PRIVATE COPYING (2003-2004): RULING ON OBJECTIONS TO INTERROGATORIES

GENERAL COMMENTS

1) The persons who are required to answer interrogatories are the objectors of record. In cases where objectors have consolidated, an answer is required from the underlying objectors.

"Anyone" can object to the proposed tariff. A trade association can object on its own behalf. Unless indicated otherwise, it will not be required to seek answers from its members. This being said, if an association refuses to seek answers from its members, its ability to then file evidence that would have been responsive to interrogatories directed to its members may be seriously curtailed. Participants retain the option of asking the Board to issue subpoenas to individual members of the association if they feel that the information is necessary to the preparation of its case.

2) All objectors are required to provide relevant information. This being said, participants are asked to take into account the size or identity of objectors as well as the difficult time lines that have been imposed in this case before asking for any information supplement.

3) No objection based on the confidential nature of the information was sustained. Information for which confidentiality is claimed shall be handled in the manner outlined in the confidentiality order that will be issued before the date set to respond to interrogatories.

4) Where a participant states that information is not available, that participant will nevertheless be allowed to provide evidence dealing with the issue if the information was obtained as part of the preparation of its case.

5) Unless indicated otherwise, CPCC is required to respond only in respect of itself, its member collectives and the member collectives of NRCC. CPCC's offer to make reasonable efforts to seek information from right holders "where appropriate" is noted.

6) In the case of CPCC, the so-called litigation privilege shall extend to any information obtained or produced in the process of finalizing the proposed tariff, as well as to that which has been obtained or produced in preparation for the hearings themselves. Material obtained or produced in the normal course of CPCC's activities at any time is not subject to the privilege.

7) Respondents are required to provide only the information that they have, and in the form that they have it.

8) Respondents are not required to provide questioners with a research service. Respondents are not required to provide information that is publicly available. This being said, if respondents know of a document that is publicly available and responsive to a question (including documents that are part of the record of earlier proceedings before the Board), they should disclose the existence of the document and provide the questioner with any information that may help in obtaining copy of the document.

9) In several instances, counsel found it appropriate to ask information of others while objecting to their client providing the same information. Indeed, at least one counsel questioned the meaning of an interrogatory which his client had also addressed, word for word, to the party who had asked the question in the first place. Counsel are asked to be more consistent in their approach to these proceedings.

10) In all cases where a participant is ordered to provide an answer, the participant remains entitled to claim any litigation or other privilege that may apply.

INTERROGATORIES FROM CAB

TO CPCC-1: there is no need to rule on the matter.

TO CPCC-10, 17, 30, 31, 35, 36, 37: the objection is sustained.

TO CPCC-12: CPCC shall provide information available concerning private copying, the reproduction right and any royalties paid (whether or not through a collective society) on account of uses over the Internet.

TO CPCC-13, 32, 33, 34, 38: the objection is dismissed.

TO CPCC-14, 15: the objection is dismissed.

TO CPCC-18: CPCC shall provide any information available to it as to the amounts, if any, of private copying levies paid by broadcasters to CPCC. Otherwise, the objection is sustained.

TO CPCC-22 to 26: the objection is sustained. CPCC's allocation methodology is not at issue in these proceedings. Neither is its status as collecting body. Nevertheless, the Board welcomes CPCC's offer to provide a general description of the principles, policies and methodology used to distribute royalties.

INTERROGATORIES FROM CBC

TO CPCC-9, 18: there is no need to deal with the issue.

TO CPCC-12: CPCC shall provide on a without prejudice basis, the mathematical formula, if any, that it used to derive the proposed rates, with a short explanation of what each figure represents. Otherwise, the objection is sustained.

TO CPCC-13: in order to help focus the debate, CPCC shall provide on a without prejudice basis, a list off the types of media and/or devices that CPCC believes are (a) covered by the proposed tariff, (b) currently qualify as blank audio recording media but are not covered in the tariff (c) currently do not qualify as blank audio recording media.

TO CPCC-14: CPCC correctly states what is relevant and what is not. This being said, since the Board would request at some point in time that CPCC file any relevant public information CPCC may have obtained, irrespective of any litigation privilege, CPCC is ordered to provide all such information.

TO CPCC-15: CPCC shall provide information available concerning private copying, the reproduction right and any royalties paid (whether or not through a collective society) on account of uses over the Internet.

TO CPCC-17: since the Board would request at some point in time that CPCC file any relevant public information CPCC may have obtained, irrespective of any litigation privilege, CPCC is ordered to provide all such information.

TO CPCC-19 to 23: the objection is dismissed.

INTERROGATORIES FROM CSMA

TO CPCC-4, 5, 6, 20, 21, 22, 34: the objection is sustained. Allocation methodology is not at issue in these proceedings. Neither is CPCC's status as collecting body. Nevertheless, the Board welcomes CPCC's offer to provide a general description of the principles, policies and methodology used to distribute royalties.

TO CPCC-7, 8, 9: in order to help focus the debate, CPCC shall provide on a without prejudice basis, a list off the types of media and/or devices that CPCC believes are (a) covered by the proposed tariff, (b) currently qualify as blank audio recording media but are not covered in the tariff (c) currently do not qualify as blank audio recording media.

TO CPCC-10, 11, 13, 14, 27: the objection is sustained.

TO CPCC-12: CPCC shall provide on a without prejudice basis, the mathematical formula, if any, that it used to derive the proposed rates, with a short explanation of what each figure represents. Otherwise, the objection is sustained.

TO CPCC-15, 25: CPCC shall provide information available concerning private copying, the reproduction right and any royalties paid (whether or not through a collective society) on account of uses over the Internet.

TO CPCC-23, 26: the question has been answered. Otherwise, the objection is sustained.

TO CPCC-24: CPCC shall answer in accordance with CSMA's reply.

TO CPCC-28: CPCC shall answer only with respect to information concerning the enforcement of the private copying tariff.

TO CPCC-32, 33, 35, 42, 43: the information requested is relevant.

TO CPCC 45, 46, 47: CSMA's offer seems satisfactory.

TO RETAILERS-2, 11, 12: there is no need to deal with the issue.

TO RETAILERS-4, 5, 6, 9, 10: RETAILERS shall answer as per CSMA's reply.

TO RETAILERS-8: the objection is dismissed.

INTERROGATORIES FROM EDP

TO CPCC-1: CPCC shall answer as per EDP's reply.

TO CPCC-6: the objection is sustained. CPCC's allocation methodology is not at issue in these proceedings. Nevertheless, the Board welcomes CPCC's offer to provide a general description of the principles, policies and methodology used to distribute royalties.

TO CPCC-8: CPCC correctly states what is relevant and what is not. This being said, since the Board would request at some point in time that CPCC file any relevant public information CPCC may have obtained, irrespective of any litigation privilege, CPCC is ordered to provide all such information.

TO CPCC-10 to 15, 17, 18: CPCC shall provide on a without prejudice basis, the mathematical formula, if any, that it used to derive the proposed rates, with a short explanation of what each figure represents. Otherwise, the objection is sustained.

TO CPCC-16: the objection is dismissed.

TO CPCC-24: the question has been answered.

TO CPCC-25: CPCC shall provide information available concerning private copying, the reproduction right and any royalties paid (whether or not through a collective society) on account of uses over the Internet.

TO CPCC-26: CPCC shall provide any past information it has on these issues. See General Comment 8.

INTERROGATORIES FROM ASAP-CD/PITT

TO CPCC-4: the question has been answered.

TO CPCC-6, 7, 8: see General Comment 8. Nevertheless, CPCC is ordered to provide the names of its member collectives, the names of NRCC's member collectives and a copy of their latest financial statement.

TO CPCC-11 to 14, 26: these request a legal opinion. The objection is sustained.

TO CPCC-10, 15 to 23, 33: these are direct questions about technical aspects of the operation of digital equipment. They go to one of the core issues in these proceedings: what constitutes "copying" The objection is dismissed.

TO CPCC-24, 25: there are factual questions that go to the value of a compilation: the objection is dismissed.

TO CPCC-27, 35, 69: this requests an opinion and as such, the objection is sustained.

TO CPCC-28, 34, 36, 37, 45, 46, 70 to 73, 80, 81, 82, 85, 87 to 90: there is no need to rule on the matter.

TO CPCC-30, 31, 32: the issue can be relevant to the amount of the levy. The objection is dismissed.

TO CPCC-39 to 44, 47 to 56, 67, 68: CPCC shall answer the questions.

TO CPCC-60 to 66: CPCC shall answer the question as per the reply.

TO CPCC-69, 74 to 79: the information is relevant; CPCC shall answer the questions.

TO CPCC-84: the information is not relevant. The objection is sustained.

TO CPCC-86: this requests an opinion on the underpinnings of the Board's decision, which is meant to speak for itself. The objection is sustained.

TO CPCC-94, 95: in order to help focus the debate, CPCC shall provide on a without prejudice basis, a list off the types of media and/or devices that CPCC believes are (a) covered by the proposed tariff, (b) currently qualify as blank audio recording media but are not covered in the tariff (c) currently do not qualify as blank audio recording media.

INTERROGATORIES FROM RETAILERS

TO CPCC-2, 57, 74, 75: the objection is sustained.

TO CPCC-3: CPCC shall answer as per its objection.

TO CPCC-6, 25 to 28, 45, 46, 47, 66: the objection is sustained. Any issues that the retailers may wish to address in this respect can be dealt with without the need for the information requested in these interrogatories.

To CPCC-7 to 11, 18, 22, 23, 24, 33 to 36, 63: the objection is dismissed.

TO CPCC-12: answered. Furthermore, the information is irrelevant.

TO CPCC-13, 14, 15: these are in the nature of particulars. CPCC shall answer as requested.

TO CPCC-16, 68, 73, 78: since the Board would request at some point in time that CPCC file any relevant public information CPCC may have obtained, irrespective of any litigation privilege, CPCC is ordered to provide all such information.

TO CPCC-17, 19, 20: in order to help focus the debate, CPCC shall provide on a without prejudice basis, a list off the types of media and/or devices that CPCC believes are (a) covered by the proposed tariff, (b) currently qualify as blank audio recording media but are not covered in the tariff (c) currently do not qualify as blank audio recording media.

TO CPCC-21, 55: CPCC shall answer only with respect to information concerning the enforcement of the private copying tariff.

TO CPCC-29, 44, 51, 52: there is no need to address the issue.

TO CPCC-37, 38: CPCC need not provide details of any discussions or communications with government officials, Copyright Board officials or minister of the Crown. As a first step, CPCC shall provide a sample of the documents mentioned in interrogatory 38. Otherwise, the objection is dismissed.

TO CPCC-41: CPCC shall answer the question as outlined in its objection, for the time being.

TO CPCC-48, 49, 50: the objection is dismissed. As a first step, CPCC shall provide a sample of the relevant documents.

TO CPCC-54: CPCC shall proceed with its offer of information. In other respects, the objection is sustained.

TO CPCC-60, 61: CPCC is not required to provide information that singles out religious organizations; the objection is sustained.

TO CPCC-62: CPCC shall make reasonable efforts to provide a reasonable amount of information responsive to the interrogatory.

TO CPCC-64, 65: the issue can be relevant both to the amount of the levy and to the constitutional issues raised by the retailers. The objection is dismissed. Interrogatory 65 can be answered by a simply "yes" or "no": no explanation need be provided.

TO CPCC-76: CPCC shall provide all documents it has issued to the press.

TO CSMA 4 to 12, 14, 15, 16: there is no need to deal with these issues. As regards confidentiality, see General Comment 3.

TO CSMA-13: see General Comment 8).

TO CSMA-17, 20: the objection is sustained.

TO CSMA-18, 19: the objection is dismissed.

INTERROGATORIES FROM CEMC

TO CPCC-1, 2: CPCC shall answer the question as per the reply.

TO CPCC-3: in order to help focus the debate, CPCC shall provide on a without prejudice basis, a list off the types of media and/or devices that CPCC believes are (a) covered by the proposed tariff, (b) currently qualify as blank audio recording media but are not covered in the tariff (c) currently do not qualify as blank audio recording media.

TO CPCC-4: the objection is sustained.

INTERROGATORIES FROM CTWA

TO CPCC-1, 2, 3: in order to help focus the debate, CPCC shall provide on a without prejudice basis, a list off the types of media and/or devices that CPCC believes are (a) covered by the proposed tariff, (b) currently qualify as blank audio recording media but are not covered in the tariff (c) currently do not qualify as blank audio recording media.

TO CPCC-4: the objection is sustained.

INTERROGATORIES FROM KERBER

TO CPCC-1, 2, 3: the information is relevant.

TO CPCC-6: the objection is sustained.

INTERROGATORIES FROM KUZ

TO CPCC-1 to 7: the information is relevant. What is requested are factual responses, not opinions.

TO CPCC-9: since the Board would request at some point in time that CPCC file any relevant public information CPCC may have obtained, irrespective of any litigation privilege, CPCC is ordered to provide all such information.

To CPCC-10: the objection is sustained.

INTERROGATORIES FROM TROTTIER

TO CPCC: all the information requested is relevant. CPCC shall also provide on a without prejudice basis, the mathematical formula, if any, that it used to derive the proposed rates, with a short explanation of what each figure represents.

TO CSMA: as regards confidentiality, see General Comment 3. In all other respects, the objections, including the objection to CSMA-19, are dismissed.

INTERROGATORIES FROM CPCC

TO CAB 2 to 5: the objection is sustained

TO CAB-6 to 13 responses from CAB itself: there is no need to address the issue

TO CAB-6 to 12 responses from CAB members: CPCC and CAB shall attempt to agree on a selection of 15 members of each sector as outlined in CAB's objection. If they are unable to do so, CPCC shall proceed to the selection, again on the basis outlined in CAB's objection. CPCC shall be entitled to challenge the representativeness of this sample; CAB shall not. Neither shall CAB be allowed, without CPCC's consent, to introduce any evidence that contradicts the data collected from this sample.

TO CAB-6, 8: CAB shall answer as per CPCC's reply.

TO CAB-13: the interrogatory shall be directed to the sample outlined above. CAB shall send a general query to its membership. If CAB attempts to introduce any further evidence of this nature without CPCC's consent, CAB will be required to convince the Board that this evidence was not within its knowledge or the knowledge of its members as of July 5, 2002, the date set to respond to interrogatories.

TO CBC-2, 5: there is no need to address the issue.

TO CBC-6, 9: the objection is dismissed, subject to General Comment 7.

TO CBC-10, 12: CBC shall answer as per CPCC's reply.

TO CSMA-2, 3, 4, 15, 18, 38, 39: CSMA shall answer as per CPCC's reply.

TO CSMA-5, 8, 9, 10, 11: there is no need to address the issue.

TO CSMA-7, 23, 24, 26, 29, 30, 31, 32, 33, 34, 36, 37, 40, 43: subject to the general comments made above, and especially General Comment 7, the objection is dismissed.

TO CSMA-12: CSMA shall provide information concerning all forms of purchases in which the levy ends up not being paid (legitimately or not) such as purchases from outside of Canada by end-users, sales by importers who evade the levy, etc. CSMA need not provide information in response to this interrogatory about (a) media that are exempt pursuant to the Act (b) media that are zero-rated.

TO CSMA-13: CSMA shall provide the information in its possession that is not public. As for publicly available information, see General Comment 8 above. As for information which is not in CSMA's control because it is subject to contractual provision limiting disclosure, CSMA shall disclose its existence and provide CPCC with any information that may help in obtaining copy of the document. If required, it is those who own the information who should first be ordered to disclose it if this becomes necessary.

TO CSMA-20, 27: subject to the undertaking contained in CPCC's reply, the objection is dismissed. As to the meaning of "grey market" see CPCC-CSMA 12.

TO CSMA-21, 41: CSMA shall provide the financial statements.

TO CSMA-42: the objection is sustained.

TO EDP-21, 41: EDP shall provide its financial statements.

TO EDP-29, 31, 33, 37, 43: the objection is dismissed, subject to General Comment 7.

TO EDP-42: the objection is sustained.

TO RETAILERS-1, 2: RCOC is a self-standing objector. Its representativeness is not at issue in these proceedings. Therefore, the objection is sustained. In other respects, see General Comment 1.

TO RETAILERS-3, 4: RETAILERS shall answer as per CPCC's reply.

TO RETAILERS 5: RETAILERS shall provide any estimates they already have.

TO RETAILERS-7, 18, 19, 20, 21, 22: the objection is dismissed.

TO RETAILERS 8: RETAILERS shall provide any information they already have. As regards claims for privilege, see CPCC's reply.

TO RETAILERS-9: RETAILERS shall provide information concerning all forms of purchases in which the levy ends up not being paid (legitimately or not) such as purchases from outside of Canada by end-users, sales by importers who evade the levy, etc. RETAILERS need not provide information in response to this interrogatory about (a) media that are exempt pursuant to the Act (b) media that are zero-rated.

TO RETAILERS-10, 13, 16: there is no need to deal with the issue

TO RETAILERS 14-25: RETAILERS shall provide their financial statements.

Claude Majeau Secretary General Copyright Board of Canada