Copyright Board of Canada chair William J. Vancise will see his term come to an end this month, opening the door for the government to start the process of reforming the much-criticized board. Vancise has served the maximum two terms as chair, with his time marked by the Supreme Court of Canada’s rejection of the board’s approach to fair dealing, ongoing frustration from stakeholders about board administrative processes, and the failure of the board to broaden its approach by becoming more inclusive of the public.
The exclusion of the public stands in sharp contrast to the CRTC and Competition Bureau, which have both taken steps in recent years to involve the public more directly in policy making activities, hearings, and other issues. By contrast, the Copyright Board does little to encourage public participation, despite the fact that its decision often have an impact that extends beyond the parties before it. When asked recently about the accessibility and participation concerns, the board pointed to an internal working group as evidence that it regularly reviews its practices and compared itself to the Federal Court of Appeal, noting that “of course they [the public] don’t participate, because they don’t really belong there, per se.”
The problems with the current Copyright Board run even deeper than having its core decisions overturned by the Supreme Court and the public finding itself largely excluded from the process. The business community – particularly those seeking to develop new, digital business models – point to the board as a major problem. For example, Songza recently told the Standing Committee on Canadian Heritage:
Why is Canada behind the U.S. and other countries in the development of music streaming services? One reason is that the regulatory framework in Canada doesn’t foster innovation. The rate-setting process – through the Copyright Board – takes far too long, up to four to five years for an industry where business models are changing rapidly.
It’s hard to build a business model without certainty as to how much you have to pay for the main inputs to your business. This certainly holds true for investors investing in these businesses. That’s why Songza came to an agreement with Re:Sound – the organization that represents recording musicians and record companies – that allowed Songza to launch in Canada with certainty on those rates, without having to wait years for a decision from the Copyright Board.
Similarly, Nettwerk Music Group, one of Canada’s most successful independent music labels, told the committee:
Many streaming service providers are choosing to stay out of Canada given the uncertainty created by the length of time it takes for tariff decisions. So to echo Victoria Shepherd of Connect Music Licensing, ‘The Copyright Board should not be seen as a barrier to business or as an impediment. Rather it should be considered a business development office. It needs the resources to ensure it can render decisions in lockstep with the pace of technology innovation.’ Without the improvements to the Copyright Board, we are simply not realizing the full potentials of the dollars we’re all investing.
As I noted over a year ago, many believe the Copyright Board of Canada is broken. The government hasn’t paid much attention, but a starting point for addressing the concerns may come with the appointment of a new chair and the potential it brings to establish new policy and governance priorities.