The Copyright Board’s New $757,548.50 (+?) Website – Finally an Apparently Functional Search Engine – but Otherwise Disappointing at Best and Problematic at Worst – And Still NO CANLII Presence

 

The Copyright Board finally announced its “new” website yesterday, September 2, 2020:

The Copyright Board welcomes you to its new website! This new platform is based on a more intuitive architecture, designed to improve navigation, and accessibility to Board information and products in both official languages, as required by the Official Languages Act.

One major innovation on the website is the incorporation of Decisia (by Lexum). This platform allows users to have access to the resources made available by the Board, such as documents, decisions, approved tariffs, licences for the unlocatable copyright owners regime, and much more. Discover it here. Additionally, users can subscribe to Decisia's mailing list and receive weekly updates on the publication of new documents. This innovation supports the Copyright Board’s broad objective toward ensuring greater transparency and access to justice for all Canadians.

https://cb-cda.gc.ca/en

It apparently has cost at least $757,548.50 that we know about. Some quick next day comments:

For those who had laboured to become familiar with the previous website, some things – such as Notices & Rulings – have inexplicably disappeared from plain sight and can only be found through the thankfully finally apparently functional Search facility – which has been needlessly non-functional for as long as I can remember. The Notices and Rulings are still not up to date after December, 2019.

Apart from a new look, there is apparently little new useful information or other  evidence to substantiate that this “This new platform is based on a more intuitive architecture, designed to improve navigation, and accessibility to Board information…”

There is a somewhat useful page for “Ongoing Cases” – which presents a bit more conveniently the same information that what was already there and not very hard  to find. There is also a listing of “Filed Agreements”  – though only for 2017 on – which are presumably available upon request though “Agreements will continue to be screened before access for the purposes of the Privacy Act.”

There are lot of apparently new entries in the FAQ section. Some are misleading to users and maybe even dangerously deferential to collectives. An unnecessary enquiry to a collective can put someone on that collective’s radar and needlessly at risk. And few if any collectives have comprehensive and reliable information online about their actual repertoire. In the case of Access Copyright, it’s something of a joke. As I’ve pointed out several times, it is happy to sell you a license to ancient public domain editions of Charles Dickens Christmas Carol. More on this FAQ stuff later. Frankly, the Copyright Board has no mandate to provide legal or even vaguely general copyright advice to the public and should not be using its resources to do so. To the extent that such information is accurate, appropriate, useful, and warrants government resources,  it should be provided by CIPO.

One notably non-responsive and even evasive FAQ response to the utmost important and most often asked question of How Long It Takes the Copyright Board to Render its Tariff Decisions is this:

The Copyright Act provides that "cases before the Board are heard expeditiously and without formality".

The complexity and level of preparation of the file submitted may influence the time taken by the Board to examine the application as well as the time taken to deliberate leading to a decision, for example, if the file is incomplete.

The number of stakeholders can also indirectly influence the duration of the process, since this increases the possibility of having an objection to the proposed tariff; or if there is objection, since the objectors must present their arguments in writing. Once the objectors' files are considered complete and have been presented, the Board enters into deliberation. Its decision is made public when it approves the tariff and publishes it in the Canada Gazette.

https://cb-cda.gc.ca/en/faq

The fact is that it can take the Board almost ten years to retroactively approve an effectively uncontested tariff in circumstances that make the result inconclusive, e.g. the Access Copyright Post-Secondary tariff, which I wrote about here on January 22, 2020. Not surprisingly, the key links I provided don’t work any more.

Indeed, a lot of old links unfortunately no longer work – for example the links I reported on the $757,548.50 budget allocated to the new website as of November of 2019. See here. The information is still there on the Board’s website  – but the old links don’t work any more.

The search engine appears to functional back to 1990 – though I haven’t fully tested it yet.

However, the overwhelming problem that remains is this:

The Board’s Reasons of Decision and Tariffs are NOT available on CANLII, where a simple one stop search would produce results – for example for “making available” – that would include BOTH Copyright Board and Court decisions. CANLII searches can be fine tuned using the “advanced” tools.

I have looked into this CANLII issue very carefully and received very knowledgeable information. There is no reason why the Board’s decisions and tariffs is couldn’t have been made available on CANLII at no cost many years ago. There is no reason why this should not immediately happen going forward with coverage since at least 1990. There is no need for any additional cost to taxpayers.

Other comparable tribunals that are on CANLII include:

•        The Trademarks Opposition Board
•        Commissioner of Patents
•        The Competition Tribunal

See: https://www.canlii.org/en/ca/

I have tried but been unable to get any  direct answer from the Board about the inexplicable and conspicuous absence of its decisions on CANLII.

The Board’s adoption of the background engine DECISIA – which can be used for better (e.g. for better at the SCC and apparently for worse at the Competition Tribunal) can allow for  feeding of cases to CANLII – but this is not and never has been a necessary aspect of such utility – which is an essential component of access to justice.

So – the bottom line for now is that we have a website with a new look but few new useful aspects – except for a finally apparently functional search engine, which I will test further later. That could and should have been fixed at no cost many years ago. The Board has regularly spend a very large amount for many years on outside sources for its website with a non-functional search function. Indeed, my own blog has a fully functional search function and a daily – not weekly - email update feature and my software costs nothing. It’s not easy to see how or why the Copyright Board’s “new” website  has cost taxpayers at least the  $757,548.50 that we know about.

It would appear that older snapshots of the Board’s website are available on the marvellous Wayback Machine at www.archive.org .

If anyone sees any positive or negative aspects I may have missed in this next day quick review, please comment below – which you can do anonymously if you wish – or email me privately.

And, BTW, the position of Chair of the Board remains vacant. That is a serious issue and we really need to have a top notch sitting, supernumerary or retired judge –  preferably from the Federal Court or the Federal Court of Appeal and with no ties to vested interests. And someone who is willing take on the challenge, wherever it may lead, of ensuring that better decisions are rendered in a time frame consistent with other Canadian courts and tribunals.

HPK

Cable, Cord Cutting, Retransmssion, Costs and CDN Copyright Board: “It Was Twenty Years Ago Today” - More or Less

On Tuesday, November 24, 2015 at 10:00 a.m. in the Copyright Board's hearing room at 56 Sparks St. in Ottawa with the Board’s new Chair, the Copyright Board will hear the first contested retransmission tariff hearing in 20 years. To somewhat oversimplify, the collectives want $2.00 a month per subscriber increasing to $2.38 by 2018. The Broadcast Distribution Undertakings (i.e. “BDUs” or cable and satellite companies) want to continue at the current agreed upon amount of $0.98 per month decreasing to $0.90 by 2018.

The retransmission tariff results from Copyright Act amendments made in 1988 so that Canada could enter into the then new FTA with the USA. Along with the abolition of compulsory licenses for generic drugs, this was a very major concession to the USA in the FTA process.

Canada, unlike the USA, did not spell out a formula in the legislation for what was to be a distant signal and left the mechanics of it all to the then new Copyright Board. Distant signals were eventually defined by regulation in an ultra-complex manner potentially much more generous to copyright owners than the US mechanism. The Board’s first tariff in 1990, following an extremely long “inaugural” tariff hearing, was worth about $53 million p.a., an amount about 9 times more than anyone ever expected at the time – even including the proponents of the tariff. A rather tepid subsequent “criteria” regulation resulted in a very modest cutback of about $3 million a year in 1993. For twenty years, Canadian cable subscribers paid $0.70 per month that was included in their cable or satellite bill for access to “distant” signals. This amount was increased to $0.98 per month in 2013 and so certified by the Board pursuant to a negotiated agreement.  

Recently published estimates of the value of the tariff confirm that it is now worth more than $100 million p.a. While $0.98 or $2.00 per month would seem like a small amount compared to monthly cable charges that can range from about $40 to about $119 per month, for example, in the case of Rogers, it quickly adds up to a lot of money for the major parties concerned. To what extent this cost is passed on to consumers and to what extent it may contribute to “churn” or cord cutting are probably very interesting questions that may be addressed in this hearing.

An interesting aspect of the change in environment that does not seem to arise on a quick scan of the parties’ cases is that of the issue of vertical integration in the BDU industries. Certain BDUs are now major content owners. How does this affect the positions that they take at the Copyright Board and at the CRTC?

The economics of cable costs and the willingness of consumers to pay the cable pipers may be about to change, with the increasing rates of  “cord cutting” and reliance on over the air digital signals, Netflix, and other means of access to programming. These issues may arise to some extent during this hearing -   though it should be noted that this hearing is about 2014 – 2018 and we are almost half way through the period covered by the proposed tariff.

In the long run, however, if the “cord cutting” and other trends continue, this could be another example of a tariff that will become obsolete sooner or later, along with the private copying levy, reprography, media monitoring. Meanwhile, it seems to be worth everyone’s effort to invest in a large and no doubt expensive cast of lawyers and experts, including some of the “usual” suspects in terms of expert witnesses.

It will be especially interesting to see to what extent the Board deals with such issues as cord cutting, the recent “pick and pay” ruling by the CRTC.

In this regard, it will be interesting to see whether the Board assumes a more than usual “inquisitorial” role by asking its own questions and relying on its own research to some extent rather than relying solely on the parties.

This may be one of the most complicated, arcane and least exciting or readily understandable tariff issues that have faced the Board in recent years – but for the time being could be the most economically significant hearing to date. This seems to be the single most lucrative tariff under the Copyright Board’s jurisdiction. Although it looked for a time as if private copying or “reprography” might eventually rival the retransmission tariff, both of these tariffs are headed towards potential oblivion in the absence of some dramatic reversal of fate. This, too, could happen someday to retransmission – but not likely this time around unless the Board decides to say “a pox on both your houses”.

It is also the occasion that is expected to mark the debut of the Board’s new Chair, Justice Mr. Justice Robert A. Blair of the Ontario Court of Appeal.

In any event, here are the key documents in this file:

Collectives’ Statement of Case dated May 8 2015

Objectors’ Statement of Case dated October 22 2015

Applicants Reply Case November 15 2015

Enjoy.

HPK

Justice Robert A. Blair Appointed Chair of Copyright Board of Canada

Congratulations to Justice Robert A. Blair on his appointment as Chair of the Copyright Board and to the Government for making this appointment.

He is a highly regarded and very experienced Judge of the Ontario Court of Appeal and has had important judicial involvement in IP and related cases over the years, including Robertson v. Thomson.  He has also been a regular panelist in past years for the Harold G. Fox IP Moot.

His brief bio on the ONCA website indicates that:

Brief Biographical Note of Justice Robert A. Blair

Mr. Justice Blair was appointed to the Court of Appeal for Ontario in November 5, 2003. Prior to that appointment, he had been Regional Senior Justice for the Toronto Region of the Superior Court of Justice. Mr. Justice Blair received his B.A. (Hons.) from Queen’s University in 1965 and his LL.B. from University of Toronto Law School in 1968. He was called to the Bar in Ontario in 1970 and practiced primarily in the field of general civil litigation, with an emphasis on corporate/commercial litigation and administrative law, during his career at the Bar. He was appointed to the Ontario Court of Justice (General Division), now the Superior Court of Justice, in 1991. Mr. Justice Blair has been an ardent supporter of the use of alternative dispute resolution techniques both before and after his appointment to the Bench. He was a member of the Steering Committee, which oversaw the implementation of a Court-connected ADR Center in Toronto, the first of its kind in Canada, and has been closely involved with the Mandatory Mediation project in Toronto and the introduction of case management in Ontario. He was Co-Chair of the Civil Justice Review, which conducted a broad review of the civil justice system in Ontario and made extensive recommendations regarding the implementation of an integrated series of reforms to that system. The Civil Justice Review published its First Report in March 1995 and its Supplemental and Final Report in November 1996. As a judge he has presided in all areas of the work of the Superior Court, with particular emphasis on cases on the Commercial List at Toronto.

No doubt, his experience as Co-Chair of the Civil Justice Review in Ontario which produced landmark reports on institutional justice reform and with the highly regarded Commercial List will prove to be very useful in addressing the procedural issues confronting the Copyright Board.

HPK

(updated July 6, 2015)

Some Comparative Observations & Stats on the Copyright Board, Selected Canadian Tribunals & the Supreme Court of Canada

Some lobbyists and interested members of the copyright bar have been actively endorsing the Copyright Board’s longstanding campaign for more resources to supposedly solve the extraordinary delay problems at the Board. Here’s another very recent effusive example. There is a persistent but unexplained expectation that more resources will somehow speed up the frequently four year delay before a hearing even takes place and the now seemingly new normal delay of two years or more after the hearing for a decision to be rendered.  Assuming that members of the Copyright Board have expertise in their subject matter, and that they are actively engaged in writing their decisions, it is hard to see how more resources alone will have any positive effect in solving the delay problem. Federal Court judges routinely issue numerous – even dozens – of substantive and significant decisions every year in six months or usually much less time after hearing with no more “resources” other than one clerk just barely out of law school. Many of these cases are far more complex both factually and legally and sometimes in terms of public law importance than most at the Copyright Board. Even the less complex ones – for example routine immigration cases – are very important to the parties involved and require great care and judicial consideration.

The Canadian Judicial Council has recently stated that it should never take more than six months for a judge to render a decision, except in the most complex of cases. Indeed, the CJC said that “judges should render decisions within six months of hearing a case, except in very complex matters or where there are special circumstances.” It is difficult to find any examples of cases at the Board that would warrant an exception to this benchmark.

Ironically, even after these uniquely lengthy delays, the Board’s decisions in turn are regularly challenged in the Courts and sometimes dramatically reversed. Moreover, in two recent instances and after long delays, the Board has even felt compelled itself to issue quick “mea culpa” corrections, which have in in turn led to even more complications.

In this light, consider the following:

• There is an old adage attributed to Benjamin Franklin that “if you want something done, ask a busy person”.
• Canada’s Copyright Board is already by far the largest specialized copyright tribunal of its kind anywhere in the world.
• The Copyright Board process involves extensive use of an onerous interrogatory process that yields relatively little useful evidence at a hearing, but consumes enormous amounts of time (and money for lawyers) and has on several occasions driven away well-intentioned objectors.
• The interrogatory problem is exacerbated because the Copyright Board process never requires the tariff applicant to put forward the facts and legal arguments on which it intends to rely at the outset – which is contrary to virtually any other tribunal or court process that I have ever heard of. The result is that some tariff applicants simply go fishing in the interrogatory process – often in a drift net fashion – and thereby sometimes simply drive their opponents away. Whether this result is intentional and strategic doesn’t really matter. It happens because the Board lets it happen and some objectors’ counsel have arguably not taken all available steps to curtail this excess.
• The Copyright Board hears again and again from the same perennial “experts” who sometimes have little if any independence from those who ultimately pay their bills and whose “evidence” would almost certainly never be allowed in a normal court, especially  in view of recent jurisprudence in the IP context from the Supreme Court of Canada. 
• Even if these “experts” were sufficiently “independent”, it is highly questionable in many cases whether their testimony is even really “necessary”. The Supreme Court has made it clear that if the “expert” evidence is not “necessary”, it should not be admitted. The Board members themselves are assumed to have some expertise in copyright and economic regulation and the Supreme Court has said quite clearly that experts are both unnecessary and undesirable when the “common sense” of the decision maker should suffice.
• There are seldom any complex legal issues involved in Copyright Board hearings, and when they do arise, the Board is often reversed by the Federal Court of Appeal (at least once in a “brusque” manner according to retired Chairman Vancise – and yes, I was involved) and lately and clearly by the Supreme Court of Canada in the “pentalogy”. 
• Every specialized tribunal suffers from the inherent risk of “regulatory capture”. It is well known that can be an unseemly amount of lobbying when it comes to Copyright Board appointments. See Simon Doyle’s recent tightly pay walled but important piece in the Globe and Mail.  Adding more resources can only exacerbate any possible potential problems in this respect.
• There is much to be said for considering the American model of “consent decrees” overseen by truly independent and expert federal judges. Indeed, Canada has a Competition Tribunal with a lean and efficient support infrastructure and several Federal Court judges with expertise and experience in economic regulation and even intellectual property issues in place at any given time. Since the Copyright Board was born out of concern about “super monopolies” expressed by the late great Judge Parker in 1935, the possible adaptation of a “consent decree” model in Canada under the aegis of the Competition Tribunal is something that merits serious exploration. In theory, the entire role of the Board could be modified and absorbed by the Competition Tribunal, although this would almost certainly require legislative change. Such a transformation might also save taxpayers a lot of money.
• The Patented Medicines Notice of Compliance proceedings in the Federal Court are over and done with including a judgment within 24 months because regulations say that they must be. These cases are usually very complicated factually, and often involve several experts in pharmaceutical chemistry, etc. – an area far removed from the “common sense” comfort zone of most judges. However, these hearings run well because they must – and normally take no more than 4 or 5 days.

Below are some potentially interesting and useful statistics from the most apparently analogous federal institutions. This chart is a work in progress and may be further developed. Suggestions are welcome, on or off line. Corrections are also welcome, since I’m no expert in the interpretation of bureaucratic financial and planning reports.

The inclusion of the Supreme Court of Canada is a result of the  published statement of the retired Chairman of the Copyright Board (William Vancise) in 2006 shortly after his appointment:

I am not at all happy with the time it takes to render a final decision. I have tried to address the issue and I can assure you it will be resolved. If the Supreme Court of Canada can render a decision within six months of a hearing, there is no reason why this Board cannot do the same. My goal is to see that this occurs. (emphasis added)

It was indeed a rather odd notion on the part of Judge Vancise to use the Supreme Court of Canada as a proxy for the Board’s timing benchmarks, because the Supreme Court does not hear evidence or witnesses and it does, by definition, almost always deal with very complex and important legal issues. However, QED. If the Court can render judgments in six months, a fortiori one would think that the Board could do so – if not in much less time. Therefore, it is unfortunate that Justice Vancise was not able to resolve this problem during his ten year tenure and it would seem anecdotally that the delay problem has actually become significantly worse in recent years. For example, it has been nearly 2.5 years since the Board’s hearing in the Access Copyright - Provincial and Territorial Governments Tariffs (2005-2009 and 2010-2014) matter and no decision has yet been rendered in that matter. The Access Copyright Post-Secondary Tariff seems to have gone into a state of suspended animation, since there has been no follow up by the Board to its announcement on January 17, 2014 that it will postpone the hearing sine die and will “will either decide when to reschedule the hearing or proceed on paper”.

We expect to shortly see an analysis from Prof. Jeremy de Beer commissioned by Heritage Canada based upon actual data of the time between some of the steps in the Board’s process.

So, in the meantime, here’s some data I’ve assembled without being commissioned by anyone:

Tribunal/ Applicable Regulations or Rules re Procedure	Mandate/# of Significant & Substantive Decisions per year	# of Members	# of Staff FTE	Budget (i.e. net cost of operations)
Copyright Board/No procedural regulations in place other than Board’s informal and very general “Directive on Procedure”	Setting Copyright Tariffs and Levies pursuant to Copyright Act/ app. 3 per year. (S. 77 “Unlocatable” decisions cannot be considered as “significant” and have never involved an actual hearing)	Up to 5 full time. Currently 1 full time + 1 part time. Chair (currently vacant)who  must be a sitting or retired judge.	16	3,514,185 (2013-2014)
Competition Tribunal/ Competition Tribunal Rules (SOR/2008-141)	Dealing with wide range of applications arising from Competition Act/ app. 10 per year since 2000.	Up to six judicial members from Federal Court and not more than eight lay members	9	3,184,043 (2014-2015)
CRTC/Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (SOR/2010-277)	Wide range of licensing and regulatory oversight in broadcasting and telecommunication, internet, ant-spam, etc./ app. 600-700 decisions a year – many minor but many very important, e.g. 2014	Chair, two Vice-Chairs and up to 10 national and Regional Commissioners	437	17,586 (2013-2014) (Expenses of 65,030 offset by revenues of 47,444)
Canadian International Trade Tribunal/ See Act and Regulations here.	“international trade cases, procurement cases, customs and excise tax appeals and government-mandated inquiries within the Tribunal’s jurisdiction”/129 decisions in 2013-2014	Up to seven full time members including a chairperson	62	13,168,000
Canadian Industrial Relations Tribunal/Canada Industrial Relations Board Regulations, 2012 (SOR/2001-520)	Handles more than 600 labour related matters under Federal jurisdiction, including Status of the Artist Act. Processing times are published here.	Chair, two Vice-Chairs, up to six full time members, and additional part time members	97	17,567,000
Trademarks Opposition Board/ See Practice in Trademark Opposition Proceedings	Rules on oppositions to registration and s. 45 expungement. Many of these rulings involve hearings./ 741 decisions rendered in 2011-2-12	App. 10 members and 12 staff These are all public service positions.	12	N/A
Supreme Court of Canada/Rules of the Supreme Court of Canada (SOR/2002-156)	Highest Court of Canada. Process more than 500 leave applications and issues approximately 80 decisions per year, on average about 4 months after hearing and 15 months total duration from application for leave to appeal.	Nine full time justices.	215	42,011,659 (net cost of operations est. for 2013-2014)

The problems of the Board can only be solved if both of two things happen:

• In the short term and very urgently, we need the appointment of a Chairperson (who must be a sitting or retired judge) who can hit the ground running in terms of knowledge of copyright and administrative law at minimum and is able and prepared from a managerial standpoint to make some changes in the way things work at the Board. This person should preferably also have experience in competition, communications and/or other related areas of economic regulatory law. It will be relatively easy to find such a qualified person from the ranks of sitting or retired Federal Court or Federal Court of Appeal judges and probably very difficult to find the right person elsewhere. Needless to say, given the very specialized mandate of the Board, such person’s career prior to appointment to the bench should not give rise to any possible apprehension of bias.
• In the medium but not far off term (i.e. a year or two but no more), we need regulations to deal with such issues as steps in a proceeding, the interrogatory or discovery processes, benchmark timelines, “expert evidence”, etc. The Board is clearly unable or unwilling to make anything more than very incremental changes from now well-established but clearly problematic processes. Its latest effort at consultation has produced a remarkable consensus amongst a mix of normally strange bedfellows who agree that the recommendations by the majority of the Working Committee may only make things even worse, which is no easy task in this instance. See the very limited terms of reference at page 27 of the recent Working Committee Report.

It will be noticed in the above chart that the Board is the only institution listed without regulations or other form of mandated specific rules to govern its procedure.  There is no reason for this to be the case – indeed experience suggests quite the contrary. As everyone knows, regulations are much easier to implement than statutes. That sometimes pesky and petulant creature known as Parliament is not involved. All the necessary authority is already in place in this case. There’s no need – and arguably no excuse - to wait for the five year review.

HPK

Update on Canadian Copyright Board Matters: What is Happening and Not Happening

There’s a lot going on – or not going on – concerning the Copyright Board.

The Board has promptly posted all the responses to its Working Group Committee Report. I won’t begin to analyze them, other than to say that there was a surprising amount of agreement amongst a number of normally strange bedfellows (including Music Canada, Access Copyright, major broadcasters and yours truly) that the recommendations might actually make proceedings even longer and more expensive at the Board.

Simon Doyle has written a timely piece in the Globe and Mail – unfortunately it’s heavily pay-walled – about the slowness of the Government to appoint a new Board chairperson. He mentions some – though not all – of the names that are being talked about in various circles. He describes some of the apparently intense lobbying that is taking place. He also quotes me as follows:

“There’s no apparent reason why it now often takes the board four years to get to a hearing and two years or more to render a decision,” Howard Knopf, a copyright lawyer in Ottawa with Macera & Jarzyna LLP, said by email.

Mr. Knopf said the Copyright Board has oversight of about $500-million a year “of collective copyright activity in Canada. Also, the board’s processes have generated a lot of money over the years for certain lawyers, consultants and perennial ‘expert’ witnesses.”

Mr. Knopf said the government can implement regulations that could address the steps, stages and timelines of a hearing, the interrogatory process, the qualification of experts, and timelines for the rendering of a decision after a hearing.

Meanwhile, back in the Courts, on Monday morning, March 16, 2015 the Supreme Court of Canada will hear the CBC v SODRAC appeal, which involves yet another judicial review of a Copyright Board decision. This will be  the 17th case involving important consideration of the Copyright Act that this Court will have heard  beginning with the 2002 case of Théberge v Galerie d’Art du Petit Champlain inc. Seven of these have arisen from judicial review of Copyright Board decisions.  Five others were infringement cases. Prior to 2002, the last important copyright case from the Court was Bishop v. Stevens, [1990] 2 S.C.R. 467, which will be referred to very often on Monday.

CBC v SODRAC will focus mainly on technological neutrality. I should disclose my involvement as counsel for the Centre for Intellectual Property Policy at McGill and Prof. Ariel Katz. They have been given leave to intervene on what they call the “mandatory tariff” theory. Their position is that it:

…lacks any basis in law: standard principles of statutory interpretation contradict it; the case law debunks it; and the legislative history discredits it. In addition to absurd results that contradict fundamental tenets of the rule of law, the “mandatory tariff” theory threatens to upset the balance in Canadian copyright law. It would overly compensate owners, contrary to this Court’s holding in Théberge, and it could gut fair dealing and others users’ rights, contrary to what this Court cautioned against in CCH.

The webcast will be delayed because SODRAC has filed some material that it regards as confidential. The music industry will present two joint interventions, and CIPPIC will also appear. All the factums can be found here.

Those who want to watch this live in real time will have to attend at the Court. Proceedings start at 9:30 AM.

HPK

Canada’s Copyright Board at the Cross Roads

Michael Geist posted an important blog today entitled Appointment of New Copyright Board of Canada Chair Offers Chance for Change. He concludes as follows:

As I noted over a year ago, many believe the Copyright Board of Canada is broken. The government hasn't paid much attention, but a starting point for addressing the concerns may come with the appointment of a new chair and the potential it brings to establish new policy and governance priorities.

 

The Copyright Act provides in s. 66(3) that “The chairman must be a judge, either sitting or retired, of a superior, county or district court.” Current Chairman William Vancise’s term as Chair will end on May 13, 2014 because the statute allows for re-appointment once only.The Chairman's position has traditionally been served on a part-time basis.

For the next Chair, the Government need look no further than the Federal Court or the Federal Court of Appeal. There are a number of sitting or retired judges on these courts who have significant experience with copyright law based upon their practice careers and/or cases they have dealt with in these Courts. Indeed, judicial review of the Copyright Board is done by the Federal Court of Appeal, where the Board has been sometimes very resoundingly been reversed, for example in this recent and very important decision from the Federal Court of Appeal written by retiring Justice John Maxwell Evans, who is also the“dean” of administrative law in Canada and co-author of the leading treatise on the subject.

Many of these sitting or retired judges have also had useful and relevant experience in administrative law and related areas of economic regulation, such as competition or communications law that could be helpful in Copyright Board cases. The sitting judges of these Courts must reside in the National Capital Region and some of the retired ones still do. This factor alone could save the Government a great deal of money.

It is an interesting fact that the Copyright Board – which is constantly seeking more resources – already has almost 10% of the budget of the Supreme Court of Canada. The Copyright Board’s net cost of operations for 2014 will be more than $3.5 million. That of the Supreme Court for 2013 was less than $41 million.

The Copyright Board typically renders only about two or three (more or less) substantive decisions a year that typically require several years to reach the hearing stage. The hearings are rarely longer than a week or two. There is typically a 1.5 to 2 year (or even more) delay after the hearing before a decision is rendered, and the decisions are often then reversed after judicial review. By contrast, the Supreme Court of Canada in 2013 received 529 applications for leave to appeal, heard 75 appeals and rendered judgment in 78 cases. The average time between a hearing and the rendering of a judgment was 6.2 months. More statistics on the SCC can be found here.

The Government now has an opportunity to appoint a Chair who can lead the Board forward in such a way that decisions will be rendered much more quickly, at a much lower cost to the parties and with a greater scope for public interest involvement.

This could also be the beginning of a process that could see the implementation of regulations that would help to ensure that the Board can and will carry out what the Supreme Court of Canada recently stated is “Parliament’s purpose in creating the collective societies in the first place, namely to efficiently manage and administer different copyrights under the Act”. See Entertainment Software Association v. SOCAN, [2012] 2 S.C.R 231, para. 11. Needless to say, regulations do not require legislation and the authority is already in place to implement the kind of regulations that would be needed. 

HPK