Wednesday, June 09, 2021

The Copyright Board 2021 Second Town Hall – From Dysfunctional to Dormant After Nearly Four Years of No Hearings


 On May 31, 2021 the Canadian Bar Association hosted a second Copyright Board Town Hall. The first was in 2019. I’ve written about it here. As I said at that time:

Spoiler alert: Although Mme Théberge did at least acknowledge the delay issue at the outset, neither she nor Maître Audet indicated any direct and specific steps that the Board is going to take to deal with the issue of lengthy delays.  The Q & A aspect of the session was also disappointing.

Frankly, this year’s Town Hall was even more unsatisfactory and troubling.

 This time, the Board’s new Chair, Justice Luc Martineau, at least did appear, unlike his predecessor Justice Robert Blair who was apparently unable to get to Ottawa in time for the 2019 event. There was no Town Hall last year for COVID reasons and this year’s session was, of course, virtual. Justice Martineau promised more transparency, new regulations to be published in the coming months,  and a “new tone”, or a “slightly different tone”.  I do not recall anything much more specific than that, although he spoke at some length and may have mentioned “innovation”. I will look forward to seeing his remarks published on the Board’s website.

 Mme Théberge – the Vice Chair & CEO spoke of the “holistic and polycentric” nature of the Board’s work. She acknowledged that the Board was “losing credibility” in the past, seeming to  blame her predecessors for issues and problems that have not improved in any measurable manner since she took office in 2018.

 Maître Audet, the Board’s General Counsel, noted some possible questions arising from the pending SCC York University v. Access Copyright case and the forthcoming case on  the “making available” right. This was rather unusual, given that the Board, although once very vociferous in judicial review proceedings and even intervening whenever its former General Counsel Mario Bouchard could,  has more recently and more appropriately kept its counsel and let the Courts do their job without comment from the Board itself – as is fitting. On the issue of post-retirement deliberations, he made what appeared to be an inapposite or inaccurate reference to the concept of “functus officio”.

 There was a Q&A and the moderator, John Cotter, put forward the gist of my questions, which were as follows:

  1. Why are no Copyright Board decisions before 2020 available on CANLII?
  2. Why do links to Board decisions prior to recent website remake no longer work?
  3. Why do retired Board members sometimes deliberate for up to three years or even more post-retirement on cases they have heard and how do they get paid for this and at what rate? Are there any other comparable Boards of Tribunals anywhere that permit this post retirement deliberation beyond six months?
  4. Why has the Board not even held virtual hearings since the pandemic, when so many Courts, Tribunals and the Supreme Court of Canada have managed to do so? 

 The responses from Mme Théberge and Mme Taylor (the Board’s Secretary General) were at best inadequate and unconvincing. I submitted several follow up questions but these did not go forward.

 For example, re the first two questions, we were told that the website was redone to make if more accessible to the “general user”. Mme Théberge suggested that the former website was only aimed at “experts”. This, of course, is a red herring. I doubt if there is or should be any measurable interest amongst the general public in the innards of the Board’s activities. It has always been an “inside baseball” milieu – and the new website will likely ensure that this will continue a fortiori. The handful or less of individuals who have actually participated in Board hearings have varied in sophistication – but their low numbers and impact had nothing to do with the appearance of the Board’s website.

BTW, the Board’s Twitter account @COP_eng, which was highly trumpeted at great length and with much fanfare by Mme Théberge at the 2019 Town Hall, now has a grand total of 72 followers of the English version and 33 of the French. Most of the followers appear to be “insiders” or copyright professionals of some sort who do not need a twitter account to keep track of the very few new noteworthy happenings at the Board. In comparison, the Supreme Court of Canada @SCC_eng Twitter account has nearly 37K followers and the Federal Court and Federal Court of Appeal which have over 2,000 and nearly 3,000 followers respectively. They have lots to tweet about, in contrast to the Board which rarely has any noteworthy announcements.

The recent 2020 remake of the Board’s website at huge cost can only be charitably described as a “degraded” version Board’s previous website, which was at least fairly useful to copyright practitioners. As I have documented, the website was remade at a cost of at least $757, 548.50.

The only thing wrong with the previous website was that the search function was non-functional. This remained inexplicably and inexcusably unfixed for more than two decades.  That problem could and should have been fixed long ago at zero cost – but wasn’t, notwithstanding ongoing huge third part website related costs. It did not require the involvement of Decisia to make the site searchable. My freeware bargain basement blog has been searchable from day 1 – about 15 years ago. Basic searchability of a website is as routine as running water. Apparently, the Board just did not want its site to be searchable. It is searchable now – but at immense and unnecessary expense and delay and it sure helps if you know what to search for. The old website had tariffs and decisions grouped in nicely recognizable categories. That’s no longer the case. So much for the general public. More of what I’ve already written about this is here. BTW, despite the huge expenditure on its degraded website, the Board still does not have an email alert subscription facility – which is a basic feature of the Federal Courts and the SCC. Even my bargain basement freeware blog has had this feature. The Board seems to have dropped its chronological list of “rulings”, which was occasionally interesting and useful to practitioners – even if not searchable.

The Board indicated more than 20 years ago that “A compilation of the Copyright Appeal Board's decisions (1935-1989) is being prepared for publication.” That was vapour ware then, and millions of dollars of budget and 21 years later, we are still waiting. One cannot imagine what possible excuse there could be for not providing these decisions. It does not matter if they were not originally bilingual. The only comfort is that these pre-1989 decisions are really not very relevant or important anymore, and the important ones have been assimilated into many judicial decisions over the years. Still, the taxpayers have paid for these decisions over the decades and deserve to have them readily available and accessible. Researchers may wish to study them. “Official languages” policy is not an excuse. There are countless old court decisions from the Supreme Court of Canada available on its marvellous website in English only, if that is how they were originally released. Same with lots of not so old federal tribunal decisions on CANLII. While modern federal courts and tribunals strive to issue all decisions in both official languages, this was not always the case and doesn’t limit CANLII’s ability to post in one language only, if that’s what’s available. Even today, it can take some time for a Federal Court decision to get officially translated.

As for helping the “general user” learn about copyright, that is clearly NOT the Board’s responsibility. It should not be wasting its time and taxpayer dollars on this – and it’s doing a very poor job of it in in any event. Its mostly useless and sometimes even dangerous for users FAQ section  could use a basic spell check  - e.g. for “Copyright Registration and Infrigement [sic]”. Or “Fore [sic] more information on the tariffs that apply to your situation…” (highlight added). Maybe spell checking wasn’t included in the $757,548.50 remake cost?

Informing the “general user” about copyright is the responsibility of the Departments, especially CIPO, which has some information and could and should do better on copyright in general – if only it’s Minister had the slightest interest in copyright law or policy for which he is primarily responsible. However, he has been MIA and appears to have effectively handed copyright matters over the Canadian Heritage department, from which, BTW, both Mme Théberge and Mme Taylor hail. This is the first time that both the Vice-Chair and Secretary have been non-lawyers.

Above all, there is absolutely no valid reason not to put all old Board decisions – at least since 1990 – on CANLII. They were all available on the Board’s website until the degradation, categorized by issue, and in both official languages – contrary to Mme Théberge’s very questionable assertion and reference to Treasury Board and Official Languages policy. For example, the Competition Tribunal’s decisions are available on CANLII going back to 1990. The Canadian International Trade Tribunal’s decisions are available on CANLII from 1989. The Trademarks Opposition Board has more than 5,000 decisions on CANLII going back to 1990 and even earlier. These tribunals are comparable in some ways to the Copyright Board, but are far more productive. It is certainly not the case that all these decisions on CANLII are bilingual.

Contrary to Mme Théberge’s assertion, I am reliably informed that, there should be no cost incurred in getting all of its old decisions and approved tariffs at least since 1990 on CANLII – since they are all already bilingual and nicely formatted and 100% searchable. Moreover, they have all been published in the Canada Gazette in both official languages. She is apparently simply wrong about this – both regarding costs and the bilingual aspect. All that should be required is for one of her 21 employees to put the decisions and tariffs on a USB key or use cloud transfer to deliver them to CANLII. Only a minimum of direction re ordering and citation protocol would be required. It’s apparently that simple. However, it’s clear that – for whatever reason – she simply doesn’t want this to happen. So much for access to justice and transparency. Maybe that is precisely what the Board actually wants to avoid? Maybe the Board does not wish for the public – or those in government – to transparently see how very few hearings and decisions of any significant importance that the Board has dealt with in the last three decades? The many rubber stamped, uncontested and repetitive tariffs dealing with marching bands, etc. that have very questionably  been parlayed into very exaggerated numbers do not justify even a fraction of the Board’s budget or its endless delays.

And, BTW,  is there any plausible reason not to restore the viability of old and now dead links, which should not have been allowed to go dead in the first place? It’s apparently a simple exercise in providing a URL redirect with minimal effort at no cost using existing resources. I’ve pointed this out before, to no avail.

Speaking of transparency, the Board has recently invited selected persons to participate in a secretive consultation about proposed Rules of Practice and Procedure according to restrictive Chatham House Rules  in a super-confidential consultation requiring participants to sign an absurd Non-Disclosure Agreement (“NDA”). The NDA would require, inter alia, that the participant “(a) not disclose, discuss or communicate, or cause or allow to be disclosed, discussed or communicated, that it is a participant in the technical discussion on the Proposed Rules except on a strict need-to-know basis”. This is an exercise in public policy development.  This is not high-powered commercial litigation where confidentiality and protective orders are sometimes required but avoided where possible. So much for “Transparency” and “Open Government”. The Board should not insult its stakeholders and waste their time in this way.

 As for speeding things up at the Board, forget it. As I’ve pointed out before, the Governments’ recent time limits regulations solve nothing. Indeed, the Regulations do not appear to solve and do 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. These regulations explicitly permit this to be done in the future. Normal courts and tribunals just don’t do that. In the normal world of litigation and administrative law in the normal universe, by the time a hearing takes place, the tribunal or court is fully prepared, the parties have put their best foot forward and have presented their whole case and a decision is rendered after the hearing has concluded – usually within six months max.  Once the hearing is over, there are *never* any further submissions except in very rare circumstances, e.g. a new and potentially relevant and binding case from the courts. At the Copyright Board, the hearing – which may be six years or more in the making – is not the beginning of the end but is too often only the end of the beginning. There is no viable excuse for this. Copyright Board cases are not any more  complicated from a legal, evidentiary or economic aspect than many matters routinely dealt with the Competition Tribunal, the CITT, or the Federal Court – which are all dealt with in real world time frames, including he mandatory two year beginning to end requirement for PMNOC cases in the Federal Court.

As for the timely rendering decisions, the Board just recently posted its decision in the Stingray pay audio matter, which is retroactive to 2007 and goes only to 2016. The decision comes more than four years after the hearing, with two of the panelists deliberating for about three years to render this decision which few will understand and which may be of little importance in the current streaming milieu. Here’s my brief comment on the Stingray decision.

BTW, I noted on October 23, 1919 that the Board had then not held any hearings in more than two years. Ms. Théberge indicated, apparently inaccurately, in response to my Questions #4 that no hearings were scheduled during the pandemic began. That is simply not true. Three had been scheduled but since “suspended” without apparent reasons. In another manifestation of the degraded website, the listing of previous hearings and exhibits that were filed appears to have disappeared for no explicable reason. However, the Boad’s Annual Reports do confirm that the Board has held no hearings since September, 2017 – which was actually a  rehearing following the SCC’s decision in the CBC v. SODRAC case reaching back to 2008.

Ms. Théberge again affirmed Board’s great reliance on the expertise of her large legal and economic staff – seemingly oblivious to the notion that “Whoever hears must decide”. The Board’s full time staff includes six lawyers and four economists. It’s hard to imagine how they spend their time. She indicated that the Board currently has 21 employees. It must be noted that a budget approaching $5 million a year is a lot of money for a tribunal with 21 full time employees and two floors of splendid prime office space on Sparks Street, including a vey large hearing room,  that has held no hearings in almost four years and apparently with none scheduled in the future. The pay rates at the Board seem extremely high for the work required. The Board also regularly spends a small fortune on third party consultants and suppliers of often vaguely specified services, some of whom seem to be frequent flyers over the years. These reports are available – though rather well hidden under the banner of “transparency” – here. These include such oddities as court reporting services during a period when there were no hearings and frequent recourse to outside sources for “temporary help”, not to mention huge amounts on ongoing website maintenance and the new degraded site.

 Recent controversial “consultation” efforts emanating from Heritage Canada contain thinly veiled “make work” options for the Copyright Board. See here and here. However, if the pending SCC case unsurprisingly confirms that Copyright Board tariffs are not mandatory, the Board’s current modus operandi and raison d'être may be existentially challenged and non-sustainable.

Above all, it must be realized that the copyright law is not particularly complicated compared to many other areas of the law, such as competition, patent or trade law. True, it can get complicated – but that is way beyond the mandate and the expertise of the Copyright Board. That’s for the courts, including the Supreme Court of Canada, where the Copyright Board’s shortcomings are rather often dealt with – at inordinate inconvenience and expense to the parties and interveners.

If the Federal Court can resolve complex notice of compliance patent cases involving potentially hundreds of millions of dollars within two years – start to finish, including rendering of judgment – there is no excuse for the Board taking often six years just to get to hearing and another three years or more to render a grossly retroactive decision, which too often has proven to be wrong. You just can’t make this stuff up. It is was it is.

If the Board is to serve any useful purpose in the future, it must be reinvented so as to:

  •  Render timely and minimally, if at all, retroactive “tariffs” that are non-mandatory but sufficiently attractive in the market place that users will consider voluntarily signing licenses, just like making the cost of taking the train from Ottawa to Toronto more attractive than other choices, but not making taking the train mandatory – let  alone requiring an all year Canada wide pass for one trip. For most if not all of the “routine” tariffs, the Board’s involvement should not even be necessary.
  • Concentrate on determination of rates, terms and conditions, which is the reason it was formed more than 8 decades ago,  and stop pretending that it has any expertise in substantive copyright or other legal issues, much less international law
  • Drastically reduce its budget
  • Revert to the model envisaged by Justice Parker in the 1930’s that worked very well for the Copyright Appeal Board, which was well serviced part time by a retired judge and some public servants who had other responsibilities until ambitious bureaucrats got hold of the new Copyright Board in 1990 and beyond and have attempted to create a new mini-CRTC or other endlessly expanding empire.

Interestingly, the Auditor General doesn’t seem to have paid much if any attention to the Board in the past. As to ATIPs, the Board has spent a lot of money in the past on Michel Drapeau to advise on ATIP requests. One doubts that this was for the purpose of facilitating timely and transparent fulfilment. 

We have gotten nowhere close to a Copyright Board 3.0 as I called for on the 30th anniversary of the new Board in 2019.  The current Board has gotten only successively slower, more bloated and “dysfunctional” in the Senate Committee’s words since then.

That fact that it has not held a hearing in nearly four years, which may be a public policy blessing in disguise,  may be due in no small part to:

  • The ruling in Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII), [2015] 3 SCR 615, <https://canlii.ca/t/gm8b0> in which I, Prof. Ariel Katz, and Prof. David Lametti as he then was persuaded the SCC that “licences fixed by the Board do not have mandatory binding force over a user; the Board has the statutory authority to fix the terms of licences pursuant to s. 70.2, but a user retains the ability to decide whether to become a licensee and operate pursuant to that licence, or to decline.”
  • The fact that “the Board’s power to issue retroactively binding decisions in general” is now on the SCC radar screen as stated in FN 2 of para. 111 of Justice Rothstein’s judgement in CBC v. SODRAC
  • Even major collectives may be reluctant to incur the immense costs, never ending delays, and the uncertainty of pursuing an approved tariff from the Board that has a very good chance, statistically, of being struck down in the Courts – even if it is somehow enforceable as such, which is doubtful now in all cases except the private copying levy, which is of no importance to anyone except the lawyers and collective executives who continue to feed off its decomposing and diminishing small remains with the inexplicable regular rubber stamp of continuing renewal from the Board. When is the last time that anyone you know has bought a blank CD?

I have been involved one way or another with making copyright policy, litigating copyright, writing about copyright, and the Copyright Board itself at hearings and in the Courts possibly for far too long and probably for far longer than anyone else who is still active in this milieu. Thus, I feel competent and somehow compelled to suggest that the Board’s status quo is not and should not be sustainable.

There have been some outstanding and very professional persons at the Board over the years in various capacities. Likewise, there have been some very worthy counsel who have appeared before the Board. Hence my tough love for the Board and my hope that, if it is to survive and serve a useful function, it will be reinvented and become, as it once was, at least for its first five decades or so, a modest, modern and model tribunal not only within Canada but in the eyes of the world.

However, as it now stands, it is even more “dated, dysfunctional and in dire need of reform” than as described  by the Senate BANC Committee in 2016. 

Sadly, the Minister with primary responsibility for the Copyright Board, namely François-Philippe Champagne (FPC) @FP_Champagne, is MIA with no apparent interest in copyright law, policy or related matters. He has abdicated all of this to Steven Guilbeault @s_guilbeault, the Heritage Minister, who has shown nothing but chaotic incompetence on copyright and related “cultural” fronts such as #BillC10. This is all very regrettable because there are undoubtedly some capable officials in both Departments. However, their voices are apparently not being heard, or are being drowned out by lobbyists and Quebec politics.

 HPK

 

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