Thursday, November 28, 2019

Launch of Copyright Board’s New Regime for Publication of Proposed Tariffs & Other Changes: Bigger Budget, 30 Days Less Time to Object, Promises of “An Intuitive Architecture”, & a Twitter Account!

Changes to the Copyright Act were implemented in the omnibus budget Bill C-86 which, by its very nature, had virtually no public scrutiny. The changes regarding the Copyright Board came into effect on April 1, 2019. These amendments were supposedly intended, inter alia, to speed up the process at the Copyright Board for the approval of tariffs. I provided a rather detailed critique of the Bill and the process on November 6, 2018 here. I suggested at the time that the Bill:
Will quite possibly slow down the work of the Copyright Board rather than expedite it and stops well short of establishing hard-wired deadlines to hold hearings or render decisions, which could have been decisively done by regulation long ago

The Government has provided a “Factsheet” dated October 31, 2018 on these Copyright Board reform efforts here that emphasizes earlier filing, longer duration, modernized publication, a shorter objection period, and the promise of a modernized website.  What could possibly go wrong?

Mme Nathalie Théberge, the Vice Chair of the Copyright Board (whose appointment was effective October 1, 2018) spoke about this at the Canadian Bar Association Town Hall meeting of May 30, 2019. I wrote about that event shortly afterwards.  She spoke at some length about how the change to put publication of proposed tariffs in the hands of the Copyright Board and do away with the requirement of publication in the Canada Gazette would save time in the tariff making process.

We can now see the first results of this change. We now have a batch of new proposed tariffs published in late October and early November of 2019 that will now would take effect in 2021 rather than 2020 and be in place for at least three years. This is a change from the previous regime in which tariffs would be filed by March 31 and published in May or June to take effect supposedly at the beginning of the next year, with no requirement for more than a one year minimum but also no impediment, if the collective so wished to a three-year tariff. However, this change will be of little or no significance, since virtually all the Board’s contested tariffs end up being retroactive by several years due to the typical seven years or even more that it takes to get to a decision in such proceedings. Any potential reduction of retroactivity from this change is, at best, speculative and theoretical. The current Access Copyright proposed Post-Secondary tariff is nine years old with no end in sight. It was contested for a time until the major institutional objectors withdrew, leaving their members with big bills and no representation.  It has been effectively uncontested for seven years, except for one curiously persistent individual student who, if he still remains, has had very little, if any, noticeable impact as an objector. Clearly, if the Copyright Board eventually issues a supposedly mandatory and retroactive Post-Secondary tariff of any significant financial or other impact, such as reporting requirements, we could see some very serious disruption in the post-secondary sector and some very serious court challenges.

Indeed, the Supreme Court of Canada has clearly signalled that there may be a jurisdictional issue “concerning the legitimacy of or limits on the Board’s power to issue retroactive decisions.” This important comment in the SCC’s 2015  CBC v. SODRAC decision is present due to my arguments on behalf of Prof. Ariel Katz and McGill’s Centre for Intellectual Property Policy Centre for Intellectual Property Policy  led by Prof. David Lametti, as he then was (he is now the Minister of Justice and Attorney General of Canada).

Under the old regime, the tariffs were published in bilingual format in the Canada Gazette and the Board would put a notice on its website and notify potentially interested parties and counsel by email a day in advance of the official Canada Gazette posting.  True, the Canada Gazette is not exactly the most transparent or convenient place for conveying information. It is a long-standing and running joke in Ottawa that the best way to keep a secret in this town is to have it published in the Canada Gazette. But, to its credit, the Board could and did point to the Canada Gazette in the past. And it would send email alerts to potentially interested stakeholders and counsel (this process now seems to have at least partially broken down). The Canada Gazette folks apparently did their job quite quickly – and in consistent side-by- side bilingual format. The tariffs appeared in the Gazette within two or three months. The Canada Gazette has been online for a very long time. The system worked.

It is not apparent how putting this publication process in the hands of the Copyright Board will accomplish anything positive. Publishing tariffs in unilingual format is not helpful. This is inconsistent with the decades-old practice of the side-by-side bilingual format. Now, English speakers one must go the French version of the website to see the French version of the proposed tariff. Or vice-versa. This is, at the very least, quite inconvenient. It makes side-by side and redline/blackline comparisons with previous proposed tariffs much more tedious and time-consuming.

A serious downside of the new regime is that objections must be filed within 30 days of publication, rather than the decades-old standard of 60 days. This is definitely bad news for users and potential objectors. 30 days is too short a time for those objectors who are new to the process, who wish to organize new coalitions or to retain counsel for the first time, or to change counsel for any reason. 30 days is barely the blink of an eye in the typical timeline of a Copyright Board tariff, which can typically take about seven years or more to get to a decision. And that’s before the usual judicial review.

This shortening of the 60-day time to object to 30 days can only benefit collectives. It will make absolutely no difference overall to the dysfunctionality or culture of delay at the Board. In fairness, this is the fault of whoever devised Bill C-86, which may or may not have included input of the Copyright Board. It is noteworthy that the Board apparently took some considerable interest in the revision of the Copyright Act. Despite having at least four lawyers on staff, it paid:
$274,398 to an entity named Leverage Technologie Resources Inc., whoever they may be, for “Professional service for the amendment of the Copyright Act” during the period of November 14, 2016 to March 31, 2018
The timing and nature of this very large contract invite curiosity.

As to the promised modernized website, the Copyright Board is promising the following:

Although the Copyright Board regularly spends a lot of money on third party contractors for website maintenance, the following recent contracts since April 1, 2018 for “the maintenance, updates and redesign of the Copyright Board's website” and other website work are of particular interest: 
-        $203,400 for April 1, 2018 to March 31, 2019 for “the maintenance, updates and redesign of the Copyright Board's website” and other website work
-        $90.400 to Cision Canada and Développement Axial for April 2017 to March 31, 2018 “for the maintenance and updates of the Copyright Board's website”
-        $158,200 for April 1, 2018 to March 31, 2019 to Développement Axial  “for professional services for the maintenance, updates and redesign of the Copyright Board's website.”
-        $45,200 for April 1, 2018 to March 31, 2019 to Cision Canada for the maintenance and updates of the Copyright Board's website
-        $27,402.50 for December 19, 2019 to March 31, 2020 to Lexum informatique “… to improve and broaden access to the Board’s decision on its website”
-        $187,746 to Développement Axial for March 5, 2019 to March 31, 2020 for “…for professional services for the maintenance and updates of the Copyright Board's website”
-        $45,200 to Développement Axial for 2019-11-07 to 2020-03-31 “…is for professional services for the maintenance and updates of the Copyright Board's website”
That’s $757,548.50 on website stuff since April 1, 2018. I regularly look at the Board’s website and I cannot yet discern any noticeable improvement following these several large recent expenditures.

Sorry if I missed anything or counted twice. I am not an auditor. I welcome any necessary corrections. It  must be said that Board’s website, apart from its chronically dysfunctional search utility, has been reasonably useful in the past, given the very limited amount of information that the Board has chosen to make available. The search utility has been dysfunctional for years despite large third-party website expenditures over the years. Thankfully, good old reliable and simple Google searches will do the job for most purposes.

It is not obvious why “an intuitive architecture and an improved navigation system” will be helpful if essential content is not there to begin with. Guidance in all respects can be found at the excellent Competition Tribunal site. BTW the Competition Tribunal has about a 30% smaller budget than the Board, about half the staff,  and a much better website that importantly includes documents filed in its numerous cases – many more than the Copyright Board deals with. It even provides the email address of its Webmaster. Indeed, the Board’s site is becoming, if anything, less rather than more useful. The Board has now removed access to the names and contact information for its working staff except for its Secretary General and the receptionist’s phone number. As I have indicated before, the Board’s staff – both professional and administrative – have always been extremely courteous and helpful. The Board clearly, however, apparently now wants to limit transparent and unfiltered access to them. In the small world of people who actually may need to interact with the Copyright Board, that is hardly helpful.

It is especially difficult to see what possible use a Copyright Board Twitter account could be. Twitter is essentially useless as a primary tool for making announcements, unless the issue is very immediate and important and of interest to a lot of people who spend a lot of time on Twitter and would follow the Board’s account and retweet something of interest.

True, the Federal Courts and the SCC have twitter accounts. But they have lots of things to announce on a nearly daily and sometimes even more than daily basis and Twitter is by no means their primary way of reaching their audience, which is through email subscription and distribution – see below. They have vastly more to announce and vastly larger audiences than the Copyright Board. See:
https://twitter.com/FedCourt_CAN_en   (~1074 followers)
https://twitter.com/FedCourtApp_en  (~2,128 followers)
https://twitter.com/SCC_eng  (~27.4 K followers)
It is highly unlikely that the Copyright Board would ever have more than a few dozen Twitter followers. I’ll volunteer to be among the first. Twitter can be useful for feedback, but that is something that the Board has shown to be of no interest to it –  indeed quite the contrary,  even when it has uncharacteristically actually asked for comments.  In any case, as a quasi-judicial tribunal, it should not be interested in review by the court of public opinion. The Board already spends tens of thousands a year on “newspaper clippings and reports services” for whatever reason (BTW, Google Alerts, which is free, works very well. Michael Geist and I are about the only regular commentators on the Copyright Board. There’s no need to spend tens of thousands a year for follow our comments). Mme Théberge spent a lot of time talking about the Board’s proposed Twitter account at the above Town Hall meeting.  It is astonishing that Board has spent so much time and quite possibly money on this Twitter idea. So far, the only visible result is that is has set up a Twitter handle – which is trivially simple to do – but it is so far inactive. See @COP_eng above. Don’t forget to sign on to the “pending” button so you can be included once it is active.

The Government’s Factsheet promises:
Modernized website: Additional resources earmarked in Budget 2018 will enable the Board to revitalize its website to more clearly convey to Canadians information about their ongoing operations as well as proceedings. It will also allow Canadians and interested parties to subscribe to receive relevant information, such as rulings, when they want it.
(highlight added)
Why this should require any expenditure of public funds is inexplicable. A simple email subscription and notification mechanism, as is used by the Federal Courts, the Competition Tribunal and the Supreme Court of Canada and even as available on my humble freeware blog page, would do this job. For example, this is how it works with the Competition Tribunal through a link available on the main page. Cost of operating such email subscription and notification is zero. It would require no time whatsoever on the part the Board’s staff once it is properly set up – which is extremely simple. Special announcements may require a few minutes of someone’s time to post to those who are on the email subscription list. This would be guaranteed to reach the right audience immediately – which is absolutely not the case with Twitter. That fact that the Board hasn’t provided this absolutely basic common place tool on its front-page years ago, especially given its large third part expenditures on website maintenance over the years, is simply inexplicable.

The Competition Tribunal appears to have its own webmaster, i.e. webmaster@ct-tc.gc.ca. With its much larger staff, it would seem logical for the Copyright Board to have someone on staff to update the website in the normal course, especially since so little ever needs to be added on so few occasions.

By way of another example, here’s how easy it is to subscribe to the Federal Court’s email alert system – which sends out notifications of new cases every morning and sometimes bulletins when something really interesting or important happens:

For whatever reason, the Copyright Board’s decisions – unlike many other federal tribunals including the Competition Bureau, are NOT available on Canlii, which is free and friendly and has excellent search and sorting utilities, not to mention links to updates and consideration by other courts, etc.  For example, here is how the Competition Tribunal appears in its special section on Canlii – with Continuous coverage of cases from 1990-01-01 to present (some 754 decisions). Of course, all of this is available through the main page of Canlii as well.

In any case, every competent Canadian IP lawyer presumably knows that daily free customized updates are available from Alan Macek’s exemplary, indispensable,  and amazing free IPPractice.ca service, which has now been modified to track the Board’s slightly altered website to enable same day alerts to new proposed tariffs for those wishing to receive them.

Another thing that the Copyright Board could easily do to increase transparency and accessibility, which would involve virtually no cost other than one or two overhead cameras, an initial routine setup, and some minimal training for an employee, is to webcast its hearings. It already has a very fancy hearing room with sophisticated audio. This would require little if any human involvement if properly set up and, of course, it’s simple to stop the feed if confidential stuff is being discussed (which rarely happens or needs to happen during hearings). The Federal Court is now webcasting some hearings and the Supreme Court of Canada has been doing so live and with archives for years. Many universities regularly post live and archived webcasts of interesting events. Even WIPO is getting into this technology. It is hardly rocket science.

It seems that the Board is trying very hard to find ways to spend the additional $1,000,000 a year it has been allocated for its budget. Hiring more lawyers and economists is not the answer and many not only slow things down but create problems based upon the principle that he/she/they who hears must decide and that the Board cannot make decisions based upon its own undisclosed and untested research.  This decision-making process cannot be delegated, and Board members are presumed to have expertise. The Board is already arguably very generously staffed in terms of lawyers and economists compared to other federal courts and tribunals that have much greater case loads. It has even announced a prize for a paper by a graduate student in economics on copyright economics:
This prize will recognize the best article on the economic dimensions of copyright and will include $ 2,000 in addition to a paid work term of one year within the Board’s Economic Analysis Team.

Once again, and as always in the spirit of tough love, I cannot find much reason for optimism at this time for solutions to the problems identified three years ago by Senate BANC Committee, which  called for “thorough, in-depth examination of the Copyright Board of Canada’s mandate, practices and resources.” The Board does have an extra million dollars a year, but apart from that, there is no sign of any systemic change. In fact, as noted, some things may have even gotten worse rather than better. A prettier website and a Twitter account will do absolutely nothing to change the culture of delay.

The Board is not visibly busy in any obvious sense. It has held no oral hearings in more than two years and none are scheduled until September of 2020 when three hearings on relatively minor matters are set to unfold in late 2020. Hopefully, the Board will use this downtime to work towards reinventing itself and not just tinkering with procedural details that won’t make any material difference.

Let us hope that @NavdeepSBains Minister of  @ISDED_CA or whatever its new name will be, gets a grip on this increasingly “dysfunctional” situation, to use the Senate Committee’s own term. The first order of business for Minister Bains should be scrap the problematic and predictably ineffectual regulations proposed by officials with no Copyright Board or other related experience earlier this year that were put on the shelf because of the election and to impose, instead, a fixed timeline as we have with the Patented Medicines Notice of Compliance (“PMNOC”) proceedings as I have suggested here

HPK

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