1566 The Wedding Dance by Pieter Brueghel the Elder
(Music at weddings in Canada is subject to Copyright Board tariffs, which are doubled when there is dancing)
On
February 4, 2015 the Copyright Board released by email distribution to
stakeholders a discussion paper on the OPERATIONS, PROCEDURES AND PROCESSES OF THE COPYRIGHT BOARD. It was
prepared by a working group consisting of eight lawyers identified below, all of
whom have had some significant experience before the Copyright Board and the
Courts, together with Mario Bouchard, the former General Counsel of the Board.
I have extracted the recommendations of the
working group below for the convenience of readers. To understand, the full
context, the entire
document can be viewed here.
I have also included the comments from two
members of the working group found at the end of the Report that are apparently
in the nature of a dissenting opinion.
The
covering letter from the Board’s Vice-Chair and CEO, Claude Majeau can be seen here. This letter, and the
underlying document, were apparently sent to about 100 of the "usual
suspects" consisting of Board "stakeholders" who
have somehow been involved as counsel or in house representatives of
parties that have had business before the Board in recent times.
For reasons that are not apparent, there is no
mention of this working group process or link to these documents on the Board’s
website. That is why I am posting this information here. The Board has
oversight over approximately $500 million per annum worth of collective
administration of copyright in Canada. Countless Canadians are affected by the
Board’s tariffs – whether the tariff concerns the cost of music for dancing at
weddings or blank CDs or the materials used in education at various levels. The
Copyright Board of Canada is by far the largest such specialized copyright tribunal
anywhere in the world.
Many
aspects of the Board’s procedures are now being questioned, since the
proceedings routinely go on for six years or more, including waiting two years
or more for a decision after a hearing. The resulting tariffs often have retroactive application that may
come as a complete shock to those ultimately affected, including many small
businesses, who may never even have heard of the Copyright Board. Afterwards,
there is the now seemingly inevitable judicial review. Even collectives are
increasingly concerned, since it is no longer the case that the high costs of
Board applications can necessarily be recovered from the tariff itself. Last
November 28, I have summarized some of the Recent and Current Developments at and
Concerning the Copyright Board of Canada in a blog post here.
Meanwhile, the position of Chair of the Copyright Board remains vacant. The Vice-Chair is the
only current full-time member. There is currently one part time member.
The Board is calling for comments on the Working
Group report by March 6, 2015 to be addressed to the Board’s Secretary-General
by email at Gilles.McDougall@cb-cda.gc.ca
HPK
February 11, 2105
PS - At some point today, February 11, 2015 the Board did post these documents on its website.
**************
WORKING COMMITTEE ON THE OPERATIONS,
PROCEDURES AND PROCESSES
OF THE COPYRIGHT BOARD
FEBRUARY 4, 2015
Recommendations
1. The Board, with the
cooperation of collectives and users’ representatives, should develop and
implement new ways of notifying current and potential users of the filing of
proposed tariffs. Electronic notice should be favoured over other forms of
communication; paper notification, including letters and newspaper notices,
should be used exceptionally or not at all.
2. New forms of notification
should be implemented progressively, on a “best efforts” basis, according to
what is technically feasible, financially reasonable and legally permissible.
More should be done as technology makes more direct, personal forms of notice
easier and more cost effective.
3. Consideration should be
given to a variety of options (posting notice of proposed tariffs on a
collective’s website; notification by a collective to all known users; emailing
by a trade association to its members) so as to select the form of communication
which is most efficient for each user type in each situation. In this regard,
the Board should attempt to identify trusted third parties through whom more
loosely organized user groups could be notified that proposed tariffs have been
filed.
4. The Board, with the
cooperation of collectives and users’ representatives, should assess the
limits, if any, that anti-spam or other similar legislation may impose on
communicating electronically with users about a proposed tariff. These limits
should be taken into consideration in selecting additional means of publicizing
proposed tariffs.
5. The Board should consider
installing an RSS or other form of feed or information syndication (e.g. a
Twitter account) allowing anyone to request in advance to be notified of the
filing of proposed tariffs; collectives should be asked to consider doing the
same or posting on their web sites links to the Board’s own notices in this
regard.
6. A collective should be
required to provide, with the proposed tariff, information about the content of
a tariff of first impression and of the nature, purpose and ambit of any
proposed material change to an existing tariff. Some of the information could
be published with the proposed tariff in the Canada Gazette; all of the
information should be posted on the Board’s web site. This requirement should
be enforced through “soft” compliance measures.
7. Information provided with
the proposed tariff should not bind the collective. The time at which a collective
commits to a course of action should remain when it files its statement of
case.
8. Subject to the
considerations raised in Part II-A above, collectives should be asked to notify
existing users when a collective asks for significant changes to an existing
tariff. Any such notice should also indicate how a user may object to the
tariff
9. Objectors should be required
to state in their objection the reasons therefor, either in their notice of
objection or as soon as possible thereafter. They could be encouraged to
suggest, to the extent possible, alternatives to the terms they find
objectionable. This requirement should be enforced through “soft” compliance
measures.
10. Reasons provided pursuant
to Recommendation 9 should not be binding on the objector. The time at which an
objector commits to a course of action should remain when it files its
statement of case.
11. A collective should be
asked to provide as detailed a reply as possible to the objections it receives,
on the same “without prejudice” basis as in Part II-B above. The same or
similar “soft” measures outlined in Part II-B above should be used to enforce
compliance with this requirement.
12. As a rule, and subject to
any requirement of the Privacy Act, all information filed with the Board
pursuant to Parts II-B to D above should be supplied to all participants.
13. All information filed with
the Board pursuant to Parts II-B to D above by anyone other than individuals
acting on their own behalf also should be posted on the Internet.
14. The Board should identify
the ways in which it can deal with privacy issues before making available to
the public, on the Internet or otherwise, objections filed by individuals
acting on their own behalf, with a view to providing the widest possible public
access to information filed with the Board.
15. Any request for information
in addition to the information filed pursuant to Part II-B, II-C or II-D above
should be dealt with on a case-by-case basis.
16. Parties should continue to
be allowed to seek information from each other in advance of hearings.
17. Interrogatories should
remain the preferred from [sic] of discovery before the Board.
18. As a rule, interrogatories
should be exchanged, and the responses thereto provided, after a collective has
replied to objections pursuant to s. 68(1)(a) of the Act but
before any party is required to file its statement of case.
19. Parties should remain free
to pursue the interrogatories they wish.
20. The Board should convene a
preparatory meeting between the parties and the Board after the collective has
replied to objections and before interrogatories are exchanged. The purpose of
the meeting would be to identify tentatively what the relevant issues appear to
be and to discuss what information may be required in order to address those
issues, with a view to helping the parties exchange interrogatories that are
better focussed and more relevant. Minutes of the meeting should be prepared
and circulated.
21. As a rule, the Board should
rule on the relevance of an interrogatory only when it deals with objections to
interrogatories.
22. The Board should exercise
caution before advising parties that it does not wish to hear relevant evidence
that the Board considers uninteresting or unhelpful. Greater caution should be
exercised if a ruling is being contemplated early in the process.
23. The Directive on Procedure
should encourage, but not require, parties to consolidate their interrogatories
in a single set, irrespective of the number of parties to whom the questions
are being addressed.
24. A person being asked
similar questions from two or more other parties should be allowed to apply to
the Board for an order requiring these parties to consolidate their
interrogatories.
25. As a rule, the Board should
not consolidate interrogatories.
26. Subject to the comments
about consolidation in Part III-F, above, interrogatories should continue to be
exchanged only between the party who asks the question and the party who
answers it.
27. A party who is asked a
question should continue to be allowed to object to it. The requirement that
parties first attempt to resolve the issue should be maintained. The party
proposing the interrogatory should continue to be required to explain the
relevance of the question. The party being asked the question should be allowed
to reply to the explanation.
28. The party who objects to an
interrogatory should file with the Board, at the time it files its reply, the
information required to deal with the objection.
29. The information required to
deal with an objection should be filed in the form of a table that includes a
column in which the Board will enter its ruling. Rulings on objections to
interrogatories should be issued in that form; as all other rulings of the
Board, they should be part of the public record and put on the Board’s web
site.
30. Only the party who asked an
interrogatory should receive the response to it, as is currently the case.
31. A party who asked a
question should continue to be allowed to challenge the sufficiency of the
response to that question. The requirement that parties first attempt to
resolve the issue should be maintained. The party who provided the answer
should continue to be required to explain why it considers the response
sufficient. The party asking the question should be allowed to reply to these
explanations.
32. The person who claims a
response is deficient should be the person who files with the Board, at the
time it files its reply, the information required to deal with the deficiency
claim.
33. The information should be
filed in the form of a table that includes a column in which the Board can
enter its ruling. Rulings on deficiency claims should be issued in that form;
as all other rulings of the Board, they should be part of the public record and
put on the Board’s web site.
34. The Board should pursue the
creation of a database of orders of precedential value, including rulings that
deal with interrogatories.
35. The Board should consider
developing more specific guidelines dealing with the interrogatory process.
36. The current principle
according to which a responding party provides what it has, in the form it
exists, should continue to apply.
37. Where appropriate, the
Board should continue to limit what a party must provide in response to an
interrogatory to only as much relevant information as is necessary for the
Board to arrive at a fair tariff.
38. Consideration should be
given to how and to what extent the interrogatory process should be tailored to
the importance of the amounts at stake as well as the resources of the parties
involved.
39. In appropriate instances,
the Board may wish to recommend to objectors with limited means that they use
the comments provision of the Directive on Procedure to communicate their point
of view to the Board.
40. The Board should ensure
that the interrogatory burden of any party, including a collective, is not out
of proportion with the amounts at stake.
41. Parties should file with
their statement of case all the responses to interrogatories on which they
expect to rely, and only those responses.
42. Parties should fully
correlate the responses they file with their statement of case.
43. The Directive on Procedure
should clarify that the extent to which a party is authorized to rely on a
response that was not filed with its statement of case during the course of a
hearing. However, the Committee was unable to agree on what that extent ought
to be.
Additional note
One member of the Committee, while appreciating the need
for caution in reforming the process, expressed concern about whether the
report’s recommendations will truly assist the Board in having more efficient
and more productive procedures and processes. In particular, the member was
uncertain that the recommendations with respect to interrogatories fulfill its
objectives: to minimize the burden on parties, to streamline the process, to
reduce disputes among parties or to remove potentials bar to participation.
Half the recommendations propose keeping the status quo. Others (e.g. who files
disputes with the Board, adding a right of reply), while reasonable, may not
contribute to the stated objectives of Part III of the report, and in
particular “the fact that the existing interrogatory process is a bar to the
participation of some entities as parties in Board proceedings.”
Another member was of the view
that the discussion paper, even if implemented fully, will have a minimal
effect on the problems the Committee was asked to address. The recommendations,
taken as a whole, do not really address the expressed need to streamline the
Board process in order to shorten the time to get tariff matters completed. In
fact, as a result of some recommendations (requiring non-binding explanations,
meetings with Board staff at an early stage, addition of a reply stage for
interrogatory objections), the process may be lengthened and may become more
expensive. The interrogatory process has not been changed in any meaningful
way, the recommendations will do little or nothing to reduce the size, scope or
burden of interrogatories. In this member’s view, while members of the
Committee invested much time and skill in the process leading to this
discussion paper, perhaps the nature of the collaborative process inherent in
such Committee work necessarily meant that bold initiatives were unlikely or
impossible.
MEMBERS OF THE WORKING
COMMITTEE ON THE OPERATIONS, PROCEDURES AND PROCESSES OF THE COPYRIGHT BOARD
Mr. Glen Bloom
Senior counsel, Osler (Ottawa)
Mr. Casey Chisick
Partner, Cassels Brock
(Toronto)
Mr. Mark Hayes
Hayes eLaw (Toronto)
Mr. David Kent
Partner, McMillan (Toronto)
Mr. Gerald (Jay) Kerr-Wilson
Partner, Fasken Martineau
(Ottawa)
Ms. Colettte Matteau
Matteau Poirier avocats
(Montreal)
Mr. Marek Nitoslawski
Partner, Fasken Martineau
(Montreal)
Ms. D. Lynne Watt
Partner, Gowlings (Ottawa)
Facilitator: Mr. Mario Bouchard
(Ottawa)
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