Thursday, September 29, 2011

Supreme Court of Canada to Hear Another Copyright Case

The SCC has granted leave to appeal in yet another case involving copyright - though, unlike the five currently pending cases, this one doesn't come from the Copyright Board.

This is based upon the CRTC's proposed "value for signal" regime.

Here's the Court's "summary" of the case:
The Canadian Radio Television and Telecommunications Commission (CRTC) referred the following question to the Federal Court of Appeal:

Is the Commission empowered, pursuant to its mandate under the Broadcasting Act, to establish a regime to enable private local television stations to choose to negotiate with broadcasting distribution undertakings a fair value in exchange for the distribution of the programming services broadcast by those local television stations?

The regime to which this question refers is sometimes called the “value for signal” regime, which would permit a private local television station to negotiate with cable television service providers (“broadcast distribution undertakings” or “BDUs”) for an arrangement under which the BDUs provide consideration to the television station for the right to retransmit its signals. The CRTC has determined that such a value for signal regime is necessary to ensure the fulfilment of the broadcasting policy objectives set out in s. 3(1) of the Broadcasting Act. The operators of private local television stations generally favour the proposed value for signal regime while BDUs generally do not. Under the current regulatory model, BDUs pick up the over the air signals of private local television stations and retransmit them to their subscribers for a fee. The CRTC requires BDUs to provide certain benefits to private local television stations for those signals. The CRTC has concluded that the existing model does not adequately deal with recent changes to the broadcasting business environment. Among the changes noted by the CRTC are the development of direct to home satellite television services, the development of speciality television channels that are permitted to receive fees directly from BDUs that carry them, and the widespread adoption of alternative media platforms. These changes have caused advertising revenues for private local television stations to fall while the revenues of BDUs have increased, resulting in a significant shift in their relative market positions and a financial crisis for the private local television stations. The CRTC concluded that this financial crisis may be averted by adopting a value for signal regime that invokes market forces. The CRTC therefore brought an application for a reference to the Federal Court of Appeal to determine its jurisdiction to implement the proposed regime.

The majority of the Federal Court of Appeal (Sharlow and Layden Stevenson JJ.A.) held that the CRTC does have the jurisdiction under the Broadcasting Act to implement the proposed value for signal regime and that nothing in the Copyright Act precludes the CRTC from doing so. Nadon J.A., dissenting, found that the proposed value for signal regime was ultra vires the powers of the CRTC, because it conflicts with s. 31(2)(d) of the Copyright Act which precludes payment of royalties for the retransmission of “local signals”
The case is Cogeco Cable Inc., et al. v. Bell Canada, et al. The FCA decision is here.

There is still at least one other interesting copyright ball up in the air at the Court concerning "authorization" and the territorial scope of Canada's Copyright Act. See here.

There are now six (6) pending copyright cases at the Supreme Court of Canada, five from the Copyright Board that will be heard on December 6 and 7, 2011 and now this from the CRTC. There is no indication when this latest case will be heard.


Friday, September 23, 2011

Copyright Board Refuses to Require Transactional Licenses from Access Copyright or its Rights Holders

The Copyright Board today released a decision denying AUCC’s request to amend the interim Access Copyright post-secondary tariff to force Access Copyright to issue transactional licenses.

Prof. Katz, who is participating personally in this tariff proceeding, had proposed an arguably more subtle and effective remedy that would have seen the Board order any rights holder whose works are part of Access Copyright’s repertoire, rather than AC itself, to issue transactional licenses on reasonable terms.

Prof. Katz had also tried to suggest that the Board request the Commissioner of Competition to participate in consideration of the issue of transactional licenses pursuant to s. 125 of the Competition Act, but was ordered by the Board not to pursue this aspect further.

In any event, the Board denied both AUCC’s and Prof. Katz’s proposals. 

This decision is of potentially of great importance to institutions that have opted out of the interim tariff, but who may wish to seek an occasional “transactional license”, either from the rights owner of from Access Copyright, assuming that the work is in AC’s repertoire. The non-availability of such licenses would arguably tend to force institutions to stay within the framework of the supposedly optional interim tariff.

In any event, even without resolution of this particular issue and despite the alleged non-availability of these licenses any longer from either AC or certain of its publisher affiliates, about three dozen post secondary institutions have opted out of the interim tariff. These include most of Canada’s major research universities.
There is a great deal more of interest in this decision. The Board declined to address competition issues at this time.

If “anyone directly affected” by this decision wishes to seek judicial review, the deadline for making the application is October 24, 2011.


Thursday, September 22, 2011

Copyright Board Sets Schedule for Private Copying Tariff, 2012-2013

The Notice below was issued on September 22, 2011,leading to a hearing beginning Tuesday, October 9, 2012.

Further to the exchange of correspondence between the parties, the Board adopts the following schedule of proceedings with respect to the above-mentioned file, leading to a hearing beginning Tuesday, October 9, 2012:
Exchange of interrogatories: no later than Thursday, September 29, 2011
Objections to interrogatories: no later than Friday, October 14, 2011
Filing, with the Board, of replies to objections to interrogatories: no later than Friday, October 28, 2011
[Board Ruling]
Responses to interrogatories: no later than Friday, January 13, 2012
Motions re: incomplete/unsatisfactory responses to interrogatories: no later than Friday, January 27, 2012
Filing, with the Board, of replies to motions: no later than Friday, February 10, 2012
[Board Ruling]
Complete/satisfactory responses to interrogatories: no later than Friday, March 9, 2012
Filing of Collective's Case (CPCC): no later than Friday, April 27, 2012
Filing of Objectors' Case: no later than Friday, August 10, 2012
Filing of Collective's (CPCC) Supplementary Case: no later than Friday, September 14, 2012
Filing of Legal Briefs (if required): no later than Friday, September 28, 2012
Beginning of hearing: Tuesday, October 9, 2012 at 10:00 a.m., Copyright Board's hearing room.
The Directive on Procedure will follow shortly.
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

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        

ACCC's Request for Reconsideration of Board's Ruling re Opt-Outs Denied

ACCC's request for "reconsideration" of the Board's ruling that opt-out institutions must still answer interrogatories has been denied. See below.

A request for "reconsideration" is not the same an application for judicial review ("appeal", in layperson's terms).

It remains to be seen whether ACCC or AUCC will seek judicial review.

As indicated in my earlier blog about this issue, "The deadline to file the required notice of application, which begins the process, would be September 19, 2011."

My earlier blog described some of the issues regarding the warnings  (threats?) of potential subpoenas. 


From: []
Sent: Tuesday, September 13, 2011 11:38 AM
Subject: Access Copyright Post-Secondary Educational Institution Tariff (2011-2013)


On August 18, 2011, the Board issued a ruling providing in part that Access would be allowed to obtain information from institutions that do not avail themselves of the interim tariff (the "opt-out institutions"). On September 12, ACCC asked that the Board reconsider this ruling for two reasons. First, opt-out institutions have severed their licensing relationship with Access. They do not currently intend to be "prospective users" of the repertoire of Access; therefore, as a matter of law, they should not be required to comply with the Board’s ruling. Second, since 68 of 77 institutions have responded to interrogatories, Access already has in its possession more than a reasonable amount of relevant information from a reasonable number of institutions. There is no information in the possession of the opt-out institutions which could affect the Board’s consideration of the tariff under examination.

The first argument misses the point. The reference to "prospective users" in subsection 67.1(5) of the Copyright Act, which section 70.14 incorporates by reference in the general regime, is to users of the final tariff. Opt-out institutions do not know whether they may now be making protected uses requiring their compliance with a final tariff that does not yet exist. They can sever their relationship with Access if, and only if, they make no unauthorized, protected use of the repertoire of Access; that relationship is governed by facts and law, not intentions. More importantly, the Board’s power to order someone to provide relevant information is not limited to prospective users.

The second argument is misplaced. Access has no information from opt-out institutions. And as stated in the August 18 ruling, "[t]he June 6, 2011 ruling is clear: information concerning these institutions is relevant." The August 18 ruling required Access and ACCC to agree on which opt-out institutions should be approached precisely in order that only a reasonable number of these institutions be required to respond to the questions of Access.

The application for reconsideration is dismissed.

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

Sunday, September 11, 2011