational institutional copying at all. The issue before the
Board, and the reviewing Courts, was whether the communication to the public of low quality,
impermanent, non-reproducible and non-communicable short previews of musical works by
Internet Service Providers (ISPs) triggered an obligation to pay a fee to the applicable copyright
collective.
60
CCH at para. 52, ACBOA, Tab 7;
61
Hubbard v. Vosper, [1972] 1 All E.R. 1023 (C.A), at p. 1027 , ACBOA, Tab 11
62
Alberta (Education) at para. 14 , ACBOA, Tab 4
63
This understanding was consistent with the Objectors firm commitment made in March 2011 by
one of the Objectors to Parliament that the inclusion of education as a fair dealing allowable
purpose would result in no loss of revenue for people who are in the creative economy Exhibit
AC-2V, p.16

64
CMECs Fair Dealing Guidelines published in Copyright Matters!, Third Edition, (December 2012),
George Evidence, Exhibit OBJ-3B.
65
Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1715 (line 20) p. 1717 (line16)
66
Alberta (Education) at para.34, ACBOA, Tab 4

67
Alberta (Education) at para. 34, ACBOA, Tab 4
68
SOCAN v. Bell, [2012] 2 S.C.R. (SOCAN) at paras. 19, 22, 30, ACBOA, Tab 15

35


69
CCH at para. 63 , ACBOA, Tab 7
70
Objectors Opening Statement, TRANSCRIPT, VOL. 5, p. 821 (lines 15-21)
71
CCH Canadian Ltd. v. Law Society of Upper Canada, [2002], 4 F.C. 213 (CCH FCA) at para. 3
(FCA), ACBOA, Tab 6
72
CCH at paras. 61, 64, ACBOA, Tab 7
73
Responses to Interrogatories, Exhibits AC-17, AC-18, AC-19-25, AC-49-52, AC-54-56;
Delbridge Cross-examination, TRANSCRIPT, VOL. 5. p. 879 (line 8) p. 884 (line 4);
George Cross-examination, TRANSCRIPT, VOL. 6, p. 1233 (line 12) p. 1235 (line 7);
Giles Cross-examination, TRANSCRIPT, VOL. 6, p. 1254 (line 7) p. 1255 (line 20); p.1264 (line 1)
p.1265 (line 9); p. 1293 (line 24) p. 1294 (line 6);
Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p.1706 (lines 5-17); p.1707 (line 5) p.1709
(line 11);
Lisi Evidence, TRANSCRIPT, VOL.9, p.1819 (line 3) p. 1820 (line 3);
Gill Cross-examination, TRANSCRIPT, VOL. 9, p. 1870 (lines 3-23);
Viva Evidence, TRANSCRIPT, VOL. 9, p. 1948 (lines 11-19)
74
Taylor Evidence, Exhibit AC-8, paras. 26-34, Exhibits AC-8C to 8G; TRANSCRIPT, VOL. 3, p. 572 (line 2)
p. 578 (line 16);
Rollans Reply Evidence, Exhibit AC-62, paras. 7-10;
Gerrish Reply Evidence, Exhibit AC-64, paras. 4-5, Exhibit 64A;
Besse Reply Evidence, Exhibit AC-65, paras 5-11, Exhibits AC-65A to 65N;
Besse Evidence, TRANSCRIPT, VOL.2, p.469 (line 10) p. 477 (line 12);
Giles Cross-examination, TRANSCRIPT, VOL. 6, p.1281 (line 2) p. 1291 (line 24); Exhibits AC-90 to
AC-95;
Gill Evidence, TRANSCRIPT, VOL. 9, p. 1822 (lines 2-13)
75
Copyright Matters, 2
nd
Edition, available at https://www.st-
clair.net/Data/Sites/1/media/public/InformationServices/Online%20Safety/copyrightmatters.pdf ,
page 9
76
CCH at para. 63, ACBOA, Tab 7

36


77
McIntyre Evidence, TRANSCRIPT, VOL. 2, p. 275 (line 23) p. 278 (line 10); p. 279 (lines 6-9); p.282
(line 23) p. 284 (line 14);
McIntyre Evidence, Exhibit AC-4, paras. 14-15, 24; Exhibit AC-4D, p. 3 (last para.);
Delbridge Evidence, TRANSCRIPT, VOL.5, p. 866 (line 11) p. 868 (line 23);
cf. Objectors Opening Statement, TRANSCRIPT, VOL. 5, p. 820 (line 22) p. 821 (line 6)
78
On the dubious strength of this unprecedented and untested definition, and despite the fact that
the Guidelines were not launched to teachers until September 2013 [George Evidence, TRANSCRIPT,
VOL. 6, p. 1206 (lines 19-22)], the Objectors ceased paying royalties to Access Copyright under the
previous certified tariff, effective January 1, 2013.
79
Bilyk Evidence, TRANSCRIPT, VOL. 9, p. 1897 (lines 2-21); Bilyk Cross-examination, TRANSCRIPT,
VOL.9, p. 1926 (line 22) p. 1928 (line 4)
80
Transcript from March 24, 2011 Hearing of Legislative Committee on Bill C-32, Exhibit AC-2V
81
Exhibit AC-2V, p. 2
82
Exhibit AC-2V, p. 8; After the Supreme Court of Canadas decision in Alberta (Education), the Nova
Scotia acting Associate Deputy Minister, Ms. Delbridge, continued to identify short excerpts as a
few paragraphs or a page- Exhibit AC-84

83
Exhibit AC-2V, p. 14
84
Objectors submissions to the Supreme Court of Canada in Alberta (Education), December 11, 2011,
Exhibit AC-2W, p. 7 (lines 13-24); p. 10 (lines 24-25); p.16 (lines 15-16)
85
Exhibit AC-2W, p. 11 (lines 3-4)
86
Exhibit AC-2W, p. 13 (lines 6-7)
87
Exhibit AC-2W, p. 17 (lines 23-24)
88
Exhibit AC-2W, p. 22 (lines 7-9)
89
Exhibit AC-2W, p. 23 (lines 17-18)
90
Exhibit AC-2W, p. 30 (lines 19-24)
91
CCH at para. 90, ACBOA, Tab 7
92
George Evidence, TRANSCRIPT, VOL. 6, p. 1209 (line 13) p. 1210 (line 13)
93
Lisi Cross-examination, TRANSCRIPT, VOL. 9, p. 1859 (line 4) p. 1862 (line 5)

37


94
Rollans Evidence, Exhibit AC-3, paras. 47, 53-55; Rollans Evidence, TRANSCRIPT, VOL. 2, p. 252 (line
1) p. 255 (line 9);
Dobner Evidence, Exhibit AC-13, paras. 159-165
95
Dobner Evidence, TRANSCRIPT, VOL. 7, p. 1371 (line 22) p. 1374 (line 24)
96
CCH at para. 52, ACBOA, Tab 7
97
CCH at para. 48, ACBOA, Tab 7; Alberta (Education) at para. 12, ACBOA, Tab 4
98
Theberge v. Galerie dArt du Petit Champlain Inc., 2002 SCC 34 at paras. 30-31, ACBOA, Tab 16
99
In SOCAN, the Supreme Court declined to narrow the definition of research to transformative
purposes in its assessment of the first part of the test. The Court did not find that whether or not a
use is transformative is irrelevant in a fair dealing assessment. To the contrary, it said that a
suggestion that research be restricted to the creation of new works would conflate the allowable
purpose with the fairness analysis and unduly raise the bar for entering that analysis (at para. 27).
The court held that whether the purpose of the copying is transformative belongs in the second
stage fairness analysis.
100
As in SOCAN
101
Rollans Evidence, Exhibit AC-3, paras. 33, 53-54;
Mcintyre Evidence, Exhibit AC-4, para. 35;
Dobner Evidence, Exhibit AC-13, paras. 91-97;
Gerrish Reply Evidence, Exhibit 64A, paras 4-5, Exhibit 64A;
Giles Cross-examination, TRANSCRIPT, VOL. 6, p.1271 (lines 6-20);
Moreover, to the extent budgetary constraints contribute to the unprecedented levels of copying
behaviour sanctioned and authorized by the Guidelines, the Objectors are publicly funded
institutions. If they are not properly funded, it is not the role of creators and publishers whose works
are being copied to make up the shortfall by accepting less than the economic value of their rights
under the Act CBC at para. 84, ACBOA, Tab 5
102
SOCAN at para. 35, ACBOA, Tab 15
103
CCH at para. 55, ACBOA, Tab 7
104
SOCAN at para. 37, ACBOA, Tab 15; CCH at para. 55, ACBOA, Tab 7
105
Alberta (Education) at paras. 29-30, ACBOA, Tab 4
106
Whitehead Cross-examination, TRANSCRIPT, VOL. 6, p. 1173 (lines 4-13)

38


107
This average copying per student per year is over 22-fold the four pages per student per year
discussed in Alberta (Education)
108
SOCAN at para. 38, ACBOA, Tab 15
109
Response to Interrogatory, Exhibit AC-53, confirms that over two-thirds of the sampled teachers
keep at least some of the copied pages for use in subsequent semesters or school years
110
Gauthier Evidence, Exhibit AC-11, Appendix B, p. 86;
Wilk/Whitehead Evidence, Exhibit OBJ-10, Appendix G, p. 177;
Wilk/Whitehead Cross-examination, TRANSCRIPT, VOL. 6, p. 1055 (line 23) p. 1059 (line 8); The
fact that teachers, during the Volume Study, were approaching the photocopiers with earlier
photocopied pages significantly impaired Drs. Wilk/Whiteheads ability to ascertain the length of the
entire work from which the copies were made they could only do so for 50% of the analyzed
transactions
111
Lisi/Gill Evidence, Exhibit OBJ-05, p. 3, p. 7-8;
Bilyk/McKinny Evidence, Exhibit OBJ-06, p. 1-2, p. 5;
Gill Evidence, TRANSCRIPT, VOL. 9, p. 1780 (line 20) p. 1783 (line 13);
Lisi Evidence, TRANSCRIPT, VOL. 9, p. 1785 (lines 2-25); p. 1798 (line 20) p. 1800 (line 10);
Lisi/Gill Cross-examination, TRANSCRIPT, VOL. 9, p. 1838 (line 15) p. 1840 (line 21);
Bilyk Evidence, TRANSCRIPT, VOL. 9, p. 1881 (lines 3-19); p. 1892 (line 17) p. 1893 (line 14);
Bilyk Cross-examination, TRANSCRIPT, VOL. 9, p. 1900 (line 14) p. 1903 (line 16);
McIntytre Evidence, Exhibit AC-4, para. 21 and Exhibit AC-4B
112
Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1715 (line 20) p. 1717 (line 16);

Dobner Evidence, TRANSCRIPT, VOL. 7, p. 1371 (line 22) p. 1374 (line 24); p. 1396 (line 17) 1397
(line 17); p. 1401 (lines 4-22)
113
CCH at para. 56, ACBOA, Tab 7
114
Alberta (Education) at para. 29, ACBOA, Tab 4

115
SOCAN at para. 41, ACBOA, Tab 15
116
Whitehead Cross-examination, TRANSCRIPT, VOL. 6, p. 1172 (line20) p. 1173 (line 3)
117
Wilks Evidence, Exhibit AC-7, para. 10-11; para. 13-14;

39


Wilks Evidence, TRANSCRIPT, VOL. 3, p. 525 (line 21) p. 533 (line 23);
Gerrish Reply Evidence, Exhibit AC-64, para. 5, Exhibit AC-64A

118
Gerrish Reply Evidence, Exhibit AC-64, para. 20, Exhibit 64B; Gerrish Evidence, TRANSCRIPT, VOL. 2,
p.401 (line 4) p. 405 (line 20)
119
Copyright Act, s. 2.1(2), ACBOA, Tab 1
120
Robertson v. Thomson Corp. 2006 SCC 43, ACBOA, Tab 13
121
George Evidence, TRANSCRIPT VOL. 6, p. 1208 (line 17) p. 1209 (line 12)
122
Taylor Evidence, Exhibit AC-8, paras. 26-34, Exhibits AC-8C to 8G; TRANSCRIPT, VOL. 3, p. 572 (line 2)
p. 578 (line 16);
Rollans Reply Evidence, Exhibit AC-62, paras. 7-10;
Gerrish Reply Evidence, Exhibit AC-64, paras. 4-5, Exhibit 64A;
Besse Reply Evidence, Exhibit AC-65, paras 5-11, Exhibits AC-65A to 65N;
Besse Evidence, TRANSCRIPT, VOL.2, p.469 (line 10) p. 477 (line 12);
Giles Cross-examination, TRANSCRIPT, VOL. 6, p.1281 (line 2) p. 1291 (line 24); Exhibits AC-90 to
AC-95;
Gill Evidence, TRANSCRIPT, VOL. 9, p. 1822 (lines 2-13)
123
Robertson v. Thomson Corp. 2006 SCC 43, ACBOA, Tab 13

124
Levy/Duncan/Lamantia Reply Evidence, Exhibit AC-61, para. 4; Exhibit AC-61B- 61C
125
CCH at para. 68, ACBOA, Tab 7
126
Alberta (Education) at paras. 28-29, 51-54, ACBOA, Tab 4
127
Levy/Duncan/Lamantia Reply Evidence, Exhibit AC-61, para. 4; Exhibit AC-61B-61C
128
Response to Interrogatory, Exhibit AC-59;

Besse Evidence, TRANSCRIPT, VOL. 2, p. 460 (line 25) p. 461 (line 2);

Dobner Evidence, TRANSCRIPT, VOL. 7. P. 1399 (line 24) p. 1400 (line 9)
129
As revealed in the Witness Statement of Katie Suitor, Exhibit Objectors-9D , Filed May 4, 2007 in
the previous proceedings;
Besse Evidence, TRANSCRIPT, VOL. 2, p. 461 (line 2) p. 462 (line 2)

40


130
Gill Evidence, TRANSCRIPT, VOL. 9, p. 1780 (line 20) p. 1781 (line 14);
Lisi Cross-examination, TRANSCRIPT, VOL. 9, p. 1840 (lines 4-11);
Response to Interrogatory, Exhibit AC-43
131
Whitehead Cross-examination, TRANSCRIPT, VOL. 6, p. 1162 (line 10) p. 1163 (line 18)
132
Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1703 (line 17) p. 1705 (line 16); Exhibit
AC-99 ( p. 1342, line 20 p. 1343, line 9)
133
For example, a teacher could have copied a chapter of a book on the 9
th
day of the observation
period (Thursday) and returned to copy the next chapter of the same book three days later
(Monday), outside the observation window.
134
CCH at para. 57, ACBOA, Tab 7
135
Alberta (Education) at para. 32, ACBOA, Tab 4
136
Alberta (Education) at para. 32, ACBOA, Tab 4
137
Gerrish Reply Evidence, Exhibit AC-64, paras. 15 -18

138
McKinny Evidence, TRANSCRIPT, VOL. 9, p. 1897 (line 23) p. 1898 (line 11)
139
Gerrish Reply Evidence, Exhibit AC-64, para. 14;
Gerrish Evidence, TRANSCRIPT, VOL. 2, p. 393 (line 24) p. 396;
Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1715 (line 20) p. 1717 (line 16);
Wilks Evidence, TRANSCRIPT, VOL. 3, p. 536 (line 15) p. 537 (line 10);
Taylor Evidence, TRANSCRIPT, VOL. 3, p. 570 (line 23) p. 571 (line 23);
Dobner Evidence, TRANSCRIPT, VOL. 7, p. 1396 (line 17) 1398 (line 5); p. 1427 (lines 13-18); p.
1440 (line 4) p. 1441 (line 1)
140
Giles Cross-examination, TRANSCRIPT, VOL. 6, p. 1271 (lines 6-20);

Gerrish Reply Evidence, Exhibit AC-64, para. 5, Exhibit AC-64A;

Dobner Evidence, TRANSCRIPT, VOL. 7, p. 1372 (line 6) p. 1373 (line 10)
141
Gill Evidence, TRANSCRIPT, VOL. 9, p. 1780 (line 20) p. 1781 (line 14);
Lisi Cross-examination, TRANSCRIPT, VOL. 9, p. 1840 (lines 4-11);
Response to Interrogatory, Exhibit AC-43;

41


Rollans Evidence, Exhibit AC-3, para. 28 & 36;
McIntyre Reply Evidence, Exhibit AC-63A;
Taylor Evidence, TRANSCRIPT, VOL. 3, p. 570 (line 23) p. 571 (line 23);
Gerrish Evidence, Exhibit AC-5, para. 20;
Besse Evidence, Exhibit AC-6, para. 15;
Dobner Evidence, Exhibit AC-98;
Dobner Evidence, TRANSCRIPT, VOL. 7, p. 1374 (lines 9-15), p. 1378 (line 8) p. 1379 (line 11), p.
1399 (lines 4-11)
142
Gill Evidence, TRANSCRIPT, VOL. 9, p. 1800 (line 12) p. 1803 (line 13); p. 1809 (line 5) p. 1811(line
9);

Gill Cross-examination, TRANSCRIPT, VOL. 9, p. 1838 (line 15) p. 1839 (line 13); p. 1857 (lines 3-23);

Gerrish Reply Evidence, Exhibit AC-64, paras. 15-18;

McKinny Evidence, TRANSCRIPT, VOL. 9, p. 1897 (line 23) p. 1898 (line 11)

143
CCH at para. 58, ACBOA, Tab 7
144
Decision at para. 108, ACBOA, Tab 3
145
Gauthier Reply Evidence, Exhibit AC-67, Tables 3.1 and 3.2, p. 5

146
Gauthier Reply Evidence, Exhibit AC-67, Tables 3.1 and 3.2, p. 5
147
Rollans Evidence, Exhibit AC-3, para. 16;
McIntyre Evidence, Exhibit AC-4, para. 30;
Gerrish Evidence, Exhibit AC-5, paras. 9-11, 15-16;
Besse Evidence, Exhibit AC-6, para. 5;
Taylor Evidence, Exhibit AC-8, paras. 6-7, 20;
Gauthier Evidence, Exhibit AC-10, pp. 14-16
148
Gill Evidence, TRANSCRIPT, VOL. 9, p. 1792 (line 22) p. 1794 (line 20);
Gill Cross-examination, TRANSCRIPT, VOL. 9, p. 1834 (lines 2-25)
149
Gerrish Cross-examination, TRANSCRIPT, VOL. 2, p. 436 (line 15) p. 437 (line 2);

42


Bilyk Evidence, TRANSCRIPT, VOL. 9, p. 1892 (lines 17-24)
150
Highly Confidential Exhibit AC-98
151
Gerrish Evidence, Exhibit AC-5, para. 23;
Wilks Evidence, Exhibit AC-7, paras. 15-16
152
Chodorowicz Cross-examination, TRANSCRIPT, VOL. 8, p. 1715 (line 20) p. 1717 (line 16)
153
Rollans Evidence, Exhibit AC-3, paras. 47-48, 54-55;

McIntyre Evidence, Exhibit AC-4, paras. 20-21, Exhibit AC-4B;

Taylor Evidence, TRANSCRIPT, VOL. 3, p, 570 (line 23) p. 571 (line 23);

Dobner Evidence, Exhibit AC-13, paras. 159-181;

Rollans Reply Evidence, Exhibit AC-62, para. 8;

Gerrish Reply Evidence, Exhibit AC-64, paras. 14-18;

Dobner Reply Evidence, Exhibit AC-69, paras. 39, 45-61

154
Dobner Reply Evidence, Exhibit AC-69 (Appendix C), para. 36;
Rollans Evidence, TRANSCRIPT, VOL. 1 , p. 179 (line 24) p. 181 (line 4); p. 187 (lines 8-15);
McIntyre Evidence, TRANSCRIPT, VOL. 2, p. 267 (line 22) p. 268 (line 25); p. 297 (line 25) p. 298
(line 23);
McIntyre Cross-examination, TRANSCRIPT, VOL. 2, p. 319 (lines 13-16);
Dobner Evidence, TRANSCRIPT, VOL. 7, p. 1361 (lines 13-22); p. 1395 (lines 5-16)
155
See paragraph 36 of the text and the evidence cited in the endnotes in that paragraph
156
See paragraph 42 of the text and the evidence cited in the endnotes in that paragraph. Particularly
troubling was his reliance on Exhibit OBJ-18 the IIPAs publication of the 2014 Special 301: Canada
Report as an authoritative source of information for the purposes of providing his opinions but his
failure, in his report and in his examination in chief, to direct the Board to those other aspects of the
report which were clearly relevant to his mandate and clearly contradicted his opinion concerning
the economic impacts on the publishers markets in Canada.
157
Gerrish Evidence, Exhibit AC-5, para.25;

Besse Evidence, Exhibit AC-6, para. 19;

43



Dobner Evidence, Exhibit AC-13, para. 154
158
See evidence cited in endnote 154
159
Gerrish Evidence, Exhibit AC-5, para. 26;
Gerrish Evidence, TRANSCRIPT, VOL. 2, p. 363 (lines 6-12); p. 378 (line 23) p. 379 (line 11)
160
Rollans Evidence, Exhibit AC-3, paras. 46, 55;
McIntyre Evidence, Exhibit AC-4, paras 28, 36;
Gerrish Evidence, Exhibit AC-5, paras. 20, 23, 26-27;
Besse Evidence, Exhibit AC-6, para. 23;
Wilks Evidence, Exhibit AC-7, para. 16;
Taylor Evidence, Exhibit AC-8, paras. 17-18;
Dobner Evidence, Exhibit AC-13, paras. 203-215
161
Rollans Evidence, Exhibit AC-3, para. 51;
Besse Evidence, Exhibit AC-6, para. 23;
Wilks Evidence, Exhibit AC-7, para. 12;
Taylor Evidence, Exhibit AC-8, paras. 17-18;
Gauthier Evidence, Exhibit AC-10;
Gauthier Evidence (PowerPoint), Exhibit AC-78, slides 11-13;
Gauthier Evidence, TRANSCRIPT, VOL. 4, p. 746 (line 7) p. 761 (line 21);
Dobner Evidence, Exhibit AC-13, paras. 182-202
162
Exhibit OBJ-18, p.1
163
See evidence cited in endnotes 150-154 and 160
164
Exhibit AC-10
165
See evidence cited in endnote 161
166
See evidence cited in endnote 160;

44


Dobner Evidence, TRANSCRIPT, VOL. 7, p. 1382 (line 9) p. 1383 (line 22);
167
Rollans Evidence, Exhibit AC-3, paras. 52, 56-58;
McIntyre Evidence, Exhibit AC-4, paras. 29, 36-38;
Gerrish Evidence, Exhibit AC-5, para. 27;
Besse Evidence, Exhibit AC-6, paras. 21-23;
Wilks Evidence, Exhibit AC-7, para. 17;
Dobner Evidence, Exhibit AC-13, paras. 216-232
168
Gauthier Reply Evidence, Exhibit AC- 67, paras. 95-97, Table 5.2, p.26
169
Wilk/Whitehead Evidence, Exhibit OBJ-10, pp. 88-89
170
Whitehead Cross-examination, TRANSCRIPT, VOL. 6, p. 1187 (line 16) p. 1188 (line 5)
171
Wilk/Whitehead Evidence, Exhibit OBJ-10, pp. 91-92
172
Wilk/Whitehead Evidence, Exhibit OBJ-10, pp. 87 -88
173
Wilk Cross-examination, TRANSCRIPT, VOL. 6, p. 1166 (line 13) p. 1172 (line 2)
174
Exhibit AC-89
175
Gauthier Reply Evidence, Exhibit AC-67, Table 5.2, p. 26