Wednesday, January 06, 2021

The Copyright Board Begins 2021 with Less Transparency and More Potentially Dysfunctional Delays

 



Just in time for Christmas, 2020, the Governor in Council implemented the long-awaited Time Limits regulations regarding the Copyright Board – which were published on December 23, 2020, ironically more than 1.5 years after the preliminary announcement and consultation.

The Time Limits in Respect of Matters Before the Copyright Board Regulations: SOR/2020-264 are now in place.

This does not appear to solve and does appear to continue and confirm the main problems I identified on April 29, 2019. The Board often keeps cases open for long after a hearing has supposedly concluded or should have concluded. Normal courts and tribunals just don’t do that. These regulations explicitly permit this to be done.

Here’s the deal:

Proposed tariff

2 The Board must make a decision with respect to the approval of a proposed tariff under subsection 70(1) or 83(8) of the Act

·        (a) if the Board holds any written or oral hearings in respect of the proposed tariff, within the period of 12 months after the day that is fixed by the Board or a case manager as the final day on which any party may present their written or oral submissions to the Board; and

·        (b) in any other case, before the day on which the effective period of the proposed tariff begins.

Royalty rates or terms and conditions

3 The Board must make a decision with respect to the fixing of royalty rates or their related terms and conditions, or both, under subsection 71(2) of the Act within the period of 12 months after the day that is fixed by the Board or a case manager as the final day on which any party may present their written or oral submissions to the Board.

Final day for submissions

4 If, on or after the day fixed by the Board or a case manager as the final day on which any party may present their written or oral submissions to the Board, the Board or a case manager fixes another day as the final day on which any party may present their written or oral submissions to the Board, that later day is not considered to be the final day for the purpose of determining the 12-month period referred to in paragraph 2(a) or section 3.

            (Highlight and emphasis added)

So, the Board or a case manager can keep a case open for a long, long time. And that has happened many times.

And as if that’s not enough, there's still an "exceptional circumstances" loophole.

Extension of time limit

6 (1) The Board or a case manager may, in exceptional circumstances, give a direction or make an order that extends a period referred to in section 2 or 3 and sets out the extended period and the exceptional circumstances that justify the extension.

            (highlight and emphasis added)

I commented through the official consultation process at the time to the officials in charge of this project on May 27, 2020 here.

One of the possible contributing factors to the Board’s perennially dilatory delivery of decisions that nobody wants to acknowledge may be its apparently unique disincentive mechanism for retired members to finish off any work relating to pending decisions in a timely manner. For example, it took former Chair William Vancise almost four years after his retirement to finish off his pending decisions at the Board.

Whatever the reason for the unusual, if not unique, open-ended nature of this provision for retired members, it certainly does not encourage confidence in the expeditious renderings of decisions. Judges in the Federal Courts get only 8 weeks to finish off their decisions after they cease to hold office. Supreme Court of Canada justices have six months after they retire. The Canadian Judicial Council has specifically pronounced that “judges should render decisions within six months of hearing a case, except in very complex matters or where there are special circumstances. In some provinces, such time lines are included in legislation.” The Federal Court, Federal Court of Appeal and Supreme Court of Canada routinely render decisions on matters much more complex than any Copyright Board case in six months following the hearing.

The PMNOC (patented medicines) regime – which involves extremely complex evidence and hearings involving huge amounts of money – must now be completed from start to finish in the Federal Court – including the judgment – within 24 months. I’ve discussed this in my submission on the Copyright Board reform process on 2017.

In fact, here’s a very recent important complex 92 page PMNOC decision from the Chief Justice himself of the Federal Court rendered in exactly 24 months from start to finish as required by law. See Allergan Inc. v. Sandoz Canada Inc., 2020 FC 1189 (CanLII), <http://canlii.ca/t/jcchv>.

Overall, these new Copyright Board regulations would appear to accomplish nothing other than to legitimize and confirm a culture of delay that is unique among Canadian courts and tribunals and likely by any international comparative measures. In the USA, copyright royalty decisions are rendered within 11 months start to finish – because that’s what the law requires.

The US Copyright Tribunal has a hard deadline requirement. It must issue its decisions within 11 months as follows:

§352.2   Timing.

The Copyright Royalty Judges will issue their determination within 11 months of the date of the post-discovery settlement conference or 15 days before the expiration of the existing rates or terms in a proceeding to determine successors to rates or terms that will expire on a specific date, whichever date first occurs. The date the determination is “issued” refers to the date of the order.

(highlight added)

Above all, let’s be frank here. The Copyright Board rarely holds more than two or three contested hearings a year and usually and lately less  or even none and rarely issues more than five actual “tariffs” per year, many if not most of which are uncontested or settled on consent.  The Board rarely releases more than one or two substantive decisions a year – and sometimes less. The many tariffs that are uncontested or dealt with on consent should not create the impression that the Board has a large workload, despite Prof. de Beer’s controversial study from 2015 that incongruously managed to parlay the Board’s own data of 74 previous tariffs then to date into the astonishing, incredible and frankly surreal number of 852. This study appears to have been instrumental in getting the Board another million a year in its budget. See my detailed critique of Prof. de Beer’s “statistical” methodology and analysis here. Even the Board’s own figure of 74 was exaggerated, since this figure reflected a number of minor “redeterminations” and other less than significant events.

But it was is still the Board’s own number, as calculated from the Board’s own posted information – now unavailable thanks to the Board’s expensive, new and much less useful website. Still, this is less than 10% of Prof. de Beer’s number of 852. Prof. de Beer’s problematic analysis is cited in the Government’s unconvincing rationale and explanation for the new regulations.

Here from my 2015 blog are Some Comparative Observations & Stats on the Copyright Board, Selected Canadian Tribunals & the Supreme Court of Canada.

The Board’s new and very expensive  $757,548.50 (+?) website manages to make it even more difficult if not impossible to extrapolate the analysis that I was able to do – pro bono and at my own initiative  – to criticize Prof. de Beer’s study or, indeed, to track the past or present workload and efficiency of the Board.

Indeed, the Board’s new website is a serious step backwards in terms of transparency and utility. The only obviously needed improvement – which could have been done years ago for little if any cost  – was to provide a functioning search facility. This was not rocket science. Lots of Boards and government sites had this without Decisia. It remained dysfunctional for as long as I can remember, despite regular large fees paid for third party website maintenance. After much kvetching from me, the Board’s decisions from 2020 are now on Canliibut only for 2020 and none of this batch is very significant. Indeed, the Board’s website is not even up to date for the listing of 2020 decisions. For example, some of the earlier decisions from 2020 that are now on Canlii aren’t even on the Board’s own website.

There is no reason whatsoever why Canlii wasn’t long ago given the Board’s whole decision and tariff database back at least to 1990.  There would be virtually zero cost in making this happen. The older pre-1990 stuff is on the CPR database and I’m sure that the Board must have it all in digital format.  It would be shocking if it did not.

Again all this could have been at virtually zero cost. I’ve raised this and asked the Board about it many times with no satisfactory or sensible answer. The absence of the Board’s decision from Canlii since 1990 is nothing short of an affront to the concept of access to justice and transparency. This can still be remedied at zero cost – but the Board appears intent on keeping its decision record  and a lot of other information as obscure as possible – and even more so than before with its new website. This new website was supposed to provide  “an intuitive architecture and an improved navigation system”.  It is conceivable that, in the eyes of an uninformed non-lawyer member of the public who is totally unfamiliar with the Board or copyright law, the new website might initially seem more attractive than the old. But that is not the Board’s audience. Even with all my prompts,  the Board still only has 49 followers  - most of whom were already well in the loop.

The Board held no hearings in 2020 and has postponed the three that were scheduled with no new date in sight. Whatever the reason, it surely has nothing to do with COVID. The rest of the Canadian justice system at all levels up to and including the Supreme Court of Canada has adapted to COVID and even managed to make most aspects of the hearing process faster, easier and cheaper using Zoom and other long tried and true technology – such as online filing.

The Copyright Board goes into 2021 with a new Chair, namely The Honourable Luc Martineau from Canada’s Federal Court. We wish him well. Hopefully, his experience at the Federal Court, which is vastly more productive and efficient than the Copyright Board by any measure, will help to counteract the ingrained and now, regrettably, continued culture of systemic delay that has been confirmed by the new regulations. He is the first judge from the Federal Courts to be the Chair of the Copyright Board, which is consistent with one of the implicit suggestion in the only published comment of which I’m aware from the outgoing Chair Justice Robert Blair, who retired as Chair after only term. Justice Blair stated in 2018, in the context of the Board’s expertise or lack thereof, that: “ The Chair must be a sitting or retired superior court judge (where very little intellectual property work, much less copyright work, is done), and to date has not come from the Federal Court system where they actually know something about those subjects!”

However, the Board continues into 2021 with a Vice Chair and Secretary General who are both non-lawyers.  This has never been the case before that I can remember – which goes back to the 1980’s. Moreover, both of these individuals hail from the collective-friendly culture of the Department of Canadian Heritage. This may partially explain the Board’s new and less transparent website and absence from Canlii. Lawyers tend to believe – or should believe –  in access and transparency when it comes to legal decisions and case information. This is fundamental to the rule of law.

Obscurity and difficulty or impossibility in finding past decisions and other information can only confer an advantage on large collectives, large institutional users, and their large law firms, who may be able to work around these problems. This new website is very unhelpful – and potentially a real setback – to the many smaller users, user associations and individuals who find participations in Copyright Board proceedings so discouraging, difficult and increasingly even impossible. Whatever may have been the intention, this new website will help to shield the Board from greater scrutiny.

Another serious but fixable problem with the new website is that virtually all previous links on my blog and anywhere else to Board decisions and other materials have now rendered useless. The links could have easily been kept active at no cost with a URL redirect – and this could presumably even now be easily restored – at virtually no cost – if the Board kept an archive of its old website, which it most assuredly should have done.

Rearranging or repainting the deck chairs isn’t going to repair the unique and dilatory dysfunction at Canada’s Copyright Board.

The Canadian Senate Committee studying the Board described it as “ dated, dysfunctional and in dire need of reform”. That reform simply hasn’t happened. Indeed, things have gotten worse.

The saving grace is that the Supreme Court of Canada and the Federal Court of Appeal have both said that the Board’s tariffs are optional and not mandatory. One would have thought that this would have provided a strong impetus for reform within the Board and its government overseers. It’s obvious that a reasonably priced, timely tariff that would provide convenient access to a satisfactory repertoire with reasonable terms and conditions would be readily adopted without any compulsion, much less the “oppression and extortion” that the Courts have warned about since 1894.

The Supreme Court is about to look at this again and will likely affirm that it said what it meant and meant what it said in 2015 when Prof. Ariel Katz, Prof. David Lametti (as he then was) and I as their counsel won the mandatory tariff victory in that Court in Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <http://canlii.ca/t/gm8b0>.  The Supreme Court will likely hear this case in the late spring or the fall of 2021 – with a decision to follow in about six months and maybe even less  – unlike the many years that the Board typically takes to decide much less complex and important matters.

There can be no doubt that the major Canadian copyright collectives and content owners will now try to bypass these compelling judgements from the Supreme Court and the Federal Court of Appeal and short circuit the forthcoming Supreme Court hearing with expensive lobbying campaigns for a legislative fix that will be paid for by their membership, as usual. If Parliament decides to weigh in on this issue, it clearly should do so in a manner than confirms the existing state of the law that is in turn based on nearly eight decades of Supreme Court of Canada jurisprudence.

HPK

Saturday, October 24, 2020

Leave to Appeal Granted in Access Copyright v. York U


Both sides have been granted Leave to Appeal.

Here were my observations about the decision from the Federal Court of Appeal decision from April 22, 2020.

Interveners, start your engines.

HPK




Thursday, September 24, 2020

The Outpost - Mass Copyright Litigation

 

(Wikepedia)

Another instalment in the mass litigation litany from the Aird and Berlis firm has now been released involving The Outpost - a 2020 picture.

There are 841 "Doe" defendants. See attached Statement of Claim.

HPK



Wednesday, September 23, 2020

Access Copyright v. York University - Update on Supreme Court - Replies Have Been Filed

 


Here's Access Copyright's Reply.

Here's York's Reply. 

The materials were submitted to the Judges on September 14, 2020,

We will learn sooner or later whether leave has been granted to either or both sides.

Meanwhile, potential interveners should be watching.

HPK


Friday, September 04, 2020

Access Copyright and York U File Responses in SCC

(Canadian Encyclopedia)

Here's Access Copyright's Response to York's Leave to Appeal Application.

Here's York U's Response to Access Copyright's Leave to Appeal Application.

HPK

Thursday, September 03, 2020

The Copyright Board’s New $757,548.50 (+?) Website – Finally an Apparently Functional Search Engine – but Otherwise Disappointing at Best and Problematic at Worst – And Still NO CANLII Presence

 

The Copyright Board finally announced its “new” website yesterday, September 2, 2020:

The Copyright Board welcomes you to its new website! This new platform is based on a more intuitive architecture, designed to improve navigation, and accessibility to Board information and products in both official languages, as required by the Official Languages Act.

One major innovation on the website is the incorporation of Decisia (by Lexum). This platform allows users to have access to the resources made available by the Board, such as documents, decisions, approved tariffs, licences for the unlocatable copyright owners regime, and much more. Discover it here. Additionally, users can subscribe to Decisia's mailing list and receive weekly updates on the publication of new documents. This innovation supports the Copyright Board’s broad objective toward ensuring greater transparency and access to justice for all Canadians.

https://cb-cda.gc.ca/en

It apparently has cost at least $757,548.50 that we know about. Some quick next day comments:

For those who had laboured to become familiar with the previous website, some things – such as Notices & Rulings – have inexplicably disappeared from plain sight and can only be found through the thankfully finally apparently functional Search facility – which has been needlessly non-functional for as long as I can remember. The Notices and Rulings are still not up to date after December, 2019.

Apart from a new look, there is apparently little new useful information or other  evidence to substantiate that this “This new platform is based on a more intuitive architecture, designed to improve navigation, and accessibility to Board information…”

There is a somewhat useful page for “Ongoing Cases” – which presents a bit more conveniently the same information that what was already there and not very hard  to find. There is also a listing of “Filed Agreements  – though only for 2017 on – which are presumably available upon request though “Agreements will continue to be screened before access for the purposes of the Privacy Act.”

There are lot of apparently new entries in the FAQ section. Some are misleading to users and maybe even dangerously deferential to collectives. An unnecessary enquiry to a collective can put someone on that collective’s radar and needlessly at risk. And few if any collectives have comprehensive and reliable information online about their actual repertoire. In the case of Access Copyright, it’s something of a joke. As I’ve pointed out several times, it is happy to sell you a license to ancient public domain editions of Charles Dickens Christmas Carol. More on this FAQ stuff later. Frankly, the Copyright Board has no mandate to provide legal or even vaguely general copyright advice to the public and should not be using its resources to do so. To the extent that such information is accurate, appropriate, useful, and warrants government resources,  it should be provided by CIPO.

One notably non-responsive and even evasive FAQ response to the utmost important and most often asked question of How Long It Takes the Copyright Board to Render its Tariff Decisions is this:

The Copyright Act provides that "cases before the Board are heard expeditiously and without formality".

The complexity and level of preparation of the file submitted may influence the time taken by the Board to examine the application as well as the time taken to deliberate leading to a decision, for example, if the file is incomplete.

The number of stakeholders can also indirectly influence the duration of the process, since this increases the possibility of having an objection to the proposed tariff; or if there is objection, since the objectors must present their arguments in writing. Once the objectors' files are considered complete and have been presented, the Board enters into deliberation. Its decision is made public when it approves the tariff and publishes it in the Canada Gazette.

https://cb-cda.gc.ca/en/faq

The fact is that it can take the Board almost ten years to retroactively approve an effectively uncontested tariff in circumstances that make the result inconclusive, e.g. the Access Copyright Post-Secondary tariff, which I wrote about here on January 22, 2020. Not surprisingly, the key links I provided don’t work any more.

Indeed, a lot of old links unfortunately no longer work – for example the links I reported on the $757,548.50 budget allocated to the new website as of November of 2019. See here. The information is still there on the Board’s website  – but the old links don’t work any more.

The search engine appears to functional back to 1990 – though I haven’t fully tested it yet.

However, the overwhelming problem that remains is this:

The Board’s Reasons of Decision and Tariffs are NOT available on CANLII, where a simple one stop search would produce results – for example for “making available” – that would include BOTH Copyright Board and Court decisions. CANLII searches can be fine tuned using the “advanced” tools.

I have looked into this CANLII issue very carefully and received very knowledgeable information. There is no reason why the Board’s decisions and tariffs is couldn’t have been made available on CANLII at no cost many years ago. There is no reason why this should not immediately happen going forward with coverage since at least 1990. There is no need for any additional cost to taxpayers.

Other comparable tribunals that are on CANLII include:

  •        The Trademarks Opposition Board
  •        Commissioner of Patents
  •        The Competition Tribunal

See: https://www.canlii.org/en/ca/

I have tried but been unable to get any  direct answer from the Board about the inexplicable and conspicuous absence of its decisions on CANLII.

The Board’s adoption of the background engine DECISIA – which can be used for better (e.g. for better at the SCC and apparently for worse at the Competition Tribunal) can allow for  feeding of cases to CANLII – but this is not and never has been a necessary aspect of such utility – which is an essential component of access to justice.

So – the bottom line for now is that we have a website with a new look but few new useful aspects – except for a finally apparently functional search engine, which I will test further later. That could and should have been fixed at no cost many years ago. The Board has regularly spend a very large amount for many years on outside sources for its website with a non-functional search function. Indeed, my own blog has a fully functional search function and a daily – not weekly - email update feature and my software costs nothing. It’s not easy to see how or why the Copyright Board’s “new” website  has cost taxpayers at least the  $757,548.50 that we know about.

It would appear that older snapshots of the Board’s website are available on the marvellous Wayback Machine at www.archive.org .

If anyone sees any positive or negative aspects I may have missed in this next day quick review, please comment below – which you can do anonymously if you wish – or email me privately.

And, BTW, the position of Chair of the Board remains vacant. That is a serious issue and we really need to have a top notch sitting, supernumerary or retired judge –  preferably from the Federal Court or the Federal Court of Appeal and with no ties to vested interests. And someone who is willing take on the challenge, wherever it may lead, of ensuring that better decisions are rendered in a time frame consistent with other Canadian courts and tribunals.

HPK


Thursday, June 25, 2020

Access Copyright and York University File Leave to Appeal Material in the Supreme Court of Canada



Access Copyright (“AC”) and York University have both filed applications for leave to appeal in the Supreme Court of Canada (“SCC”)  following the decision of the Federal Court of Appeal (“FCA”) in York University v. The Canadian Copyright Licensing Agency (Access Copyright), 2020 FCA 77 (CanLII), <http://canlii.ca/t/j6lsb>, (the “FCA decision”) which I have discussed at length here.


Here is York U’s Notice of Application and its Memorandum of Argument.

I will comment only in a very cursory way at this point. I and others will no doubt have much to say in the future – either in the SCC on behalf of interveners or in blogs, articles, etc. – or both. I have written frequently on my blog about this case and related issues in the past and addressed the main issue in the SCC in CBC v. SODRAC  in the SCC – see below.

AC is, of course, seeking to get leave to appeal the ruling that its Copyright Board tariffs are not mandatory. It states, very astonishingly, in is Notice of Application that:

3. This case provides the Court with its first opportunity to consider the tariff-setting
regimes under the Copyright Act. The key question is whether tariffs approved by the Copyright Board are enforceable against infringers who do not wish to pay them. The Federal Court of Appeal held that they are not.
(highlight and emphasis added)

The “first opportunity” comment, of course, is simply wrong – to put it very politely. Justice Pelletier devoted the better part of 73 pages and 206 paragraphs in the FCA decision totally vindicating the proposition that final – and obviously interim – Copyright Board tariffs are not mandatory. His opinion cited and derives from Prof. Ariel Katz’s landmark Spectre I paper that shows how the conclusion that tariffs are not mandatory traces back to Vigneux v. Canadian Performing Right Society Ltd., 1943 CanLII 38 (SCC), [1943] SCR 348, <http://canlii.ca/t/fslvq> and legislation tracing from 1936. Moreover, the FCA decision explicitly relies not only on the 1943 SCC decision in Vigneux, but to two other SCC decisions, namely Maple Leaf Broadcasting v. Composers, Authors and Publishers Association of Canada Ltd., 1954 CanLII 62 (SCC), [1954] SCR 624, <http://canlii.ca/t/22x4f> and, of course, of Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <http://canlii.ca/t/gm8b0>. See FCA decision, paras. 54, 72 and 73.

AC’s memorandum does at least mention the Vigneux decision. However,  it obviously and blithely ignores the controlling  SCC case of Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <http://canlii.ca/t/gm8b0>, from less than five years ago in which the SCC explained in a dozen paragraphs (paras. 101-113)  why Copyright Board tariffs are not mandatory, as argued in that case by me on behalf of Prof. Ariel Katz and Prof. David Lametti, as he then was. Reference to that totally controlling SCC decision is, incongruously, nowhere to be found in AC’s material. This decision was, of course, relied on and followed in the FCA decision.

I cannot resist recalling from  an earlier blog of mine in 2012 the following passage about ignoring relevant and dispositive precedents in an appellate court:

In any event, Prof. Katz mentioned the recent decision of Judge Richard Posner  - remarkably colourful even by this remarkable judge’s standards - concerning the risk of ignoring relevant and dispositive precedents. Here’s the relevant passage  – with the illustrations included by Judge Posner himself:

When there is apparently dispositive  precedent, an appellant may  urge its  overruling or  distinguishing or reserve a  challenge  to  it  for a petition  for  certiorari but may not simply  ignore it …
The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don’t be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.” Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047  (7th Cir. 1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir. 1987).6 Nos. 11-1665, 08-2792


York University’s material deals with the fair dealing aspects of the FCA decision:

Issue 1: When determining whether copying in the educational context constitutes “fair
dealing” under the Copyright Act, should the analysis be conducted from the perspective
of the ultimate users (students), or from the perspective of the educational institution they
attend?
Issue 2: When determining whether copying in the educational context constitutes “fair
dealing” under the Copyright Act, the analysis should refrain from conflating factors.
Issue 3: For institutional fair dealing guidelines to be “fair” for purposes of the Copyright Act, is there an obligation for the institution to implement safeguards to ensure compliance with the guidelines themselves?

Stay tuned.

HPK

(updated June 26, 2020)


Copyright Board Activity in 2020: Launch of Twitter Account and Guidelines for Economic Evidence


More than a year after the Copyright Board announced with great fanfare that it would launch a Twitter account and received an additional $1,000,000 in its budget, the account has now launched on June 12. 2020.  Here it is. @COP_eng . In its first ten days, it has so far 14 followers – two of whom are me and Prof. Ariel Katz @Relkatz and at least two of whom are Copyright Board staff.

Its only announcement to date is that the Board has now issued “Guidelines for economic evidence submitted to the Copyright Board of Canada”.  Indeed, this is the only evident sign on the Board’s website of any activity by the Board in 2020 other than the Twitter account launch, and the usual COVID notice. It would seem  rather difficult to see where any of the million dollars has been spent. The “revamped” website has not been launched. None of the three dozen or so presumably routine but possibly interesting notices and rulings that have apparently been issued in 2020 have yet been posted online. Back on November 28, 2019, I reported that the Board has spent $757,548.50 on website stuff since April 1, 2018. No progress is evidence. If anything, the website has become even less useful – for example by eliminating the names and contact information for all its professional staff other than its Secretary General.

Also, it’s a mystery as to who, if anyone, is currently the Chair of the Copyright Board. As of now, according to the Governor in Council appointments website,  the position seems to be vacant. The appointment of Justice Robert Blair expired on May 27, 2020 and there is no indication at this time that his appointment has been renewed or that he has been replaced. He is still shown on the Board’s website, but the Board’s website seems to have been largely untouched for several months despite the massive amounts of money spent on it. The Governor in Council website is likely more definitive.

In any event, there are some good common-sense points in these new Guidelines.  Economic evidence can be useful in rate setting. That goes without saying.

However, the concept of a “willing buyer” and a “willing seller” is very problematic in a market where one party is given potentially very powerful statutory monopoly power and the potential licensees either don’t wish to or don’t need to deal with the collective in question. However, assuming, as is likely, that the recent FCA ruling that Copyright Board tariffs are not mandatory stands, then some viable meaning to these concepts may actually be restored if – and this is a very big “if”  both collectives and  the Board appreciate that tariffs must offer good and attractive value if they are to translate into licenses between a collective and a willing licensee.

The most recent Access Copyright post-secondary tariff decision in which the Board improvidently adopted the so-called “freely negotiated” AUCC model license and Access Copyright’s “Premium” licence as valid proxies after nearly 10 years of mostly unopposed proceedings is absolutely NOT such an example. The  Board’s reasoning is very unconvincing. The Board regarded institutions that did not sign on to the AUCC Model licence or Access Copyright’s Premium license as having “left the market”.  That, of course, is absurd. Those institutions were spending millions clearing their copyright needs in other ways, such as expensive site licences and reliance on several Supreme Court of Canada fair dealing decisions. On January 22, 2020, I commented on the timing of the Board’s decision that was almost a decade in the making and extremely retroactive – and that for one reason or another nobody could be bothered to even attempt to seek judicial review. And that was three months before the landmark ruling in Access Copyright v. York that Access Copyright’s tariffs aren’t mandatory.

Moreover, a perennial problem is that many Copyright Board cases – especially those involving new or “inaugural” tariffs – start out with  no “evidence” as such and are merely based on guesswork and may not get much better as time goes by. Readers may recall that that, in 2002, the Canadian music industry was seeking a “tax” (as it was commonly called) of $21 per GB on the memory in iPods and other devices. If that had somehow been approved and had remained in place, that “tax” on an 8 Terabyte external hard drive that now sells for about $200 would be $168,000.00 – and that is not a misprint. The point is that the music industry was simply pulling a number out of the air with absolutely no evidence or rationale to back it up. It was not much better when Access Copyright started out by demanding $45 per FTE student – with no apparent basis for that number – in its proposed post-secondary tariff.

If the Board’s Guidelines succeed in injecting some rigor into the front end of these proceedings, much time and expense could be saved. However, it’s ironic that for an organization presumably now very acutely aware of the meaning of the word “mandatory”, these Guidelines are explicitly “not mandatory”. Indeed, more may be needed in the form of explicit regulations that require something analogous to a “pleading” or “statement of claim” where “a concise statement of the material facts” to be relied upon are set out at the outset. See Federal Courts Rules Rule 174.

The additional clarity on the Guidelines is helpful in some respects. However, the several references to “intervals” and “interval methodology” inject what many will perceive as unfamiliar terminology. This may cause some confusion. Whether this is new terminology for old economic or statistical methods or indeed actually some kind of new “methodology” may need clarification.

I don’t know whether the Board looked at the Competition Tribunal, which is a far more productive organization with a now much smaller budget than the Board and a far greater case load that often involves very complex and important matters involving vast amounts of money. Here are the rules that govern the use of evidence and expert evidence in that tribunal. Of particular interest is Rule 80 that provides:
 (1) The Tribunal may, at any time, by order appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a proceeding.

The Copyright Board Guidelines do not address the elephant in the room here, which is the use and sometimes the apparent misuse of so-called expert evidence that can happen at the Board. Although the Board has more leeway than a normal court when it comes to such things, there are certain basic laws of gravity that apply. These are set out in a famous Supreme Court of Canada case, namely R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9, <http://canlii.ca/t/1frt1>. The application of Mohan in the context of admirative tribunals has recently been recently exhaustively considered by the Competition Tribunal – once again the most useful comparative model for the Copyright Board. See The Commissioner of Competition v Vancouver Airport Authority, 2019 CACT 6 (CanLII), <http://canlii.ca/t/j36c1>, which deals at length with such issues as the necessity, reliability and independence of the “expert” evidence, as well as the perennial issue of “hearsay” evidence.

The paradox at the Board is that, even with the relaxed rules of evidence compared to a normal court  that it is allowed (with the approval of the FCA per Pelletier, J.A. in Canadian Recording Industry Association v. Society of Composers, Authors and Music Publishers of Canada, 2010 FCA 322 (CanLII), <http://canlii.ca/t/2dsw7>, things take exponentially longer and incur exponentially higher costs that one would normally see in a normal court.

Notwithstanding the above and the slight signs of progress, I feel  compelled to reiterate my concern that I voiced a year or so ago, about the supposedly “new” concepts of “public interest”, “willing buyer”, and “willing seller” which are  referred to in the Guidelines and which some parties with too much resources may exploit to wear down parties with too little resources. The Board’s Guidelines do little to allay my concerns. This is what I said about this over about a  year ago:

Ms.  Th├ęberge [the Vice Chair of the Copyright Board, who is not a lawyer] spent a lot of time pointing out that, as of April 1, 2019 the new “public interest” requirement for tariffs came into effect. Here is the provision:
Fair and equitable
66.501 The Board shall fix royalty and levy rates and any related terms and conditions under this Act that are fair and equitable, in consideration of
(a) what would have been agreed upon between a willing buyer and a willing seller acting in a competitive market with all relevant information, at arm’s length and free of external constraints;
(b) the public interest;
(c) any regulation made under subsection 66.91(1); and
(d) any other criterion that the Board considers appropriate.
2018, c. 27, s. 292 (highlight added)
This was introduced in the very unfortunate Bill C-86 omnibus bill that received only a token amount of debate and public comment. I said at the time in a blog that was very critical of the Governments use of omnibus legislation in this way that:
·       Will the imposition of explicit criteria re “competitive market” and “public interest” cause more mischief, costs and need for protracted and expensive evidence from so-called experts? The Board has purported to be concerned with the public interest all along – so do we really need to etch this into stone, whatever it may mean? Even John Degen agreed with me that this was cause for concern – thought for difference reasons. But the fact that Mr. Degen and I agreed on something should tell you something.
Neither of these concepts – the “public interest” and “competitive market” –  are new. They are embedded in existing jurisprudence, especially that of the “public interest”. That the Board should now consider that it suddenly has an obligation to decide cases “in the public interest” is astonishing. What else has it and its predecessor been doing for more than 80 years? Is the Board unaware of Supreme Court of Canada jurisprudence going back almost 8 decades? While some consultants are doubtless salivating at the prospect of providing lucrative so-called “expert” evidence on these issues that will result in protracted and much more expensive hearings, this should not be necessary if the Board simply follows longstanding case law and takes responsibility for deciding the ultimate legal questions itself rather than relying upon so-called experts, who are often repeat performers and rarely truly independent when it comes to Copyright Board proceedings.
Indeed, Justice Blair himself made a half dozen references to the “public interest” in his published remarks from over a year ago. Why this is suddenly now an apparent new mandate for the Board is astonishing and should be very puzzling to those who know Canadian copyright jurisprudence.
However, suppose that Bill C-86 actually did somehow enact something new (likely unlikely) in this respect and could be invoked to call for a new approach. It would be nice if this supposedly new “public interest” provision would be invoked to enable the Board to retain truly neutral and credible advice in the person of amicus curiae or “assessors” in appropriate circumstances but there was no suggestion to that effect. Moreover, when the Board is indecisive even about deciding such a basic issues as whether a person engaged in case management should be on the presiding panel (which should be avoided at all costs, as is the case in the Federal Court as every experienced Federal Court lawyer knows well), it’s hard to imagine how the Board would be thinking about bringing in the concept of amicus curiae or “assessors” – which would be admittedly unusual but arguably within the realm of the possible and advisable. Besides, if the thought were ever to occur to the Board, it would no doubt want a very large budget increase to look into this and to fund such activity. Anyway, it’s probably a non-starter of a suggestion, since there are very few if any people in Canada who are sufficiently expert lawyers or economists to fulfill this role and who would not already have too much baggage to carry and still be perceived as credible to all concerned.
So, I expect that my fear – shared by others – that this gratuitous statutory  references to the “public interest” and a “competitive market” will become an excuse for even longer delays appears to be coming true. I hope that I am wrong. However, given the Board’s propensity for making very simple things very complicated (e.g. “ordinarily used”, “making available”, etc.), I cannot be optimistic.
(highlight added)

HPK