Budget bill risks ‘compromising’ copyright board autonomy, committee hears

An expert in copyright law is asking senators to nix a reform measure in the Liberal government’s latest budget implementation bill that allows the federal cabinet to set timelines over copyright board matters, warning the move risks putting the board’s independence in jeopardy. The board itself is also worried about the measure, but another dean of copyright law says its independence is safe. The budget implementation bill, C-86, ushers in a number of copyright and intellectual property reforms and boosts funding to the Copyright Board of Canada. Jeremy de Beer, a University of Ottawa law professor who has previously consulted for the board, told senators studying the bill Wednesday he’s concerned giving the governor-in-council the ability to regulate timelines for “any procedural step” in a matter before the copyright board is “inappropriate and unnecessary.” “I think it risks compromising the autonomy of this quasi-judicial tribunal in ways that are unprecedented, and it increases the likelihood that substantive lobbying will seep into ostensibly procedural regulations,” he told the Senate’s banking, trade and commerce committee. “And it presumes that bureaucrats know better than the board and the judge who currently chairs it how to manage cases. I don’t think it’s necessary.” Section 295 of Bill C-86 sets out that the governor-in-council “may make regulations” setting a day for a “matter before the board — and any procedural step in the matter... must be completed.” Copyright board chair Robert Blair earlier told senators the provision permits the governor-in-council to “govern every single step in the process of the board, from beginning to end.” “That has a couple of implications that concern me: one is it’s impractical...for cabinet members or members of their departments to determine what are the appropriate time periods for the various steps in what is a very complicated administrative process,” he said. “The other is an administrative tribunal, for purposes of its independence, must have control of its own process, and it must not be subject to whatever the loudest political winds of the day are.” But Howard Knopf, a lawyer at Macera & Jarzyna LLP, argued to the committee the bill stops short of setting significant copyright board deadlines and instead punts the issue “yet again.” “The enabling legislation for regulations to specify timelines has already been there for three decades and it still hasn’t been used,” he said. Knopf said other independent institutions are also subject to governor-in-council set deadlines. “If the Federal Court and Federal Court of Appeal and Competition Tribunal are not important and autonomous bodies, I don’t know what is -- and they don’t seem to mind governor-in-council regulations to set deadlines and other details.” Blair had said the board is in “complete agreement with goal to establish time parameters” and the “key to our ability to do that is the increase in the budget that we have received” and the new case management tools in the blil. The board’s budget is being boosted by 30 per cent, which board officials said is critical because a lack of resources has plagued it for years. But Knopf said the board doesn’t have any resource problems and argued the bill doesn’t deliver on “streamlining” timelines. He said members have “not a lot to do and much too much time to do it," and argued the U.S. copyright board works efficiently because it must make its decisions within 11 months. Conservative Sen. David Tkachuk said the last time the committee studied the copyright board, “I think most of us concluded they were incompetent and that was the biggest cause of the problem – it wasn’t the fact that we needed legislation to force them to do certain work.” But de Beer responded the board’s complex legislative framework has been a main issue behind slow decision making and noted it has suffered from “chronic understaffing.” — With reporting by Kyle Duggan at kduggan@thewirereport.ca and editing by Ahmad Hathout at ahathout@thewirereport.ca

Budget bill risks ‘compromising’ copyright board autonomy, committee hears

Broadcast | November 22, 2018

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Budget bill risks ‘compromising’ copyright board autonomy, committee hears

Broadcast | November 22, 2018

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