Wednesday, June 28, 2017

Re:Sound Resoundingly Loses Judicial Review of Copyright Board Tariff 8 Decision

The Re:Sound Tariff 8 Judicial Review Federal Court of Appeal decision is out. Spoiler alert – Re:Sound lost. Resoundingly.

After a very lengthy and careful discussion of “standard of review”, the Court concluded that the Board is entitled to deference when dealing with s. 19 of the Copyright Act – which deals with equitable remuneration and not the kind of infringement issues that come before the superior courts. Hence, its review was done on a reasonableness rather than correctness basis. The result is hardly surprising - though the nature and depth of the reasoning will no doubt be of great interest to copyright and administrative law types.

This was a very rich decision in terms of jurisprudence, harkening back to Roncarelli v. Duplessis. It was up to date with scholarly references including to the work of David Lametti, now Parliamentary Secretary to the Minister of ISED.

There was much good discussion about “balance”, technological neutrality and evidence or lack thereof in in this instance, treaty law, the difference between exclusive rights and equitable remuneration, etc. It took about 16 months for the FCA to render this careful and learned decision. It will take a while for copyright scholars to analyze it with the care that it deserves.

The Court concluded with some unusual language that can be seen as praiseworthy of the Copyright Board:
[100] The reiterate, overall the Board was entitled to a broad margin of appreciation in considering the complex and specialized issues in this case. The applicant has not persuaded me that the Board’s decision was outside of that margin of appreciation.
(highlight added)

The word “appreciation” is perhaps unusual in this context and may, indeed, be appreciated by the Board in the circumstances.

Though there was no reference, of course, and the Court was presumably unaware of it, all Canadian copyright lawyers are very aware of the shameful behaviour of Music Canada in 2015 in attacking the Copyright Board with respect to this case and attempting to lobby its then new Chairman though a letter writing campaign.

More to come from me and others without doubt. Between this and Equustek – it’s been a busy IP day in Canada.


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