Tuesday, September 03, 2019

Update on Canadian Copyright Mass Litigation – September Snapshot


This photo of Ottawa is courtesy of TripAdvisor

As I reported earlier, regarding the Rogers v. Salna “reverse class action” case against 55,000 or so unnamed defendants and the issue of reasonable reimbursement to Rogers for providing the names and street addresses of these potential defendants if the case gets that far, Voltage filed a Notice of Appeal on August 16, 2019.  As predicted, Rogers has filed a Notice of Cross-Appeal dated August 28, 2019.

It will be interesting to see whether and how the outcome of this appeal and cross-appeal from a trial level decision that in turn resulted from a remand from the Supreme Court of Canada and which could go on for still some time, will affect the proposed reverse class action that began in 2016. The long delayed certification motion for the reverse class is scheduled for September 23rd   and 24th , 2019. The key documents for this motion have apparently not yet been filed.

There’s also an important contested proceeding underway for a Norwich Disclosure order that is being contested by Eastlink and Xplornet that will the subject of a case management conference on September 19, 2019.

It will be interesting to see how vigorously the ISPs fight to protect the privacy of their subscribers. Presumably,  none of them yet have any idea that they have been named as a “Doe #” and could be on the hook for up to $5,000 and will have to self-defend (perhaps with help from Pro Bono Ontario), find a lawyer who is able and willing to help them on a cost effective basis, or take the risk of ignoring the proceedings and being vulnerable to default judgment.


All of this, not to mention the ongoing 18 so other cases against thousands of “Doe” defendants regarding various Voltage, etc. matters.

There are important issues that cut across all these proceedings and which could have a potentially profound effect on the public interest. The apparent lack of sufficient attention to the public interest to date should be of serious concern to policy makers, who have yet to implement regulations about reimbursement, and to the Courts, which have never faced this kind of mass litigation on this scale and with this sophistication before in Canada. I was very much involved in this first of these cases, the BMG case, back in 2004-2005. The rigorous test for disclosure set forth by the Federal Court of Appeal in that case at the behest of Shaw, Telus & CIPPIC (which I then represented) has not been followed or even invoked in all cases since then, although Teksavvy now seems to be pursuing it in in earnest in the case noted above.

Copyright owners are entitled to protect their rights and the recent fronts of litigation referred to above have been conducted in Canada with commendable Canadian courtesy. This has happened without the extreme and even criminal excesses we have seen in some American “troll” litigation. Some Canadian ISPs are standing up to be counted; however, they have their own commercial interests to consider which are not necessarily going to result in the protection of the interests of their customers.  Overall, there is a serious systemic access to justice problem here that somehow needs to be addressed.

As I’ve said before, it’s useful to recall the clear words Justice Brown of the Supreme Court of Canada in reimbursement decision, Rogers Communications Inc. v. Voltage Pictures, LLC, [2018] 2 SCR 643, 2018 SCC 38.  Here are perhaps the two most consequential paragraphs in the judgment – which arguably put a potentially severe chill on all the legal basis of the outstanding mass BitTorrent cases:
[35] I acknowledge that there will likely be instances in which the person who receives notice of a claimed copyright infringement will not in fact have illegally shared copyrighted content online. This might occur, for example, where one IP address, while registered to the person who receives notice of an infringement, is available for the use of a number of individuals at any given time. Even in such instances, however, accuracy is crucial. Where, for example, a parent or an employer receives notice, he or she may know or be able to determine who was using the IP address at the time of the alleged infringement and could take steps to discourage or halt continued copyright infringement. Similarly, while institutions or businesses offering Internet access to the public may not know precisely who used their IP addresses to illegally share copyrighted works online, they may be able, upon receiving notice, to take steps to secure its internet account with its ISP against online copyright infringement in the future.
 [41] It must be borne in mind that being associated with an IP address that is the subject of a notice under s. 41.26(1)(a) is not conclusive of guilt.  As I have explained, the person to whom an IP address belonged at the time of an alleged infringement may not be the same person who has shared copyrighted content online. It is also possible that an error on the part of a copyright owner would result in the incorrect identification of an IP address as having been the source of online copyright infringement. Requiring an ISP to identify by name and physical address the person to whom the pertinent IP address belonged would, therefore, not only alter the balance which Parliament struck in legislating the notice and notice regime, but do so to the detriment of the privacy interests of persons, including innocent persons, receiving notice.
(highlight and emphasis added)

Even if these comments from the SCC go beyond the narrow “ratio decidendi” (what is actually decided and what is generally rooted in the facts) to the those that are “obiter dicta”, the latter type of comments can still be authoritative if they are closely related to “ratio decidendi”.  Those who are curious about the role of SCC “obiter dicta” may want to read the SCC’s own important 2005 decision regarding this issue. See  R. v. Henry, [2005] 3 SCR 609, 2005 SCC 76. In this instance, these comments were arguably closely related to the “ratio” and should now be regarded as binding authority.

This SCC ruling may mean that a very large number of those who have been or may become caught up in Canadian copyright mass litigation and who cannot be shown on the basis of reliable, sufficient  and admissible evidence to have done anything more than to pay for internet service are not only not liable for copyright infringement but arguably should never be drawn into the process in the first place.

HPK

Thursday, August 22, 2019

Voltage Turns Up the Voltage & Appeals the Rogers Reimbursement Ruling


(Wikimedia)

I recently reported on the Federal Court’s ruling on the Federal Court’s August 6, 2019 ruling, which was determined after being remitted by the Supreme Court of Canada, on reimbursement payable to Rogers in the Voltage v. Salna reverse class action. I suggestedthat, if Voltage wants the names and street addresses of the ~55,000 defendants in the class, this could potentially cost over $870,000.

Justice Boswell concluded that each timestamp lookup entitled Rogers to reimbursement for 12 minutes of time at $35 an hour plus HST. Since there will normally be two timestamp lookups for each defendant in this mass litigation cases, that suggests reimbursement of 24÷60 X $35 which is $14 plus HST. See para. 87 of the 
Order and Reasons.

There are apparently approximately 55,000 potential defendants in this reverse class action, if it is allowed to proceed. More on that below. Accordingly, it would appear that if Voltage wants the names and addresses of all of these potential defendants the cost will be at least $14 times 55,000 or $770,000 plus HST, which comes to $870,100. It took some time and a failed attempt to appeal to the Supreme Court of Canada, but Voltage finally paid the sum of $75,000 into court in this reverse class action to keep it alive.

Voltage filed a Notice of Appeal on August 16, 2019 within the ten days period applicable to interlocutory rulings, since the reimbursement ruling came on August 6, 2019. 

I won’t comment at any further on this at this time this time.  I may have more to say if Rogers files a cross-appeal, which would presumably be due on August 26, 2019.

It will also be interesting to see if Salna or CIPPIC seek to get involved on this aspect of this complex and controversial proceeding.

Stay tuned.

HPK



Tuesday, August 13, 2019

Blacklock’s Tendentious and Tenacious Litany of Litigation – the Latest (Lack of) Developments



Here’s an update since my last blog concerning Blacklock’s “litany of litigation” (as I have described it)  against the Attorney General of Canada (“AGC”) and several federal agencies. On July 2, 2019 the Case Management Judge, Prothonotary Sylvie Molgat, directed that ‘"The parties are to provide, by no later than July 22, 2019, (i) a jointly proposed timetable leading up to the hearing of the Defendant's motion for summary judgment; (ii) their joint availability for a case management conference; and (iii) an agenda of the issues to be discussed at the CMC."’ Here’s a link to the main docket in the long litany of litigation.

However, Blacklock’s appears to be resisting. On July 17, 2019 Blacklock’s filed a letter, attached, from its counsel, Scott Miller, seeking to change the channel from the process that had apparently been agreed to for the determination of the AGC’s summary judgment motion in the Parks Canada action. Blacklock’s sought, instead, to proceed with another file involving Health Canada. Mr. Miller’s letter includes the following:
Blacklock's instructions are to proceed to the case management conference without a timetable for the summary judgment motion in Parks Canada (T-1862-15). As such, MBM is not able to provide a timetable leading to the hearing of the Defendant's motion. MBM has advised the AG accordingly.
Blacklock's instructions are to proceed to the case management conference (CMC) on the basis that the consent to summary judgment motion was only to answer the question of law: Does fair dealing (s.29) apply to circumvention of a TPM (s.41)? (see letters to the April 5, 2019, April 5, 2019, April 18, 2019 and June 26, 2019).
Therefore, Blacklock's continues to maintain that it cannot agree to the timetable for the motion which would include findings of fact which ultimately would not need to be determined if s.29 does not apply to s. 41.
Blacklock's asks the agenda for the CMC to address the aforementioned and a determination of whether Health Canada (HC) (T-117-17) may proceed. Blacklock's has continually sought to have HC proceed and was led to believe that the summary judgment motion in Parks Canada would ultimately merely accelerate same. If HC proceeds, the AG has been advised that it is their prerogative to proceed with a summary judgment motion in that matter.
(highlight added)

The AGC was clearly displeased with Blacklock’s submission and replied the same day in the attached filed letter from counsel Alexander Gay, which includes the following paragraphs:
To the Attorney General's surprise, counsel for the Blacklock’s has now proposed an agenda for the next Case Management Conference where he wished to discuss a timetable in relation to the Health Canada action and not the Parks Canada action. He has requested that the Attorney General bring the motion for summary judgment in the Health Canada action and not the Parks Canada action. This is after he had apparently consented to having a motion for summary judgment heard in the Parks Canada action and after having had the benefit of the Attorney General's Affidavit evidence for months in the Parks Canada action.
Counsel for the plaintiff is resiling from an agreement to have a motion for summary judgment heard in the Parks Canada action. The position advanced by plaintiff’s counsel is that he never agreed to having the Attorney General file affidavit evidence in support of a motion for summary judgment, even though it is contemplated by the Rules. Rather, he contends that the motion should be on a point of law only. With the greatest of respect, there is a distinction between a motion for summary judgment and the preliminary determination of a legal issue. What was agreed upon was a motion for summary judgment which calls for evidence.
(highlight added)

Readers may wish to read the entire unusual exchange in full. The letters are short and trenchant.

It will be interesting to see how the Court responds to this apparent stalemate that appears to be contravention of the Court’s directions. On April 11, 2019 the Court had issued a direction containing the following unusual language that appears to suggest some degree of exasperation even then:  ''Directions having been issued during the case management conference of April 4, 2019, the Court expects them to be complied with.” (highlight added)

Blacklock’s appears to be both very tendentious and tenacious in its “litany of litigation” against the federal government in the Federal Court, which has been going on since 2014. I have been blogging about it off and on since 2015. Here are my Blacklock's blogs in reverse chronological order.

I will report on the Court’s response as soon as it is publicly available to the correspondence noted above.

HPK

Retransmission – Mission Accomplished?



After nearly 6 ½ years, on August 2, 2019 the Copyright Board of Canada has finally issued its retransmission tariff and reasons for its decision for the years 2014 to 2018. Spoiler alert: the maximum rate for each Canadian cable subscriber will increase from the previous amount of $.98 to $1.17. This seems like a relatively modest amount that will not likely be noticed by any Canadians who are still cable subscribers at arguably outrageous rates and have not become part of the increasing horde of cord cutters. It is virtually certain that all of this increase will be passed along to the subscribers along with the enormous cost of these hearings, which resulted in a 157-page decision. It could have been worse from the objectors’ standpoint, since the collectives attempted after some interrogatories two years or so into the process to more than double the amount. If the collectives had gotten what they wished for, it would have been worth about another $100 million a year – for the past several years and going forward.

This is the only substantial or substantive decision of the Copyright Board so far in 2019. It is one of the longest decisions that I can recall from the Board, although not quite as long as the first-ever retransmission decision which ran to 178 pages and which set the stage for an unexpectedly high tariff right out of the gate. Here’s what I said about the origins of this tariff in the context of the current hearing:
Canada, unlike the USA, did not spell out a formula in the legislation for what was to be a distant signal and left the mechanics of it all to the then new Copyright Board. Distant signals were eventually defined by regulation in an ultra-complex manner potentially much more generous to copyright owners than the US mechanism. The Board’s first tariff in 1990, following an extremely long “inaugural” tariff hearing, was worth about $53 million p.a., an amount about 9 times more than anyone ever expected at the time – even including the proponents of the tariff. A rather tepid subsequent “criteria” regulation resulted in a very modest cutback of about $3 million a year in 1993. For twenty years, Canadian cable subscribers paid $0.70 per month that was included in their cable or satellite bill for access to “distant” signals. This amount was increased to $0.98 per month in 2013 and so certified by the Board pursuant to a negotiated agreement. 

Interestingly, the Board’s first retransmission tariff decision – and its first ever major decision under the new Copyright Board regime established in 1989 that replaced the old, honourable and very efficient Copyright Appeal Board regime that lasted for six decades or so – was delivered in less than 14 months from the time of publication of the proposed tariff in the Canada Gazette. That was in the good old days under the leadership of the very esteemed and long since retired Michel Hétu as Vice Chair, who was a distinguished lawyer and expert advisor in his days in the Department of Justice before his appointment to the Board.

This is the first full retransmission hearing since the 1990 decision, apart from a proceeding that result in a small downward adjustment in 1993 following the implementation of “criteria” by way of regulations intended to respond to the outcry over the unexpectedly high tariff set in 1990. This hearing featured abundant new expert evidence and suggested approaches. In the end, the Board adopted what appears to a blend of what the parties presented and the Board’s own approach.

Probably the most interesting part of the current decision is a Board’s discussion about the arcane doctrine of “non ultra petita”, which roughly entails the notion that a court or board should not give a party more than it initially asks for, since opponents who might have objected may have remained silent in reliance on the initial demands.

The Board held that:
[233] These proceedings do not attract the application of non ultra petita, however. All participants are well aware of the Collectives’ revised rates and what they are requesting. The entire hearing, and the expert and other evidence presented, revolved around the revised request. The issue is whether the Board should permit the revised claim to be considered and, if so, to what extent. That is a matter of procedural fairness and the Board’s power to amend or vary a proposed tariff.

Interestingly enough, the Board ruled on the one hand that it can override or avoid the application of the “non ultra petita” doctrine but effectively achieved a similar result based upon an apparently newly enhanced sensitivity to the retroactivity issue:
[238] In the circumstances of this case, we think it unlikely that Retransmitters – in the face of such a significant potential retroactive increase in royalties over such an extended period of time – would be able to find reasonable ways in which to retroactively collect from their customers and/or otherwise set aside funds necessary to pay the difference, along with interest, between the royalties originally proposed and published in the Canada Gazette on June 1, 2013, and the royalties sought in the revised proposed tariff. This may be particularly relevant for smaller, independent and less financially-robust Retransmitters.

In a recent blog, I posted the following on the issue of retroactivity:

This has led to a persistent pattern of hearings that often take more than four years to happen, decisions that take three more years to render, and tariffs that are consequently retroactive for several years. Then, there is the almost inevitable and often successful judicial review. This inexplicable, inexcusable and unique pattern exists notwithstanding explicit Supreme Court of Canada jurisprudence going back to 1954 that says that his shouldn’t be happening. On the issue of retroactivity caused by delay, I have previously pointed to:
“….the potential invalidity of retroactive tariffs in light of the venerable 1954  Maple Leaf Broadcasting v. Composers, Authors and Publishers Association of Canada Ltd., [1954] SCR 624 (“Maple Leaf”) decision from the Supreme Court of Canada (“SCC”). That decision was concerned with a tariff on radio stations that was retroactive by less than three months and the SCC – with some rather explicit reluctance – permitted it as a “practical necessity” but stated clearly that it was the "implied duty" of the Board to proceed with "all possible expedition" in cases where tariffs may have a retroactive effect. In the recent CBC v. SODRAC 2015 SCC 57 case in the SCC, I cited this same Maple Leaf case in the factum prepared along with Prof. Ariel Katz and Prof. David Lametti (as he then was). There was considerable interest during the oral argument in the retroactivity issue and the SCC commented on it very explicitly in this unusual footnote – which may be seen as a warning signal to collectives and an invitation to users seeking judicial review of retroactive tariffs:
[2] During the hearing before this Court, counsel for the interveners the Centre for Intellectual Property Policy and Ariel Katz briefly raised concerns regarding the Board’s power to issue retroactively binding decisions in general. That issue was not squarely before this Court in this case, and I do not purport to decide broader questions concerning the legitimacy of or limits on the Board’s power to issue retroactive decisions here.”

It is also interesting that the Board emphasizes at paragraph 239 the importance of timely notices in the Canada Gazette is an essential means “to inform parties of the possibility to object to such a proposal”. This is not without irony, given that the new Vice Chair of the board, Nathalie Theberge, recently spoke at length about what she regarded as the positive aspects of the elimination of the decades-old requirement to post proposed tariffs in the Canada Gazette. Mme. Theberge was not a member of the panel that decided retransmission, since the file was opened, and the hearings took place long before her own appointment last year.

There is also considerable discussion of the concept of “competitive market”, which is something of an oxymoron in any discussion of de facto mandatory tariffs that are built upon highly prescribed regulations in a context where the costs will almost certainly be passed along 100% to those Canadian consumers who have not taken the initiative to “cut the cord”. Indeed, there was some discussion about “cord cutting”. One of the great frustrations and illustrations of the dysfunctionality of the Copyright Board is that, while it attempts valiantly to analyse massive amounts of presumably relevant and expert evidence, such evidence can become manifestly irrelevant and unreliable in the face of a rapidly changing economic and technological environment when hearings in the decision-making process takes so long – in this case 6 ½ years. That is a very long time in Internet time when one considers the rapid proliferation of OTT services such as Netflix and the increasing proliferation of cord cutting. The use of VPN, Facebook and other tools enables many consumers to get all the basic news and entertainment they may want online legally for free or for much lower costs than Canadian cable companies have imposed for so many years.

In any event, subject to the outcome of judicial review, we now know more than six years after the proposed tariff was filed what the cost of the cable retransmission tariff will be for 2014 to 2018. No doubt the cable companies have set aside a reserve for the relatively modest increases and will surely be able to pass the costs along to their consumers. The Board’s apparently enhanced concern for retroactivity when it can impose potentially extreme consequences is a welcome development but begs the question of the obvious overall retroactivity of the entire process.

Once again, the the lawyers and expert witnesses have no doubt done very well in this long process. Moreover, it ain’t over till it’s over as Yogi Berra famously said. Indeed, because the parties wanted an early ruling on the overall quantum so that they could better determine its allocation, the Board – in an unusual move – announced the rates for this tariff back on December 18, 2019 – which immediately triggered two judicial review applications 30 days later.  These applications were ordered to be “held in abeyance pending the release of the Copyright Board's reasons for the Decision”. Well, that movement has now arrived.

It would seem likely that the judicial review applications will be pursued, given the amount of money involved that is, on its face, ~ $100,000,000 PER YEAR going back to 2014 and going forward. The chance of success may  not be high, considering that the Court normally defers to the Board on number crunching – but there are some legal issues involved and the SCC will presumably any time now release a major decision on standard of review which could provide surprises. Thus, we can look forward to another year or two of activity in the Federal Court of Appeal, with a possible remand to the Copyright Board and/or a possible appeal, if leave is granted, to the Supreme Court of Canada – with a possible remand after all the to the Copyright Board. So, it could be several years before this over. Who knows how many cable customers will be left at that point? But that’s another matter?

Like a broken old vinyl record, I keep reminding everyone that the PMNOC (Patented Medicines Notice of Compliance)  proceedings, which can often involve comparably enormous if not even more amounts of money than may be at stake in this case, MUST be dealt with from start to finish including the Court’s decision within 24 months.

HPK

Wednesday, August 07, 2019

Canadian Copyright Mass Litigation – Reasonable Reimbursement for Norwich Order Compliance


I have earlier written about the Voltage reverse class action in which Rogers was able to persuade the Supreme Court of Canada to remit to the Federal Court the question of  its reasonable costs of compliance with the Norwich order to disclose the names and addresses of alleged copyright infringers.

Another important chapter in the mass copyright litigation saga has just been written. The Federal Court, on remand from the Supreme Court of Canada based on its decision of September 14, 2018, has just provided the apparent answer to how much Voltage Pictures and presumably others will have to pay for the disclosure pursuant to a Norwich order of individual names and addresses. In this particular case, Justice Boswell concluded in Voltage v. Salna 2019 FC 1047 after considering a great deal of evidence that Rogers is entitled to compensation of $67.23 plus GST quote “for searching and disclosing the customer name and address associated with the five timestamps in the Norwich order”.

The fact that there were five timestamps involved in this particular situation presumably resulted from the fact that the IP address turned out to belong to a Mr. Robert Salma, who was a landlord whose IP address was presumably allegedly used by others. This, of course, will not be the normal situation. In the more normal situation, there will likely be a need for only two timestamp lookups

Justice Boswell concluded that each timestamp lookup entitled Rogers to reimbursement for 12 minutes of time at $35 an hour plus HST. Since there will normally be two timestamp lookups for each defendant in this mass litigation cases, that suggests reimbursement of 24÷60 X $35 which is $14 plus HST. See para. 87 of the Order and Reasons.

There are apparently approximately 55,000 potential defendants in this reverse class action, if it is allowed to proceed. More on that below. Accordingly, it would appear that if Voltage wants the names and addresses of all of these potential defendants the cost will be at least $14 times 55,000 or $770,000 plus HST, which comes to $870,100. It took some time and a failed attempt to appeal to the Supreme Court of Canada, but Voltage finally paid the sum of $75,000 into court in this reverse class action to keep it alive.

The certification motion is scheduled to be heard in Toronto on September 23 and 24th, 2019. Presumably, some very important issues will be addressed at that time. These might include the very basic question of whether a “reverse class action” can even proceed in the Federal Court in a case like this and whether there is even a cause of action against those whose only involvement is being the subscriber and paying the bill for Internet service. The Supreme Court of Canada has specifically stated that this alone does not give rise to liability. There are many other issues which will hopefully be addressed. It remains to be seen whether there will be an active intervention in the certification process.

As I wrote earlier about the SCC decision:
Here are perhaps the two most consequential paragraphs in the judgment – which put a severe chill on all the legal basis of the outstanding mass BitTorrent cases:
[35] I acknowledge that there will likely be instances in which the person who receives notice of a claimed copyright infringement will not in fact have illegally shared copyrighted content online. This might occur, for example, where one IP address, while registered to the person who receives notice of an infringement, is available for the use of a number of individuals at any given time. Even in such instances, however, accuracy is crucial. Where, for example, a parent or an employer receives notice, he or she may know or be able to determine who was using the IP address at the time of the alleged infringement and could take steps to discourage or halt continued copyright infringement. Similarly, while institutions or businesses offering Internet access to the public may not know precisely who used their IP addresses to illegally share copyrighted works online, they may be able, upon receiving notice, to take steps to secure its internet account with its ISP against online copyright infringement in the future.
 [41] It must be borne in mind that being associated with an IP address that is the subject of a notice under s. 41.26(1)(a) is not conclusive of guilt.  As I have explained, the person to whom an IP address belonged at the time of an alleged infringement may not be the same person who has shared copyrighted content online. It is also possible that an error on the part of a copyright owner would result in the incorrect identification of an IP address as having been the source of online copyright infringement. Requiring an ISP to identify by name and physical address the person to whom the pertinent IP address belonged would, therefore, not only alter the balance which Parliament struck in legislating the notice and notice regime, but do so to the detriment of the privacy interests of persons, including innocent persons, receiving notice.
(highlight and emphasis added)

Even if these comments from the SCC go beyond the narrow “ratio decidendi” (what is actually decided and what is generally rooted in the facts) to the those that are “obiter dicta”, the latter type of comments can still be authoritative if they are closely related to “ratio decidendi”.  Those who are curious about the role of SCC “obiter dicta” may want to read the SCC’s own important 2005 decision regarding this issue. See  R. v. Henry.  In this instance, these comments were arguably closely related to the “ratio” and should now be regarded as binding authority.

Meanwhile, other chapters are being written in this saga and there will be important developments in September.   More about all that later.

HPK

Friday, June 21, 2019

The Copyright Board Game


The Canadian Bar Association “IP Day” – May 30, 2019
At the Canadian Bar Association’s perennial “IP day” on May 30, 2019, there was a first ever “town hall” session on the Copyright Board (the “Board”). This was promising and could have been a very useful event for the copyright bar and the Board itself.  Unfortunately, it turned out to be 90 minutes of mostly vague comments from the Board’s Vice Chair and CEO Nathalie Théberge with a few additional comments from the Board’s General Counsel Sylvain Audet. Since nothing was said about Chatham House rules concerning this event, I will make some limited but frank comments about the session.
Spoiler alert: Although Mme Théberge did at least acknowledge the delay issue at the outset, neither she nor Maître Audet indicated any direct and specific steps that the Board is going to take to deal with the issue of lengthy delays.  The Q & A aspect of the session was also disappointing.
The Board’s Chairman, Justice Robert Blair, was scheduled to speak but was reportedly unable to get to Ottawa due to weather conditions in Toronto that morning. Ms. Théberge, appointed about nine months ago, instead presented the remarks that Justice Blair would presumably otherwise have done plus her own. Mme Théberge, an experienced senior bureaucrat, is the first vice-chair and CEO of the Board in its thirty-year history who has not been a lawyer or had a law degree. The moderator was John Cotter, who acts both for “users” entities, namely Universities Canada and York University and Re:Sound, which is Canada’s second largest music collective in terms of revenue.
It was unfortunate that the promise of meeting Justice Blair did not materialize. Since his appointment as the Board’s Chair four years ago, which was seen as very promising by myself and others, there has been very limited opportunity to hear or read about his views on Board reform. There is one posting of some interesting remarks on his part on the occasion of an Ontario Bar Association event on May 1, 2018. More on that below. His appointment will expire on May 27, 2020, unless renewed. It would be helpful if the remarks he intended to give on May 30, 2019 were published online, as were his remarks from 2018 - since it was not clear where his points stopped and Ms. Théberge’s points began.
Ms.  Théberge spoke of changes brought about by Bill C-86 and spent considerable time indicating how time would be now be saved along with some resources by virtue of there no longer being a requirement to publish tariffs in the Canada Gazette. It’s not clear how this would save much more than a couple of months more or less at the most, and the Canada Gazette requirement has been on the books virtually forever.  Two months is the blink of an eye in the context of contested Board hearings that typically take seven years or more to fruition – and that’s before the almost inevitable judicial review which frequently results in course correction. The current proposed Access Copyright Post Secondary tariff, which has been ongoing for NINE years now and is effectively unopposed, has no end in sight – but who is counting?
Ms.  Théberge 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
 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.
There were very few other specifics provided about how thing will get speeded up, other than vague references to more practice notices,  case management, a “handbook”, etc. Mme Théberge mentioned three recent Board practice notices implanted since her appointment that “deal with: (1) electronic files submitted to the Copyright Board; (2) sworn statements by fact witnesses in oral hearings; and (3) acknowledgement of expert witnesses.” These are frankly unremarkable and were hardly worthy of mention. Thankfully, she did not dwell on them.
Interestingly, there were several references to implementing a Board Twitter account, with a caveat that this is difficult to do. Why this would be difficult to do, why it would require any resources, or what it would accomplish were not explained. If the purpose is to notify the world of new developments, the Board could provide a notification by email option on its website – as do the Federal Courts and the Supreme Court of Canada and even my own very humble blog that uses an ancient zero-cost template. This would be far more effective than Twitter in reaching interested “affected persons”, something that the Board briefly recently seemed interested in doing but quickly resiled from when it heard things it didn’t want to hear. Anyway, there’s no harm in having a Twitter account but why it is difficult to do and why it would take up any resources is a total mystery. The Supreme Court of Canada @SCC_eng, the Federal Court of Appeal @FedCourtApp_en  and the Federal Court @FedCourt_CAN_en have long had Twitter accounts – with little discernable impact one way or another. All three of these institutions, however, do provide for automated direct email notifications regarding important developments – something that I do receive from the Board but probably only because I have long been on their counsel mailing list. This does not seem to be available to the world at large on its website, as it the case with the aforementioned courts where it is simple for anyone to receive automatic email updates of important decisions and bulletins.
The Board will be apparently be using its newly found extra $1,000,000 a year to, among other things, get a new website. Unless it is going to be as useful as that the of the Competition Tribunal  (which last time I looked had a much smaller budget that the Board and that was before the Board’s recent million dollar a year additional funding) in providing access to documents – which is extremely unlikely given the Board’s routine on demand over-classification of just about anything as confidential - it is unclear how this will help in any way. The Board already posts its procedural rulings and its very few substantive decisions (usually only two or three at most per year)  and actual tariffs (fewer than five a year, notwithstanding Prof. de Beer’s very problematic methodology that suggests a multiple of this number) quite adequately on its current website, for which it already spends sometimes tens of thousands a year for third party for maintenance.
The Board is not apparently very busy. It has held no oral hearings in more than two years and none are scheduled until March of 2020.
The Q & A:
The moderator had solicited some questions ahead of time, which were apparently provided to the Board in advance, which might strike many as at best a gratuitous gesture.
Only one of these questions, as I recall, was mildly interesting – which concerned how and by whom the Board’s decisions get written. The answer was to the effect that it was not relevant who sits behind the computer because the members are responsible for their decisions.  But, of course it matters and is relevant: he/she who hears must decide. That’s very basic. It is not as if there are a very large number of cases at the Board, as is the case at the Federal Court, where judges have only one clerk each and are expected to write about one substantive judgment a month and deal constantly with very many procedural and immigration files requiring written orders. The immigration files are of utmost personal importance to those affected. It is seriously concerning if the members of a presumedly expert quasi-judicial tribunal which usually issues only two or three substantive decisions a year at the most do not actually write, or at least actively participate in writing their own decisions. Decision writing is not something that can be delegated.
I tried to ask a question premised on the findings of the SCC in the 1954 Maple Leaf and the 2015 CBC v. SODRAC (in which I was very involved) cases as to why tariffs are so retroactive and why there is a “culture of delay” at the Board and why tariffs now regularly take seven years to reach fruition. Ms. Theberge started to answer the question by asking whether I was making a comment, which of course I was as a preface to my question and which is perfectly normal. But Mr. Cotter then proceeded to use his moderator prerogative to cut me off, even though he allowed follow up questions to several non-memorable questions that he had earlier recognized.  Provocative questions from the floor were clearly not welcome by Mr. Cotter.
Interestingly, although there was at least one prominent lawyer present who represents major users in the broadcast distribution sector, there were no questions that I can recall coming from that direction and no probing “user” questions, other than mine which was cut off.
Some Opinions, Facts, and Conclusion
In my opinion, there is what can fairly be described as a chronic culture of delay at the Board that is unique by Canadian standards. I am neither alone nor outspoken in this respect. In 2016, the Senate BANC Committee Report concluded:
The Copyright Board of Canada plays a pivotal role in Canada’s cultural sector. Yet, from what the committee heard, the Board is dated, dysfunctional and in dire need of reform. Whether the reasons are statutory, structural or otherwise, the Board did not – or could not – provide the committee with solutions to the problems that were identified by witnesses. The concerns outlined in this report require further investigation and timely action.
(highlight added)
This has led to a persistent pattern of hearings that often take more than four years to happen, decisions that take three more years to render, and tariffs that are consequently retroactive for several years. Then, there is the almost inevitable and often successful judicial review. This inexplicable, inexcusable and unique pattern exists notwithstanding explicit Supreme Court of Canada jurisprudence going back to 1954 that says that his shouldn’t be happening. On the issue of retroactivity caused by delay, I have previously pointed to:
“….the potential invalidity of retroactive tariffs in light of the venerable 1954  Maple Leaf Broadcasting v. Composers, Authors and Publishers Association of Canada Ltd., [1954] SCR 624 (“Maple Leaf”) decision from the Supreme Court of Canada (“SCC”). That decision was concerned with a tariff on radio stations that was retroactive by less than three months and the SCC – with some rather explicit reluctance – permitted it as a “practical necessity” but stated clearly that it was the "implied duty" of the Board to proceed with "all possible expedition" in cases where tariffs may have a retroactive effect. In the recent CBC v. SODRAC 2015 SCC 57 case in the SCC, I cited this same Maple Leaf case in the factum prepared along with Prof. Ariel Katz and Prof. David Lametti (as he then was). There was considerable interest during the oral argument in the retroactivity issue and the SCC commented on it very explicitly in this unusual footnote – which may be seen as a warning signal to collectives and an invitation to users seeking judicial review of retroactive tariffs:
[2] During the hearing before this Court, counsel for the interveners the Centre for Intellectual Property Policy and Ariel Katz briefly raised concerns regarding the Board’s power to issue retroactively binding decisions in general. That issue was not squarely before this Court in this case, and I do not purport to decide broader questions concerning the legitimacy of or limits on the Board’s power to issue retroactive decisions here.”
The Copyright Board Game Aspect
If Copyright Board proceedings were a “board game” (forgive the pun), the main rules would be very simple:
·       The applicant collective who starts the game has a huge advantage.  Very few tariffs have ever been rejected and the cost of obtaining a tariff almost always is much less than the tariff will pay. The costs of the proceedings are paid for by each and every one of the members of the collective, most of whom will see far less per year in royalties than the most junior lawyer working on the case will be billing per hour.
·       A “user” opponent must be prepared to fight for years; however, there is little incentive for user associations or their counsel to play hardball or shorten the proceedings if the cost of the tariff can be passed on to the ultimate Canadian consumers, who are virtually helpless in this context.
·       The executives of the collectives, the lawyers on both sides of these absurdly protracted hearings, and the members and staff of the ever-expanding Board are all almost invariably the prize winners in this game. The losers are Canadian consumers who don’t get any meaningful chance to participate in this very high stakes and well-hidden Board game but who end up paying the prize winners.
Given largely ineffective challenges to date both at the Board and in the Courts (hopefully this will change someday though not clearly soon enough), there is an assumption – however incorrect – that Board tariffs can be both significantly retroactive and mandatory. Hopefully, the impact of the Supreme Court’s landmark 2015 decision in Canadian Broadcasting Corp. v. SODRAC 2003 Inc., [2015] 3 SCR 615, 2015 SCC 57 (CanLII) will finally sink in on both issues. In that case, I together with Prof. Ariel Katz and Prof. David Lametti (as he then was) were able to get a very clear ruling on how tariffs are not mandatory and a very bright warning light about retroactive tariffs. Unfortunately, the implications have not been clearly reflected in positions taken in some of the important litigation since then, such as that of Access Copyright v. York University.
Another Parker Commission?
As I’ve said before along with those who I often disagree with, the time has come for the Government to consider another Parker Commission.  It is imperative that such a commission be led by a retired Federal Court, Federal Court of Appeal or Supreme Court of Canada judge with proven expertise and impeccable independence. There are several such people out there, if any of them are willing to serve. The other commissioners and staff must reflect adequate balance, expertise and total independence. This won’t be easy – but I see no other solution. The composition, structure and mandate of such a commission must be done carefully and properly. Recent history has sadly shown the consequences what can go wrong with commissions when this is not done right.
I don’t think that it’s sustainable to wait another four years or more to see how the current initiatives play out. The current efforts at Board reform are too little, too late, and are clearly off to a bad start, if not a serious setback. Bill C-86 will, if anything, make things even worse – at least as the Board seems to interpret it.   The recently proposed regulations on the timing of Board decisions are at best a total waste of time and, at worst, a normalization of inexplicable, unacceptable and unique delay.
If I seem petulant, patronizing, pontificating and/or perturbed about this situation, it’s because I care about it deeply and have been involved one way or another for nearly four decades. I’ve seen things go, essentially, from good until 1988 (up until when Canada was viewed internationally as exemplary in the field of collective oversight) and then from bad to worse. For example, the previous Chair, Justice Vancise, announced with great fanfare shortly after his appointment that he would reduce the pendency of board decisions from what was then about 18 months down to six months, like the Supreme Court of Canada. Of course, that 2006 promise was an inapt comparison to the SCC in countless ways. And, in the result, the pendency only got worse under his watch. He even held onto some of his own files for a long time after he retired – indeed almost four years . Nelson Landry, who had a career mainly as patent lawyer, with dozens of reported patent cases, and a few trademarks, copyright and industrial design reported cases, retired from the Board on February 10, 2018.  He is still seized of the following outstanding files:
-      Access Copyright – Post-Secondary Educational Institutions Tariff (2011-2013 and 2014-2017)
-      Television Retransmission (2014-2018)
-      SOCAN-Re: Sound - Pay Audio Services Tariffs, 2007-2016
-      SODRAC v. CBC Licences [Redetermination (2008-2012); Determination (2012-2018); Interactive kiosks (2011)]
This practice of retired members being seized of and working on files for many years after so-called retirement is unusual, if not unique. Supreme Court of Canada judges are required to finish off their work within six months and Federal Courts judges get only eight weeks. At the very least, the mechanism and rates of remuneration of retired Board members for the work they do on files of which they are seized should be disclosed. Judicial salaries and salaries of active board members (within a range) are public information. There is no reason why an indefinite period of presumably paid involvement by supposedly retired Board members is necessary and this practice needs to be eliminated. In the meantime, full transparency is required on this issue.
Frankly, the current departmental bureaucracy, or at least some key players at the senior decision-making management level, may not be adequately equipped in terms of knowledge, expertise, experience, and corporate memory to deal with the issues involving reform of the Board. Moreover, the Board itself has not shown the willingness to self-reform. Two academic consultants who have been paid by the Government, namely Professors Paul Daly and Jeremy de Beer (who has also been a paid consultant to the Board),  have offered little insight into concrete problem solving solutions in my opinion. Unsurprisingly, both have suggested that more research is needed. There has been a new Chair in place for four years and new membership and a new Vice-Chair and CEO in place now for almost a year – with no concrete signs of progress.
Since the overall process of copyright law revision and the “S. 92” review appears to be headed in the direction of inevitable prolonged internecine struggle as aided and abetted by extraordinarily aggressive and expensive lobbying (i.e. history repeating itself), the one clearly fixable problem is that the Copyright Board – where history is again instructive with Justice Parker’s report.
HPK