The Copyright Board Third Town Hall on June 2, 2022: Was This “Three Strikes”?

The Copyright Board of Canada, hosted by the Canadian Bar Association, was given the stage for a third “Town Hall” on June 2nd 2022. Spoiler alert: once again, it was disappointing and mostly devoid of any substance – other than an interesting but very vague hint about how the Board sees possibly increased use of its so-called “arbitration” regime as some kind of response to the SCC’s 2021 decision in the York case that its tariffs are not legally mandatory. There was a follow up CBA event on June 9, 2022 about which I shall blog separately.

I have blogged at some length about the first two town halls in 2019 and 2021.  Expectations for this year's event we're quite low on my part  because there is no apparent evidence that anything significant has happened at the Board since last year. It has held zero hearings in nearly five years, rendered no significant decisions in 2021(with one possible exception noted below) or 2022 other than housekeeping of previous decisions with minor changes and a few “unlocatable” owner decisions of no consequence. It may be observed that it has finally corrected the spelling of “infrigment” [sic] on its website. Moreover, it has finally made almost all (or at least 211 according to CanLII out of 230 according to the Board since 1990) of its decisions searchable and available on CanLII, which is something that could have and should have been done 20 years ago at virtually no cost.

The most recent available Annual Report of the Board for 2020-2021 indicates that:

In spite of these pandemic-related challenges and the slowdown of activities in some industries involved in the rate approval process, the Board’s workload remained significant in 2020-2021. In addition to pending files, the Board received 21 new proposals tariffs submitted on or before October 15, 2020, as stipulated in the new legislative framework, and 21 licence applications for the use of works whose owners cannot be located as per section 77 of the Copyright Act. Also, 110 agreements were filed with the Board pursuant to section 76 of the Act. Finally, in 2020–2021, the Board issued 20 decisions, including two major decisions in complex files: June 26, 2020 SODRAC v. CBC, 2008–2012 [Redetermination] January 27, 2021 SODRAC v. CBC, 2012–2018 [Determination [Sic – this second link is wrong – it’s the same as the previous link] (highlight added)

The new tariff proposals, unlocatable licence applications, and filed agreements would have required a barely minimal “workload”. All of these tariff “decisions”, except two, appear to be rubber stamp repetitions with minor if any variations from previous decisions. The two links provided for the two supposedly “major” decisions are the same, which makes one question whether this report to the Minister was adequately proofread. In any event, these two “major” decisions are probably incomprehensible except perhaps to the lawyers and experts involved. This would appear to be the correct link for the “Determination”.

These two decisions are undoubtedly important to CBC and SODRAC (which is now owned by SOCAN) – and potentially with respect to similar issues arising in the commercial radio and TV worlds. However, the opacity of the reasons to all but a very small number of expert veteran Copyright Board lawyers and consultants is a disappointing departure from the past. The beauty of the common law judicial system is that good judgements on even the most complex issues are normally self-standing and reasonably understandable to any reasonably literate person and certainly to any reasonably knowledgeable lawyer in the field involved and not just the lawyers actually involved. The same should hold true – and usually does – with “expert” tribunals in Canada.

It might be noted that the hearings for these “major” decisions were in September, 2017 but the decisions were not rendered until June 26, 2020 and January 27, 2021 – long after members  Majeau and Landry had retired. They clearly continued for some time to be “seized” of these matters and presumably were paid for their time spent thinking about them. Federal Court and Supreme Court judges, on the other hand, must clear their desks of pending decisions within six months of retirement – and they have far greater case loads that are often much more complex and important.

The Board continues to foster the impression that it has a huge workload and is very productive. This is no doubt nourished by Prof. Jeremy de Beer’s controversial 2015 “statistical” study that parlayed 74 tariffs from 1999-2013 into supposedly 852 tariffs for that period though parsing of paragraphs, division into separate years, etc. This so-called “statistical” analysis  was questionable at the time and has not aged well. My critique of that analysis has not been refuted by anyone, as far as I know. As I further indicated at the time, based upon the Board’s own previous taxonomy and my analysis:

So, if the Board is right, and I am right, then Prof. de Beer’s conclusion that the Board has certified 852 tariffs in the last 15 years is off by a factor of 852 ÷ 74, i.e. ~1,150%. His conclusions that the Board certifies 70 tariffs a year would likewise be off by a factor of 70 ÷ 4.9, i.e. more than 1,400%

The Board has rarely, if ever, issued more than five actual tariffs in a year, and usually even fewer substantively important decisions. In turn, very few of these tariffs are truly new or “inaugural”.  Nonetheless, and do doubt empowered by Prof. de Beer’s study, the Board soon thereafter got a million dollar per annum increase in its annual budget bringing it to about $5 million a year for total expenses. That’s a lot for a Tribunal that hasn’t held a hearing in almost five years and apparently doesn’t adequately proof read its annual report to the Minister.

So, this year’s Town Hall was once again frustrating and disappointing, except for one aspect that may suggest how's the Board will try to find some justification for its continued existence in the face of the “existential” issues raised by the Supreme Court's decision last year in York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII), <https://canlii.ca/t/jh8bc>

The first two speakers were the Vice Chair/CEO, Nathalie  Théberge, and Secretary General, Lara Taylor. They said essentially nothing, but did so in a very smooth,  bureaucratic and well rehearsed manner, with several references to their “mighty team”, “Phase I”, “Phase II”, etc. They promised an important forthcoming consultation on new rules, concerning which I’ll have something to say in due course. As I’ve said before, for the first time in the Board's history, neither of the persons occupying these two important positions are lawyers, which is incongruous considering the supposedly quasi-judicial nature of the Board's work in the very esoteric and quintessentially legal field of copyright law.

The somewhat interesting aspect of the remaining time after the long and uninteresting presentation by the Vice Chair and Secretary General was the discussion by its chair, retired Justice Luc Martineau and its general counsel Sylvain Audet. The chair mentioned the Access Copyright case, as he called it which followed the
Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <https://canlii.ca/t/gm8b0> case “in a certain way” as he put it. There was clearly at least an implicit recognition that the Supreme Court's landmark ruling the copyright board tariffs are not “mandatory” well affect the nature of the Board's work. When I asked in the chat about how it might affect the workload, Maître Audet replied that this “remains to be seen”.

Both gentlemen explicitly suggested that there might be increased utilization of the Boards “arbitration” regime, based up on the 2018 amendments. The Chair noted that there had already previously been 15 arbitrations in the Board's 32 year history.

For my part, I do not see how the 2018 amendments will have any effect on the implications of the Supreme Court's rulings in CBC v. SODRAC and the York case, in both of which I made prevailing arguments. While the legislation may superficially suggest that a tariff applicant can force the party into an arbitration proceeding where they are “unable to agree”, what does that even mean if the user does not have to accept the result of the so-called arbitration? Users in such a situation may conceivably consider simply defaulting or putting in a token case. There have only been 15 uses of the “arbitration” mechanism to date. If anything the CBC v. SODRAC and York cases are likely to reduce its use. There is nothing in the 2018 legislation that would make it more attractive or effectively “mandatory”.

As was suggested, this so-called “arbitration” mechanism may be a useful mechanism where only one or two users are involved and there is a substantial amount of money at stake. However, some users who might be inclined towards so-called arbitration may now see better value by hiring and paying a retired judge or other private arbitrator with actual expertise in copyright or at least intellectual property law and actual serious arbitral experience – especially if the legal or factual issues are complex. These arbitrators are well paid because the most successful of them have the reputation of delivering expert results expeditiously, which frankly is not the case with the Copyright Board in modern times. Whether the Board would bless such a decision would be interesting. In any event, it’s not clear that the Board’s blessing would even be needed, since the result could presumably be “filed” with the Board pursuant to the existing mechanism for filing most agreements.

BTW, in other interesting developments at the Board:

Prof. Adriane Porcin, who was appointed as a part-time member of the Board in September 2018 for a four-year term, resigned in January 2022. She was a Board member with evident academic credentials in copyright law.

At least two prominent collectives have “withdrawn” proposed tariffs in recent months. These are CMRRA-SODRAC Inc. (“CSI”), CMRRA, and COPIBEC (the Quebec counterpart to Access Copyright that was seeking $28 per FTE annually). Could this be related to the SCC’s rulings on “mandatory” tariffs?

I’ll soon post more on the follow up comments by Professors De Beer and Gendreau on June 9, 2022 and the Board’s apparently less than compelling consultation effort regarding the its rules for conduct of its hearings, such as there may be, due on short notice on July 18, 2022.

So, this was the Board’s third time at bat at a CBA Town Hall. Readers can form their own conclusions about whether the Board struck out or maybe somehow will reappear again. If so, let’s hope that they actually have something important and useful to say and/or any actual achievements to speak about.

 HPK

The Copyright Board 2021 Second Town Hall – From Dysfunctional to Dormant After Nearly Four Years of No Hearings

 On May 31, 2021 the Canadian Bar Association hosted a second Copyright Board Town Hall. The first was in 2019. I’ve written about it here. As I said at that time:

Spoiler alert: Although Mme Théberge did at least acknowledge the delay issue at the outset, neither she nor Maître Audet indicated any direct and specific steps that the Board is going to take to deal with the issue of lengthy delays.  The Q & A aspect of the session was also disappointing.

Frankly, this year’s Town Hall was even more unsatisfactory and troubling.

 This time, the Board’s new Chair, Justice Luc Martineau, at least did appear, unlike his predecessor Justice Robert Blair who was apparently unable to get to Ottawa in time for the 2019 event. There was no Town Hall last year for COVID reasons and this year’s session was, of course, virtual. Justice Martineau promised more transparency, new regulations to be published in the coming months,  and a “new tone”, or a “slightly different tone”.  I do not recall anything much more specific than that, although he spoke at some length and may have mentioned “innovation”. I will look forward to seeing his remarks published on the Board’s website.

 Mme Théberge – the Vice Chair & CEO spoke of the “holistic and polycentric” nature of the Board’s work. She acknowledged that the Board was “losing credibility” in the past, seeming to  blame her predecessors for issues and problems that have not improved in any measurable manner since she took office in 2018.

 Maître Audet, the Board’s General Counsel, noted some possible questions arising from the pending SCC York University v. Access Copyright case and the forthcoming case on  the “making available” right. This was rather unusual, given that the Board, although once very vociferous in judicial review proceedings and even intervening whenever its former General Counsel Mario Bouchard could,  has more recently and more appropriately kept its counsel and let the Courts do their job without comment from the Board itself – as is fitting. On the issue of post-retirement deliberations, he made what appeared to be an inapposite or inaccurate reference to the concept of “functus officio”.

 There was a Q&A and the moderator, John Cotter, put forward the gist of my questions, which were as follows:

1. Why are no Copyright Board decisions before 2020 available on CANLII?
2. Why do links to Board decisions prior to recent website remake no longer work?
3. Why do retired Board members sometimes deliberate for up to three years or even more post-retirement on cases they have heard and how do they get paid for this and at what rate? Are there any other comparable Boards of Tribunals anywhere that permit this post retirement deliberation beyond six months?
4. Why has the Board not even held virtual hearings since the pandemic, when so many Courts, Tribunals and the Supreme Court of Canada have managed to do so? 

 The responses from Mme Théberge and Mme Taylor (the Board’s Secretary General) were at best inadequate and unconvincing. I submitted several follow up questions but these did not go forward.

 For example, re the first two questions, we were told that the website was redone to make if more accessible to the “general user”. Mme Théberge suggested that the former website was only aimed at “experts”. This, of course, is a red herring. I doubt if there is or should be any measurable interest amongst the general public in the innards of the Board’s activities. It has always been an “inside baseball” milieu – and the new website will likely ensure that this will continue a fortiori. The handful or less of individuals who have actually participated in Board hearings have varied in sophistication – but their low numbers and impact had nothing to do with the appearance of the Board’s website.

BTW, the Board’s Twitter account @COP_eng, which was highly trumpeted at great length and with much fanfare by Mme Théberge at the 2019 Town Hall, now has a grand total of 72 followers of the English version and 33 of the French. Most of the followers appear to be “insiders” or copyright professionals of some sort who do not need a twitter account to keep track of the very few new noteworthy happenings at the Board. In comparison, the Supreme Court of Canada @SCC_eng Twitter account has nearly 37K followers and the Federal Court and Federal Court of Appeal which have over 2,000 and nearly 3,000 followers respectively. They have lots to tweet about, in contrast to the Board which rarely has any noteworthy announcements.

The recent 2020 remake of the Board’s website at huge cost can only be charitably described as a “degraded” version Board’s previous website, which was at least fairly useful to copyright practitioners. As I have documented, the website was remade at a cost of at least $757, 548.50.

The only thing wrong with the previous website was that the search function was non-functional. This remained inexplicably and inexcusably unfixed for more than two decades.  That problem could and should have been fixed long ago at zero cost – but wasn’t, notwithstanding ongoing huge third part website related costs. It did not require the involvement of Decisia to make the site searchable. My freeware bargain basement blog has been searchable from day 1 – about 15 years ago. Basic searchability of a website is as routine as running water. Apparently, the Board just did not want its site to be searchable. It is searchable now – but at immense and unnecessary expense and delay and it sure helps if you know what to search for. The old website had tariffs and decisions grouped in nicely recognizable categories. That’s no longer the case. So much for the general public. More of what I’ve already written about this is here. BTW, despite the huge expenditure on its degraded website, the Board still does not have an email alert subscription facility – which is a basic feature of the Federal Courts and the SCC. Even my bargain basement freeware blog has had this feature. The Board seems to have dropped its chronological list of “rulings”, which was occasionally interesting and useful to practitioners – even if not searchable.

The Board indicated more than 20 years ago that “A compilation of the Copyright Appeal Board's decisions (1935-1989) is being prepared for publication.” That was vapour ware then, and millions of dollars of budget and 21 years later, we are still waiting. One cannot imagine what possible excuse there could be for not providing these decisions. It does not matter if they were not originally bilingual. The only comfort is that these pre-1989 decisions are really not very relevant or important anymore, and the important ones have been assimilated into many judicial decisions over the years. Still, the taxpayers have paid for these decisions over the decades and deserve to have them readily available and accessible. Researchers may wish to study them. “Official languages” policy is not an excuse. There are countless old court decisions from the Supreme Court of Canada available on its marvellous website in English only, if that is how they were originally released. Same with lots of not so old federal tribunal decisions on CANLII. While modern federal courts and tribunals strive to issue all decisions in both official languages, this was not always the case and doesn’t limit CANLII’s ability to post in one language only, if that’s what’s available. Even today, it can take some time for a Federal Court decision to get officially translated.

As for helping the “general user” learn about copyright, that is clearly NOT the Board’s responsibility. It should not be wasting its time and taxpayer dollars on this – and it’s doing a very poor job of it in in any event. Its mostly useless and sometimes even dangerous for users FAQ section  could use a basic spell check  - e.g. for “Copyright Registration and Infrigement [sic]”. Or “Fore [sic] more information on the tariffs that apply to your situation…” (highlight added). Maybe spell checking wasn’t included in the $757,548.50 remake cost?

Informing the “general user” about copyright is the responsibility of the Departments, especially CIPO, which has some information and could and should do better on copyright in general – if only it’s Minister had the slightest interest in copyright law or policy for which he is primarily responsible. However, he has been MIA and appears to have effectively handed copyright matters over the Canadian Heritage department, from which, BTW, both Mme Théberge and Mme Taylor hail. This is the first time that both the Vice-Chair and Secretary have been non-lawyers.

Above all, there is absolutely no valid reason not to put all old Board decisions – at least since 1990 – on CANLII. They were all available on the Board’s website until the degradation, categorized by issue, and in both official languages – contrary to Mme Théberge’s very questionable assertion and reference to Treasury Board and Official Languages policy. For example, the Competition Tribunal’s decisions are available on CANLII going back to 1990. The Canadian International Trade Tribunal’s decisions are available on CANLII from 1989. The Trademarks Opposition Board has more than 5,000 decisions on CANLII going back to 1990 and even earlier. These tribunals are comparable in some ways to the Copyright Board, but are far more productive. It is certainly not the case that all these decisions on CANLII are bilingual.

Contrary to Mme Théberge’s assertion, I am reliably informed that, there should be no cost incurred in getting all of its old decisions and approved tariffs at least since 1990 on CANLII – since they are all already bilingual and nicely formatted and 100% searchable. Moreover, they have all been published in the Canada Gazette in both official languages. She is apparently simply wrong about this – both regarding costs and the bilingual aspect. All that should be required is for one of her 21 employees to put the decisions and tariffs on a USB key or use cloud transfer to deliver them to CANLII. Only a minimum of direction re ordering and citation protocol would be required. It’s apparently that simple. However, it’s clear that – for whatever reason – she simply doesn’t want this to happen. So much for access to justice and transparency. Maybe that is precisely what the Board actually wants to avoid? Maybe the Board does not wish for the public – or those in government – to transparently see how very few hearings and decisions of any significant importance that the Board has dealt with in the last three decades? The many rubber stamped, uncontested and repetitive tariffs dealing with marching bands, etc. that have very questionably  been parlayed into very exaggerated numbers do not justify even a fraction of the Board’s budget or its endless delays.

And, BTW,  is there any plausible reason not to restore the viability of old and now dead links, which should not have been allowed to go dead in the first place? It’s apparently a simple exercise in providing a URL redirect with minimal effort at no cost using existing resources. I’ve pointed this out before, to no avail.

Speaking of transparency, the Board has recently invited selected persons to participate in a secretive consultation about proposed Rules of Practice and Procedure according to restrictive Chatham House Rules  in a super-confidential consultation requiring participants to sign an absurd Non-Disclosure Agreement (“NDA”). The NDA would require, inter alia, that the participant “(a) not disclose, discuss or communicate, or cause or allow to be disclosed, discussed or communicated, that it is a participant in the technical discussion on the Proposed Rules except on a strict need-to-know basis”. This is an exercise in public policy development.  This is not high-powered commercial litigation where confidentiality and protective orders are sometimes required but avoided where possible. So much for “Transparency” and “Open Government”. The Board should not insult its stakeholders and waste their time in this way.

 As for speeding things up at the Board, forget it. As I’ve pointed out before, the Governments’ recent time limits regulations solve nothing. Indeed, the Regulations do not appear to solve and do appear to continue and confirm the main problems I identified on April 29, 2019. The Board often keeps cases open for long after a hearing has supposedly concluded or should have concluded. These regulations explicitly permit this to be done in the future. Normal courts and tribunals just don’t do that. In the normal world of litigation and administrative law in the normal universe, by the time a hearing takes place, the tribunal or court is fully prepared, the parties have put their best foot forward and have presented their whole case and a decision is rendered after the hearing has concluded – usually within six months max.  Once the hearing is over, there are *never* any further submissions except in very rare circumstances, e.g. a new and potentially relevant and binding case from the courts. At the Copyright Board, the hearing – which may be six years or more in the making – is not the beginning of the end but is too often only the end of the beginning. There is no viable excuse for this. Copyright Board cases are not any more  complicated from a legal, evidentiary or economic aspect than many matters routinely dealt with the Competition Tribunal, the CITT, or the Federal Court – which are all dealt with in real world time frames, including he mandatory two year beginning to end requirement for PMNOC cases in the Federal Court.

As for the timely rendering decisions, the Board just recently posted its decision in the Stingray pay audio matter, which is retroactive to 2007 and goes only to 2016. The decision comes more than four years after the hearing, with two of the panelists deliberating for about three years to render this decision which few will understand and which may be of little importance in the current streaming milieu. Here’s my brief comment on the Stingray decision.

BTW, I noted on October 23, 1919 that the Board had then not held any hearings in more than two years. Ms. Théberge indicated, apparently inaccurately, in response to my Questions #4 that no hearings were scheduled during the pandemic began. That is simply not true. Three had been scheduled but since “suspended” without apparent reasons. In another manifestation of the degraded website, the listing of previous hearings and exhibits that were filed appears to have disappeared for no explicable reason. However, the Board’s Annual Reports do confirm that the Board has held no hearings since September, 2017 – which was actually a  rehearing following the SCC’s decision in the CBC v. SODRAC case reaching back to 2008.

Ms. Théberge again affirmed Board’s great reliance on the expertise of her large legal and economic staff – seemingly oblivious to the notion that “Whoever hears must decide”. The Board’s full time staff includes six lawyers and four economists. It’s hard to imagine how they spend their time. She indicated that the Board currently has 21 employees. It must be noted that a budget approaching $5 million a year is a lot of money for a tribunal with 21 full time employees and two floors of splendid prime office space on Sparks Street, including a vey large hearing room,  that has held no hearings in almost four years and apparently with none scheduled in the future. The pay rates at the Board seem extremely high for the work required. The Board also regularly spends a small fortune on third party consultants and suppliers of often vaguely specified services, some of whom seem to be frequent flyers over the years. These reports are available – though rather well hidden under the banner of “transparency” – here. These include such oddities as court reporting services during a period when there were no hearings and frequent recourse to outside sources for “temporary help”, not to mention huge amounts on ongoing website maintenance and the new degraded site.

 Recent controversial “consultation” efforts emanating from Heritage Canada contain thinly veiled “make work” options for the Copyright Board. See here and here. However, if the pending SCC case unsurprisingly confirms that Copyright Board tariffs are not mandatory, the Board’s current modus operandi and raison d'être may be existentially challenged and non-sustainable.

Above all, it must be realized that the copyright law is not particularly complicated compared to many other areas of the law, such as competition, patent or trade law. True, it can get complicated – but that is way beyond the mandate and the expertise of the Copyright Board. That’s for the courts, including the Supreme Court of Canada, where the Copyright Board’s shortcomings are rather often dealt with – at inordinate inconvenience and expense to the parties and interveners.

If the Federal Court can resolve complex notice of compliance patent cases involving potentially hundreds of millions of dollars within two years – start to finish, including rendering of judgment – there is no excuse for the Board taking often six years just to get to hearing and another three years or more to render a grossly retroactive decision, which too often has proven to be wrong. You just can’t make this stuff up. It is was it is.

If the Board is to serve any useful purpose in the future, it must be reinvented so as to:

•  Render timely and minimally, if at all, retroactive “tariffs” that are non-mandatory but sufficiently attractive in the market place that users will consider voluntarily signing licenses, just like making the cost of taking the train from Ottawa to Toronto more attractive than other choices, but not making taking the train mandatory – let  alone requiring an all year Canada wide pass for one trip. For most if not all of the “routine” tariffs, the Board’s involvement should not even be necessary.
• Concentrate on determination of rates, terms and conditions, which is the reason it was formed more than 8 decades ago,  and stop pretending that it has any expertise in substantive copyright or other legal issues, much less international law
• Drastically reduce its budget
• Revert to the model envisaged by Justice Parker in the 1930’s that worked very well for the Copyright Appeal Board, which was well serviced part time by a retired judge and some public servants who had other responsibilities until ambitious bureaucrats got hold of the new Copyright Board in 1990 and beyond and have attempted to create a new mini-CRTC or other endlessly expanding empire.

Interestingly, the Auditor General doesn’t seem to have paid much if any attention to the Board in the past. As to ATIPs, the Board has spent a lot of money in the past on Michel Drapeau to advise on ATIP requests. One doubts that this was for the purpose of facilitating timely and transparent fulfilment. 

We have gotten nowhere close to a Copyright Board 3.0 as I called for on the 30th anniversary of the new Board in 2019.  The current Board has gotten only successively slower, more bloated and “dysfunctional” in the Senate Committee’s words since then.

That fact that it has not held a hearing in nearly four years, which may be a public policy blessing in disguise,  may be due in no small part to:

• The ruling in Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <https://canlii.ca/t/gm8b0> in which I, Prof. Ariel Katz, and Prof. David Lametti as he then was persuaded the SCC 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.”
• The fact that “the Board’s power to issue retroactively binding decisions in general” is now on the SCC radar screen as stated in FN 2 of para. 111 of Justice Rothstein’s judgement in CBC v. SODRAC
• Even major collectives may be reluctant to incur the immense costs, never ending delays, and the uncertainty of pursuing an approved tariff from the Board that has a very good chance, statistically, of being struck down in the Courts – even if it is somehow enforceable as such, which is doubtful now in all cases except the private copying levy, which is of no importance to anyone except the lawyers and collective executives who continue to feed off its decomposing and diminishing small remains with the inexplicable regular rubber stamp of continuing renewal from the Board. When is the last time that anyone you know has bought a blank CD?

I have been involved one way or another with making copyright policy, litigating copyright, writing about copyright, and the Copyright Board itself at hearings and in the Courts possibly for far too long and probably for far longer than anyone else who is still active in this milieu. Thus, I feel competent and somehow compelled to suggest that the Board’s status quo is not and should not be sustainable.

There have been some outstanding and very professional persons at the Board over the years in various capacities. Likewise, there have been some very worthy counsel who have appeared before the Board. Hence my tough love for the Board and my hope that, if it is to survive and serve a useful function, it will be reinvented and become, as it once was, at least for its first five decades or so, a modest, modern and model tribunal not only within Canada but in the eyes of the world.

However, as it now stands, it is even more “dated, dysfunctional and in dire need of reform” than as described  by the Senate BANC Committee in 2016. 

Sadly, the Minister with primary responsibility for the Copyright Board, namely François-Philippe Champagne (FPC) @FP_Champagne, is MIA with no apparent interest in copyright law, policy or related matters. He has abdicated all of this to Steven Guilbeault @s_guilbeault, the Heritage Minister, who has shown nothing but chaotic incompetence on copyright and related “cultural” fronts such as #BillC10. This is all very regrettable because there are undoubtedly some capable officials in both Departments. However, their voices are apparently not being heard, or are being drowned out by lobbyists and Quebec politics.

 HPK

 

Launch of Copyright Board’s New Regime for Publication of Proposed Tariffs & Other Changes: Bigger Budget, 30 Days Less Time to Object, Promises of “An Intuitive Architecture”, & a Twitter Account!

Changes to the Copyright Act were implemented in the omnibus budget Bill C-86 which, by its very nature, had virtually no public scrutiny. The changes regarding the Copyright Board came into effect on April 1, 2019. These amendments were supposedly intended, inter alia, to speed up the process at the Copyright Board for the approval of tariffs. I provided a rather detailed critique of the Bill and the process on November 6, 2018 here. I suggested at the time that the Bill:

Will quite possibly slow down the work of the Copyright Board rather than expedite it and stops well short of establishing hard-wired deadlines to hold hearings or render decisions, which could have been decisively done by regulation long ago

The Government has provided a “Factsheet” dated October 31, 2018 on these Copyright Board reform efforts here that emphasizes earlier filing, longer duration, modernized publication, a shorter objection period, and the promise of a modernized website.  What could possibly go wrong?

Mme Nathalie Théberge, the Vice Chair of the Copyright Board (whose appointment was effective October 1, 2018) spoke about this at the Canadian Bar Association Town Hall meeting of May 30, 2019. I wrote about that event shortly afterwards.  She spoke at some length about how the change to put publication of proposed tariffs in the hands of the Copyright Board and do away with the requirement of publication in the Canada Gazette would save time in the tariff making process.

We can now see the first results of this change. We now have a batch of new proposed tariffs published in late October and early November of 2019 that will now would take effect in 2021 rather than 2020 and be in place for at least three years. This is a change from the previous regime in which tariffs would be filed by March 31 and published in May or June to take effect supposedly at the beginning of the next year, with no requirement for more than a one year minimum but also no impediment, if the collective so wished to a three-year tariff. However, this change will be of little or no significance, since virtually all the Board’s contested tariffs end up being retroactive by several years due to the typical seven years or even more that it takes to get to a decision in such proceedings. Any potential reduction of retroactivity from this change is, at best, speculative and theoretical. The current Access Copyright proposed Post-Secondary tariff is nine years old with no end in sight. It was contested for a time until the major institutional objectors withdrew, leaving their members with big bills and no representation.  It has been effectively uncontested for seven years, except for one curiously persistent individual student who, if he still remains, has had very little, if any, noticeable impact as an objector. Clearly, if the Copyright Board eventually issues a supposedly mandatory and retroactive Post-Secondary tariff of any significant financial or other impact, such as reporting requirements, we could see some very serious disruption in the post-secondary sector and some very serious court challenges.

Indeed, the Supreme Court of Canada has clearly signalled that there may be a jurisdictional issue “concerning the legitimacy of or limits on the Board’s power to issue retroactive decisions.” This important comment in the SCC’s 2015  CBC v. SODRAC decision is present due to my arguments on behalf of Prof. Ariel Katz and McGill’s Centre for Intellectual Property Policy Centre for Intellectual Property Policy  led by Prof. David Lametti, as he then was (he is now the Minister of Justice and Attorney General of Canada).

Under the old regime, the tariffs were published in bilingual format in the Canada Gazette and the Board would put a notice on its website and notify potentially interested parties and counsel by email a day in advance of the official Canada Gazette posting.  True, the Canada Gazette is not exactly the most transparent or convenient place for conveying information. It is a long-standing and running joke in Ottawa that the best way to keep a secret in this town is to have it published in the Canada Gazette. But, to its credit, the Board could and did point to the Canada Gazette in the past. And it would send email alerts to potentially interested stakeholders and counsel (this process now seems to have at least partially broken down). The Canada Gazette folks apparently did their job quite quickly – and in consistent side-by- side bilingual format. The tariffs appeared in the Gazette within two or three months. The Canada Gazette has been online for a very long time. The system worked.

It is not apparent how putting this publication process in the hands of the Copyright Board will accomplish anything positive. Publishing tariffs in unilingual format is not helpful. This is inconsistent with the decades-old practice of the side-by-side bilingual format. Now, English speakers one must go the French version of the website to see the French version of the proposed tariff. Or vice-versa. This is, at the very least, quite inconvenient. It makes side-by side and redline/blackline comparisons with previous proposed tariffs much more tedious and time-consuming.

A serious downside of the new regime is that objections must be filed within 30 days of publication, rather than the decades-old standard of 60 days. This is definitely bad news for users and potential objectors. 30 days is too short a time for those objectors who are new to the process, who wish to organize new coalitions or to retain counsel for the first time, or to change counsel for any reason. 30 days is barely the blink of an eye in the typical timeline of a Copyright Board tariff, which can typically take about seven years or more to get to a decision. And that’s before the usual judicial review.

This shortening of the 60-day time to object to 30 days can only benefit collectives. It will make absolutely no difference overall to the dysfunctionality or culture of delay at the Board. In fairness, this is the fault of whoever devised Bill C-86, which may or may not have included input of the Copyright Board. It is noteworthy that the Board apparently took some considerable interest in the revision of the Copyright Act. Despite having at least four lawyers on staff, it paid:

$274,398 to an entity named Leverage Technologie Resources Inc., whoever they may be, for “Professional service for the amendment of the Copyright Act” during the period of November 14, 2016 to March 31, 2018

The timing and nature of this very large contract invite curiosity.

As to the promised modernized website, the Copyright Board is promising the following:

Although the Copyright Board regularly spends a lot of money on third party contractors for website maintenance, the following recent contracts since April 1, 2018 for “the maintenance, updates and redesign of the Copyright Board's website” and other website work are of particular interest: 

-        $203,400 for April 1, 2018 to March 31, 2019 for “the maintenance, updates and redesign of the Copyright Board's website” and other website work

-        $90.400 to Cision Canada and Développement Axial for April 2017 to March 31, 2018 “for the maintenance and updates of the Copyright Board's website”

-        $158,200 for April 1, 2018 to March 31, 2019 to Développement Axial  “for professional services for the maintenance, updates and redesign of the Copyright Board's website.”

-        $45,200 for April 1, 2018 to March 31, 2019 to Cision Canada for the maintenance and updates of the Copyright Board's website

-        $27,402.50 for December 19, 2019 to March 31, 2020 to Lexum informatique “… to improve and broaden access to the Board’s decision on its website”

-        $187,746 to Développement Axial for March 5, 2019 to March 31, 2020 for “…for professional services for the maintenance and updates of the Copyright Board's website”

-        $45,200 to Développement Axial for 2019-11-07 to 2020-03-31 “…is for professional services for the maintenance and updates of the Copyright Board's website”

That’s $757,548.50 on website stuff since April 1, 2018. I regularly look at the Board’s website and I cannot yet discern any noticeable improvement following these several large recent expenditures.

Sorry if I missed anything or counted twice. I am not an auditor. I welcome any necessary corrections. It  must be said that Board’s website, apart from its chronically dysfunctional search utility, has been reasonably useful in the past, given the very limited amount of information that the Board has chosen to make available. The search utility has been dysfunctional for years despite large third-party website expenditures over the years. Thankfully, good old reliable and simple Google searches will do the job for most purposes.

It is not obvious why “an intuitive architecture and an improved navigation system” will be helpful if essential content is not there to begin with. Guidance in all respects can be found at the excellent Competition Tribunal site. BTW the Competition Tribunal has about a 30% smaller budget than the Board, about half the staff,  and a much better website that importantly includes documents filed in its numerous cases – many more than the Copyright Board deals with. It even provides the email address of its Webmaster. Indeed, the Board’s site is becoming, if anything, less rather than more useful. The Board has now removed access to the names and contact information for its working staff except for its Secretary General and the receptionist’s phone number. As I have indicated before, the Board’s staff – both professional and administrative – have always been extremely courteous and helpful. The Board clearly, however, apparently now wants to limit transparent and unfiltered access to them. In the small world of people who actually may need to interact with the Copyright Board, that is hardly helpful.

It is especially difficult to see what possible use a Copyright Board Twitter account could be. Twitter is essentially useless as a primary tool for making announcements, unless the issue is very immediate and important and of interest to a lot of people who spend a lot of time on Twitter and would follow the Board’s account and retweet something of interest.

True, the Federal Courts and the SCC have twitter accounts. But they have lots of things to announce on a nearly daily and sometimes even more than daily basis and Twitter is by no means their primary way of reaching their audience, which is through email subscription and distribution – see below. They have vastly more to announce and vastly larger audiences than the Copyright Board. See:

https://twitter.com/FedCourt_CAN_en   (~1074 followers)

https://twitter.com/FedCourtApp_en  (~2,128 followers)

https://twitter.com/SCC_eng  (~27.4 K followers)

It is highly unlikely that the Copyright Board would ever have more than a few dozen Twitter followers. I’ll volunteer to be among the first. Twitter can be useful for feedback, but that is something that the Board has shown to be of no interest to it –  indeed quite the contrary,  even when it has uncharacteristically actually asked for comments.  In any case, as a quasi-judicial tribunal, it should not be interested in review by the court of public opinion. The Board already spends tens of thousands a year on “newspaper clippings and reports services” for whatever reason (BTW, Google Alerts, which is free, works very well. Michael Geist and I are about the only regular commentators on the Copyright Board. There’s no need to spend tens of thousands a year for follow our comments). Mme Théberge spent a lot of time talking about the Board’s proposed Twitter account at the above Town Hall meeting.  It is astonishing that Board has spent so much time and quite possibly money on this Twitter idea. So far, the only visible result is that is has set up a Twitter handle – which is trivially simple to do – but it is so far inactive. See @COP_eng above. Don’t forget to sign on to the “pending” button so you can be included once it is active.

The Government’s Factsheet promises:

Modernized website: Additional resources earmarked in Budget 2018 will enable the Board to revitalize its website to more clearly convey to Canadians information about their ongoing operations as well as proceedings. It will also allow Canadians and interested parties to subscribe to receive relevant information, such as rulings, when they want it.
(highlight added)

Why this should require any expenditure of public funds is inexplicable. A simple email subscription and notification mechanism, as is used by the Federal Courts, the Competition Tribunal and the Supreme Court of Canada and even as available on my humble freeware blog page, would do this job. For example, this is how it works with the Competition Tribunal through a link available on the main page. Cost of operating such email subscription and notification is zero. It would require no time whatsoever on the part the Board’s staff once it is properly set up – which is extremely simple. Special announcements may require a few minutes of someone’s time to post to those who are on the email subscription list. This would be guaranteed to reach the right audience immediately – which is absolutely not the case with Twitter. That fact that the Board hasn’t provided this absolutely basic common place tool on its front-page years ago, especially given its large third part expenditures on website maintenance over the years, is simply inexplicable.

The Competition Tribunal appears to have its own webmaster, i.e. webmaster@ct-tc.gc.ca. With its much larger staff, it would seem logical for the Copyright Board to have someone on staff to update the website in the normal course, especially since so little ever needs to be added on so few occasions.

By way of another example, here’s how easy it is to subscribe to the Federal Court’s email alert system – which sends out notifications of new cases every morning and sometimes bulletins when something really interesting or important happens:

For whatever reason, the Copyright Board’s decisions – unlike many other federal tribunals including the Competition Bureau, are NOT available on Canlii, which is free and friendly and has excellent search and sorting utilities, not to mention links to updates and consideration by other courts, etc.  For example, here is how the Competition Tribunal appears in its special section on Canlii – with Continuous coverage of cases from 1990-01-01 to present (some 754 decisions). Of course, all of this is available through the main page of Canlii as well.

In any case, every competent Canadian IP lawyer presumably knows that daily free customized updates are available from Alan Macek’s exemplary, indispensable,  and amazing free IPPractice.ca service, which has now been modified to track the Board’s slightly altered website to enable same day alerts to new proposed tariffs for those wishing to receive them.

Another thing that the Copyright Board could easily do to increase transparency and accessibility, which would involve virtually no cost other than one or two overhead cameras, an initial routine setup, and some minimal training for an employee, is to webcast its hearings. It already has a very fancy hearing room with sophisticated audio. This would require little if any human involvement if properly set up and, of course, it’s simple to stop the feed if confidential stuff is being discussed (which rarely happens or needs to happen during hearings). The Federal Court is now webcasting some hearings and the Supreme Court of Canada has been doing so live and with archives for years. Many universities regularly post live and archived webcasts of interesting events. Even WIPO is getting into this technology. It is hardly rocket science.

It seems that the Board is trying very hard to find ways to spend the additional $1,000,000 a year it has been allocated for its budget. Hiring more lawyers and economists is not the answer and many not only slow things down but create problems based upon the principle that he/she/they who hears must decide and that the Board cannot make decisions based upon its own undisclosed and untested research.  This decision-making process cannot be delegated, and Board members are presumed to have expertise. The Board is already arguably very generously staffed in terms of lawyers and economists compared to other federal courts and tribunals that have much greater case loads. It has even announced a prize for a paper by a graduate student in economics on copyright economics:

This prize will recognize the best article on the economic dimensions of copyright and will include $ 2,000 in addition to a paid work term of one year within the Board’s Economic Analysis Team.

Once again, and as always in the spirit of tough love, I cannot find much reason for optimism at this time for solutions to the problems identified three years ago by Senate BANC Committee, which  called for “thorough, in-depth examination of the Copyright Board of Canada’s mandate, practices and resources.” The Board does have an extra million dollars a year, but apart from that, there is no sign of any systemic change. In fact, as noted, some things may have even gotten worse rather than better. A prettier website and a Twitter account will do absolutely nothing to change the culture of delay.

As I noted recently:

The Board is not visibly busy in any obvious sense. It has held no oral hearings in more than two years and none are scheduled until September of 2020 when three hearings on relatively minor matters are set to unfold in late 2020. Hopefully, the Board will use this downtime to work towards reinventing itself and not just tinkering with procedural details that won’t make any material difference.

Let us hope that @NavdeepSBains Minister of  @ISDED_CA or whatever its new name will be, gets a grip on this increasingly “dysfunctional” situation, to use the Senate Committee’s own term. The first order of business for Minister Bains should be scrap the problematic and predictably ineffectual regulations proposed by officials with no Copyright Board or other related experience earlier this year that were put on the shelf because of the election and to impose, instead, a fixed timeline as we have with the Patented Medicines Notice of Compliance (“PMNOC”) proceedings as I have suggested here. 

HPK