- 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.
- 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.
- 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.
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.,
715 – 11 Holland Ave.,
May 27, 2019 BY PDF
Director, Copyright and Trademark Policy Directorate
Innovation, Science and Economic Development Canada
235 Queen Street, Ottawa, Ontario K1A 0H5
– - and -
Director, Copyright Policy
Department of Canadian Heritage
25 Eddy Street Gatineau, Quebec K1A 0M5
Sent by email
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”):
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.
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.