Wednesday, January 06, 2021

The Copyright Board Begins 2021 with Less Transparency and More Potentially Dysfunctional Delays

 



Just in time for Christmas, 2020, the Governor in Council implemented the long-awaited Time Limits regulations regarding the Copyright Board – which were published on December 23, 2020, ironically more than 1.5 years after the preliminary announcement and consultation.

The Time Limits in Respect of Matters Before the Copyright Board Regulations: SOR/2020-264 are now in place.

This does not appear to solve and does appear to continue and confirm the main problems I identified on April 29, 2019. The Board often keeps cases open for long after a hearing has supposedly concluded or should have concluded. Normal courts and tribunals just don’t do that. These regulations explicitly permit this to be done.

Here’s the deal:

Proposed tariff

2 The Board must make a decision with respect to the approval of a proposed tariff under subsection 70(1) or 83(8) of the Act

·        (a) if the Board holds any written or oral hearings in respect of the proposed tariff, within the period of 12 months after the day that is fixed by the Board or a case manager as the final day on which any party may present their written or oral submissions to the Board; and

·        (b) in any other case, before the day on which the effective period of the proposed tariff begins.

Royalty rates or terms and conditions

3 The Board must make a decision with respect to the fixing of royalty rates or their related terms and conditions, or both, under subsection 71(2) of the Act within the period of 12 months after the day that is fixed by the Board or a case manager as the final day on which any party may present their written or oral submissions to the Board.

Final day for submissions

4 If, on or after the day fixed by the Board or a case manager as the final day on which any party may present their written or oral submissions to the Board, the Board or a case manager fixes another day as the final day on which any party may present their written or oral submissions to the Board, that later day is not considered to be the final day for the purpose of determining the 12-month period referred to in paragraph 2(a) or section 3.

            (Highlight and emphasis added)

So, the Board or a case manager can keep a case open for a long, long time. And that has happened many times.

And as if that’s not enough, there's still an "exceptional circumstances" loophole.

Extension of time limit

6 (1) The Board or a case manager may, in exceptional circumstances, give a direction or make an order that extends a period referred to in section 2 or 3 and sets out the extended period and the exceptional circumstances that justify the extension.

            (highlight and emphasis added)

I commented through the official consultation process at the time to the officials in charge of this project on May 27, 2020 here.

One of the possible contributing factors to the Board’s perennially dilatory delivery of decisions that nobody wants to acknowledge may be its apparently unique disincentive mechanism for retired members to finish off any work relating to pending decisions in a timely manner. For example, it took former Chair William Vancise almost four years after his retirement to finish off his pending decisions at the Board.

Whatever the reason for the unusual, if not unique, open-ended nature of this provision for retired members, it certainly does not encourage confidence in the expeditious renderings of decisions. Judges in the Federal Courts get only 8 weeks to finish off their decisions after they cease to hold office. Supreme Court of Canada justices have six months after they retire. 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. In some provinces, such time lines are included in legislation.” The Federal Court, Federal Court of Appeal and Supreme Court of Canada routinely render decisions on matters much more complex than any Copyright Board case in six months following the hearing.

The PMNOC (patented medicines) regime – which involves extremely complex evidence and hearings involving huge amounts of money – must now be completed from start to finish in the Federal Court – including the judgment – within 24 months. I’ve discussed this in my submission on the Copyright Board reform process on 2017.

In fact, here’s a very recent important complex 92 page PMNOC decision from the Chief Justice himself of the Federal Court rendered in exactly 24 months from start to finish as required by law. See Allergan Inc. v. Sandoz Canada Inc., 2020 FC 1189 (CanLII), <http://canlii.ca/t/jcchv>.

Overall, these new Copyright Board regulations would appear to accomplish nothing other than to legitimize and confirm a culture of delay that is unique among Canadian courts and tribunals and likely by any international comparative measures. In the USA, copyright royalty decisions are rendered within 11 months start to finish – because that’s what the law requires.

The US Copyright Tribunal has a hard deadline requirement. It must issue its decisions within 11 months as follows:

§352.2   Timing.

The Copyright Royalty Judges will issue their determination 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. The date the determination is “issued” refers to the date of the order.

(highlight added)

Above all, let’s be frank here. The Copyright Board rarely holds more than two or three contested hearings a year and usually and lately less  or even none and rarely issues more than five actual “tariffs” per year, many if not most of which are uncontested or settled on consent.  The Board rarely releases more than one or two substantive decisions a year – and sometimes less. The many tariffs that are uncontested or dealt with on consent should not create the impression that the Board has a large workload, despite Prof. de Beer’s controversial study from 2015 that incongruously managed to parlay the Board’s own data of 74 previous tariffs then to date into the astonishing, incredible and frankly surreal number of 852. This study appears to have been instrumental in getting the Board another million a year in its budget. See my detailed critique of Prof. de Beer’s “statistical” methodology and analysis here. Even the Board’s own figure of 74 was exaggerated, since this figure reflected a number of minor “redeterminations” and other less than significant events.

But it was is still the Board’s own number, as calculated from the Board’s own posted information – now unavailable thanks to the Board’s expensive, new and much less useful website. Still, this is less than 10% of Prof. de Beer’s number of 852. Prof. de Beer’s problematic analysis is cited in the Government’s unconvincing rationale and explanation for the new regulations.

Here from my 2015 blog are Some Comparative Observations & Stats on the Copyright Board, Selected Canadian Tribunals & the Supreme Court of Canada.

The Board’s new and very expensive  $757,548.50 (+?) website manages to make it even more difficult if not impossible to extrapolate the analysis that I was able to do – pro bono and at my own initiative  – to criticize Prof. de Beer’s study or, indeed, to track the past or present workload and efficiency of the Board.

Indeed, the Board’s new website is a serious step backwards in terms of transparency and utility. The only obviously needed improvement – which could have been done years ago for little if any cost  – was to provide a functioning search facility. This was not rocket science. Lots of Boards and government sites had this without Decisia. It remained dysfunctional for as long as I can remember, despite regular large fees paid for third party website maintenance. After much kvetching from me, the Board’s decisions from 2020 are now on Canliibut only for 2020 and none of this batch is very significant. Indeed, the Board’s website is not even up to date for the listing of 2020 decisions. For example, some of the earlier decisions from 2020 that are now on Canlii aren’t even on the Board’s own website.

There is no reason whatsoever why Canlii wasn’t long ago given the Board’s whole decision and tariff database back at least to 1990.  There would be virtually zero cost in making this happen. The older pre-1990 stuff is on the CPR database and I’m sure that the Board must have it all in digital format.  It would be shocking if it did not.

Again all this could have been at virtually zero cost. I’ve raised this and asked the Board about it many times with no satisfactory or sensible answer. The absence of the Board’s decision from Canlii since 1990 is nothing short of an affront to the concept of access to justice and transparency. This can still be remedied at zero cost – but the Board appears intent on keeping its decision record  and a lot of other information as obscure as possible – and even more so than before with its new website. This new website was supposed to provide  “an intuitive architecture and an improved navigation system”.  It is conceivable that, in the eyes of an uninformed non-lawyer member of the public who is totally unfamiliar with the Board or copyright law, the new website might initially seem more attractive than the old. But that is not the Board’s audience. Even with all my prompts,  the Board still only has 49 followers  - most of whom were already well in the loop.

The Board held no hearings in 2020 and has postponed the three that were scheduled with no new date in sight. Whatever the reason, it surely has nothing to do with COVID. The rest of the Canadian justice system at all levels up to and including the Supreme Court of Canada has adapted to COVID and even managed to make most aspects of the hearing process faster, easier and cheaper using Zoom and other long tried and true technology – such as online filing.

The Copyright Board goes into 2021 with a new Chair, namely The Honourable Luc Martineau from Canada’s Federal Court. We wish him well. Hopefully, his experience at the Federal Court, which is vastly more productive and efficient than the Copyright Board by any measure, will help to counteract the ingrained and now, regrettably, continued culture of systemic delay that has been confirmed by the new regulations. He is the first judge from the Federal Courts to be the Chair of the Copyright Board, which is consistent with one of the implicit suggestion in the only published comment of which I’m aware from the outgoing Chair Justice Robert Blair, who retired as Chair after only term. Justice Blair stated in 2018, in the context of the Board’s expertise or lack thereof, that: “ The Chair must be a sitting or retired superior court judge (where very little intellectual property work, much less copyright work, is done), and to date has not come from the Federal Court system where they actually know something about those subjects!”

However, the Board continues into 2021 with a Vice Chair and Secretary General who are both non-lawyers.  This has never been the case before that I can remember – which goes back to the 1980’s. Moreover, both of these individuals hail from the collective-friendly culture of the Department of Canadian Heritage. This may partially explain the Board’s new and less transparent website and absence from Canlii. Lawyers tend to believe – or should believe –  in access and transparency when it comes to legal decisions and case information. This is fundamental to the rule of law.

Obscurity and difficulty or impossibility in finding past decisions and other information can only confer an advantage on large collectives, large institutional users, and their large law firms, who may be able to work around these problems. This new website is very unhelpful – and potentially a real setback – to the many smaller users, user associations and individuals who find participations in Copyright Board proceedings so discouraging, difficult and increasingly even impossible. Whatever may have been the intention, this new website will help to shield the Board from greater scrutiny.

Another serious but fixable problem with the new website is that virtually all previous links on my blog and anywhere else to Board decisions and other materials have now rendered useless. The links could have easily been kept active at no cost with a URL redirect – and this could presumably even now be easily restored – at virtually no cost – if the Board kept an archive of its old website, which it most assuredly should have done.

Rearranging or repainting the deck chairs isn’t going to repair the unique and dilatory dysfunction at Canada’s Copyright Board.

The Canadian Senate Committee studying the Board described it as “ dated, dysfunctional and in dire need of reform”. That reform simply hasn’t happened. Indeed, things have gotten worse.

The saving grace is that the Supreme Court of Canada and the Federal Court of Appeal have both said that the Board’s tariffs are optional and not mandatory. One would have thought that this would have provided a strong impetus for reform within the Board and its government overseers. It’s obvious that a reasonably priced, timely tariff that would provide convenient access to a satisfactory repertoire with reasonable terms and conditions would be readily adopted without any compulsion, much less the “oppression and extortion” that the Courts have warned about since 1894.

The Supreme Court is about to look at this again and will likely affirm that it said what it meant and meant what it said in 2015 when Prof. Ariel Katz, Prof. David Lametti (as he then was) and I as their counsel won the mandatory tariff victory in that Court in Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <http://canlii.ca/t/gm8b0>.  The Supreme Court will likely hear this case in the late spring or the fall of 2021 – with a decision to follow in about six months and maybe even less  – unlike the many years that the Board typically takes to decide much less complex and important matters.

There can be no doubt that the major Canadian copyright collectives and content owners will now try to bypass these compelling judgements from the Supreme Court and the Federal Court of Appeal and short circuit the forthcoming Supreme Court hearing with expensive lobbying campaigns for a legislative fix that will be paid for by their membership, as usual. If Parliament decides to weigh in on this issue, it clearly should do so in a manner than confirms the existing state of the law that is in turn based on nearly eight decades of Supreme Court of Canada jurisprudence.

HPK

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