Canada’s Copyright Board at the Cross Roads

Michael Geist posted an important blog today entitled Appointment of New Copyright Board of Canada Chair Offers Chance for Change. He concludes as follows:

As I noted over a year ago, many believe the Copyright Board of Canada is broken. The government hasn't paid much attention, but a starting point for addressing the concerns may come with the appointment of a new chair and the potential it brings to establish new policy and governance priorities.

 

The Copyright Act provides in s. 66(3) that “The chairman must be a judge, either sitting or retired, of a superior, county or district court.” Current Chairman William Vancise’s term as Chair will end on May 13, 2014 because the statute allows for re-appointment once only.The Chairman's position has traditionally been served on a part-time basis.

For the next Chair, the Government need look no further than the Federal Court or the Federal Court of Appeal. There are a number of sitting or retired judges on these courts who have significant experience with copyright law based upon their practice careers and/or cases they have dealt with in these Courts. Indeed, judicial review of the Copyright Board is done by the Federal Court of Appeal, where the Board has been sometimes very resoundingly been reversed, for example in this recent and very important decision from the Federal Court of Appeal written by retiring Justice John Maxwell Evans, who is also the“dean” of administrative law in Canada and co-author of the leading treatise on the subject.

Many of these sitting or retired judges have also had useful and relevant experience in administrative law and related areas of economic regulation, such as competition or communications law that could be helpful in Copyright Board cases. The sitting judges of these Courts must reside in the National Capital Region and some of the retired ones still do. This factor alone could save the Government a great deal of money.

It is an interesting fact that the Copyright Board – which is constantly seeking more resources – already has almost 10% of the budget of the Supreme Court of Canada. The Copyright Board’s net cost of operations for 2014 will be more than $3.5 million. That of the Supreme Court for 2013 was less than $41 million.

The Copyright Board typically renders only about two or three (more or less) substantive decisions a year that typically require several years to reach the hearing stage. The hearings are rarely longer than a week or two. There is typically a 1.5 to 2 year (or even more) delay after the hearing before a decision is rendered, and the decisions are often then reversed after judicial review. By contrast, the Supreme Court of Canada in 2013 received 529 applications for leave to appeal, heard 75 appeals and rendered judgment in 78 cases. The average time between a hearing and the rendering of a judgment was 6.2 months. More statistics on the SCC can be found here.

The Government now has an opportunity to appoint a Chair who can lead the Board forward in such a way that decisions will be rendered much more quickly, at a much lower cost to the parties and with a greater scope for public interest involvement.

This could also be the beginning of a process that could see the implementation of regulations that would help to ensure that the Board can and will carry out what the Supreme Court of Canada recently stated is “Parliament’s purpose in creating the collective societies in the first place, namely to efficiently manage and administer different copyrights under the Act”. See Entertainment Software Association v. SOCAN, [2012] 2 S.C.R 231, para. 11. Needless to say, regulations do not require legislation and the authority is already in place to implement the kind of regulations that would be needed. 

HPK