Tuesday, September 13, 2011

Board Rules on Hearing Date for Private Copying Tariff, 2012-2013

Here is the Copyright Board's ruling from today regarding scheduling of the Private Copying 2012-2013 proposed tariff hearing on, inter alia, electronic memory cards. It will start on October 9, 2012. CPCC had asked that it start on May 15, 2012.  

Since I am one of the counsel involved, I will refrain from comment in this instance.



To:                                XXXXX

CC:                                XXXXX

Date:                              13/09/2011 1:02 pm

Subject:                          CPCC - Private Copying Tariff, 2012-2013


In its notice dated August 22, 2011, the Board expressed the preliminary view that the above-referenced proceedings could be scheduled for hearings starting on May 15, 2012 as CPCC proposed. On September 2, 2011, newly retained counsel for a coalition of objectors asked that the hearing start some five months later, on October 9, 2012. The reasons the Coalition offered can be stated as follows. First, the proposed timelines for interrogatories left too little time for objectors to provide complete answers. Second, the six weeks afforded to objectors to respond to CPCC's case were too short, given the "enormous" amount of effort required to do so. Third, newly retained counsel for the coalition was unavailable from April 23 to June 7, 2012; objectors should not have their ability to retain counsel of choice constrained by the choice of a conflicting date.

Other objectors agreed. RCC in particular raised several points, including the following. First, the schedule would "culminate in a hearing in barely over 8 months". Second, CPCC was able to prepare for this hearing "many months and indeed years" in advance. Third, though experienced in proceedings before the Board, RCC was "completely taken by surprise" by CPCC's attempt to seek a levy on electronic memory cards. Fourth, the Board's standard procedure "confers an enormous and unfair advantage on" CPCC; objectors necessarily must wait for CPCC's case to find out "what lies ahead". In short, "the proposed schedule is too compressed and begins far too early. It is unrealistic and would amount to procedural unfairness."

CPCC provided a thoughtful and measured response to the objectors' issues, which it is unnecessary to review here.

The Board grants the application, with considerable reluctance. First, problems that the interrogatory process may entail probably are exaggerated. CPCC assures us that questions will be much more focussed in this instance. The objectors are quite capable of anticipating most of what they will be asked. Under the circumstances, four months to deal with interrogatories seemed sufficient. Second, any surprise caused by the request for a levy on memory cards dissipated some four months ago, when the proposed tariff was published in the Canada Gazette. Third, it is simply disingenuous to state that CPCC can prepare months or years in advance; while it may well develop one or more theories before filing a proposed tariff, it is simply unable to validate these theories and finalize its case until objectors have provided it with highly relevant information that they alone possess. Fourth, the timelines provided in the proposed schedule were realistic, as long as objectors avoided procrastinating. Fifth, the objectors' assumption that they are to remain essentially passive (other than in reacting to interrogatories) until CPCC files its statement of case is unwarranted, unhelpful and disappointing: objectors "own" much of the information relevant to setting a fair tariff or deciding whether electronic memory cards meet the definition of "audio recording medium".

The Board notes that the attempt to deal with this matter within a time frame that is somewhat shorter than in other proceedings is being opposed by some who are also known to complain in public about the time it takes to deal with proposed tariffs.

A one-month extension would normally be sufficient to address any valid concern raised by the objectors. However, given the unavailability of counsel to the Coalition for several weeks in April, May and June, 2012 and the Board's own schedule between June and September, 2012, it is preferable to begin hearings at the date proposed by the Coalition, October 9, 2012.

Significantly, the objectors proposed nothing that might help mitigate the prejudice CPCC and the rights holders it represents may suffer from postponing this matter from the Spring to the Fall. As the Board noted in its August 22, 2011 notice, it is especially difficult to collect retroactive levies within the private copying regime. As a result, delays in dealing with tariffs largely tend to prejudice rights holders. In this instance, given that the delay is being granted at the request of the objectors, this may lead the Board to reconsider its past practice in the matter. Consequently, objectors are strongly urged to ensure that the information required to calculate an eventual levy on memory cards is compiled starting January 1, 2012.

The hearing on this matter will begin on Tuesday, October 9, 2012. No later than on Monday, September 19, 2011, parties shall file a joint schedule proposal. If the parties are unable to come to an agreement, CPCC shall file its proposal and the objectors shall file a joint proposal.


Gilles McDougall

Secretary General | Secrétaire général

Copyright Board of Canada | Commission du droit d'auteur du Canada

56 Sparks, Suite| Bureau 800

Ottawa ON K1A 0C9

Telephone | Téléphone 613.952.8624


No comments:

Post a Comment