Copyright Board procedural delays prompt efforts to speed things up

The Copyright Board of Canada is feeling pressure from industry and user groups to speed up its decision-making process. The Wire Report spoke to six sources—some on the record and some on a background basis—who said the delays are frustrating and that it often takes more than a year for the board to issue a tariff decision after a hearing. They add that tariff proceedings, which establish the royalties companies and other users must pay to distribute and reproduce copyrighted works, typically take several years from beginning to end. As a result, tariff rates are issued retroactively, leaving user groups and rights holders unaware of the royalties they must pay until the tariff period has either elapsed or nearly elapsed. “It leads to uncertainty. It's not satisfactory to have a process where the decision makers take that long to render a decision,” one industry insider said. The Copyright Board's decision on the CBC's music radio royalties to be paid for the years 2006 to 2011, issued on July 18 of this year, came about a year and a half after a hearing was held in December 2009. Years can also elapse between the initial filing of a tariff and a hearing, due to procedural wrangling, the filing of written arguments or interrogatories, and time allowances for the collection and presentation of data and evidence. In 2009, the board issued a decision on the royalties that primary and secondary schools pay for photocopying. It held a hearing on the matter in June and October 2007, about three years after the original tariff was filed in March 2004. The tariff decision arrived June 26, 2009, five years after the tariff was filed and two years after the hearings. By the time of the decision, the photcopying tariff period was almost up, applying to the years 2005 to 2009. “You're talking about the time it takes for the board to issue a decision? Well, the thing is that the whole process is slow,” Aidan O'Neill, a copyright lawyer with Fasken Martineau in Ottawa, said in an interview. “Even when people answer interrogatories, there is a process to object to the responses, where you can say they are not satisfactory, so more time goes into the schedule.” Howard Knopf, a copyright lawyer with Macera & Jarzyna LLP in Ottawa who tends to represent user interests in copyright, was not available for an interview, but tended to agree in a statement by email. “The delay problem is not unique to the Copyright Board,” he wrote. “Unnecessary delay is never good. Lengthy retroactivity can hurt all parties. Collectives have to wait. It can surprise and even hurt businesses—from small to large.” Knopf acknowledged that the Copyright Board is aware of the problem and taking steps to address it, but wrote that delays can be “a real problem” for artists who may be reliant on income from a copyright collective and must wait years before seeing royalty cheques. The Wire Report received a copy of an email that the Canadian Private Copying Collective (CPCC) sent this week to the Copyright Board regarding the collective's proposed levy on memory cards. The collective filed the tariff proposal with the board this spring, asking for a levy on memory cards to compensate artists for the copying of recorded music. The email, from Norton Rose Group lawyer David Collier to Copyright Board secretary general Gilles Mcdougall, said potential delays in the filing of responses could mean that a hearing may not happen as early as thought, in May 2012. “Any further delay in setting a schedule will effectively scuttle CPCC's proposed timetable which contemplates the filing of interrogatories on September 2,” Collier wrote in the email, dated Aug. 9. He wrote that additional delays in the setting of a schedule would make it “difficult, if not impossible, to prepare the case and hold a hearing in May 2012, prior to next year's summer recess.” The CPCC requested that the board issue an order “as soon as possible” to set a schedule conforming to its proposal. The CPCC declined to comment. Delays in decision-making at the board have also played a role in parties filing requests for “interim tariffs”—in which they effectively ask the board to rule on a tariff in the interim before an official decision is reached. Last December, the Copyright Board awarded collective rights society Access Copyright a three-year interim tariff. In June, the Society of Composers, Authors and Music Publishers of Canada (SOCAN) filed an interim tariff for the collection of musical performance rights royalties from webcasting and user-generated content services. The board had not scheduled a hearing on the matter until June 2012, and SOCAN noted in its interim tariff application that “it would not be reasonable to expect a decision of the Board and certified tariffs until early to mid-year in 2013, depending on the Board’s other exigencies.” O'Neill, who represents copyright users, said the Copyright Board has been dealing with a shortage of resources and, due to advances in technology, an increasing number of new uses of copyrighted works. “The Internet has yielded a bountiful crop of new uses for copyright content. The bounds and valuations of these new uses was, and remains, unsettled, and often it is the Board's task to grapple with these issues at first instance,” O'Neill wrote in a 2009 summary paper based on a presentation given at the 2009 ALAI conference in Ottawa. “The Internet tariffs have required—and will continue to require—a great deal of evidence, and have raised complicated legal issues. This increased workload, without a concomitant increase in underlying financial resources, has severely hampered the Board’s efforts to release decisions in short order, regardless of the nature of the tariff.” Gilles Daigle, a partner with Gowlings in Ottawa who represents SOCAN on copyright issues, said in an interview that the entire board staff is not more than about eight people. “A lot of people who don't know the Copyright Board think it's another CRTC with hundreds of staffers,” he said. “That's not the case at all.” Some critics have pointed to the faster pace of the court system. In its statistics covering 2000 to 2010, the Supreme Court says its average time between granting an appeal and a hearing was 7.7 months, and that the average time between a hearing and a judgement was also 7.7 months. The Federal Court's 2002-2003 annual report says that the average time spent on a proceeding from start to finish was 13.8 months. Daigle said the courts look at more specific legal questions than the Copyright Board, which broadly examines a host of legal and policy issues. “What the Federal Court looks at and considers is a small slice of the entire pie that the Copyright Board has to deal with when it's looking at something for the first time,” Daigle said. He added that copyright users may also try to slow down the process to delay decisions, particularly on new tariffs they may have to pay. “Admittedly, it is frustrating for the board, I'm sure, and for those who are awaiting decisions.” A Copyright Board spokesperson could not be reached for comment. The board's 2011-2012 report on plans and priorities says that, in an effort to reduce delays, it is gathering data on the number of months between the closing of a tariff file and its resulting decision. The report says that, for the time it takes to issue decisions, “the Board believes that a target of 12 months should be set for the next fiscal year, with a complying percentage of 70 per cent.” The report adds that the board's resources have increased but it would be “unrealistic to set a shorter target” than 12 months. “However, in the next few years, as new personnel are added, the Board will re-examine the possibility of reducing the 12-month target,” the report says. sdoyle@thewirereport.ca

Copyright Board procedural delays prompt efforts to speed things up

Broadcast | August 12, 2011

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