Friday, April 15, 2016

Review of Peter S. Grant's USERS’S GUIDE TO CANADIAN COPYRIGHT TARIFFS 2016 Second Edition

The unique and ubiquitous Peter S. Grant  and his team (including Grant Buchanan
Daniel G.C. Glover, and Keith D. Rose)  have recently published a book entitled USERS’S GUIDE TO CANADIAN COPYRIGHT TARIFFS 2016 Second Edition.

This book contains some introductory information about Canadian copyright collectives, the mandate of the Copyright Board, the Board’s record in judicial review, and an interesting and useful summary of how the Supreme Court of Canada has treated the Board with respect to the “sempiternal” issue of standard of review, as the great retired Justice Létourneau called it. The introduction concludes with a chart of how the $438 million of annual tariff revenues in 2014 was split between the various collectives.  It should be noted that not all of the revenue of all of the copyright collectives in Canada falls under Board tariffs. Moreover, in the educational sector virtually all of the K-12 school boards and many if not most universities and colleges have ceased payments to Access Copyright. 

There are then about 100 pages of Summary Tables of Rates, conveniently broken down into the major categories. One can quickly find out actual numbers. There are numerous references to the Board’s certified and pending tariffs, including URL hyperlinks. However, these UR hyperlinks are, unfortunately, not useful since the book is only available in paper and not electronic format. More on the book’s format below…

There is a fairly detailed and interesting discussion of the recent CBC v. SODRAC so-called “arbitration” case, and how the SCC dealt with it.

The balance of the book’s nearly 600 pages consists of currently certified or pending tariffs. This section contains the most useful aspect by far of the book, which is a “chronology” of summaries of previous Board decisions dealing with the particular tariff and summaries of Court cases that may have dealt with the particular tariff. These summaries are fairly detailed and appear to be generally accurate. This aspect of the book represents considerable added value and clearly required an enormous amount of hard work on the part of the many people at Mr. Grant’s firm who assisted him in this project.

There is an alphabetical index to tariffs and an index organized by collective and tariff number.

Finally, there is an alphabetical list of judicial decisions discussed in the book that relate to current tariffs. Older decisions, some of which are extremely relevant to Board practice, such as Vigneux or Maple Leaf are not included in this edition. The book covers only the modern Copyright Board which was established in 1989 as a successor to the previous Copyright Appeal Board, which existed for over fifty years.

This book complements another publication by Mr. Grant entitled Communications Law and the Courts in Canada 2014  which I reviewed back in 2014 here.

By and large, the book avoids any editorial comment on the merits of any particular Board or court decision. However, Mr. Grant cannot resist repeating his comment made in the Communications Law books about how the Federal Court of Appeal has twice overturned the Board on the interpretation of “audio recording medium”, thereby creating what Mr. Grant calls a “significant loophole” in Part VIII of the Act. I must confess to being rather proud of my involvement in those two court decisions and the exclusion of smart phones, thumb drives, hard drives, microSD and all kinds of other media now known or presumably to be known in the future from the reaches of the Canadian Private Copying Collective.

This book once again reminds me of how easy and useful it would be for the Board to improve its website by providing links to each court case dealing with judicial review of its decisions. This would be a simple task that shouldn’t take more than a few days all told of research and website updating. It would also be useful to list all of those decisions and a brief note or even head note about what they held on a separate webpage on the Board’s site. That might take a bit more time, but Mr. Grant has already provided a model for such a task.

This book will be very useful – indeed indispensable – for anyone in the small circle if counsel who practice before the Board, works at the Board, works for a collective, or works in Government and is interested in how the Board functions.

The book will help to make the work of the Board more transparent. The Board’s website and its annual reports are a good start in this respect. But the Board’s website does not measure up in terms of utility in important ways to other comparable ones. I’ll deal with this some other day, but for the moment, one can readily note:

  • A very frustrating “search” function
  • Lack of “docket” tracking for past and pending cases, as we have for the Federal Courts, the Supreme Court of Canada, the Competition Tribunal, e.g. here for the Stargrove case, etc.  Note that the SCC and the Competition Tribunal actually provide online virtually all important documents filed – subject to confidentiality issues, naturally, but even those exclusions are premised on the presumption that courts should be “open”. The Competition Tribunal manages to provide an excellent website, despite its smaller staff and budget than that of the Copyright Board.

Although the book is a useful step forward towards understanding how the Copyright Board works and what its decisions and tariffs actually do, it still requires a fair amount of prior knowledge on the part of readers in terms of “inside baseball” to take full advantage of all of the work that went into the book. The index helps – but is not sufficiently detailed to find out, for example, how much a “busker” has to pay to SOCAN. One has to know what tariff that particular activity would fall under.Once again, searchable electronic format would be very useful. 

Indeed, the book is very timely as attention is now being escalated and focussed in government, amongst several strange bedfellow stakeholders and counsel and, hopefully at the Board itself on how it can shorten its proceedings, lower the cost of these proceedings and render its decisions within an acceptable time frame. That conversation may now become even more urgent in light of the most recent decision of the SCC dealing with a Board decision, namely CBC v. SODRAC, which held, following arguments that I made on behalf of and with Ariel Katz and David Lametti, that Board tariffs are not de jure mandatory. 

That decision also acknowledged that there could be “broader questions concerning the legitimacy of or limits on the Board’s power to issue retroactive decisions” in the words of Justice Rothstein. Perhaps this was a hint. With respect to timelines of Board decisions, a useful feature for future editions of the book might be the inclusion of key milestone dates for each current pending or decided tariff, such as the date filed, the dates of the hearing, the date of the Board’s decision and the time period covered by the tariff. Compiling that information would be somewhat tedious but simple, since it is all already online in various bits and pieces at the Board’s website.

Clearly, Mr. Grant and his colleagues are not publishing this book in order to make money. The market for it is obviously quite small.  We should be grateful to them for making it available to interested folks at a relatively modest cost of $70.

However, I can’t help but note that the quality of paper and the very small font size of most of the book make it difficult to read in places. The paper is so thin that the ink on the other side of the page is visible. The book is published by Mr. Grant’s law firm and not by a major publisher, which may explain why it doesn’t meet the usual aesthetic, paper quality or legibility standard one would expect from my publisher, Carswell, or Irwin Law, for example – whose paper back publications are convenient and easy to read. 

Perhaps the potential market for the book is too limited to attract an established law publisher. However, given that the likely audience of this book consists of collective executives, public servants, law libraries, and  a small number of mostly very well paid Copyright Board practitioners,  it is likely that these purchasers might be willing to pay a bit more for a more legible edition. The obvious improvement in terms of format and utility would be to make the book available in electronic format either online or on DVD or both – so that the thousands of URL hyperlinks would actually work, and one could search quickly for what one wants.  Far be it from me to suggest business advice to Mr. Grant and his partners, but perhaps Westlaw might include the book one day in its very useful WestlawNext Canada website as part of its IP Source package.
Mr. Grant’s book will be a useful tool to those interested in the work of Canada’s Copyright Board, and an indispensable one to those closely involved with its work.


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