Tuesday, March 31, 2015

Video of CBC v SODRAC oral arguments in Supreme Court of Canada now Available

The video of the oral arguments in the recent Supreme Court of Canada hearing in CBC v. SODRAC is now finally available here

My submission re the "mandatory tariff" theory on behalf of the McGill Centre for Intellectual Property Policy and Ariel Katz starts at at ~ the 152.00 mark.

Here are the factums.

I'm not sure why this was not webcast live on March 16, 2015 when it was heard.  Apparently, some underlying material was designated as "confidential" by the Copyright Board, which happens all too frequently in Board cases - notwithstanding the fundamental principle of open courts in Canada. In any event, we now have the video.


Monday, March 30, 2015

Some Comparative Observations & Stats on the Copyright Board, Selected Canadian Tribunals & the Supreme Court of Canada

Some lobbyists and interested members of the copyright bar have been actively endorsing the Copyright Board’s longstanding campaign for more resources to supposedly solve the extraordinary delay problems at the Board. Here’s another very recent effusive example. There is a persistent but unexplained expectation that more resources will somehow speed up the frequently four year delay before a hearing even takes place and the now seemingly new normal delay of two years or more after the hearing for a decision to be rendered.  Assuming that members of the Copyright Board have expertise in their subject matter, and that they are actively engaged in writing their decisions, it is hard to see how more resources alone will have any positive effect in solving the delay problem. Federal Court judges routinely issue numerous – even dozens – of substantive and significant decisions every year in six months or usually much less time after hearing with no more “resources” other than one clerk just barely out of law school. Many of these cases are far more complex both factually and legally and sometimes in terms of public law importance than most at the Copyright Board. Even the less complex ones – for example routine immigration cases – are very important to the parties involved and require great care and judicial consideration.

The Canadian Judicial Council has recently stated that it should never take more than six months for a judge to render a decision, except in the most complex of cases. Indeed, the CJC said that “judges should render decisions within six months of hearing a case, except in very complex matters or where there are special circumstances.” It is difficult to find any examples of cases at the Board that would warrant an exception to this benchmark.

Ironically, even after these uniquely lengthy delays, the Board’s decisions in turn are regularly challenged in the Courts and sometimes dramatically reversed. Moreover, in two recent instances and after long delays, the Board has even felt compelled itself to issue quick “mea culpa” corrections, which have in in turn led to even more complications.

In this light, consider the following:
  • There is an old adage attributed to Benjamin Franklin that “if you want something done, ask a busy person”.
  • Canada’s Copyright Board is already by far the largest specialized copyright tribunal of its kind anywhere in the world.
  • The Copyright Board process involves extensive use of an onerous interrogatory process that yields relatively little useful evidence at a hearing, but consumes enormous amounts of time (and money for lawyers) and has on several occasions driven away well-intentioned objectors.
  • The interrogatory problem is exacerbated because the Copyright Board process never requires the tariff applicant to put forward the facts and legal arguments on which it intends to rely at the outset – which is contrary to virtually any other tribunal or court process that I have ever heard of. The result is that some tariff applicants simply go fishing in the interrogatory process – often in a drift net fashion – and thereby sometimes simply drive their opponents away. Whether this result is intentional and strategic doesn’t really matter. It happens because the Board lets it happen and some objectors’ counsel have arguably not taken all available steps to curtail this excess.
  • The Copyright Board hears again and again from the same perennial “experts” who sometimes have little if any independence from those who ultimately pay their bills and whose “evidence” would almost certainly never be allowed in a normal court, especially  in view of recent jurisprudence in the IP context from the Supreme Court of Canada. 
  • Even if these “experts” were sufficiently “independent”, it is highly questionable in many cases whether their testimony is even really “necessary”. The Supreme Court has made it clear that if the “expert” evidence is not “necessary”, it should not be admitted. The Board members themselves are assumed to have some expertise in copyright and economic regulation and the Supreme Court has said quite clearly that experts are both unnecessary and undesirable when the “common sense” of the decision maker should suffice.
  • There are seldom any complex legal issues involved in Copyright Board hearings, and when they do arise, the Board is often reversed by the Federal Court of Appeal (at least once in a “brusque” manner according to retired Chairman Vancise – and yes, I was involved) and lately and clearly by the Supreme Court of Canada in the “pentalogy”. 
  • Every specialized tribunal suffers from the inherent risk of “regulatory capture”. It is well known that can be an unseemly amount of lobbying when it comes to Copyright Board appointments. See Simon Doyle’s recent tightly pay walled but important piece in the Globe and Mail.  Adding more resources can only exacerbate any possible potential problems in this respect.
  • There is much to be said for considering the American model of “consent decrees” overseen by truly independent and expert federal judges. Indeed, Canada has a Competition Tribunal with a lean and efficient support infrastructure and several Federal Court judges with expertise and experience in economic regulation and even intellectual property issues in place at any given time. Since the Copyright Board was born out of concern about “super monopolies” expressed by the late great Judge Parker in 1935, the possible adaptation of a “consent decree” model in Canada under the aegis of the Competition Tribunal is something that merits serious exploration. In theory, the entire role of the Board could be modified and absorbed by the Competition Tribunal, although this would almost certainly require legislative change. Such a transformation might also save taxpayers a lot of money.
  • The Patented Medicines Notice of Compliance proceedings in the Federal Court are over and done with including a judgment within 24 months because regulations say that they must be. These cases are usually very complicated factually, and often involve several experts in pharmaceutical chemistry, etc. – an area far removed from the “common sense” comfort zone of most judges. However, these hearings run well because they must – and normally take no more than 4 or 5 days.
Below are some potentially interesting and useful statistics from the most apparently analogous federal institutions. This chart is a work in progress and may be further developed. Suggestions are welcome, on or off line. Corrections are also welcome, since I’m no expert in the interpretation of bureaucratic financial and planning reports.

The inclusion of the Supreme Court of Canada is a result of the  published statement of the retired Chairman of the Copyright Board (William Vancise) in 2006 shortly after his appointment:
I am not at all happy with the time it takes to render a final decision. I have tried to address the issue and I can assure you it will be resolved. If the Supreme Court of Canada can render a decision within six months of a hearing, there is no reason why this Board cannot do the same. My goal is to see that this occurs. (emphasis added)
It was indeed a rather odd notion on the part of Judge Vancise to use the Supreme Court of Canada as a proxy for the Board’s timing benchmarks, because the Supreme Court does not hear evidence or witnesses and it does, by definition, almost always deal with very complex and important legal issues. However, QED. If the Court can render judgments in six months, a fortiori one would think that the Board could do so – if not in much less time. Therefore, it is unfortunate that Justice Vancise was not able to resolve this problem during his ten year tenure and it would seem anecdotally that the delay problem has actually become significantly worse in recent years. For example, it has been nearly 2.5 years since the Board’s hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) matter and no decision has yet been rendered in that matter. The Access Copyright Post-Secondary Tariff seems to have gone into a state of suspended animation, since there has been no follow up by the Board to its announcement on January 17, 2014 that it will postpone the hearing sine die and will “will either decide when to reschedule the hearing or proceed on paper”.

So, in the meantime, here’s some data I’ve assembled without being commissioned by anyone:

Tribunal/ Applicable
Regulations or Rules re Procedure
Mandate/# of Significant & Substantive Decisions per year
# of Members
# of Staff FTE
Budget (i.e. net cost of operations)
Copyright Board/No procedural regulations in place other than Board’s informal and very general “Directive on Procedure
Setting Copyright Tariffs and Levies pursuant to Copyright Act/ app. 3 per year. (S. 77 “Unlocatable” decisions cannot be considered as “significant” and have never involved an actual hearing)
Up to 5 full time. Currently 1 full time + 1 part time. Chair (currently vacant)who  must be a sitting or retired judge.
Dealing with wide range of applications arising from Competition Act/ app. 10 per year since 2000.
Up to six judicial members from Federal Court and not more than eight lay members
Wide range of licensing and regulatory oversight in broadcasting and telecommunication, internet, ant-spam, etc./ app. 600-700 decisions a year – many minor but many very important, e.g. 2014
Chair, two Vice-Chairs and up to 10 national and Regional Commissioners
(Expenses of 65,030 offset by revenues of 47,444)
Canadian International Trade Tribunal/ See Act and Regulations here.
international trade cases, procurement cases, customs and excise tax appeals and government-mandated inquiries within the Tribunal’s jurisdiction”/129 decisions in 2013-2014
Up to seven full time members including a chairperson
Handles more than 600 labour related matters under Federal jurisdiction, including Status of the Artist Act. Processing times are published here.
Chair, two Vice-Chairs, up to six full time members, and additional part time members

Trademarks Opposition Board/ See Practice in Trademark Opposition Proceedings
Rules on oppositions to registration and s. 45 expungement. Many of these rulings involve hearings./ 741 decisions rendered in 2011-2-12
These are all public service positions.
Nine full time justices.
(net cost of operations est. for 2013-2014)

The problems of the Board can only be solved if both of two things happen:
  • In the short term and very urgently, we need the appointment of a Chairperson (who must be a sitting or retired judge) who can hit the ground running in terms of knowledge of copyright and administrative law at minimum and is able and prepared from a managerial standpoint to make some changes in the way things work at the Board. This person should preferably also have experience in competition, communications and/or other related areas of economic regulatory law. It will be relatively easy to find such a qualified person from the ranks of sitting or retired Federal Court or Federal Court of Appeal judges and probably very difficult to find the right person elsewhere. Needless to say, given the very specialized mandate of the Board, such person’s career prior to appointment to the bench should not give rise to any possible apprehension of bias.
  • In the medium but not far off term (i.e. a year or two but no more), we need regulations to deal with such issues as steps in a proceeding, the interrogatory or discovery processes, benchmark timelines, “expert evidence”, etc. The Board is clearly unable or unwilling to make anything more than very incremental changes from now well-established but clearly problematic processes. Its latest effort at consultation has produced a remarkable consensus amongst a mix of normally strange bedfellows who agree that the recommendations by the majority of the Working Committee may only make things even worse, which is no easy task in this instance. See the very limited terms of reference at page 27 of the recent Working Committee Report.
It will be noticed in the above chart that the Board is the only institution listed without regulations or other form of mandated specific rules to govern its procedure.  There is no reason for this to be the case – indeed experience suggests quite the contrary. As everyone knows, regulations are much easier to implement than statutes. That sometimes pesky and petulant creature known as Parliament is not involved. All the necessary authority is already in place in this case. There’s no need – and arguably no excuse - to wait for the five year review.


Friday, March 13, 2015

Update on Canadian Copyright Board Matters: What is Happening and Not Happening

Supreme Court of Canada

There’s a lot going on – or not going on – concerning the Copyright Board.

The Board has promptly posted all the responses to its Working Group Committee Report. I won’t begin to analyze them, other than to say that there was a surprising amount of agreement amongst a number of normally strange bedfellows (including Music Canada, Access Copyright, major broadcasters and yours truly) that the recommendations might actually make proceedings even longer and more expensive at the Board.

Simon Doyle has written a timely piece in the Globe and Mail – unfortunately it’s heavily pay-walled – about the slowness of the Government to appoint a new Board chairperson. He mentions some – though not all – of the names that are being talked about in various circles. He describes some of the apparently intense lobbying that is taking place. He also quotes me as follows:
“There’s no apparent reason why it now often takes the board four years to get to a hearing and two years or more to render a decision,” Howard Knopf, a copyright lawyer in Ottawa with Macera & Jarzyna LLP, said by email.

Mr. Knopf said the Copyright Board has oversight of about $500-million a year “of collective copyright activity in Canada. Also, the board’s processes have generated a lot of money over the years for certain lawyers, consultants and perennial ‘expert’ witnesses.”

Mr. Knopf said the government can implement regulations that could address the steps, stages and timelines of a hearing, the interrogatory process, the qualification of experts, and timelines for the rendering of a decision after a hearing.

Meanwhile, back in the Courts, on Monday morning, March 16, 2015 the Supreme Court of Canada will hear the CBC v SODRAC appeal, which involves yet another judicial review of a Copyright Board decision. This will be  the 17th case involving important consideration of the Copyright Act that this Court will have heard  beginning with the 2002 case of Th├ęberge v Galerie d’Art du Petit Champlain inc. Seven of these have arisen from judicial review of Copyright Board decisions.  Five others were infringement casesPrior to 2002, the last important copyright case from the Court was Bishop v. Stevens, [1990] 2 S.C.R. 467, which will be referred to very often on Monday.

CBC v SODRAC will focus mainly on technological neutrality. I should disclose my involvement as counsel for the Centre for Intellectual Property Policy at McGill and Prof. Ariel Katz. They have been given leave to intervene on what they call the “mandatory tariff” theory. Their position is that it:
…lacks any basis in law: standard principles of statutory interpretation contradict it; the case law debunks it; and the legislative history discredits it. In addition to absurd results that contradict fundamental tenets of the rule of law, the “mandatory tariff” theory threatens to upset the balance in Canadian copyright law. It would overly compensate owners, contrary to this Court’s holding in Th├ęberge, and it could gut fair dealing and others users’ rights, contrary to what this Court cautioned against in CCH.

The webcast will be delayed because SODRAC has filed some material that it regards as confidential. The music industry will present two joint interventions, and CIPPIC will also appear. All the factums can be found here.

Those who want to watch this live in real time will have to attend at the Court. Proceedings start at 9:30 AM.


Friday, March 06, 2015