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.
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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:
In the aftermath of the Supreme Court of Canada’s 2012 copyright pentalogy that strongly affirmed the importance of user’s rights and the need for a broad, liberal interpretation for fair dealing, Access Copyright insisted that the decisions did not mean what they said. While educational groups developed reasonable fair dealing guidelines based on the decisions (along with earlier decisions such as the CCH case and the inclusion of education within the fair dealing purposes in 2012 reforms), Access Copyright argued that the copying required its licence and that fair dealing guidelines based on general percentages could not be used.
Last Friday, the Copyright Board of Canada issued its latest decision on the application of fair dealing to educational copying, providing yet another resounding blow to Access Copyright’s view of copyright. The Board created a tariff for copying in K-12 schools that was a fraction of what the copyright collective had wanted. It initially asked for $15 per full time student. By the time the issues had been fully assessed, the Board granted a tariff of $2.46 per student for 2010-2012 and $2.41 for 2013-2015. That rate is not only far lower than Access Copyright had demanded, but is nearly half of what was previously certified for the period from 2005-2009 (which was set at $4.81). The Board minced no words in explaining the reduction:
When the Supreme Court of Canada issued its SODRAC v. CBC decision last fall, critics warned that the decision may be anti-technology. The majority of the court ruling included a paragraph in which it suggested that users that invest in new technologies may be required to share some of the benefits with copyright holders:
Where the user of one technology derives greater value from the use of reproductions of copyright protected work than another user using reproductions of the copyright protected work in a different technology, technological neutrality will imply that the copyright holder should be entitled to a larger royalty from the user who obtains such greater value. Simply put, it would not be technologically neutral to treat these two technologies as if they were deriving the same value from the reproductions.
The danger with the decision should be immediately obvious as it creates disincentives to invest in new technologies. I argued in a post on the decision:
The Copyright Board of Canada delivered a devastating defeat to Access Copyright on Friday, releasing its decision on a tariff for copying by employees of provincial governments. Yesterday’s post provided a detailed review of the decision, including the Board’s findings on the limits of Access Copyright’s repertoire, the scope of insubstantial copying, and the proper interpretation of fair dealing.
The decision focused on copying within provincial and territorial governments, but much of the analysis can be easily applied within an education context. Indeed, since the Supreme Court of Canada 2012 copyright decisions, there has been a very public battle over the validity of fair dealing guidelines that have been widely adopted by the Canadian education community. I’ve written several posts on the education consensus (here and here) and there are no shortage of the fair dealing guidelines readily available online.