The Federal Court of Appeal last week issued a long-delayed decision in a judicial review of a Copyright Board decision involving Access Copyright and copying by employees of provincial governments. I covered the initial board decision in 2015, noting that it delivered a devastating defeat to the copyright collective. Access Copyright filed for judicial review of the decision. Last week the Federal Court of Appeal upheld the Board’s decision.
Post Tagged with: "Copyright Board"
The Canadian government’s consultation on reform to the Copyright Board recently closed and the 60 written responses were just posted online (my response – which focuses on the public interest role of the Board – can be found here). I will have a more fulsome review of the responses in the weeks ahead, but in the meantime one of the most radical recommendations, from Access Copyright, is worthy of comment. The copyright collective has called for a massive expansion of damage awards, seeking a new statutory damages provision that could result in damage awards ten times the size of actual applicable royalties.
The government’s consultation on reform to the Copyright Board of Canada recently closed with a plan for reform expected to be unveiled in the coming months. My submission to the consultation is posted below. It focuses on two areas. First, it emphasizes the overriding goal of any public institution or administrative tribunal: serving the public interest. In doing so, it points to three issues: public participation, the independence of members of the Copyright Board, and regulation and transparency of copyright collectives.
On this last issue, I note the close linkage between the parties that appear or are affected by board decisions and reform of the board itself. While the consultation document maintains that governance of collecting societies is beyond the scope of the consultation, I argue that solely addressing administrative powers wielded by the board without also assessing the rules pertaining to participation before the board will not adequately address concerns regarding the function of the board itself. In other words, the who and the how are inextricably linked and must be addressed concurrently.
Canadian Government Puts Copyright Board Overhaul on Fast Track With Consultation Launching Tomorrow
The Canadian government is planning the most significant changes to the Copyright Board of Canada in decades with a consultation set to officially launch tomorrow. Given the longstanding concerns with the Board from creators and users alike, the government has decided to place board reform on a fast track that is separate from the broader copyright review scheduled to commence later this year. The consultation, which will outline potential reforms to address delays and case backlogs, will run until late September. Navdeep Bains, the Minister of Innovation, Science and Economic Development, working with Canadian Heritage, hopes to introduce a Copyright Board reform legislative and regulatory package in early 2018.
I spoke earlier today to Bains, who explained that the government believes there needs to be quicker decisions, greater transparency, and an effort to address the current backlog given concerns about ensuring creators are paid and in bringing new innovative service to the Canadian market. The consultation, being held jointly by ISED, Canadian Heritage and the Board, will identify several potential measures to address the board delays including case management processes, establishing new case deadlines, streamlining cases before the board, as well as giving the board more power to advance proceedings, award costs, and limit the ability for parties to delay proceedings.
Federal Court of Appeal Deals Music Labels Major Defeat By Upholding Tariff 8 Internet Streaming Decision
Few Copyright Board of Canada decisions have elicited as much anger from the music industry as the 2014 Tariff 8 decision. The decision relied on commercial radio rates as the barometer, which seemed appropriate given the similarities between Internet streaming services that do not allow users to select specific songs and commercial radio stations that play a regular music rotation. Music Canada and its allies disagreed, launching a major campaign against the decision, which it said resulted in 10 percent of nothing. The industry was particularly upset that the rates were lower than the U.S. (due to international copyright obligations, the Canadian repertoire during the period of the tariff was about the half as large as the U.S. one). The industry appealed the decision with considerable fanfare, promoting the many groups that joined in the action.