The Proposed Artist’s Resale Right – A Bad Solution in Search of a Problem?

 

(Un-credited soapstone sculpture for sale by Canada House Gallery)

The recent federal government budget proposed an artist’s resale right (“ARR”) in its 2024 Budget. The details are unknown, and there was no mention of it in the budget implementation legislation Bill C-15 tabled on November 4, 2025.

The good news about this proposal is that it is, so far, the ONLY visible copyright arrow in this government’s current quiver. For the time being, we have been spared any disastrous proposals to cut back on fair dealing, to make Copyright Board tariffs mandatory, or other potentially dangerous proposals – despite the best efforts of the usual lobbyists and collective madness.

Here’s what Budget 2025 had to say:

Protecting Artists’ and Creators’ Copyrights

Artists, particularly visual artists, are great contributors to Canada’s cultural scene and among the lowest income earners in Canada despite their significant cultural contributions. An Artist’s Resale Right provides the creators of original visual artwork with a royalty whenever their work is resold through an eligible sale, providing an additional income stream.

In Budget 2025, the government announces its intent to amend the Copyright Act to create an Artist’s Resale Right in Canada, ensuring Canadian visual artists benefit from future sales of their work.

…

Protecting Artists’ and Creators’ Copyrights

Amendments to the Copyright Act to establish an artist's resale right in Canada.

This measure is expected to benefit visual artists in Canada, particularly Indigenous visual artists, who make up a higher proportion of visual artists (4.1 per cent) relative to other artforms (3.1 per cent). In 2015 visual artists had a median income of $20,000 compared to $41,000 for cultural workers and $43,500 for all workers.

(highlight added)

BTW, these numbers are potentially very misleading. Who and what is an “artist”? Who and what is a “cultural worker”? Does this include amateurs who cannot even give their stuff away at flea markets? We have similar reliability problems for the “starving artist myth” as applied to writers and musicians. There are no accreditation standards for these professions. In many cases, the “starving artist” may be “starving” because, for whatever reason, nobody wants to pay them. There is no guaranteed annual income for every self-proclaimed artist, writer, musician, actor etc. in Canada – or anywhere for that matter. As a former professional musician and as a writer in the eyes of Access Copyright, I ought to know.

But does the ARR make any sense on its own? The answer would seem to be clearly negative. As suggested by others over the years, it would likely:

•  Be unconstitutional since it deals with resale rights in tangible objects, such as paintings and sculptures. It has nothing to do with production, reproduction, or performance which have been the essence of “copyright” as we know it. This new scheme will arguably be about personal property and civil rights, which is provincial jurisdiction in Canada. See this by Ariel Katz and Guy Rub and this essay by Guy Rub. See also Michael Geist’s Podcast #253 featuring Guy Rub.
•  Benefit only older, successful, and/or mainly dead artists (i.e. their estates)
•  Benefit unproductive collectives
•  Throw a potential lifeline to the Copyright Board, the need for which (at least in its current bloated form) is becoming increasingly questionable as it devolves more quickly and clearly into a rubber stamp with very rare engagement on any “inaugural” or complicated new matters
•  Pander to unrealistic expectations of Indigenous artists created by opportunistic lobbyists and politicians
•  Significantly impair the art auction and even the routine commercial art gallery market in Canada
•  Drive art resale underground and/or to the USA, where an ARR does not exist and is extremely unlikely in the foreseeable future
•  Potentially collide with and/or complicate the already problematic regime under the Cultural Property Export and Import Act, RSC 1985, c C-51,
•  Do nothing to solve the problem that darkens the Canadian art market of fake and counterfeit Indigenous art. In fact, it may worsen the problem by driving more sales underground or out of sight, for example into flea markets and other countries.

Above all, any new “right” that unnecessarily adds friction, intermediaries, and regulation is likely to be economically inefficient and drain money from those that most deserve it. It will effectively be a particularly inefficient “tax” on art – which will mostly if not totally benefit meddlesome middlemen and collectives and lessen the returns to galleries and, above all, artists themselves. Excessive copyright rights have long been seen as a “tax”, e.g. by Lord Macauly in 1841.

In other words, it could be an unnecessary and unworkable solution in search of a non-existent problem. It would, of course, benefit CARFAC, the organization that is aggressively endorsing it and the collective it is touting to administer it.  There has been lobbying by Canadian Artists’ Representation / Le Front des artistes canadiens, which receives substantial government funding. 

CARFAC us proposing that:

·       that it applies to secondary sales of original artworks for the lifetime of the artist, and their  estates covered under the term of copyright;

·       that the rate paid to rightsholders is 5%;

·       that it applies to works sold in the secondary market for at least $1,000;

·       that the art market agent and seller of the artwork are jointly responsible for the payment of the royalty; and

·       that royalties be managed and paid through the copyright management organization, CARCC, currently operating under the business name of Copyright Visual Arts – Droits d’auteur Arts visuels.

If there is concern in the Indigenous community about exploitation of working artists, there should be further consideration and exploitation of the certification mark regime that has long been in existence under the Canadian Trademarks Act. A certification mark is like  a “seal of approval” that the goods and services covered meet a defined standard of quality and authenticity. This would help to ensure that that the sculptures, paintings, or whatever actually come from the identified community and are not factory produced fakes from elsewhere.

The use of “official” marks under the Trademarks Act  may be possible where the test to evaluate public authority status can be met, i.e.:

The two-part test is made up of the following elements:

·        a significant degree of control must be exercised by the appropriate government over the activities of the body; and

·        the activities of the body must benefit the public.

Political Implications

The Liberals will either have a minority government or a bare majority until the next election. The urgency of other issues, not least of which is CUSMA which will likely implicate intellectual property and copyright, may keep the ARR from urgently being top of mind for Mark Carney and the new Heritage Minister, Marc Miller (who is an Anglophone from Quebec with impressively promising credentials). Without a majority, things can get stuck very easily in  Committee hearings. Whatever can be said about the Conservatives, if  they somehow regain a majority or assert themselves in committee, they have sometimes shown more wisdom than the Liberals when it comes to copyright legislation and are less likely to pander to the culture sirens from Quebec and the Toronto collectives.

HPK

The Copyright Board Once Again Rubber Stamps the Zombie Blank Audio Recording Media Levy

 

On November 7, 2025 three members of the Copyright Board of Canada, including its Chair,  have once again “approved” a levy on blank CD-Rs and CD-RWs of $0.29 each for the period of 2025-2027.

The revenues will go the Canadian Private Copying Collective (CPCC) – which has not posted any financial information about its revenues since 2017.

At least, the Board expressed a scintilla of scepticism this time about the unopposed so-called “evidence” put forward by the CPCC and its veteran perennial expert. But it didn’t stop the rubber stamp. Here is some of the “reasoning”:

·       [5] For the reasons below, we conclude that the evidence, while not strong, supports our conclusion that blank CDs will be ordinarily used to copy music during the years 2025, 2026, and 2027. 

·       [19] Mr. Gauthier states that 1.438 million units of blank CDs were sold in 2024 and projects sales to decline to 1.274 million units in 2025, to 1.129 million in 2026, and to 1.001 million in 2027

·       [23] Results from the Internet-based Music Monitor Survey conducted in 2019 and 2021 showed a level of 30% and 27% of blank CDs used to copy music respectively in those years. Mr. Gauthier concludes that the proportion of blank CDs used to copy music has remained constant since 2019. He asserts that this behaviour is unlikely to change within the next three years. As such, he projects that the proportion of blank CDs used to copy music will remain stable at 29% for the years 2025, 2026, and 2027.

·       [25] Nevertheless, the Board considers that, even with a gradual decline, the proportion of blank CDs used to copy music is unlikely to have reached a point of marginality.

Here are the key dates and details for this rubber stamping effort. Note that the filing date was October 10, 2023 – more than two years ago. This proceeding was unopposed, as have been previous CPCC efforts after 2012. As the result of court decisions and intelligent regulations, virtually all “memory” media and devices have been excluded from the levy, leaving only blank CD-Rs and CD-RWs that are supposedly “ordinarily used” according to the Board’s contorted and bizarre logic to copy music. It hasn’t been worth anyone’s time and expense to oppose the blank CD-R and CD-RW levy since 2012, because the market for them is so small.  

I am proud to have been active in the past at the Copyright Board and to have successfully argued in the Federal Court of Appeal on behalf of major retailers that there should be no levies on memory used in devices such digital audio recorders, cell phones, iPods (remember those?), or computers. See Apple Canada Inc. v. Canadian Private Copying Collective, 2008 FCA 9 (CanLII), <https://canlii.ca/t/1vcx1>. The then Chairman of the Board, William Vancise, was very upset with this result and very inappropriately, IMHO, publicly explicit about this and other issues even while he was serving as Chair of the Copyright Board. For example, here’s the text of his outspoken 2009 speech. Fortunately, subsequent Chairs of the Copyright Board have been more circumspect and judicious. Here are my 2023 comments about Vancise’s 2018 paper presented at Columbia Law School in 2017, after he had retired but while he was still deliberating his last decision, which took him four years. This comment also deals with more general issues regarding the Board. To  Justice Vancise’s credit, he did, in his 2016 speech,  explicitly castigate Music Canada for its “completely unacceptable and totally inappropriate” lobbying attempts aimed at his successor Chair of the Copyright Board.

I was also active in arguing that intelligent regulations were needed to prevent the Board from imposing levies on MicroSD media and other type computer memory. Regarding regulations,  former Minister of Canadian Heritage James Moore was also helpful and transcended the usual bureaucratic and legal fog in that department that protects collectives.

But, like a zombie, the CD-R and CD-RW levy still persists and lurks amongst us more than a dozen years after the last opposed hearing. The untested “evidence” looks frankly very flimsy, or at least counterintuitive.  Does anyone actually know anyone who has actually bought blank CDs in recent years, and in turn used them to record music?

·       When is the last time anyone has seen a desktop or laptop computer being sold with a built in CD player/recorder?

·       Why would any rational person use a blank CD anymore to record music, unless for example they own an old car with a CD player that can somehow play or store music loaded on CDs?

·       For anyone wanting to move MP3 music files around for whatever reason, a flash drive is much more useful and cheaper to use. They are easily available for less than $10 for 64 GB of memory.

I suspect that the only reason the CPCC continues to exist and that the Copyright Board continues to rubber stamp its miniscule levies is to keep the CPCC on life support while it waits for better days under a potentially gullible government. Levies were all the rage for a while in the early days. But the music levy bandwagon has long since imploded. The music industry is now all about streaming, amidst allegations of much mischief and manipulation within the music business itself. What else is new?

The Copyright Board should put away its rubber stamp that it uses for this zombie levy. If the Board is going to continue to exist, this file is a real embarrassment.

And when the Copyright Act is opened for serious revision, the blank audio recording media levy scheme should be repealed.

HPK

 

 

Copyright Board Rules of Practice and Procedure: Plus Ça Change, Plus C'est La Même Chose?

After years of concern about extraordinary delays and other problems that led a Senate Committee to label the Copyright Board back in 2016 as “dated, dysfunctional and in dire need of reform”, the Board has finally come up with some supposedly new “Copyright Board Rules of Practice and Procedure: SOR/2023-24”

The only thing that is reasonably clear from this very prolonged, non-transparent, and no doubt very expensive exercise and the resulting new document is that the Board is trying to justify yet another budget increase of as much as a million dollars a year.

The costs of the Rules are expected to be less than $1 million annually. While parties will be required to provide information earlier on in proceedings, the amount or type of information required from parties will be the same as under the current Model Directive. (highlight and emphasis added)

It bears repetition that the Board has held only one actual hearing in more than five years and that almost all of its decisions for a very long time have been unimportant and mostly unopposed. Indeed, several proposed tariffs have been withdrawn by collectives.

There is nothing in the new procedures that warrants optimism that the Board will rise beyond its dysfunctional doldrums. Meanwhile, the Board will have 25 FTE employees and a net cost of operations before government funding and transfers $5,171,140 for 2022-2023.

I’ll discuss only four issues in these “new” Rules, namely

• Interrogatories
• Quorum
• Case Management
• Delays in Decisions

Interrogatories

The elephant in the room has always been and still remains the issue of interrogatories. Some collectives have used the interrogatory process to put forward irrelevant and arguably abusive questions to objectors that require the production of irrelevant and confidential financial information, etc. The results of overreach on the part of some collective and failure by the Board to control this process have ranged from time consuming fishing expeditions to try to build a case to the driving away of and withdrawal of well-meaning objectors as a result of oppressive and expensive financial and time costs, not to mention irrelevant disclosure of financial and other sensitive business information. Another tactic has been the demand for lengthy interrogatory answers from each member or too many members of associations representing a large membership. See my blog from 2011 about Access Copyright’s aggressive use of interrogatories that led to the withdrawal of all objectors even including major educational associations except from one lone individual whose reason for involvement was never clear.

The Board now explicitly gives itself the discretion to rule on the “scope”, etc. of interrogatories – which it has always had - but absolutely no indication of what type of information will be considered relevant and how it will refrain from making the problematic pro-collective rulings it has made in the past, e.g. as mentioned above:

Interrogatories

34 The Board or the case manager may make an order to permit interrogatories and to specify their number, type, scope and form, the time limits for their completion and the person to whom they may be addressed.

BTW, the Competition Tribunal has had “Rules” in place since 2008 that apparently work well – and are more like the time honoured processes in the Courts that require the exchange of Affidavits of Documents after adequate pleadings and subsequent discovery – rather than the endless and often abusive fishing expeditions enabled by the Copyright Board in the name of “interrogatories” that have driven worthy and well-intentioned objectors away, even long before it became clear that Copyright Board tariffs aren’t mandatory. Courts do not allow for preliminary and lengthy fishing expeditions by plaintiffs to determine the basis, if any, of their case. Courts do not allow plaintiffs to put the cart before the horse. Why would a rational objector spend a fortune engaging in interrogatories or fights about interrogatories and the other procedural uncertainties endemic at the Board to oppose a tariff that won’t even be mandatory at the end of the day?

Quorum:

There is a new and explicit provision re “Quorum”.

Quorum

10 In all proceedings before the Board, the quorum is one member.

I am not aware that anyone asked for this. In the past, this has been dealt with pursuant to s. 22 of the Interpretation Act, meaning that a quorum would be majority of appointed members.

It is bizarre that the Chair of the Board can now designate just one person to be a quorum. Even supposedly simple matters may become contentious and complicated for better or for worse – e.g. the Breaktrhrough Films “unlocatable” case – the decision for which seems to have disappeared from the Board’s expensive new website but can be found here thanks to Prof. Ariel Katz. Although it would seem inconceivable, this new Rule would allow only one member to decide such complex and economically significant matters such as the retransmission tariff, which is worth more than $100 million a year.

BTW, the Copyright Act provides that:

66 (1) There is established a Board to be known as the Copyright Board, consisting of not more than five members, including a Chair and a Vice-chair, to be appointed by the Governor in Council.

This suggests that there must be a least a Chair and a Vice-Chair. The question of whether or not there was a quorum very nearly became an issue in 2018.

Case Management

It's strange enough that, under the legislation and rules, a case manger could be merely an employee or outside consultant who could decide very significant procedural matters, presumably including such matters as rulings on interrogatories.

Case manager

66.504 (1) The Chair may assign a member, officer or employee of the Board or a person engaged under subsection 66.4(3) to act as a case manager of a matter before the Board.

Staff

66.4 ...

(3) The Board may engage on a temporary basis the services of persons having technical or specialized knowledge to advise and assist in the performance of its duties and the Board may, in accordance with Treasury Board directives, fix and pay the remuneration and expenses of those persons.

In the Federal Court and the Ontario Superior Court, case managers are Associate Judges and Masters respectively who invariably have been very experienced lawyers. Even if case management rulings can be entrusted to one person, that person should at least be a duly appointed member of the Board and one with adequate legal qualifications.

Under the new Rules, the case manager can decide such weighty matters as:

• whether interrogatories should take place and their parameters as applicable;
•  documents to be filed with the Board before a hearing, including legal briefs and case records

All that said, it is hard to see how this sits with s. 66.5(2) of the Copyright Act, which requires that:

Decisions

(2) Matters before the Board shall be decided by a majority of the members of the Board and the presiding member shall have a second vote in the case of a tie. (highlight added)

Delays

What other court of tribunal allows a decision to be pending for several years AFTER the adjudicators have “retired” and are presumably being paid while thinking about the pending decision? Judges of the Federal Court and Federal Court of Appeal have eight weeks after retirement to render any pending decisions. Even Supreme Court of Canada justices have only six months after they retire to participate in decisions in cases on which they sat. 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.”

Even with the recently time limits regulations, the Board can still keep a tariff decision pending for a long time and postpone the date of a decision presumably for years under the rubric of  “exceptional circumstances”.

Someone with a lot of patience and $5.00, might think about doing an Access To Information and  Privacy (aka “ATIP”) request seeking documentation, including names of retired members and amounts paid for post-retirement consideration of decisions in matters of which they have “begun to consider” pursuant to the open-ended provision of s. 66.5(1). The provision reads as follows:

Concluding matters after membership expires

66.5 (1) A member of the Board whose term expires may conclude the matters that the member has begun to consider.

It would presumably be very easy for the Board to provide this information. The Board has very good records going back to its inception in 1989. However, one should not be surprised if the Board were to strongly resist such an ATIP request and even spend a lot of money on outside counsel in the process.

Concluding Comments

Currently, for the first time ever, neither the Vice Chair nor the Secretary General have any legal qualifications. The appointment of the current Vice Chair expires on September 30, 2023. Moreover, there is a notable absence of common law perspective at the Board – even more so than in the past.

On a positive note, it appears that there will NOT be a Copyright Board “Town Hall” this year under the auspices of the CBA at the annual CBA IP Day.  This should be a relief for those who felt obliged to observe this unproductive ritual over the last few years that resulted in essentially nothing other than management platitudes and promises. Here is the presentation of Presentation by Nathalie Théberge, Vice-chair and Chief Executive on Practical results of the Modernization of the Board from last year’s CBA Town Hall posted some time after the fact.

The viability of the Copyright Board in the future will depend on two seemingly simple elements:

1. Collectives must propose tariffs for approval that offers good value, terms and conditions that make them attractive for users, preferably without the need for interrogatories and hearings; and,
2. The Board must develop the expertise, efficiency, and determination to approve such tariff proposals, and, if appropriate, make them even better in a short period of time measured in weeks or months and not in years and not retroactively.

If the Board can manage to expeditiously approve truly fair and equitable tariffs that offer good value and convenience and, above all, provide necessary access to sufficient repertoire, then there is a strong likelihood that such “tariffs” will be utilized with enthusiasm.

However, one can confidently expect that certain collectives, especially any with extremely limited actual repertoire and a narrow view of what constitutes necessary “access”, are busy lobbying hard for legislation to make tariffs effectively mandatory – in spite of two clear Supreme Court of Canada decisions and case law going back decades. Such legislation would be a very unfortunate move on the part of the Government – and would likely give rise to prolonged litigation.

HPK

PS – beware the forthcoming Budget on March 28, 2023 and budget implementation legislation – where we have twice seen this Government break a major campaign promise about not burying bad and irrelevant things in omnibus budget bills.

Some Comments on Retired Copyright Board Chair Justice William Vancise’s 2017 Comments

https://sasklawcourts.ca/wp-content/uploads/2021/04/William-Vancise.png

A paper published in 2018 from the Hon. William Vancise, former Chair of the Copyright Board of Canada has recently been brought to my attention by an astute copyright officer, namely Joshua Dickison from the University of New Brunswick. The paper was presented at this prestigious event at Columbia Law School in 2017.

Justice William Vancise was appointed as Chair of the Copyright Board  in 2004 and reappointed in 2009. His term ended when he retired from the Board on May 13, 2014, although he took until January 19, 2018 to render his last decision – almost four years after his retirement. The Board appears to be unique in terms of Canadian courts or tribunals in permitting this kind of delay and disincentive to render timely decisions, as I have pointed out before. The problem has still not been solved.

Ironically, shortly after his appointment, he stated that:

 “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.” (highlight and emphasis added)

Judges of the Federal Court and Federal Court of Appeal have eight weeks after retirement to render any pending decisions. Even Supreme Court of Canada justices have only six months after they retire to participate in decisions in cases on which they sat. 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.”

For better or worse, Justice Vancise was often and explicitly publicly outspoken. Once again, and even more so than in his previous pronouncements, he demonstrates his sometimes contentious and  problematic views about essential copyright and Copyright Board fundamentals in this 2018 publication by:

• Reimagining and redefining the meaning of “compulsory licence” in the context of copyright law;
• By continuing and indeed amplifying his apparent lack of appreciation for the copyright contributions of the Federal Court of Appeal and the Supreme Court of Canada;
• By ignoring the fact that a Senate Committee found the Copyright Board was “dysfunctional”  two years earlier;
• By elevating the wasteful and almost useless “unlocatable” copyright owner regime to something supposedly important. To his credit, while was Chairman, Justice Vancise finally reversed years of wasted time and resources at the Board related to issuing unnecessary licences to use architectural plans for home renovation – but only after I publicly pointed out that the Board had long been oblivious for years to directly applicable Supreme Court of Canada jurisprudence; and,
• By following in the pattern of too many seasoned officials and/or politicians who have blamed the failure of their institutions on a lack of resources and calling for more resources rather than more expertise and efficiency. Once again, it must be noted the Copyright Board long had a budget greater than the Competition Tribunal. Unfortunately, the Competition Tribunal’s website has mysteriously gone from excellent to something very much less and very out of date in terms of reports, so its current budget is not readily apparent. It bears repeating that the Copyright Board has held only one actual hearing in more than last five years.

Justice Vancise admits that he came to the Board without intellectual property expertise. He states by way of introduction to this paper:

Although I am not an expert in intellectual property, I was fortunate to hear and decide cases including the transmission of music on the Internet, interpretation of the blank

media levy, making available right, and fair dealing disputes surrounding licensing

for educational institutions. The Board decides more copyright issues than any other court or tribunal in Canada.

The highlighted portion is, of course, quite wrong. The fact is that that the Copyright Board’s substantive decisions on copyright legal issues have been relatively few and very often wrong as determined by judicial review. The Federal Court, the Federal Court of Appeal, the Supreme Court of Canada and even superior courts of the provinces have been far more active and influential in terms of substantive copyright law. Moreover, he fails to accept that that the primary role of the Copyright Board is to set rates, terms and conditions and NOT to gratuitously stray from this important but narrow lane into incorrect pronouncements about such matters as deeming a device to be an audio recording medium or the effect of a WIPO treaty on Canadian legislation. Even if the statute permitted such departures from rate setting as necessarily incidental to the Board doing its job of rate setting, the Board has never had the mandate or the legal expertise to make significant and credibly correct legal rulings of this nature. Even if there is some backroom legal expertise, this only exacerbates the problem because that is not where important rulings should emanate. There is an ancient and honourable maxim that “whoever hears must decide.” The problem is exacerbated when there is a Vice Chair and Secretary General with no legal qualifications.

It is important to reiterate that the SCC has repeatedly held, and as recently as in 2022, that the Copyright Board will be held to the demanding “correctness” standard of review when it comes to interpreting the Copyright Act because it shares concurrent first instance jurisdiction with the Superior Courts. The Board will be given no deference for being “reasonable” in its interpretation of the substantive provisions of Copyright Act.

Justice Vancise is wrong that there is a need for more resources for the Board. If anything, the opposite is true. The parties before the Board are generally very competent. The Board members should decide based on the parities’ evidence and arguments – and not what they hear behind the scenes from their staff. That is NOT the way courts and tribunals are supposed to work.

Justice Vancise’s successors, Justice Robert Blair from the Ontario Court of Appeal and Justice Luc Martineau from the Federal Court have been a complete contrast by refraining from public expression of so many prolific and outspoken views. For whatever reason, Justice Blair served only one term as Chair of the Copyright Board from 2015 to 2020. Justice Martineau, retired from the Federal Court, was appointment in 2020 for a five year term. Since his appointment, there has only been one hearing and no decisions of any major consequence. Both have been extremely circumspect in terms of public comments about the Board.

Indeed, the last Board decision of any possible major consequence was the redetermination of the SODRAC tariff for CBC following the 2015 Supreme Court of Canada decision. That was decided on June 26, 2020 with Chairman Blair presiding. Most, if not all, of the tariffs and decisions since then have effectively been unopposed and unimportant. Interestingly, there have been a lot of withdrawn tariffs – perhaps somehow arising from the Supreme Court’s ruling that Board tariffs are not legally mandatory for users.

It should be acknowledged that Justice Vancise was an enthusiastic Chair of the Copyright Board and deserves credit for his attempts to constructively improve its operation. Unfortunately, his initial assurance that decisions would be rendered within six months of a hearing was not fulfilled. His frank public comments were frankly sometimes  inappropriate in terms of appreciating the role of the Federal Court of Appeal and the Supreme Court of Canada, which clearly have the power to overrule the Board when it is incorrect on substantive law. The FCA and the SCC deserve great respect not only because of their institutional role vis a vis the Board but because of the overall quality of their decisions. It is important to reiterate that, even after Vavilov, the Courts have carved out a special niche for the correctness standard of review when it comes to Copyright Board decisions, and rightly so since copyright litigation in the superior courts is affecting thousands of individuals and many very large corporations.

Whether or not it was appropriate for him to do so, Justice Vancise did speak the truth when he notes in this paper the problem with Access Copyright’s “business model” and that “The real problems are parties like Music Canada, who manipulate the copyright system..”

 The Copyright Board is headed for some interesting times and existential scrutiny, and Justice Vancise’s 2018 publication is an interesting contribution to the debates that lie ahead. It will be particularly interesting to see whether he has been only speaking for himself with his more contentious views or whether they somehow represent the ingrained institutional views of an arguably still, if not even more than ever, “dysfunctional” Copyright Board.

 More to follow shortly re the Copyright Board’s latest tinkering with procedure and aspirations for an additional $1 million a year…

 HPK