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 Théberge 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 Théberge, 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.


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