Monday, October 30, 2006

CRIA Rebuffed from the Bench

CRIA has just suffered a decisive setback in the Federal Court of Appeal.

Earlier this year, I blogged about how CRIA objected to its Class “B” members (i.e. the Canadian Indies) having to answer interrogatories in a Copyright Board proceeding involving an internecine dispute with the music publishers over online music.

CRIA’s position was that “When it became clear that the interrogatory process was too onerous to involve its smaller members, CRIA withdrew on their behalf."

This is a position with which anyone familiar with Board hearings from an objector viewpoint would tend to sympathize. Of course, CRIA’s concern about onerous interrogatories is nothing if not ironic, given CRIA’s key stakeholder role in the CPCC - which is infamous for its onerous interrogatories.

Onerous interrogatories have succeeded many times in recent years in driving even large and sophisticated objectors out of Board hearings, for example Archambault and Canoe, not only because of the burden and expense involved but the intrusive nature of the process, concerns about confidentiality, and the often doubtfully relevant nature of the interrogatory questions themselves.

However, the Board to its credit, did something quite interesting. Apparently out of concern for the Indies, it ordered CRIA to send notices to the Canadian Indies in the following language:
“CRIA recently opted to change the scope of its representation of its members’ interests in the forthcoming proceedings before the Copyright Board dealing with CSI’ s proposed tariff for the reproduction of musical works by online music services. Subsequently, the Board ordered CRIA to advise you of the following:
1) In these proceedings CRIA has chosen to act only on behalf of (name of each member that CRIA represents).
2) As a result, CRIA will not be allowed to advance any argument or lead any evidence that relates to your situation in particular, or to the situation of any other member of CRIA that CRIA does not represent in these proceedings generally.”
CRIA asked for reconsideration, but the Board stuck to its guns.

CRIA then went to the Federal Court of Appeal on judicial review.

On October 17, 2006, straight from the Bench and with costs, and reportedly without even needing to hear the respondent Attorney General, the Court dismissed CRIA’s application. Once again, the reasons come from Justice John Evans, the dean of Canadian administrative law. They are brief and blunt.

This confirms the wide powers of the Board, as spelled out in the Copyright Act, to require collectives to distribute notices deemed necessary to inform potential objectors and even members:
66.71 Independently of any other provision of this Act relating to the distribution or publication of information or documents by the Board, the Board may at any time cause to be distributed or published, in any manner and on any terms and conditions that it sees fit, any notice that it sees fit to be distributed or published.
It will be interesting if the Board more extensively uses its confirmed powers under this section and more generally to be more proactive in the public interest or the interests of members of collectives. I do have some thoughts on this and will post them in due course.

Ironically, in the interim since this case developed, most of the important Canadian Indies have left CRIA - and taken up their own position on copyright. See their very informative website.

I should point out that I have been involved for a long time in opposing the CPCC at the Copyright Board. I also opposed CRIA in the file sharing litigation. But, as always on this blog, these thoughts are solely mine.


1 comment:

  1. I am wondering how one would find out who the members of CRIA are, and what "class" they have been labelled as? We know the big 4, and we know that their other membership is reducing, but they don't seem to list their membership anywhere that I'm aware of.