(Wikemedia)
May 31, 2018 UPDATE of original post from May 26, 2018
I’m hearing
that the Government is planning to table legislation concerning the proposal
below before the House of Commons recesses for the summer. This could come the
week of June 18, 2018.
If I am right
about what the bill will try to do, the current Ministers and those of their staff
and officials who are not familiar with the intensity of controversy that a bad
copyright bill can arouse are in for a very unpleasant surprise. There are
millions of voters who will not react well to a new “tax” on education that
will increase costs and limit access to knowledge and inhibit innovation. This
Government may have a majority and can pass any bill it wants in the House of
Commons. But the Senate may not be so compliant and there will be millions of affected
voters who will have an opportunity to express their views on a new “education tax”
in November of 2019.
And, just to
remind everyone, “education” is a provincial matter under Canada’s Constitution.
Giving the Copyright
Board another million dollars a year was a bad idea because it will only slow
things down even more and create the potential for administrative law
challenges because the decision makers will likely have even less role in
deciding decisions. However, harmonizing statutory minimum damages and maybe
even tariff regimes on the fly at the behest of a very unpopular collective which
wants a legislated business model that would give it a monopoly right to to
threaten draconian litigation against its best customers is an infinitely worse
idea. It could prove to be the worst copyright policy initiative in the long
and often painful history of Canadian copyright law.
HPK
*************
May 26, 2018
There is a very pernicious
proposal afoot which some federal bureaucrats have been led to believe will
help to fix things up at the Copyright Board by harmonizing tariff regimes, or
at least the statutory minimum damages provisions available to collectives.
I have not seen the
documents provided to the Government or the Government’s own internal
documents. However, it seems apparent that this effort is being pushed by
Access Copyright and is at best disingenuous and at worst deceptive, misleading
and dangerous. Above all, it seems clear
that this proposal, despite its ostensible purpose, has nothing whatsoever to
do with fixing the Copyright Board – and would make things even worse in that
respect, as I explain below. Indeed, it
would appear that there is a very different and ulterior motive behind this
proposal.
There are provisions
in the current Copyright Act that
allow SOCAN to go after statutory minimum damages of three to ten times the
tariff amount. So, if a recalcitrant bar or restaurant doesn’t want to pay $150
per year in applicable royalties, it can be threatened with up to $1,500. A reasonable settlement will usually be
reached. Not a big deal. SOCAN tariffs
are “de facto”, even if not “de jure”, mandatory – if the bar or restaurant
wants to play contemporary popular music. If that’s what it takes to encourage bars
and restaurants to pay for music, then so be it.
Now, however, Access Copyright
is trying to convince – some might say to “con” – the government into making
the same kind of 3 to 10 times regime applicable to educational institutions. The
regime that applies to Access Copyright is not remotely comparable to the SOCAN
regime. Access Copyright has comparatively little repertoire and offers
comparatively very little in value to educational institutions, which is why so
few are voluntarily signing licenses with Access Copyright anymore. Michael
Geist has recently been documenting how institutions are
spending a great amount of money to clear their copyright requirements – but
they are spending it in other more productive and efficient ways than on Access
Copyright. There is no reason for any institution to pay more than once for any
required permission. The notion that a big university can be intimidated with a
potential liability of 3 to 10 times the total amount of a tariff that didn’t’ need
to be paid in the first place and resulting in a threatened liability of many millions
of dollars is nothing short of offensive and scandalous.
This amendment would
seem to be intended to intimidate educational
institutions into believing – or maybe even to legislate in such a way – that just one unauthorized copy of one single work
in Access Copyright’s rather limited repertoire could result in liability of three
to ten times the amount of a tariff, notwithstanding that the Supreme Court of
Canada has ruled in CBC
v. SODRAC that such tariffs are NOT mandatory for
users.
(The Federal Court did not read the Supreme
Court’s decision that way in the Access Copyright v. York University case, but the Federal
Court’s decision is under appeal.) Access Copyright wants $26 per FTE student
per year. In a bigger university, there are well over 50,000 students. That’s
more than $1,300,000 per year and the Copyright Board makes everything retroactive
by several years because it is very likely the slowest tribunal in Canada and
perhaps anywhere else. The Copyright Board is still cogitating Access
Copyright’s 2010 tariff proposal for post-secondary – that’s 8 years and
counting with no endpoint in sight. That’s unheard of in Canadian tribunals or
courts.
This is nothing short
of an end run around the appeal process in the
Access
Copyright v. York University litigation, which many believe that Access
Copyright will likely lose in the Federal Court of Appeal – and/or ultimately
in the Supreme Court of Canada. That prospect may be behind this initiative,
which is dressed up to look like Copyright Board reform. In turn, it’s also an end run around the Supreme Court of
Canada’s 2015 conclusion in CBC v. SODRAC, which held 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”,
a fundamentally important ruling that arguably should have brought a quick end
to the York University litigation. (Yes – I’ve been involved in both these
cases).
It’s also a shocking end
run around the whole s. 92 Copyright Review process. This would be a monumental
legislative change by stealth to a system that has evolved with great care and
deliberation over a period of 80 years.
Above all, it has
nothing whatsoever to do with fixing the Copyright Board. Virtually all of what
needs to be done to fix the Copyright Board in the medium term can and should
be done by regulations pursuant to the existing legislation. Bureaucrats who
believe otherwise are, with respect, simply wrong. See my
submissions to the Senate and to the Government.
Indeed, this proposal
would only make things worse at the Copyright Board because lots of parties would
feel obliged to mount strong and expensive objections if there is any serious
concern about possible liability for multiple times the cost of a so-called
“mandatory” tariff – and the possible retroactive imposition of such a tariff.
It’s very disappointing that this proposal is
being given ANY consideration. It should have been screened out before it took
up anybody’s time. If it does see the light of day in a bill, there will be a
massive and messy opposition to it from many of the millions of people involved
in the educational community.
Ill conceived copyright policy and especially
legislation can be toxic to politicians, as Sheila Copps, Sarmite Bulte, the
late Jim Prentice, and others have learned to their considerable chagrin. Unfortunately,
today’s Ministers are apparently getting some very bad advice on this issue
from some of their bureaucrats.
These are my own personal opinions and not necessarily
those of any client – but I know that they are shared by other knowledgeable people.
HPK
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