The Senate Standing Committee on Banking, Trade and Commerce conducted two days of hearings last week on the Copyright Board of Canada. The hearings featured members from the Board, leading copyright collectives and associations, and a panel of individuals that included law professors and practitioners. Ariel Katz and Howard Knopf have already posted their opening remarks. My comments, which focused on the importance of the public interest in Copyright Board decision making and the need for greater public participation, is posted below.
Appearance before the Senate Standing Committee on Banking, Trade and Commerce, November 3, 2016
Good morning. My name is Michael Geist. I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. My area of specialty is digital policy, with an emphasis on intellectual property. I have been very active on copyright issues for many years, editing three books on Canadian copyright reform and court jurisprudence and regularly appearing before committees on the issue.
I appear today in a personal capacity representing only my own views.
There is no shortage of criticism of the Copyright Board. Indeed, in an field that is often sharply divided, disenchantment with Board is sometimes the one thing people seem able to agree on.
It seems to me that the criticism typically comes down to two issues: the substance of decisions and the way those decisions are rendered. I think this committee should pay little attention to substantive criticism of Copyright Board decisions. As former Chair of the Board Vancise noted earlier this year, criticism of the substance of decisions usually comes down to “whose ox is being gored.” In other words, if you like decision, you’re ok with the Board. If not, you think the Board is dysfunctional and in need of an overhaul.
I have been both critical and supportive of past Board decisions. I think the Board was very slow in acknowledging and implementing the copyright decisions delivered by the Supreme Court of Canada, particularly around fair dealing. That has changed in recent months, however, and the decisions are now more reflective of the court’s jurisprudence. Decisions are and will continue to be challenged, yet we should recognize that there is an established system to address appeals. Reform isn’t needed on the substance of decisions.
Contrast the substantive concerns with the administrative ones. How the Board reaches decisions, the costs involved, the timeliness of those decisions, and the ease of participation is very much a matter for review.
We have thus far seen two different initiatives aimed at identifying potential reforms. The Board itself established a working group of lawyers and experts who regularly appear before it as part of a consultation process. The process did not go far with some seemingly reluctant to criticize the Board and its processes on the record.
More recently, as you know, there have been two important studies conducted by Professors de Beer and Daly with more extensive recommendations. I think those studies are enormously valuable contributions and provide insightful recommendations on potential reforms.
From my perspective, there is unquestionably a need to develop reasonable timelines for conducting hearings and issuing decisions. At times, there may be parties that are content to “rag the puck” without any urgency on Board processes. Given the importance of Copyright Board decisions beyond the immediate parties, timeliness is crucial. We see that in many others areas – CRTC decisions for example – which provides all parties with greater certainty about timelines and reduces costs that come from long delays and retroactive application of decisions.
Yet beyond timeliness, I would like to focus on the lack of public participation in board processes.
The exclusion of the public stands in sharp contrast to the other boards, tribunals, and agencies that address issues with individual parties but whose decisions have ramifications for a far broader group of stakeholders.
For example, the CRTC and Competition Bureau have both taken steps in recent years to involve the public more directly in policy making activities, hearings, and other issues. In the CRTC’s current differential pricing hearing, being conducted this week, it found a number of ways to engage the public, including discussions on the website Reddit. All of this participation, goes into the public record, allows for better informed decision makers, and leads to greater confidence in the decisions themselves. By contrast, the Copyright Board does little to encourage public participation, despite the fact that its decisions often have an impact that extends beyond the parties before it.
When asked about accessibility and participation concerns, the board pointed to the 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.”
With all respect, I think the Board is wrong. The impact of its decisions extend far beyond the limited number of parties that participate in the hearing, yet it thinks its stakeholders are limited to IP lawyers and copyright collectives. Decisions have a direct impact on commercial users, on the broader public, and on our understanding of copyright law. This in turns implicates consumer pricing as well as copyright practices on issues such as fair dealing and the public domain.
Many branches of government and administrative agencies have recognized the need to engage the public and to develop better decision making processes by maximizing public participation and engagement. To date, the Board has not done so. Its processes are costly, lengthy, and for all practical purposes inaccessible to the general public. That needs to change.
I look forward to your questions.