Monday, May 27, 2019

My personal submission re Notice in Canada Gazette, Part I, Vol 153, No 17, April 27, 2019 re: Regulations Establishing Time Limits in Relation to Matters Before the Copyright Board


Here is my personal submission today about the proposed regulations re Time Limits at the Copyright Board:
*****

Macera & Jarzyna LLP
715 – 11 Holland Ave.,

Ottawa, ON 
K1Y 4S1

Tel: 613.238.8173
Fax: 613.235.2508

715 – 11 Holland Ave.,
Ottawa, ON 
K1Y 4S1

Tel: 613.238.8173
Fax: 613.235.2508

May 27, 2019                                                                                                  BY PDF

Martin Simard
Director, Copyright and Trademark Policy Directorate
Innovation, Science and Economic Development Canada
235 Queen Street, Ottawa, Ontario K1A 0H5
martin.simard@canada.ca

       - and -

Kahlil Cappuccino
Director, Copyright Policy
Department of Canadian Heritage
25 Eddy Street Gatineau, Quebec K1A 0M5
Sent by email

Dear Sirs,
Re: Notice in Canada Gazette, Part I, Vol 153, No 17, April 27, 2019 re: Regulations Establishing Time Limits in Relation to Matters Before the Copyright Board

Thank you for the opportunity to comment on the proposed regulations. The following comments are in my personal capacity and do not necessarily represent any client of mine. I have written in the past at length in my personal capacity about time limits at the Copyright Board (the “Board”) and have made submissions to the Senate BANC Committee and ISED.  Please see, for example, the attached document dated September 29, 2017 submitted in the Government’s consultation process.

I can quickly summarize my position on the proposed regulations (the “proposal”):
  1. This proposal does nothing to ensure that a hearing on a contested matter is held within a reasonable length of time. It routinely takes the Board four years or even more to get to the oral hearing stage. I am unaware of any other Canadian tribunal or court that moves so slowly.
  2. There appears to be widespread concern that the proposal does not specify when the “conclusion” of a hearing – whether oral or writing – takes place.  The Board frequently follows up after the supposed “conclusion” with further requests for evidence or submissions, thus prolonging the beginning of the proposed 12-month period potentially indefinitely if this practice is to be condoned and continued. Such a practice is unheard of in Canadian Courts or other tribunals of which I am aware, except in the rare event that a potentially binding and applicable judicial decision is delivered after the apparent close of the hearing. In fact, the Canadian Judicial Council has specifically pronounced that “judges should render decisions within six months of hearing a case, except in very complex matters or where there are special circumstances. There should be no reason why a presumably expert tribunal with unusually large and growing research resources cannot address all necessary questions at an oral hearing or by a fixed date in a written proceeding.
  3. On top of these uncertainties, the Board will still be given broad discretion to extend the time limits, which will likely be unreviewable for all practical purposes.
There is no reason why the Board should be immune from the norms applicable to other expert tribunals or courts.  In fact, the closest analogy may very well be the Federal Court, which is now required to deal with the Patented Medicines Notice of Compliance (“PMNOC”) matters now also including infringement issues within 24 months from start to finish including the rendering of a judgment. These matters are invariably much more complicated than anything coming before the Board and can involve issues worth hundreds of millions of dollars. The Federal Court deals with several of them at any given time. Most Federal Court judges have no prior expertise or experience with patent law when they are appointed. A Federal Court judge has only one clerk – unlike the Board which has a large and growing staff of lawyers and economists. These PMNOC cases are decided by a single judge and not a panel with multiple members. It must also be considered that the Board’s large and growing research staff may create issues arising from the principle that “he/she who hears must decide”.

In the USA, the Copyright Royalty Tribunal operates under a mandated fixed time limits of “within 11 months of the date of the post-discovery settlement conference or 15 days before the expiration of the existing rates or terms in a proceeding to determine successors to rates or terms that will expire on a specific date, whichever date first occurs.”  See my recent discussion of this and related issues on my blog on April 29, 2019 with references and links. http://excesscopyright.blogspot.com/

I am concerned that the proposal, if implemented, will normalize the inexplicable and unacceptable culture of delay that has unfortunately prevailed too often at the Board and which, not surprisingly, may at times suits the interests of certain major collectives, especially if they can expect that the resulting tariff will be regarded as mandatory and if it is retroactive. It may also sometimes be the case that some of the counsel, consultants, and experts retained by some collectives may also benefit from these lengthy and extended hearings.

The current Access Copyright proposed Post Secondary Educational tariff is perhaps an outlier in terms of timing even by Board norms – but it is the unavoidable example of what can go wrong in an extremely important proceeding. It is still pending after 9 years. The Board recently purported to seek comments from “affected persons” on the “feasibility and clarity of the terms of the tariff”. The Board thereupon announced by way of a ruling posted obscurely on its website without notification to those who responded that comments about the mandatory tariff and retroactivity issues, along with other key substantive issues, would be ignored. Since both issues have been explicitly dealt with in directly applicable Supreme Court of Canada decisions as pointed out in some of the submissions, the Board’s apparent indifference to this jurisprudence is very troubling.  It could be seen as very discourteous to those who went the time and expense of making submissions as invited with the legitimate expectation that these submissions would be given a considered and fair hearing.  See my blog comments with a link to those 11 submissions here: http://excesscopyright.blogspot.com/2019/04/the-copyright-boards-new-leaf-not-so.html

In conclusion, I suggest that, as is the case with the PMNOC regime, the Board be required to dispose of all contested tariffs within 24 months from filing to approval and certification with reasons.

Yours sincerely,

"HPK"

Howard Knopf
Att.



Wednesday, May 15, 2019

The Canadian House of Commons Copyright “Shifting Paradigms” Report – Let’s Just Call it the “Values Gap” Report





 Graham Henderson, President, Music Canada http://musiccanada.com/contact/

The House of Commons Heritage Committee copyright report entitled "Shifting Paradigms" is out. It seems even more imbalanced & problematic than the 1985 Charter of Rights for Creators report or the infamous 2004 "Bulte" report. I'll be calling this the "Values Gap" report, with no apology to the inaptly named lobbying group Music Canada (which largely represents the international sound recording industry) and which has been pushing the phrase “Value Gap” for a long time.

Michael Geist explains how the Committee acted outside its mandate of looking at remuneration models in order to help the INDU Committee in its forthcoming s. 92 report. Instead, Committee Chair Julie Dabrusin rubber stamped lobbying positions of the music, publishing and collective sectors . For example, it notably embraces Access Copyright’s devious attempt to make tariffs mandatory by harmonizing tariff regimes and statutory minimum damages, an approach that  appeared to have also received early but hopefully not lasting sympathy from DG Mark Schaan at ISED and perhaps other officials.

This is the most over-the-top copyright event I’ve seen since the 1985 Charter of Rights for Creators and the infamous 2004 Bulte Report. Michael Geist has aptly penned the name “Bulte Redux” to today’s report – referring to a former Liberal MP once touted as the next Canadian Heritage minister.

For those who don’t know Canadian copyright history and may be condemned to repeat it, Sarmite Bulte’s political career ended a couple of years after her very one sided report when her closeness to the entertainment and collective sectors was exposed and she was defeated in her reelection in the presumed safe Liberal seat of Toronto Parkdale in 2006. Had she been reelected, and the Liberals not defeated, she might have been the next Heritage Minister. But flying to high with the copyright lobby effectively ended her political career.

Anyway, here are the recommendations of today’s report which I shall henceforth call the “Values Gap” report because it is so one-sided and so completely falls short of the values of balance, evidence-based analysis, and democratic responsibility that we would expect from a Canadian parliamentary committee. The Committee simply ignored the testimony of those with whom it disagreed, including, as Michael Geist points out, Professors Jeremy de Beer, Ariel Katz, Nick Mount, Meera Nair along with author Cory Doctorow and me, lawyer Howard Knopf. Hopefully, INDU and Cabinet will do much better. I’ve highlighted some of the more outrageous and insupportable recommendations:

Recommendation 1
That the Government of Canada increase its support for creators and creative
industries in adapting to new digital markets............................................................... 9
Recommendation 2
That the Government of Canada develop mechanisms by which streaming
services will develop and promote Canadian content. ............................................... 15
Recommendation 3
That the Government of Canada create educational materials to raise
awareness of copyright provisions and artist remuneration for consumers. .............. 16
Recommendation 4
That the Government of Canada create educational materials to raise
awareness of copyright provisions as well as artists’ rights and responsibilities
under the Copyright Act for artists and creators. ........................................................ 16
Recommendation 5
That the Government of Canada review the safe harbour exceptions and laws
to ensure that Internet service providers are accountable for their role in the
distribution of content. .............................................................................................. 19
Recommendation 6
That the Government of Canada increase its efforts to combat piracy and
enforce copyright. ...................................................................................................... 19
Recommendation 7
That the Government of Canada pursue its commitment to implement the
extension of copyright from 50 to 70 years after the author’s death. ......................... 22
Recommendation 8
That music streaming services be regulated like other Canadian music services. ....... 24
Recommendation 9
That tariffs for online music services be reviewed by the Copyright Board to
ensure royalty payments provide fair compensation for artists................................. 24
Recommendation 10
That the Government of Canada amend the radio royalty exemption found at
section 68.1(1) of the Copyright Act so that it applies only to independent
and/or community-based radio stations. ................................................................... 26
Recommendation 11
That the Government of Canada amend the definition of sound recording
found in section 2 of the Copyright Act to allow sound recordings used in
television and film to be eligible for public performance remuneration. .................... 28
Recommendation 12
That the Government of Canada review, clarify and/or remove exceptions
contained in the Copyright Act, ensuring that any exception respects section 9
of the Berne Convention for the Protection of Literary and Artistic Works, to
which Canada is a signatory. ...................................................................................... 30
Recommendation 13
That the Government of Canada meet international treaty obligations
(including Berne Convention for the Protection of Literary and Artistic Works,
the Trade-Related Aspects of Intellectual Property Rights Agreement, and
World Intellectual Property Organization Copyright Treaty). ..................................... 30
Recommendation 14
That the Government of Canada amend subsection 14(1) of the Copyright Act
so that it reads “from 25 years after assignment.” ..................................................... 31
Recommendation 15
That the exception for charitable organizations in subsection 32.2(3) of the
Copyright Act be clarified to apply strictly to activities where no commercial
monetary gain is intended. ........................................................................................ 33
Recommendation 16
That the Government of Canada extend moral and economic rights to
audiovisual performers. ............................................................................................. 35
Recommendation 17
That the Government of Canada amend section 34.1 of the Copyright Act to
deem the screenwriter and director the co-owners of copyright and co-authors
of a television or cinematographic work. ................................................................... 37
Recommendation 18
That Government of Canada amend the Act to clarify that fair dealing should
not apply to educational institutions when the work is commercially available. ........ 43
Recommendation 19
That the Government of Canada promote a return to licensing through
collective societies. .................................................................................................... 43
Recommendation 20
That the Government of Canada review, harmonize and improve the
enforcement of the statutory damages for infringement for non-commercial
use in section 38.1(1) of the Copyright Act. ................................................................ 43
Recommendation 21
That the Government of Canada harmonize remedies for collective societies
under the Copyright Act. ............................................................................................ 43
Recommendation 22
That the Government of Canada establish an artist’s resale right............................... 47

PS – the Committee is obviously unaware that Canada meets or exceeds all of its international obligations as I’ve pointed out many times before, and in many respects much more so than the USA, which is ultimate source of much of the lobbying that went into this sadly bad report.

HPK