With the latest phase of Canadian copyright reform now complete, the government may soon turn to the question of what comes next. Given last year’s major legislative overhaul and the landmark series of copyright decisions from the Supreme Court of Canada, significant substantive changes are unlikely to be on the agenda for the foreseeable future.
Instead, it is time for the government to set its sights on the Copyright Board of Canada, a relatively obscure regulatory body that sets the fees to be paid for the use of copyright works. The Board is largely unknown in public circles, but it has played a pivotal role in establishing the costs associated with private copying (including a one-time iPod levy), educational copying, and the use of music by Canadian broadcasters.
The litany of complaints about the Board has mounted in recent years: the public rarely participates in its activities due to high costs, it moves painfully slowly by only issuing a handful of decisions each year, and its rules encourage copyright collectives and users to establish extreme positions that make market-driven settlements more difficult.
Moreover, over the past ten months, the Supreme Court has ruled that its approach to fair dealing was unreasonable, the Board itself admitted to palpable error in a decision that resulted in a hugely inflated tariff, and it has ignored the will of Parliament in reshaping Canadian copyright law. The Board may keep a steady stream of lawyers and economists busy, but it is time to acknowledge that it is broken.
Last summer’s five Supreme Court copyright decisions were all the result of appeals from Board decisions. In the most closely watched case – that involving the scope of fair dealing for copying within Canadian education – the majority of court lambasted the Board’s approach, using terms such as “flawed”, “unreasonable”, and “skewed” as well as questioning analysis reached despite an “evidentiary vacuum”. The Board responded with a thinly veiled shot at the court.
Months later, the Board released decision involving a tariff for the reproduction of music works in cinematographic works for private use or for theatrical exhibition. The Canadian Association of Film Distributors and Exporters had proposed a tiered tariff approach of a maximum of 2 cents per copy containing 30 minutes of music or more (less music would result in a lower tariff).
The Board mistakenly established a tariff of three cents per copy, incorrectly treating three tiers as three cents. The result was the prospect of royalties that were as much as 15 times higher than those proposed by the film distributors. The Board was later forced to acknowledge the error, admitting that the mistake resulted in procedural unfairness.
Perhaps most troubling is the sense that the Board has little regard for the recent legislative and caselaw emphasis on the need for balance. The latest reforms included provisions that removed the need for payment for some copying by radio stations. The copyright collectives warned a House of Commons committee that the bill would “eliminate the revenues authors and publishers now received from broadcasters when reproductions of musical works are made and used for broadcasting purposes.”
Soon after the bill took effect, the Canadian Association of Broadcasters filed an application with the Board to rescind the commercial radio tariff. The Board dismissed the application, arguing that the committee comments did not constitute a basis for statutory interpretation. Instead, it called the CAB’s application “untenable” and engaged in its own statutory interpretation, suggesting that broadcasters might not be able to rely on the new exceptions.
The decision is par for the course for a board that has seemingly shifted from neutral arbiter to self-appointed copyright collective guardian with little regard for Parliament and the Supreme Court. If the government is looking for the next copyright issue to examine, it might well focus on a board that is largely inaccessible to the public and content to craft its own view of copyright regardless of what the government legislates or the Supreme Court says.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at firstname.lastname@example.org or online at www.michaelgeist.ca.