Tuesday, February 10, 2015

The Copyright Board Working Group Report dated February 4, 2015

1566 The Wedding Dance by Pieter Brueghel the Elder
(Music at weddings in Canada is subject to Copyright Board tariffs, which are doubled when there is dancing)

On February 4, 2015 the Copyright Board released by email distribution to stakeholders a discussion paper on the OPERATIONS, PROCEDURES AND PROCESSES OF THE COPYRIGHT BOARD. It was prepared by a working group consisting of eight lawyers identified below, all of whom have had some significant experience before the Copyright Board and the Courts, together with Mario Bouchard, the former General Counsel of the Board.

I have extracted the recommendations of the working group below for the convenience of readers. To understand, the full context, the entire document can be viewed here.

I have also included the comments from two members of the working group found at the end of the Report that are apparently in the nature of a dissenting opinion.

The covering letter from the Board’s Vice-Chair and CEO, Claude Majeau can be seen here. This letter, and the underlying document, were apparently sent to about 100 of the "usual suspects"  consisting of Board  "stakeholders" who have somehow been involved as counsel or in house  representatives of parties that have had business before the Board in recent times.

For reasons that are not apparent, there is no mention of this working group process or link to these documents on the Board’s website. That is why I am posting this information here. The Board has oversight over approximately $500 million per annum worth of collective administration of copyright in Canada. Countless Canadians are affected by the Board’s tariffs – whether the tariff concerns the cost of music for dancing at weddings or blank CDs or the materials used in education at various levels. The Copyright Board of Canada is by far the largest such specialized copyright tribunal anywhere in the world.

Many aspects of the Board’s procedures are now being questioned, since the proceedings routinely go on for six years or more, including waiting two years or more for a decision after a hearing. The resulting tariffs often have retroactive application that may come as a complete shock to those ultimately affected, including many small businesses, who may never even have heard of the Copyright Board. Afterwards, there is the now seemingly inevitable judicial review. Even collectives are increasingly concerned, since it is no longer the case that the high costs of Board applications can necessarily be recovered from the tariff itself. Last November 28, I have summarized some of the Recent and Current Developments at and Concerning the Copyright Board of Canada in a blog post here.

Meanwhile, the position of Chair of the Copyright Board remains vacant. The Vice-Chair is the only current full-time member. There is currently one part time member. 

The Board is calling for comments on the Working Group report by March 6, 2015 to be addressed to the Board’s Secretary-General by email at Gilles.McDougall@cb-cda.gc.ca
 HPK

February 11, 2105
PS - At some point today, February 11, 2015 the Board did post these documents on its website.

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WORKING COMMITTEE ON THE OPERATIONS,
PROCEDURES AND PROCESSES
OF THE COPYRIGHT BOARD

FEBRUARY 4, 2015

Recommendations

1. The Board, with the cooperation of collectives and users’ representatives, should develop and implement new ways of notifying current and potential users of the filing of proposed tariffs. Electronic notice should be favoured over other forms of communication; paper notification, including letters and newspaper notices, should be used exceptionally or not at all.

2. New forms of notification should be implemented progressively, on a “best efforts” basis, according to what is technically feasible, financially reasonable and legally permissible. More should be done as technology makes more direct, personal forms of notice easier and more cost effective.

3. Consideration should be given to a variety of options (posting notice of proposed tariffs on a collective’s website; notification by a collective to all known users; emailing by a trade association to its members) so as to select the form of communication which is most efficient for each user type in each situation. In this regard, the Board should attempt to identify trusted third parties through whom more loosely organized user groups could be notified that proposed tariffs have been filed.

4. The Board, with the cooperation of collectives and users’ representatives, should assess the limits, if any, that anti-spam or other similar legislation may impose on communicating electronically with users about a proposed tariff. These limits should be taken into consideration in selecting additional means of publicizing proposed tariffs.

5. The Board should consider installing an RSS or other form of feed or information syndication (e.g. a Twitter account) allowing anyone to request in advance to be notified of the filing of proposed tariffs; collectives should be asked to consider doing the same or posting on their web sites links to the Board’s own notices in this regard.

6. A collective should be required to provide, with the proposed tariff, information about the content of a tariff of first impression and of the nature, purpose and ambit of any proposed material change to an existing tariff. Some of the information could be published with the proposed tariff in the Canada Gazette; all of the information should be posted on the Board’s web site. This requirement should be enforced through “soft” compliance measures.

7. Information provided with the proposed tariff should not bind the collective. The time at which a collective commits to a course of action should remain when it files its statement of case.

8. Subject to the considerations raised in Part II-A above, collectives should be asked to notify existing users when a collective asks for significant changes to an existing tariff. Any such notice should also indicate how a user may object to the tariff

9. Objectors should be required to state in their objection the reasons therefor, either in their notice of objection or as soon as possible thereafter. They could be encouraged to suggest, to the extent possible, alternatives to the terms they find objectionable. This requirement should be enforced through “soft” compliance measures.

10. Reasons provided pursuant to Recommendation 9 should not be binding on the objector. The time at which an objector commits to a course of action should remain when it files its statement of case.

11. A collective should be asked to provide as detailed a reply as possible to the objections it receives, on the same “without prejudice” basis as in Part II-B above. The same or similar “soft” measures outlined in Part II-B above should be used to enforce compliance with this requirement.

12. As a rule, and subject to any requirement of the Privacy Act, all information filed with the Board pursuant to Parts II-B to D above should be supplied to all participants.

13. All information filed with the Board pursuant to Parts II-B to D above by anyone other than individuals acting on their own behalf also should be posted on the Internet.

14. The Board should identify the ways in which it can deal with privacy issues before making available to the public, on the Internet or otherwise, objections filed by individuals acting on their own behalf, with a view to providing the widest possible public access to information filed with the Board.

15. Any request for information in addition to the information filed pursuant to Part II-B, II-C or II-D above should be dealt with on a case-by-case basis.

16. Parties should continue to be allowed to seek information from each other in advance of hearings.

17. Interrogatories should remain the preferred from [sic] of discovery before the Board.

18. As a rule, interrogatories should be exchanged, and the responses thereto provided, after a collective has replied to objections pursuant to s. 68(1)(a) of the Act but before any party is required to file its statement of case.

19. Parties should remain free to pursue the interrogatories they wish.

20. The Board should convene a preparatory meeting between the parties and the Board after the collective has replied to objections and before interrogatories are exchanged. The purpose of the meeting would be to identify tentatively what the relevant issues appear to be and to discuss what information may be required in order to address those issues, with a view to helping the parties exchange interrogatories that are better focussed and more relevant. Minutes of the meeting should be prepared and circulated.

21. As a rule, the Board should rule on the relevance of an interrogatory only when it deals with objections to interrogatories.

22. The Board should exercise caution before advising parties that it does not wish to hear relevant evidence that the Board considers uninteresting or unhelpful. Greater caution should be exercised if a ruling is being contemplated early in the process.

23. The Directive on Procedure should encourage, but not require, parties to consolidate their interrogatories in a single set, irrespective of the number of parties to whom the questions are being addressed.

24. A person being asked similar questions from two or more other parties should be allowed to apply to the Board for an order requiring these parties to consolidate their interrogatories.

25. As a rule, the Board should not consolidate interrogatories.

26. Subject to the comments about consolidation in Part III-F, above, interrogatories should continue to be exchanged only between the party who asks the question and the party who answers it.

27. A party who is asked a question should continue to be allowed to object to it. The requirement that parties first attempt to resolve the issue should be maintained. The party proposing the interrogatory should continue to be required to explain the relevance of the question. The party being asked the question should be allowed to reply to the explanation.

28. The party who objects to an interrogatory should file with the Board, at the time it files its reply, the information required to deal with the objection.

29. The information required to deal with an objection should be filed in the form of a table that includes a column in which the Board will enter its ruling. Rulings on objections to interrogatories should be issued in that form; as all other rulings of the Board, they should be part of the public record and put on the Board’s web site.

30. Only the party who asked an interrogatory should receive the response to it, as is currently the case.

31. A party who asked a question should continue to be allowed to challenge the sufficiency of the response to that question. The requirement that parties first attempt to resolve the issue should be maintained. The party who provided the answer should continue to be required to explain why it considers the response sufficient. The party asking the question should be allowed to reply to these explanations.

32. The person who claims a response is deficient should be the person who files with the Board, at the time it files its reply, the information required to deal with the deficiency claim.

33. The information should be filed in the form of a table that includes a column in which the Board can enter its ruling. Rulings on deficiency claims should be issued in that form; as all other rulings of the Board, they should be part of the public record and put on the Board’s web site.

34. The Board should pursue the creation of a database of orders of precedential value, including rulings that deal with interrogatories.

35. The Board should consider developing more specific guidelines dealing with the interrogatory process.

36. The current principle according to which a responding party provides what it has, in the form it exists, should continue to apply.

37. Where appropriate, the Board should continue to limit what a party must provide in response to an interrogatory to only as much relevant information as is necessary for the Board to arrive at a fair tariff.

38. Consideration should be given to how and to what extent the interrogatory process should be tailored to the importance of the amounts at stake as well as the resources of the parties involved.

39. In appropriate instances, the Board may wish to recommend to objectors with limited means that they use the comments provision of the Directive on Procedure to communicate their point of view to the Board.

40. The Board should ensure that the interrogatory burden of any party, including a collective, is not out of proportion with the amounts at stake.

41. Parties should file with their statement of case all the responses to interrogatories on which they expect to rely, and only those responses.

42. Parties should fully correlate the responses they file with their statement of case.

43. The Directive on Procedure should clarify that the extent to which a party is authorized to rely on a response that was not filed with its statement of case during the course of a hearing. However, the Committee was unable to agree on what that extent ought to be.

Additional note
One member of the Committee, while appreciating the need for caution in reforming the process, expressed concern about whether the report’s recommendations will truly assist the Board in having more efficient and more productive procedures and processes. In particular, the member was uncertain that the recommendations with respect to interrogatories fulfill its objectives: to minimize the burden on parties, to streamline the process, to reduce disputes among parties or to remove potentials bar to participation. Half the recommendations propose keeping the status quo. Others (e.g. who files disputes with the Board, adding a right of reply), while reasonable, may not contribute to the stated objectives of Part III of the report, and in particular “the fact that the existing interrogatory process is a bar to the participation of some entities as parties in Board proceedings.”

Another member was of the view that the discussion paper, even if implemented fully, will have a minimal effect on the problems the Committee was asked to address. The recommendations, taken as a whole, do not really address the expressed need to streamline the Board process in order to shorten the time to get tariff matters completed. In fact, as a result of some recommendations (requiring non-binding explanations, meetings with Board staff at an early stage, addition of a reply stage for interrogatory objections), the process may be lengthened and may become more expensive. The interrogatory process has not been changed in any meaningful way, the recommendations will do little or nothing to reduce the size, scope or burden of interrogatories. In this member’s view, while members of the Committee invested much time and skill in the process leading to this discussion paper, perhaps the nature of the collaborative process inherent in such Committee work necessarily meant that bold initiatives were unlikely or impossible.



MEMBERS OF THE WORKING COMMITTEE ON THE OPERATIONS, PROCEDURES AND PROCESSES OF THE COPYRIGHT BOARD

Mr. Glen Bloom
Senior counsel, Osler (Ottawa)
Mr. Casey Chisick
Partner, Cassels Brock (Toronto)
Mr. Mark Hayes
Hayes eLaw (Toronto)
Mr. David Kent
Partner, McMillan (Toronto)
Mr. Gerald (Jay) Kerr-Wilson
Partner, Fasken Martineau (Ottawa)
Ms. Colettte Matteau
Matteau Poirier avocats (Montreal)
Mr. Marek Nitoslawski
Partner, Fasken Martineau (Montreal)
Ms. D. Lynne Watt
Partner, Gowlings (Ottawa)
Facilitator: Mr. Mario Bouchard
(Ottawa)


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