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A paper published in 2018 from the Hon. William Vancise, former Chair of the
Copyright Board of Canada has recently been brought to my attention by an
astute copyright officer, namely Joshua Dickison from the University of New
Brunswick. The paper was presented at this prestigious event at Columbia
Law School in 2017.
Justice William Vancise was appointed as Chair of the Copyright Board in 2004 and reappointed in 2009. His term ended when he retired from the Board on May 13, 2014, although he took until January 19, 2018 to render his last decision – almost four years after his retirement. The Board appears to be unique in terms of Canadian courts or tribunals in permitting this kind of delay and disincentive to render timely decisions, as I have pointed out before. The problem has still not been solved.
Ironically, shortly after his
appointment, he stated that:
“I am not at all happy with the
time it takes to render a final decision. I have tried to address the issue and
I can assure you it will be resolved. If
the Supreme Court of Canada can render a decision within six months of a
hearing, there is no reason why this Board cannot do the same. My goal is to see that this
occurs.” (highlight and emphasis added)
Judges of
the Federal Court and Federal Court of Appeal have eight weeks after retirement
to render any pending decisions. Even Supreme Court of Canada justices have only
six months after they retire to participate in decisions in cases on which they
sat. 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.”
For better or worse, Justice Vancise was often and explicitly publicly outspoken. Once again, and even more so than in his previous pronouncements, he demonstrates his sometimes contentious and problematic views about essential copyright and Copyright Board fundamentals in this 2018 publication by:
- Reimagining and redefining the meaning of “compulsory licence” in the context of copyright law;
- By continuing and indeed amplifying his apparent lack of appreciation for the copyright contributions of the Federal Court of Appeal and the Supreme Court of Canada;
- By ignoring the fact that a Senate Committee found the Copyright Board was “dysfunctional” two years earlier;
- By elevating the wasteful and almost useless “unlocatable” copyright owner regime to something supposedly important. To his credit, while was Chairman, Justice Vancise finally reversed years of wasted time and resources at the Board related to issuing unnecessary licences to use architectural plans for home renovation – but only after I publicly pointed out that the Board had long been oblivious for years to directly applicable Supreme Court of Canada jurisprudence; and,
- By following in the pattern of too many seasoned officials and/or politicians who have blamed the failure of their institutions on a lack of resources and calling for more resources rather than more expertise and efficiency. Once again, it must be noted the Copyright Board long had a budget greater than the Competition Tribunal. Unfortunately, the Competition Tribunal’s website has mysteriously gone from excellent to something very much less and very out of date in terms of reports, so its current budget is not readily apparent. It bears repeating that the Copyright Board has held only one actual hearing in more than last five years.
Justice Vancise admits that he came to
the Board without intellectual property expertise. He states by way of
introduction to this paper:
Although
I am not an expert in intellectual property, I was fortunate to hear and decide
cases including the transmission of music on the Internet, interpretation of
the blank
media
levy, making available right, and fair dealing disputes surrounding licensing
for educational institutions. The Board decides more copyright issues than any other court or tribunal in Canada.
The highlighted portion is, of course, quite
wrong. The fact is that that the Copyright Board’s substantive decisions on
copyright legal issues have been relatively few and very often wrong as
determined by judicial review. The Federal Court, the Federal Court of Appeal,
the Supreme Court of Canada and even superior courts of the provinces have been
far more active and influential in terms of substantive copyright law.
Moreover, he fails to accept that that the primary role of the Copyright Board
is to set rates, terms and conditions and NOT to gratuitously
stray from this important but narrow lane into incorrect pronouncements about such
matters as deeming a device to be an audio recording medium or the effect of a
WIPO treaty on Canadian legislation. Even if the statute permitted such
departures from rate setting as necessarily incidental to the Board doing its
job of rate setting, the Board has never had the mandate or the legal expertise
to make significant and credibly correct legal rulings of this nature. Even if
there is some backroom legal expertise, this only exacerbates the problem
because that is not where important rulings should emanate. There is an ancient
and honourable maxim that “whoever hears must decide.”
The problem is exacerbated when there is a Vice Chair and Secretary General
with no legal qualifications.
It is important to reiterate that the
SCC has repeatedly held, and as recently as in 2022,
that the Copyright Board will be
held to the demanding “correctness” standard of review when it comes to
interpreting the Copyright Act because it shares concurrent first
instance jurisdiction with the Superior Courts. The Board will be given no
deference for being “reasonable” in its interpretation of the substantive
provisions of Copyright Act.
Justice Vancise is wrong that there is a
need for more resources for the Board. If anything, the opposite is true. The
parties before the Board are generally very competent. The Board members should
decide based on the parities’ evidence and arguments – and not what they hear
behind the scenes from their staff. That is NOT the way courts and tribunals
are supposed to work.
Justice Vancise’s successors, Justice
Robert Blair from the Ontario Court of Appeal and Justice Luc Martineau from
the Federal Court have been a complete contrast by refraining from public
expression of so many prolific and outspoken views. For whatever reason,
Justice Blair served only one term as Chair of the Copyright Board from 2015 to
2020. Justice Martineau, retired from the Federal Court, was appointment in
2020 for a five year term. Since his appointment, there has only been one
hearing and no decisions of any major consequence. Both have been extremely
circumspect in terms of public comments about the Board.
Indeed, the last Board decision of any
possible major consequence was the redetermination of the SODRAC tariff for CBC
following the 2015 Supreme Court of Canada decision. That was decided on June
26, 2020 with Chairman Blair presiding. Most, if not all, of the tariffs and
decisions since then have effectively been unopposed and unimportant.
Interestingly, there have been a lot of withdrawn tariffs – perhaps somehow
arising from the Supreme Court’s ruling that Board tariffs are not legally
mandatory for users.
It should be acknowledged that Justice Vancise
was an enthusiastic Chair of the Copyright Board and deserves credit for his
attempts to constructively improve its operation. Unfortunately, his initial
assurance that decisions would be rendered within six months of a hearing was
not fulfilled. His frank public comments were frankly sometimes inappropriate in terms of appreciating the
role of the Federal Court of Appeal and the Supreme Court of Canada, which
clearly have the power to overrule the Board when it is incorrect on substantive
law. The FCA and the SCC deserve great respect not only because of their
institutional role vis a vis the Board but because of the overall
quality of their decisions. It is important to reiterate that, even after Vavilov,
the Courts have carved out a special niche for the correctness standard of review
when it comes to Copyright Board decisions, and rightly so since copyright
litigation in the superior courts is affecting thousands of individuals and
many very large corporations.
Whether or not it was appropriate for
him to do so, Justice Vancise did speak the truth when he notes in this paper the
problem with Access Copyright’s “business model” and that “The real problems
are parties like Music Canada, who manipulate the copyright system..”
The Copyright Board is headed for some interesting times and existential scrutiny, and Justice Vancise’s 2018 publication is an interesting contribution to the debates that lie ahead. It will be particularly interesting to see whether he has been only speaking for himself with his more contentious views or whether they somehow represent the ingrained institutional views of an arguably still, if not even more than ever, “dysfunctional” Copyright Board.
More to follow shortly re the Copyright Board’s latest tinkering with procedure and aspirations for an additional $1 million a year…
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