The Copyright Board of Canada, hosted
by the Canadian Bar Association, was given the stage for a third “Town Hall” on
June 2nd 2022. Spoiler alert: once again, it was disappointing and mostly
devoid of any substance – other than an interesting but very vague hint about
how the Board sees possibly increased use of its so-called “arbitration” regime
as some kind of response to the SCC’s 2021 decision in the York case that its
tariffs are not legally mandatory. There was a follow up CBA event on June 9,
2022 about which I shall blog separately.
I have blogged at some length about the
first two town halls in 2021. Expectations for this year's event we're quite
low on my part because there is no
apparent evidence that anything significant has happened at the Board since
last year. It has held zero hearings in nearly five years,
rendered no significant decisions in 2021(with one possible exception noted
below) or 2022 other than housekeeping of previous decisions with minor changes
and a few “unlocatable” owner decisions of no consequence. It may be observed
that it has finally corrected the spelling of “infrigment” [sic] on its website.
Moreover, it has finally made almost all (or at least 211 according to CanLII
out of 230 according to the Board since 1990) of its decisions searchable and
available on CanLII, which is something that could have and should have been
done 20 years ago at virtually no cost.
The most recent available
In spite of
these pandemic-related challenges and the slowdown of activities in some
industries involved in the rate approval process, the Board’s workload remained
significant in 2020-2021. In addition to pending files, the Board received 21
new proposals tariffs submitted on or before October 15, 2020, as stipulated in
the new legislative framework, and 21 licence applications for the use of works
whose owners cannot be located as per section 77 of the Copyright Act. Also,
110 agreements were filed with the Board pursuant to section 76 of the Act. Finally,
in 2020–2021, the Board issued 20 decisions, including two major decisions in complex files:
June 26, 2020 SODRAC v. CBC, 2008–2012 ]
January 27, 2021 SODRAC v. CBC, 2012–2018 [[Sic
– this second link is wrong – it’s the same as the previous link] (highlight added)
The new tariff proposals, unlocatable
licence applications, and filed agreements would have required a barely minimal
“workload”. All of these tariff “decisions”, except two, appear to be rubber
stamp repetitions with minor if any variations from previous decisions. The two
links provided for the two supposedly “major” decisions are the same, which
makes one question whether this report to the Minister was adequately proofread.
In any event, these two “major” decisions are probably incomprehensible except
perhaps to the lawyers and experts involved. This would appear to be the correct
link for the “Determination”.
These two decisions are undoubtedly
important to CBC and SODRAC (which is now owned by SOCAN) – and potentially
with respect to similar issues arising in the commercial radio and TV worlds.
However, the opacity of the reasons to all but a very small number of expert
veteran Copyright Board lawyers and consultants is a disappointing departure
from the past. The beauty of the common law judicial system is that good judgements
on even the most complex issues are normally self-standing and reasonably
understandable to any reasonably literate person and certainly to any
reasonably knowledgeable lawyer in the field involved and not just the lawyers actually
involved. The same should hold true – and usually does – with “expert”
tribunals in Canada.
It might be noted that the hearings for
these “major” decisions were in September, 2017 but the decisions were not
rendered until June 26, 2020 and January 27, 2021 – long after members
The Board continues to foster the
impression that it has a huge workload and is very productive. This is no doubt
nourished by was
questionable at the time and has not aged well. My
has not been refuted by anyone, as far as I know. As I further indicated at the
time, based upon the Board’s own previous taxonomy and my analysis:
So, if the Board is right, and I am right, then
Prof. de Beer’s conclusion that the Board has certified 852 tariffs in the last
15 years is off by a factor of 852 ÷ 74, i.e. ~1,150%. His conclusions that the
Board certifies 70 tariffs a year would likewise be off by a factor of 70 ÷
4.9, i.e. more than 1,400%
The Board has rarely, if ever, issued
more than five actual tariffs in a year, and usually even fewer substantively
important decisions. In turn, very few of these tariffs are truly new or
“inaugural”. Nonetheless, and do doubt
empowered by Prof. de Beer’s study, the Board soon thereafter got a million
dollar per annum increase in its annual budget bringing it to about $5 million
a year for total expenses. That’s a lot for a Tribunal that hasn’t held a
hearing in almost five years and apparently doesn’t adequately proof read its
annual report to the Minister.
So, this year’s Town Hall was once
again frustrating and disappointing, except for one aspect that may suggest
how's the Board will try to find some justification for its continued existence
in the face of the “existential” issues raised by the Supreme Court's decision
last year in York
University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32 (CanLII), <>
The first two speakers were the Vice Chair/CEO,
Nathalie Théberge, and Secretary General,
Lara Taylor. They said essentially nothing, but did so in a very smooth, bureaucratic and well rehearsed manner, with
several references to their “mighty team”, “Phase I”, “Phase II”, etc. They
promised an important forthcoming consultation on new rules, concerning which
I’ll have something to say in due course. As I’ve said before, for the first
time in the Board's history, neither of the persons occupying these two
important positions are lawyers, which is incongruous considering the supposedly
quasi-judicial nature of the Board's work in the very esoteric and
quintessentially legal field of copyright law.
The somewhat interesting aspect of the
remaining time after the long and uninteresting presentation by the Vice Chair
and Secretary General was the discussion by its chair, retired Justice Luc
Martineau and its general counsel Sylvain Audet. The chair mentioned the Access
Copyright case, as he called it which followed the
Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57 (CanLII),  3 SCR 615, < case “in a certain way” as he put it. There was clearly at least an implicit recognition that the Supreme Court's landmark ruling the copyright board tariffs are not “mandatory” well affect the nature of the Board's work. When I asked in the chat about how it might affect the workload, Maître Audet replied that this “remains to be seen”.
Both gentlemen explicitly suggested
that there might be increased utilization of the Boards “arbitration” regime,
based up on the 2018 amendments. The Chair noted that there had already
previously been 15 arbitrations in the Board's 32 year history.
For my part, I do not see how the 2018
amendments will have any effect on the implications of the Supreme Court's
rulings in CBC v. SODRAC and the York
case, in both of which I made prevailing arguments. While the legislation may
superficially suggest that a tariff applicant can force the party into an
arbitration proceeding where they are “unable to agree”, what does that even
mean if the user does not have to accept the result of the so-called
arbitration? Users in such a situation may conceivably consider simply
defaulting or putting in a token case. There have only been 15 uses of the
“arbitration” mechanism to date. If anything the CBC v. SODRAC and York
cases are likely to reduce its use. There is nothing in the 2018 legislation
that would make it more attractive or effectively “mandatory”.
As was suggested, this so-called
“arbitration” mechanism may be a useful mechanism where only one or two users
are involved and there is a substantial amount of money at stake. However, some
users who might be inclined towards so-called arbitration may now see better
value by hiring and paying a retired judge or other private arbitrator with
actual expertise in copyright or at least intellectual property law and actual serious
arbitral experience – especially if the legal or factual issues are complex.
These arbitrators are well paid because the most successful of them have the
reputation of delivering expert results expeditiously, which frankly is not the
case with the Copyright Board in modern times. Whether the Board would bless
such a decision would be interesting. In any event, it’s not clear that the
Board’s blessing would even be needed, since the result could presumably be
“filed” with the Board pursuant to the existing mechanism for filing most agreements.
BTW, in other interesting developments
at the Board:
Prof. Adriane Porcin, who was appointed
as a part-time member of the Board in September 2018 for a four-year term,
resigned in January 2022. She was a Board member with evident academic credentials
in copyright law.
At least two prominent collectives have
“withdrawn” proposed tariffs in recent months. These are CMRRA-SODRAC Inc. (“CSI”), CMRRA, and COPIBEC (the
Quebec counterpart to Access Copyright that was seeking $28 per FTE annually).
Could this be related to the SCC’s rulings on “mandatory” tariffs?
I’ll soon post more on the follow up
comments by Professors De Beer and Gendreau on June 9, 2022 and the Board’s
So, this was the Board’s third time at
bat at a CBA Town Hall. Readers can form their own conclusions about whether
the Board struck out or maybe somehow will reappear again. If so, let’s hope
that they actually have something important and useful to say and/or any actual
achievements to speak about.