06/23/2015 18:33 416-952-e4ea C.A.S. APPEAL PAGE 2/12 n as FEDERAL COURT OF API 4 7 COUR DIAPPEL FeDERALAE FEDERAL COURT OF APPEAL BETWEEN: ‘The Canadian Copyright Licensing Agency, operating as Acc And Her Majesty The Queen in Right of the Provitce of Alberta, Her Majesty The Queen in Right of the Province of Manitoba, The Province of New Brunswick, Her Majesty in Right of Newfoundland and Labrador, Her Majesty The Queen in Right of the Province of Nova Scotia, ‘The Government of Nunavut, Her Majesty The Queen in Right of the Province of Prince Edward Island, Her Majesty The Queen in Right of the Province of Saskatchewan, Government of Yukon and Her Majesty the Queen in Right of the Province of British Columbia Respondents NOTICE OF APPLICATION TO THE RESPONDENTS: A LEGAL PROCEEDING HAS BEEN COMMENCED by the Applicant. The relief claimed by the Applicant appears om the following pages. THIS APPLICATION will be heard by the Court ata time and place to be fixed by the Judicial Administrator. Unless the Court directs otherwise, the place of hearing will be as. requested by the Applicant. The Applicant requests that this application be heard at Toronto, ‘Ontario. IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you ar a solicitor acting for you must prepare a notice of appearance in Form. 305 prescribed by the Federal Courts Rules and serve it on the Applicant's solicitors WITHIN 10 DAYS of being served with this notice of application. Copies of the Federal Courts Rules, information conceming'the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at “Ottawa (telephone 613-996-6795) or at any local office.06/23/2015 18:33 416-952-B4ea C.A.S. APPEAL PAGE 63/12 IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. June 22, 2015 Issued by: Registry Officer) Address of local office: 180 Queen St. West Suite 200 Toronto, ON MSV 3L6 TO: ‘Her Majesty The Queen in Right of the Province of Alberta AND TO: — Her Majesty The Queen in Right of the Province of Manitoba ANDTO: The Province of New Brunswick ANDTO: — Her Majesty in Right of Newfoundland and Labrador AND TO: — Her Majesty The Queen in Right of the Province of Nova Scotia ANDTO: — The Government of Nunavut AND TO: — Her Majesty The Queen in Right of the Province of Prince Edward Island AND TO: Her Majesty The Quecn in Right of the Province of Saskatchewan AND TO: — Government of Yukon AND TO: — HerMajesty the Queen in Right of the Province of British Columbia AND TO: — The Copyright Board of Canada ‘56 Sparks Street, Suite 800 Ottawa, ON, KIA 0C906/23/2815 10:33 416-352-8404 CALS. APPEAL PAGE e4/12 APPY.ICATION Access Copyright (“the Applicant”) applies for judicial review of the decision of the Copyright Board (“the Board”) dated May 22, 2015 (“the Decision”). ‘The Decision sets out the reasons of the Board made in respect of two proposed statements of royalties filed by the Applicant under subsection 70.13(1) of the Copyright ‘Act on March 31, 2004 (“the 2005 Tariff”) and March 31, 2009 (“the 2010 Tarif?" ‘The statements proposed the royalties to be collected by the Applicant for the reproduction in Canada (excluding Quebec) of copyright-protected works (“works”) ia the Applicant’s repertoire by employees of provincial and territorial governments (“Government Employees”) for the years 2005 to 2009 and the years 2010 to 2014. In amtiving at the rates for both tariff periods, the Board applied a methodology that assessed the volume of copying events as estimated by surveys of Government Employee copying behaviours, the geures of the work copied and the value of the pages copied. In determining the volume of compensable copying events, the Board excluded all digital copying events and other copying events that it found (ell outside the tariffs; and excluded other copying events on the grounds of insubstantiality and fair dealing. The Board’s disposition of copying events is summarized in Table 2 to the Decision. ‘The Board committed reviewable errors by: a. acting beyond its jurisdiction under section 70.15(1) of the Copyright Act by removing the making of digital copies as an authorized class of use under the 2010 Tariff; b. refusing to exercise its jurisdiction by refusing to certify the royalties for the making of digital copies under the 2010 Tariff:05/23/2015 10:93 416-952-saae CALS. APPEAL Pace @8/12 ©. failing to observe procedural faimess or other procedures that it was required by Jaw to observe by improperly excluding relevant evidence relating to the Applicant's authority to license the making of digital copies and failed to take such evidence into account in arriving at the 2010 Tariff rate; 4. improperly excluding certain copying activities of Government Employees that exceeded the limits of use in the 2005 Tariff and the 2010 Tariff (collectively, the “Tariff” or “Tariffs”) in arriving at the Tariff rates; ©. improperly excluding certain copying activities by Govemment Employees on the basis of “insubstantial copying”; £. misapplying the law and failing to observe procedures or ptinciples that it was required by law to observe in determining that certain copying events amounted to fair dealing and thus were not to be taken into account in arriving at the Tariff rates. THE APPLICANT MAKES AN APPLICATION FOR: 7. A declaration that the Board acted beyond its jurisdiction, refused to exercise its Jurisdiction and committed errors of fact and law in making the Decision, as articularized in paragraph 6. . 8. A declaration that the Board can make no finding of insubstantial copying in the absence of evidence that permits it to make a qualitative assessment of the materials copied. 9. An Order setting aside the Decision and referring the matter back to the Board for re- determination, in accordance with the following directions:06/23/2815 10:33 f 416-952-8404 C.A.8. APPEAL, Pace 05/12 ‘The Board shall certify the 2010 Tariff with a liceace to make digital copies and establish the royalties to be paid for such copies; For the purpose of establishing the royalties to be paid, the Board shall include, in the category of qualifying copying events, the digital copying events excluded by the Board; For the purpose of establishing the royalties to be paid, the Board shall admit and consider the evidence relating to the Applicant’s avthority to license the making of digital copics; ‘The Board shall include, within the category of compensable copying events, the five events that it excluded in Table 2 of the Decision on the basis that the amount copied by Government Emptoyees from these works exceeded the prescribed copying limits under the tariffs and re-determine the royalties to be paid for such copies in accordance with the reasons of the Court; ‘The Board shall re-determine the compensability of those five copying events that wore excluded by it on the grounds of insubstantiality and re-detenmine the royalties to be paid for such copies in accordance with the reasons of the Court; and The Board shall re-determine the faimess of the 97 copying events excluded from the category of compensable events for fair dealing in Table 2 of the Decision in accordance with reasons of the Court and re-determine the royalties to be paid for such copies in accordance with the reasons of the Court. 10. The Applicant requests costs of the Application.06/23/2015 10:33 416-952-n4aa C.A.S. APPEAL PAGE 07/12 UL. The Applicant requests such other order, direction or other relief as this Court may find is appropriate. THE GROUNDS FOR THE APPLICATION ARE: Digital copying 12. The Board acted beyond its jurisdiction under subsection 70.15(1) of the Copyright Act by removing the making of digital copies from the 2010 Tariff. 13. The Board improperly refused to exercise its jurisdiction under subsection 70.15(1) of the Copyright Act by refusing to establish the royalties to be paid for digital copying and by excluding the volume of digital copying events in certifying the 2010 Tariff. 14, The Board excluded such copying without regard to the evidence and materials before it, including: the evidence that the provision in the proposed 2010 Tariff that required users to delete digital copies of works when they were no longer covered by a tariff (‘the Deletion Provision”) accords with industry standards and is recognized by Parliament, copyright holders and users as an appropriate and reasonable limitation on users’ licences to make digital copies; b. the evidence that copyright holders and users reasonably expected and relied ‘upon the inclusion of a right to make digital copies under the 2010 Tariff; and ©. the consequences of such exclusion, namely that all digital copying behaviour by Government Employees during the period 2010 to 2014 were unlicensed, exposing them to infringement proceedings and potentially deaying copyright holders the right to a remedy for such infringements.06/23/2015 10:33 416-952-saaa C.A.S. APPEAL PAGE 08/12 15. The Board’s exclusion was grounded in an erroneous and unreasonable finding that an obligation in a grant or licence requiring the licenses to delete digital copies once that licence terminates precludes the inclusion of digital copying in the tariff. 16. The Board failed to admit and consider evidence relating to the express variation of the Applicant’s authority to License the making of digital copies without the Deletion Provision. In so doing, the Board failed to observe the principle of procedural fairness owed by the Board to the Applicant or failed to observe procedures it was required by law to observe. B. Copying bebaviour in excess of prescribed limits 17. In arriving at the volume of compensable copying events, the Board erred in law by excluding, in their entirety, events that represented copying behaviour of Government Enuployees above the authorized copying limits, rather than excluding only the portion of the event above the limits, thereby underestimating the volume and value of copying under the Tariffs and making such events in their ‘entirety potential infringements of copyright. C. Insubstantial copying 18. The Board erred when it fourd that there was no evidence before it upon which it could make a qualitative assessment of the portions of the works copied by Government Employees. The evidence before the Board, including the nature of the works from which the pages were copied, provided some evidence upon which 2 qualitative assessment could be made. 19, Had the Board not disregarded such evidence, the only reasonable finding available to it ‘was that the copying was substantial.416-952-aaaa C.A.S. APPEAL PASE 93/12 6/23/2015 16: 20. A finding of insubstantial copying can only be made if a qualitative assessment of the Portions copied is possible. The Board's finding that there was no evidence upon which ‘0 conduct a qualitative assessment of the portions copied, if reasonable, precluded any determination that the portions copied were insubstantial. 21, The Board ened in law in prescribing a solely quantitative and arbitrary percentage threshold under which the quantity of copying is deemed to be insubstantial, D. Fair dealing 22. In assessing the faisness of the dealing, the Board erred in law or acted unreasonably by: 4. determining the faimess of the dealing without first considering whether the Respondents had met their evidential burdens in respect to the faimess factors in respect of which they carry those burdens; . conducting a reductionist assessment of the faimess ofthe dealing by assessing the faimess of the dealing solely through a work-by-work analysis from the perspective of the individual user, rather than assessing the fairness of the dealing from the perspective of both users and rightsholders in the context of the users” practice as a whole; considering each faimess factor in isolation from the others and solely through the lens ofthe purpose of the copying, without consideration to the purpose of copyright, and thereby unreasonably skewing the faimess analysis in favour of users at the expense of copyright holders; 4. failing to consider, under the ‘character of the dealing’ faimess factor, or any Other faimess factor, the aggregate volume of copying behaviour disclosed in the evidence;06/23/2018 10:33 416-952-2806 .A.S. APPEAL Page 10/12 ©. assessing the evidence of record relating to the ‘amount of the copying’ fairness factor solely upon tbe quantitative amount copied and without consideration of the qualitative nature of what had been copied; £. prescribing solely quantitative thresholds for the assessment of the ‘amount of dealing’ factor; and & concluding that 97/291 qualifying copying events constituted fair dealing THE APPLICATION WILL BE SUPPORTED BY THE FOLLOWING MATERIAL: 1 The Decision: The Board’s ruling dated September 11, 2014; The evidence filed by the parties before the Board; The exchange of correspondence between the Applicant and the Board relating to ‘questions posed by the Board following the oral hearing; and Such supporting affidavits and documentary exhibits as the Applicant may file under Rule 306 and such other evidence as this Honourable Court permits.96/23/2015 10:33 416-952-adaa C.A.S. APPEAL PAGE 11/12 THE APPLICANT REQUESTS, UNDER RULE 317, THAT: The Board transmit to the Registry and to the Applicant copies of any documents, apart from the documents referred to by the Applicant above, that were relied upon by the Board to make its determination and which were not furnished to the Applicant, Date: June 22, 2015 The Canadian Copyright Licensing Agency operating as Access Copyright +#800- 1 Yonge St. Toronto, ON MSE 1E5 Tel.:1-800-893-5777 Fax: 416-868-1621 Axthur B Renaud Ext. 294) Erin Finlay (Ext. 234) Jessica Zagar (EXt. 255) avenand @ accesscopyright.ca efinlay@accesscopyzight.ca izagar@accesscopyright.ca Counsel for the Applicant06/23/2015 10:33 416-952-a4ea CLAS. APPEAL PAGE 12/12 APRS FEDERAL COURT OF APPEAL BETWEEN: ‘The Canadian Copyright Licensing Agency, operating as Access Copyright Applicant And Her Majesty The Queen in Right of the Province of Alberta, Her ‘Majesty The Queen in Right of the Province of Manitoba, The Province of New Brunswick, Her Majesty in Right of ‘Newfoundland and Labrador, Her Majesty The Queen in Right of the Province of Nova Scotia, The Government of Nunavut, Her Majesty The Queen in Right of the Province of Prince Edward Island, Her Majesty The Queen in Right of the Province of Saskatchewan, Goverment of Yukon and Her Majesty the Queen in Right of the Province of British Columbia Respondents cs NOTICE OF APPLICATION — The Canadian Copyright Licensing Agency operating as Access Copyright #800 - 1 Yonge St. Toronto, ON MSE 1E5 Tel.:1-800-893-5777 Fax: 416-868-1621 Acthur B Renaud (Ext. 294) Erin Finlay (Ext. 234) ithe soo ometina mec Jessi Zag Be 28 ‘prelensioteti eth oecovtente 7 , Wao, finlay@accesscopyright.ca o___jyn-2.2-0 : vedi : = RT ct apienn