My personal submission re Notice in Canada Gazette, Part I, Vol 153, No 17, April 27, 2019 re: Regulations Establishing Time Limits in Relation to Matters Before the Copyright Board

Here is my personal submission today about the proposed regulations re Time Limits at the Copyright Board:

*****

Macera & Jarzyna LLP

715 – 11 Holland Ave.,

Ottawa, ON 

K1Y 4S1

^Tel: 613.238.8173

^Fax: 613.235.2508

www.macerajarzyna.com

715 – 11 Holland Ave.,

Ottawa, ON 

K1Y 4S1

^Tel: 613.238.8173

^Fax: 613.235.2508

www.macerajarzyna.com

May 27, 2019                                                                                                  BY PDF

Martin Simard

Director, Copyright and Trademark Policy Directorate

Innovation, Science and Economic Development Canada

235 Queen Street, Ottawa, Ontario K1A 0H5
martin.simard@canada.ca

–       - and -

Kahlil Cappuccino

Director, Copyright Policy

Department of Canadian Heritage

25 Eddy Street Gatineau, Quebec K1A 0M5

kahlil.cappuccino@canada.ca  

Sent by email

Dear Sirs,

Re: Notice in Canada Gazette, Part I, Vol 153, No 17, April 27, 2019 re: Regulations Establishing Time Limits in Relation to Matters Before the Copyright Board

Thank you for the opportunity to comment on the proposed regulations. The following comments are in my personal capacity and do not necessarily represent any client of mine. I have written in the past at length in my personal capacity about time limits at the Copyright Board (the “Board”) and have made submissions to the Senate BANC Committee and ISED.  Please see, for example, the attached document dated September 29, 2017 submitted in the Government’s consultation process.

I can quickly summarize my position on the proposed regulations (the “proposal”):

1. This proposal does nothing to ensure that a hearing on a contested matter is held within a reasonable length of time. It routinely takes the Board four years or even more to get to the oral hearing stage. I am unaware of any other Canadian tribunal or court that moves so slowly.
2. There appears to be widespread concern that the proposal does not specify when the “conclusion” of a hearing – whether oral or writing – takes place.  The Board frequently follows up after the supposed “conclusion” with further requests for evidence or submissions, thus prolonging the beginning of the proposed 12-month period potentially indefinitely if this practice is to be condoned and continued. Such a practice is unheard of in Canadian Courts or other tribunals of which I am aware, except in the rare event that a potentially binding and applicable judicial decision is delivered after the apparent close of the hearing. In fact, the Canadian Judicial Council has specifically pronounced that “judges should render decisions within six months of hearing a case, except in very complex matters or where there are special circumstances. There should be no reason why a presumably expert tribunal with unusually large and growing research resources cannot address all necessary questions at an oral hearing or by a fixed date in a written proceeding.
3. On top of these uncertainties, the Board will still be given broad discretion to extend the time limits, which will likely be unreviewable for all practical purposes.

There is no reason why the Board should be immune from the norms applicable to other expert tribunals or courts.  In fact, the closest analogy may very well be the Federal Court, which is now required to deal with the Patented Medicines Notice of Compliance (“PMNOC”) matters now also including infringement issues within 24 months from start to finish including the rendering of a judgment. These matters are invariably much more complicated than anything coming before the Board and can involve issues worth hundreds of millions of dollars. The Federal Court deals with several of them at any given time. Most Federal Court judges have no prior expertise or experience with patent law when they are appointed. A Federal Court judge has only one clerk – unlike the Board which has a large and growing staff of lawyers and economists. These PMNOC cases are decided by a single judge and not a panel with multiple members. It must also be considered that the Board’s large and growing research staff may create issues arising from the principle that “he/she who hears must decide”.

In the USA, the Copyright Royalty Tribunal operates under a mandated fixed time limits of “within 11 months of the date of the post-discovery settlement conference or 15 days before the expiration of the existing rates or terms in a proceeding to determine successors to rates or terms that will expire on a specific date, whichever date first occurs.”  See my recent discussion of this and related issues on my blog on April 29, 2019 with references and links. http://excesscopyright.blogspot.com/

I am concerned that the proposal, if implemented, will normalize the inexplicable and unacceptable culture of delay that has unfortunately prevailed too often at the Board and which, not surprisingly, may at times suits the interests of certain major collectives, especially if they can expect that the resulting tariff will be regarded as mandatory and if it is retroactive. It may also sometimes be the case that some of the counsel, consultants, and experts retained by some collectives may also benefit from these lengthy and extended hearings.

The current Access Copyright proposed Post Secondary Educational tariff is perhaps an outlier in terms of timing even by Board norms – but it is the unavoidable example of what can go wrong in an extremely important proceeding. It is still pending after 9 years. The Board recently purported to seek comments from “affected persons” on the “feasibility and clarity of the terms of the tariff”. The Board thereupon announced by way of a ruling posted obscurely on its website without notification to those who responded that comments about the mandatory tariff and retroactivity issues, along with other key substantive issues, would be ignored. Since both issues have been explicitly dealt with in directly applicable Supreme Court of Canada decisions as pointed out in some of the submissions, the Board’s apparent indifference to this jurisprudence is very troubling.  It could be seen as very discourteous to those who went the time and expense of making submissions as invited with the legitimate expectation that these submissions would be given a considered and fair hearing.  See my blog comments with a link to those 11 submissions here: http://excesscopyright.blogspot.com/2019/04/the-copyright-boards-new-leaf-not-so.html

In conclusion, I suggest that, as is the case with the PMNOC regime, the Board be required to dispose of all contested tariffs within 24 months from filing to approval and certification with reasons.

Yours sincerely,

"HPK"

Howard Knopf

Att.