Submissions Posted on Canada's Copyright Board - the Consultation Process

http://lotta56sparks.ca/56-sparks-canadas-most-famous-address/

The papers submitted re consultations re the Copyright Board have just been published here.

There’s lots to say. But I would first note that Music Canada – the leading lobby group for the Canadian music industry – has highlighted the mandatory tariff issue and mentioned the York University case by name, along with “the K-12 and post-secondary markets”:

Music Canada also notes a concerning development whereby users are taking the position that they have the right to elect whether they want to be bound by certified tariffs set by the Board, even when they make uses of works covered by tariffs.17 This has the potential to undermine participation in the tariff process and makes enforcement of tariffs more difficult. Music Canada does not agree that users have the right to election to opt out of approved tariffs (or interim or continuation tariffs) certified under the section 67 or 70.1 tariff process. However, clarity in this regard would usefully put an end to this process which undermines the Board’s legitimacy and process.

See page 13 of the Music Canada submission along with the footnote on that page.

This underscores the importance of Prof. Katz’s comments in his recent blog about the York University decision, which should be read again  by all those contemplating an intervention in the appeal. 

My own submission about the Board, which is NOT 233 pages long but rather only a modest 36 pages in length is here. Many of the links in it aren’t working and got lost on their way to the Government website. I’ll try to post a version with working links when I get a chance.

HPK

Judicial Review of Access Copyright K-12 Tariff to be Heard November 22, 2016 in Ottawa

The Federal Court of Appeal (“FCA”) judicial review (“JR”) hearing of the Copyright Board’s Access Copyright (“AC”) K-12 tariff will take place next Tuesday, November 22, 2016 at 9:30 AM at the 10^th floor, 90 Sparks St., Ottawa. The hearing is scheduled for four hours. The panel will consist of Justices Nadon, Dawson and Gauthier. Here is Access Copyright’s factum. Here is the respondent CMEC’s factum.

I wrote at length on March 15, 2016 about the Board’s K-12 decision and what might happen. The consumables aspect makes it a surprisingly expensive tariff, as I pointed out at the time. The tariff as it stands is worth almost $10 million per year, if the school boards actually regard it as mandatory and actually pay it. AC is clearly trying to increase this amount through the JR. But even that amount is enough oxygen to keep AC in business indefinitely. However, the CMEC school boards did not file a JR application with respect to “consumables”, which account for most of the cost of the tariff. It appears that CMEC will not be dealing with the issue of whether the tariff is “mandatory” in this forum. I do not know whether CMEC intends to treat whatever the final version of the tariff may be as “mandatory”.

If CMEC’s school boards can find a less expensive and more efficient way of clearing their copyright needs than by paying the AC tariff, they now have an extremely powerful argument as why the tariff can be treated as non-mandatory. The Supreme Court of Canada “SCC”) last year accepted the argument I made on behalf of Prof. Ariel Katz and the McGill research institute run at the time by Prof. David Lametti (as he then was) in the in the CBC v. SODRAC  and ruled as follows in the words of Justice Rothstein:

(112) I conclude that the statutory licensing scheme does not contemplate that licences fixed by the Board pursuant to s. 70.2 should have a mandatory binding effect against users.
…
(113) I find that licences fixed by the Board do not have mandatory binding force over a user; the Board has the statutory authority to fix the terms of licences pursuant to s. 70.2, but a user retains the ability to decide whether to become a licensee and operate pursuant to that licence, or to decline.

However, there is denial on the part of some copyright counsel who argue that the SCC ruling does not apply outside the so-called and misnamed “arbitration” regime of the Board. Such an argument is counterintuitive. If anything, the argument that tariffs, such as the K-12 tariff, imposed on objectors outside of the “arbitration” regime (and countless others not even represented) at the Board are not mandatory is even stronger.  As I said in my earlier blog about this:

So, it would appear that,  if a party to a so-called “arbitration” – which really wasn’t an “arbitration” in any normal or legal sense of the word – can treat the Board’s ruling as non-mandatory, then a fortiori, parties who are not involved in the “arbitration” mechanism and who are supposedly affected by the “general regime” and who may make a single copy of a single work in the limited repertoire of a  collective in circumstances that may amount to technical infringement  should not suddenly be liable for many millions of dollars for that one copy. For a university, that liability could amount to millions of dollars retroactively for several years – a possibility of which the SCC was clearly aware, if you read our factum and watch the hearing or read the transcript. That’s simply a ridiculous possibility – but it’s what some collectives and their lawyers, lobbyists or spokespersons want users and their often overly risk averse advisors to believe is still possible. Which brings me to the present and the future.

With respect to the “mandatory” issue, we await the decision of the Federal Court in Phase I the Access Copyright v. York University case, where closing arguments took place June 22 – 24, 2016. At issue in Phase I is mainly whether the interim tariff imposed by the Copyright Board on December 23, 2010 is “mandatory” and whether York’s fair dealing guidelines, which are very similar to those involved in next week’s hearing, fall within Canadian copyright law.

We also await a decision from the FCA in the judicial review of the Access Copyright Provincial Government tariff, which also involves fair dealing and which was heard on June 20, 2016.

And speaking of pending FCA decisions, we await the decision from the FCA in the Re:Sound Tariff 8 “Pandora” case that was heard in February 2016. This delay is unusual for the FCA, which usually renders decisions in less than six months. Here are my comments on the Board decision. This was the Board decision that prompted the shameful and disgraceful campaign by Music Canada to lobby the Board’s new Chairman. This decision may not have much to do with the present fair dealing proceedings, but it will be interesting to see what the FCA has to say about the Board’s procedures.

Last but not least, we await a decision from the Copyright Board on Access Copyright’s Post-Secondary tariff, in which the hearing concluded last January. Hopefully, we will not need to wait the usual 2+ post-hearing years that the Copyright Board takes to issue a decision on a tariff that has long been proceeding effectively unopposed and by default. There is one student who technically remains on the record, but his involvement does not make this an “opposed” tariff. Such a decision will then presumably be retroactive by 7 or 8 years. The proposed tariff was filed in 2010.

Obviously, nobody knows when, whether and how all of these decisions will come out and how they will or will not fit with each other.

What we do know is that there will be a concerted and well-funded effort to push back on the SCC’s fair dealing jurisprudence and the 2012 legislation in the course of the 2017 review.  This would be unfortunate, since Parliament and the Supreme Court have given Canada a fair dealing framework that is probably the best in the world. It is the most balanced, most clear and most consistent with the very purpose of copyright and Canada’s aspiration for innovation. Even the Copyright Board is finally “getting it” on fair dealing, after some apparent reluctance to accept the rulings from the SCC. Canada’s fair dealing regime is no more permissive than the law of “fair use” in the USA, and incorporates several specific exceptions that provide some additional comfort and certainty when the overall categories found in section 29 may not clearly be applicable.

HPK

Shameful Behaviour of Music Canada

Graham Henderson, President

http://musiccanada.com/contact/

It is totally inappropriate – indeed blatantly disgraceful – for Music Canada to urge an “astroturf” letter writing campaign to the new Chair of the Copyright Board regarding the Board’s Tariff 8 decision, or indeed any other issue.

Here’s Music Canada’s “campaign” pitch:

Campaigns

Send an email to the Chair of the Copyright Board of Canada re: Tariff 8

Send an email to newly-appointed Copyright Board chair Justice Robert A. Blair, urging him to facilitate the prosperity of Canadian cultural businesses rather than impede it by recognizing the value of the Canadian music industry for all Canadians.

To Justice Robert A. Blair, Chair of the Copyright Board of Canada

…

Here’s the text of the letter that Music Canada urges people to send to Justice Blair, with a convenient online “tool” to facilitate the transmission:

Dear Justice Robert A. Blair,

Congratulations on your recent appointment as the chair of the Copyright Board of Canada.  Under the previous leadership of the Copyright Board one year ago the Tariff 8 decision to provide creators with rates 90% lower than those they had negotiated commercially.

This decision discards years of agreements freely negotiated between digital music service providers and the music industry and sends a message to the world that it does not value music as a profession.  This is inconsistent with Canadian values. 

These rates were unprecedented globally – they are one of the world’s worst royalty rates for non-interactive and semi-interactive music streaming.

One year later Tariff 8 decision remains a serious setback for the music community in Canada, for artists and the music companies who invest in their careers.  This decision has created a regulatory precedent that ignores the reality of the marketplace and will continue to harm the business climate in this country and create a market uncertainty.

Today Canadian recorded music digital revenues and physical revenues combined only represent half of revenues fifteen years ago.  I urge you in your new position to make decisions that recognize the value of the Canadian music industry for all Canadians, and to create tariffs that pay creators fairly. Canadian creators should not be paid less than their contemporaries around the world.

As you begin your mandate please consider how the Copyright Board can facilitate the prosperity of Canadian cultural businesses rather than impede it. 

The Copyright Board is an independent quasi-judicial tribunal. Parties make their case. If they don’t like the result, they can seek judicial review.  It is NEVER acceptable to “lobby” such a tribunal in any way, and especially reprehensible to write lobbying letters to its Chair. This is an insult to the Board and its distinguished new Chair, Justice Robert A. Blair.

Music Canada, despite its mis-descriptive name, actually mainly represents the interests of the big three non-Canadian multinational record companies:

·         Sony Music Entertainment Canada Inc.

·         Universal Music Canada Inc.

·         Warner Music Canada Co.

Music Canada and those who oversee it should be completely ashamed. This campaign should, and no doubt will, backfire badly.

This may be a high point in hubris for Music Canada, following its windfall lobbying success for sound recording and performers' copyright term extension. But this is a low point in so-called “advocacy” in Canada.

HPK

On Canadian Copyright Term Extension – Out of the Mouths of Artists?

Music Canada (which represents mainly the “big three” foreign owned Sony, Universal and Warner record company groups) and which ought to know a thing or two about copyright law has issued an amazing quick and very misleading press release  and assembled an even more amazingly quick list of its quotes on its website and following #Budget2015. Music Canada quotes Canada’s iconic and beloved Leonard Cohen as follows:

Leonard Cohen reinforces the urgency of the problem, "In just a few short years, songs we recorded in the late 1960s will no longer have copyright protection in Canada.  Many of us in our 70's and 80's depend on income from these songs for our livelihood.  We would deeply appreciate any adjustment that would avert a financial disaster in our lives." 

(emphasis added)

The fact is that Canadian law already protects the “songs” that Cohen wrote for the life of the author plus 50 years. So, he and his estate will be earning lots of well-deserved royalties from Suzanne, Hallelujah, Bird on Wire, etc. for a very long time. In cases where there is joint authorship (typically a composer and lyricist),  the term for an estate can be even longer because it lasts for fifty years form the death of the survivor in such case.

The extension of the copyright term announced in yesterday’s budget may possibly put some extra cash in Cohen’s pocket from his performances, but the overwhelming evidence is that this extension will mainly benefit his record companies. And SOCAN will fight hard to ensure that any extra money from this measure does not “derogate” from what it views as its protected share of the copyright “pie” – which is not capable of indefinite growth in size. Another long saga will be in store at the Copyright Board.

SOCAN, which collects royalties for performances of the songs in contrast to the performances and sound recordings, has - to its great credit - gone to great length over the years to protect actual creators – without whom there would be no songs – from giving away or selling their song copyrights for peanuts. They cannot get less than a 50% share. The record companies have tried to erode that sacred principle through cutting back on the artists’ mechanical royalties through controlled composition clauses.

But, if Cohen wrote the words and the music, he should get a 50% share of the SOCAN royalties no matter what deal he may have made with his managers, publishers or record companies. That is, at least, how the system is supposed to work.

Music Canada really ought to know better. If Leonard Cohen actually said the above, someone should have explained things to him. If not, Music Canada has some explaining to do.

The same with Jim Cuddy who says that “The copyright of a creative work should not expire in the lifetime of an author”.   The fact is that this hasn’t been the case in Canada since 1886.

It’s amazing how Music Canada managed to assemble all of these explicit, even if sometimes inaccurate, quotes on such a technical subject matter on such short notice from such often inaccessible artists.  As is normally the case with a “Budget” announcement, we lesser mortals were completely surprised. I think I posted the first tweet on this at 4:40  PM yesterday, right after the #Budget2015 went online.

HPK

How to Minimize Music and Maximize Profits – Do Moral Rights Matter?

A Calgary radio station, 90.3AMP,  has been playing condensed versions of popular songs. The station is using a third party named Sparknet to shorten the songs.  Here and here and here’s some coverage.

Just to think – maybe a 90 second or two minute version of the Beatles' five minute “A Day in the Life” or Arlo Guthrie’s  23 minute “Alice’s Restaurant”? After all, we already know the “tune” and how the stories end. Who needs boring choruses anyway?

One would be surprised if actual performers or composers (musicians) are involved in this process. They are those sometimes pesky people who support the huge corporate music industry and occasionally show a desire to be treated with respect and their fair share of economic reward. A few of them occasionally succeed in these  mostly unrealized aspirations. Moreover,  according to Canada’s Copyright Act, ss. 14.1 and 28.2, musicians actually have “moral rights”, which quite possibly could be violated by the unapproved abridgement of a work or performance if it results in prejudice to the creator’s honour or reputation. It would not be surprising if many musicians have been forced to “waive” these rights in favour their record companies. However, even if there is a “waiver”, it would be interesting to see if could apply in this type of situation and whether any record companies would authorize any radio station to invoke it.

In this case, no less than @jannarden   would seem to be seriously upset. But the AMP station doesn’t play her anyway.

It will be interesting to see if  Music Canada, SOCAN, Re:Sound or other organizations that exist only because of the creativity of musicians  react to these reports. But, so far as I’ve seen or heard, it’s been radio silence.

By the way, the only musical shortening of which  I absolutely and irrevocable approve and applaud and which has a strong Canadian connection is the late lamented  Anna Russell’s incomparable classic abridgment of Wagner’s four evening four episode twenty hour “Ring Cycle” of operas into a twenty minute hilarious and amazingly accurate condensation that will never be obsolete. One can be quite sure that the humourless and thoroughly obnoxious Richard Wagner (1813-1883) NEVER would have approved of this. Of course, this could also pass muster as a “parody”. Either way, it’s worth listening to and watching again and again….

HPK

Wire Report on the Music Canada (CRIA) "challenge of the scope of the Supreme Court's CCH precedent"

The Wire Report has a story (no paywall)  on the Music Canada (CRIA) factum in the forthcoming SOCAN “previews” case in the Supreme Court of Canada (“SCC”)  and how its  “arguments amount to a challenge of the scope of the Supreme Court's CCH precedent” and how, in turn,  it may affect the current post-secondary tariff proceeding in at the Copyright Board, where AUCC is the lead objector. The article points out that “Music Canada and the AUCC are both represented by the same lawyer, Glen Bloom, of Osler, Hoskin & Harcourt LLP.”

The article quotes Sam Trosow and Ariel Katz on the CRIA factum:

“CRIA is asking the court to significantly scale back the scope of fair dealing,” Sam Trosow, associate professor at the University of Western Ontario’s Faculty of Law and Faculty of Information and Media Studies, wrote on his blog late last month.

“What they propose is a general framework for exceptions,” Ariel Katz, a law professor at the University of Toronto, added in an interview.

“It’s broader than research. It applies to private study, review and all the other exceptions.”

I was asked by the Wire Report what would be the fallout be from a narrower fair dealing framework if Music Canada (CRIA) succeeds on the arguments in its SCC factum. I am quoted as saying:

“There could be much higher costs in the educational system—potentially tens of millions per year—and much less access to essential information in Canadian schools, colleges and universities than other competitive countries such as the U.S.A. enjoy.”

“It would be a self-inflicted serious wound for Canada—nothing less.”

It’s fair to say that fair dealing will be the main substantive issue in two forthcoming SCC cases - the SOCAN “previews” case mentioned above and the CMEC K-12 case, which will be heard on December 6 and 7, this year respectively. Fair dealing will also likely be the main issue in the current Copyright Board post-secondary case. The SCC will likely rule on these fair dealing cases by June or July of next year, based upon its normally very timely and extremely efficient record in rendering judgments.

The Copyright Board post-secondary case won’t likely be heard for a long time after that. Interestingly, the Copyright Board case involving Provincial and Territorial Governments Tariffs is scheduled to start October 2, 2012. That case, too,  could also be profoundly affected by the SCC’s judgments - since it would seem logical to assume that a lot of the copying going on inside provincial governments would qualify as “research” in light of the CCH decision.  One would assume that, in both of these pending Board cases, the evidence being collected and the arguments being framed will be suitable to fully assist and inform the Copyright Board with respect to any conceivable rulings of the SCC on fair dealing.

And then there’s that little question of what Parliament might do in the meantime...particularly with respect to “education”.


HK

CRIA Renames and Rebrands Itself as MUSIC CANADA: What's in a Name?

The Canadian Recording Industry Association (“CRIA”) has renamed and rebranded itself MUSIC CANADA. According to CRIA’s President, Graham Henderson, in a Billboard article:

"CRIA has been very focussed on copyright reform for many years and we fully expect that our efforts will be rewarded with a modern copyright framework in Canada," Henderson told Billboard. "But our role is also evolving and it was felt that in order to best support our members as they rebuild the marketplace, we needed an invigorated brand and direction.”

CRIA now has a newly redesigned website called www.musiccanada.com (with a dot-com and not dot-ca URL as Michael Geist was quick to tweet). The website is now very similar in key respects to that the RIAA, CRIA’s American counterpart. MUSIC CANADA says:

Music Canada is a non-profit trade organization that promotes the interests of its members as well as their partners, the artists.  Those members are:

EMI Music Canada
Sony Music Entertainment Canada Inc.
Universal Music Canada Inc. 
Warner Music Canada Co.

These are, of course, the Canadian subsidiaries of the worlds’ four largest multinational record companies. Few would regard these companies as “Canadian”, other than in name and for certain legal purposes. Their ultimate ownership and control lie elsewhere. 

MUSIC CANADA also says that “In addition to the members listed above, we also provide certain membership benefits to some of Canada's leading independent record labels and distributors which include....” a dozen far less well known companies. Nettwerk, the currently most prominent Canadian indie, is notably not on the list. Also absent are other important and even legendary Canadian indies, such as Anthem, Aquarius, and True North.

Some readers may recall that, in 2006, CRIA had to be told, under protest, to notify its “B Class” members that it would not be representing their interests in a certain Copyright Board proceeding. As the Federal Court of Appeal succinctly wrote: 

Following CRIA’s decision that it would no longer represent certain of its members (“the B Class members”) before the Board in this proceeding, the Board ordered CRIA to send a notice to its members saying that it had been instructed by the Board to advise them that it would not be representing the B Class members in the proceeding before the Board and that this was CRIA’s decision, not the Board’s. CRIA challenges the validity of this order on three grounds...

Third, CRIA submits that if, contrary to its submission, the Board has the power to make the kind of order that it made in this case, it exercised its power unreasonably. We do not agree. It was, in our view, perfectly reasonable for the Board to seek to assure itself that the B Class members were made aware that CRIA had decided not to represent them and that their interests could therefore not be taken into consideration when the Board rendered its decision on the proposed tariff.

It is extremely rare for the Board to get involved in the internal affairs of collectives - but it did so in this case. CRIA unsuccessfully sought reconsideration of the Board’s order and then judicial review, i.e. “appeal” in the Federal Court of Appeal. However, the Court upheld the Board and forced CRIA to appropriately notify its indie “B Class” members. Here is a much more detailed background to this decision from my blog in 2006.

CRIA’s rebranding efforts are hardly new.  Last year, I noted that:

It’s kind of interesting, though hardly surprising, that the so-called “Balanced Copyright for Canada” coalition has finally admitted that “thelead funding source is the Canadian Recording Industry Association” (i.e. CRIA).  

A few years ago at the Fordham conference, a prominent international content industry lobbyist, in a funny Freudian slip, referred to CRIA as the “Canadian Recording Industry of America.”

I wonder if the so-called “Balanced Copyright for Canada” coalition will admit that it is, at the very least, ironic that its name is arguably confusingly similar to that of the Balanced Copyright Coalition (“BCC”) (which I started in 2007) which morphed into the Business Coalition for Balanced Copyright (“BCBC”).

All in all, it will be interesting to see if CRIA’s new name, new website, and new dot-com domain name result in CRIA now being regarded as taking a greater interest in Canadian artists, Canadian labels, and Canadian public policy issues - particularly copyright law - from a significantly more Canadian perspective.

Other recent notable “rebranding” efforts in the collective and trade association world include:

• The NRCC (Neighbouring Rights Collective of Canada) rebranding itself as “Re:Sound”. Interestingly, the colon punctuation mark in the name prevents it from being used “as is” in any URL or filename.

• Then, of course, there’s CANCOPY, which became increasingly referred to as CAN’T COPY. Perhaps that was part of the reason why it changed its name to ACCESS COPYRIGHT, which some have possibly assumed to be an inspiration for the name for this blog.

What’s next?

HK

PS - CMPDA is now MPAC. See here.