Copyright Board considers changes to become ‘more efficient’

The Copyright Board of Canada has produced a report outlining a number of changes it is considering in order to make its processes "more efficient and more productive." Recommendations included in a working document posted on its website include: improving the way it communicates proposed tariffs; requiring collectives that represent rights holders and those affected by proposed tariffs to provide better explanations of their positions earlier in the process; and streamlining the activity surrounding questioning, or "interrogatories," between the various parties that takes place in advance of hearings. A separate letter from board CEO Claude Majeau to various stakeholders explains that a committee was formed in November 2012 to "look into the operations, procedures and processes of the Board so as to make them more efficient and more productive." Majeau said the committee was tasked with looking into how issues are disclosed during a tariff proceeding, the interrogatory process and the confidentiality of information. He added that the discussion papers deals with the first two issues and matters of confidentiality will be addressed in another report to be released "at a later time." The paper itself refers to report from the House of Commons heritage committee released last June that, in its review of the Canadian music industry, criticized the time it takes for the Copyright Board to arrive at tariff decisions. The Copyright Board said in its discussion paper, which is dated Feb. 4, that the heritage committee report demonstrated a "wide consensus" that "it takes too long for the Board to render its decisions, largely because of a lack of resources." The Feb. 4 report references correspondence to heritage committee chairman Gord Brown from Heritage Minister Shelly Glover that said "broader context in which the Copyright Board operates" could be considered in the next mandated parliamentary review of the Copyright Act. The Copyright Modernization Act, which came into effect in June 2012, mandates Parliament to review the act every five years. The board's working document says aspects of Glover's letter "heighten the urgency of addressing these issues." The report recommends finding new ways to inform users of copyrighted material of proposed tariffs filed by collectives. It said its current practice of publishing such proposals in the Canada Gazette is "no longer functional notice to anyone," and publishing proposed tariffs on its website "is helpful but insufficient." The paper says it should work with collectives to find new ways of distributing proposals, favouring electronic forms of communication over print. That includes direct emails to those affected by tariffs, though the report notes that would need to be done in accordance with anti-spam laws in Canada and elsewhere. It also suggests consideration of "an RSS or other form of feed or information syndication (e.g. a Twitter account) allowing anyone to request in advance to be notified of the filing of proposed tariffs; collectives should be asked to consider doing the same or posting on their web sites links to the Board’s own notices in this regard." The working paper says collectives should be required to provide information about the "nature" and "purpose" of "material" changes to an existing tariff when it is first proposed, while adding that the group should not be required to "commit" to a particular position before it files its "statement of case." It adds that objectors should have to state reasons for their opposition to tariff proposals at about the time it serves notice of their objections. The board's document said measures requiring better information provided up front from all sides could help prevent "boilerplate" objections, which is how it describes arguments put forth as precautionary measures that are often withdrawn partway through the process. Many of the recommendations concerning the interrogatory process are calls to maintain the status quo. For example, the committee paper says parties should continue to be able to seek information from each other in advance of hearings, that this practice should continue to occur after objections are filed but before statements of case, and that such questioning should generally not be filed with any parties except those asking the questions or providing answers. One suggested change is that that the board hold meetings with interested parties before interrogatories are exchanged to help identify the most relevant issues in hopes of making the process more focused. The report noted that one member of the committee "expressed concern about whether the report’s recommendations will truly assist the Board in having more efficient and more productive procedures and processes." It said another member thought the recommendations "do not really address the expressed need to streamline the Board process in order to shorten the time to get tariff matters completed," and might actually lengthen the process or add to the board's expenses. University of Ottawa law professor Michael Geist agreed, and in a blog post on Feb. 13 compared the overall need for an overhaul of the Copyright Board to the "full-scale demolition" that some say is necessary to make the Toronto Maple Leafs hockey club more competitive. "Its hearings drag on for years, yet little is done to address the resulting business and legal uncertainty," Geist wrote of the Copyright Board. In late 2013, several experts told The Wire Report that major review of the Copyright Board's role and mandate should take place. — With reporting by Derek Abma at dabma@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Copyright Board considers changes to become ‘more efficient’

Broadcast | February 18, 2015

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