The Honourable William Vancise, the former Chair of the Copyright Board of Canada, recently delivered a combative (and entertaining) speech at an ALAI conference in which he took the critics of the board head on. Although the conference was focused on the future of the Copyright Board, many lawyers who regularly appear before the board seemed reluctant to air their concerns in public. Instead, it fell to Vancise to liven the proceedings. The board has posted the speech online and it is well worth a read. I was in the audience and came in for criticism for this 2013 article titled It’s Time to Admit the Copyright Board is Broken.
Vancise reserved his strongest criticism for Music Canada and its lobbying campaign against Tariff 8:
Let me say that I found it completely unacceptable and totally inappropriate for such an association to lobby the Chairman of the Board, an independent quasi-judicial tribunal- and I am certainly not alone in this view. It showed a lack of respect for the institution. The proper forum for dealing with a decision that Music Canada’s clients don’t like is to take it to judicial review. I can go on at great length on the lobbying efforts of Music Canada but I think you get the picture. The real reason for the outrage is not so much its concern for the purity of the process or consistency in decision-making but rather the fact that Music Canada doesn’t like the tariff. It’s a question of whose ox is being gored.
Vancise was similarly unimpressed with Access Copyright’s criticism of recent decisions:
This brings me to Access Copyright, another organisation that is unhappy about some of the recent decisions of the Board as mentioned previously. This led Access Copyright to state in its latest annual report that: ‘In the Provincial – Territorial tariff decision and recent K-12 decision, the Copyright Board’s troubling opaque assessments led to outcomes that are simultaneously unfair for rights holders and impractical for users,’ although I don’t think Access Copyright speaks for users. The annual report went on to say that these decisions highlight the systemic dysfunction in the Canadian copyright landscape and highlight the need for legislative reform. Once again what matters here is whose ox is being gored. This time it is the ox of Access.
Vancise noted that this time I was supportive of the Board’s decision, responding to Access Copyright that “the solution to its problems does not lie in further litigation nor in making claims based on what it would like the law to be. Rather, it comes from rapidly changing its business model to reflect what Parliament, the Supreme Court, and now the Copyright Board have ruled with respect to fair dealing.”